Myer Stores Ltd v Johnston

[1997] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S212 of 1996

B e t w e e n -

MYER STORES LIMITED trading as GRACE BROS

Applicant

and

SARAH LEE JOHNSTON

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 1997, AT 12.38 PM

Copyright in the High Court of Australia

MR C.R. HOEBEN, SC:   May it please the Court, I appear for the applicant with my learned friend, MR J.O. TANCRED.   (instructed by Hickson Lakeman & Holecombe)

MR M.F. ADAMS, QC:   If the Court pleases, I appear for the respondent with my learned friend, MS V.A. HARTSTEIN.   (instructed by Holman Webb)

DAWSON J:   Mr Hoeben.

MR HOEBEN:   May it please the Court.  The matter of general importance raised in this application is essentially a perennial problem which arises in appeals from compensation courts, and that is the issue of what is a question of fact and what is a question of law.  I am mindful of the fact that this Court has recently dealt with that question in the Agfa-Gevaert Case.  But the other matter of general importance is this, that it is our contention - or our submission - that there was no evidence to support the finding by the trial judge, nor the finding as to voluntariness by the Court of Appeal.  To overcome that difficulty, what the Court of Appeal did was to give to the word “voluntarily” a special meaning, rather than its ordinary meaning, as had been previously defined by this Court.  That, as well as leading to a wrong result in this particular case, also has implications nationally because a similar phrase is used in the Commonwealth statute, the Queensland statute and the Tasmanian statute.  In the bundle of legislation we have handed up we have highlighted in yellow where the word “voluntarily” is used in those statutes.  It also previously appeared in the Victorian and South Australian compensation statutes.  They have been repealed but, in the case of South Australia, it still applies to all accidents which occur before 1987, so there is a limited operation there.

KIRBY J:   It is quite a strong phrase, is it not, voluntarily subject yourself.

MR HOEBEN:   Indeed, and the voluntary colours the subject and subjection colours the voluntariness but it certainly ‑ ‑ ‑

KIRBY J:   And around that phrase, presumably in protection of unfairness, has developed a jurisprudence that it is not every momentary lapse that is a voluntary subjection.  You have to have more to deprive a person, and in this case a widow, of all benefits and compensation.

MR HOEBEN:   Quite, your Honour.  I think I know what your Honour is saying and I will get to that in a moment.

KIRBY J:   I do not want the merits too much to come into the matter, but ‑ ‑ ‑

MR HOEBEN:   Indeed.  We do say, though, that because the citizens rely so heavily upon the various compensation legislations in the States that this phrase as used in recess claims - and that is where it appears in all those jurisdictions - is a matter of some considerable importance.  Therefore the approach which was adopted here by the New South Wales Court of Appeal cannot be quarantined purely to New South Wales.  It is not a purely New South Wales problem.  It becomes, because of the fact the phrase is used in these other legislative compensation schemes, a matter of general importance.

TOOHEY J:   No one would question the fact that these provisions are to be found elsewhere, Mr Hoeben, but in the end the question really is whether it is an issue of fact and what this Court could usefully do by granting special leave to appeal in order to make clearer what this Court has already sought to make clear.  This is a particular situation.

MR HOEBEN:    It is, your Honour.  I am mindful of what your Honour says and, of course, that is a refrain that the majority in the Court of Appeal also repeated, that this is purely a question of fact and degree.  In our respectful submission, if ever there was a question of law raised, it was here because, in our respectful submission, there was just not a shred of evidence to indicate that during the particular absence the worker did not voluntarily subject himself to the normal risk of injury.  At the risk of going on too long, could I just simply take your Honours to these matters.  I assume your Honours are familiar with the relevant New South Wales section, section 11(b).  All of those other matters were established.  The only issue before the Court of Appeal was the question of:

does not during that absence voluntarily subject himself or herself to any abnormal risk of injury -

Might I just say there, your Honours, that the question of - there was a specific finding of fact, not challenged in the Court of Appeal, that there was in fact abnormal risk of injury.  That, of course, makes the case rather stronger from our point of view than there was in Taylor v Stapley, which is the leading High Court examination of this question because there the High Court looked at not only the question of voluntariness, but very much the abnormal risk of injury.  That of, abnormal risk of injury, is and must be a pure issue of fact.  That did not arise here.  The only issue before the Court of Appeal was whether the worker had voluntarily subjected himself to the risk.

The onus remains at all times, your Honours, on the person applying for compensation.  That is despite the fact that what has to be established in a negative.  So the onus on the person applying for compensation is to establish this negative proposition that “not during that absence voluntarily subject himself or herself to any abnormal risk”, and that was established in Taylor v Stapley, page 8.4 of that judgment.  That is the legislative background.

The facts are very very simple.  We have a person who walked across a busy city street, against the lights, without looking, 20 or 30 other people were waiting for the lights, and that person was struck by a car.  There was, as I say, no issue at all about exposure to abnormal risk.  The only issue was whether that particular action had been taken voluntarily or not.  There was no evidence at all, in our submission, before the primary judge, nor before the Court of Appeal, that that action was taken otherwise than voluntarily.

TOOHEY J:   What do you mean by that, Mr Hoeben, when you say there was no evidence that the action had been taken otherwise than voluntarily?

MR HOEBEN:   The only evidence identified by the trial judge, your Honour, that might have run contrary to that submission was this, that there was an eyewitness who said that the person was looking skywards.  The trial judge conjectured that the person must have been thinking about various domestic disputes and rearrangements of his domestic life which there was evidence about had occurred previously, earlier in the day or the previous evening, and the judge conjectured that he was therefore in some fashion distracted and therefore could not have performed his act voluntarily.  That was rejected by the Court of Appeal, in our respectful submission quite properly, as being absolute conjecture and not impacting on the question of what is or is not voluntarily done.

TOOHEY J:   That was the point of my question, to ask you what do you say is meant by “voluntarily”?

MR HOEBEN:   That is dealt with, your Honours, in Taylor v Stapley at about 9.2 in that judgment where the Court said:

The words “voluntarily subject himself” require that he shall have acted of his own free choice and intentionally done what involves the abnormal risk of injury.

A distinction is made thereafter, and I will deal with that now, your Honours, because no doubt my learned friend will raise it.  It is about three lines from the top.

The words “voluntarily subject himself” require that he shall have acted of his own free choice and intentionally done what involves the abnormal risk of injury.  It is an element that in this case has a peculiar importance in the distinction between on the one hand bathing in the river, which the deceased intentionally did, and on the other hand recrossing the river by a route which took him into proximity to deep flowing water, a thing that there is no reason to suppose was anything by an error of judgment.

In other words, the clear factual difference in that case was the young man who lost his life in Taylor v Stapley had no idea that he was going into deep water.  There was evidence clearly from that judgment that that was the state of affairs.  

In our respectful submission, that was not the situation here.  There was no evidence upon which one could find that the worker, when he left the median strip, was not doing so of his own free choice or was not intentionally intending to cross the road contrary to the lights.  We say that because there was no evidence on that issue, that the Court of Appeal sought to overcome that problem by giving to the term “voluntarily” not the meaning which this Court had given in Taylor v Stapley, which we say is absolutely correct, but giving to it a special meaning and that is referred to, your Honours, at - probably the best reference is at page 38 of the - I will take your Honours to page 12 of the application book because that is where the trial judge deals with it, and one needs to be conscious of that to appreciate how the Court of Appeal acted.  Halfway down the page the trial judge postulates, “Did he do so voluntarily?” and deals with the area of speculation to which I have already referred.  The trial judge then goes on to refer to a decision of Gallard v State Rail Authority of NSW, a decision of the Compensation Court of New South Wales, and to quote there a definition, if you like, or a test as to voluntariness given by Judge O’Meally in these terms:

“In order to remove himself from the application of the Section it is not sufficient that [the deceased] committed an error of judgment.  He must have had knowledge of the risk and a determination to proceed in disregard of its consequences.”

That, your Honours, if that be the test, of course, completely reverses the onus.  That is not the normal meaning of the word “voluntarily” and certainly not the meaning given to it by this Court.  To use that approach imposes an onus on the employer to establish those positive things and quite contrary to what this Court said in Taylor v Stapley.

What the Court of Appeal did, your Honours, is quite interesting.  At the very bottom of page 37 of the application book, and this is the majority judgment of Justice Abadee, rejected at about line 20 and following the area of speculation to which I have referred.  That is set out at the top of page 38:

I agree that such is no more than speculation or conjecture.  However his Honour did not stop there.  His Honour referred to the decision of O’Meally ACJ in Gallard v State Rail Authority of New South Wales (1992) 8 NSW CCR 280 upholding the claim for compensation -

Quotes the particular definition which I have already dealt with, your Honours, and this is the part that we have difficulty with:

In my view, the insertion by his Honour of the bracketed words “the deceased” would suggest that the trial judge considered the deceased worker had committed in this instant case was at most an error of judgment.

I assume here that Justice Abadee is referring now to the trial judge, Judge Curtis, rather than Judge O’Meally.

I do not see why when one is speaking of an error of judgment which may expose a person to a greater peril that it follows that there has been a voluntarily subjecting of himself or herself to an abnormal risk of injury.  Nor does Taylor support such view.

His Honour then goes on, at the next paragraph, he does not wish to be taken to be accepting the definition of Judge O’Meally and points out, quite correctly we say, that in fact the second sentence in that extract is quite contrary to what this Court has said.  But the effect of what he has done, in lines 15 to 23 in the middle of that page, is to in fact give to the word “voluntarily” precisely that definition.  And that is the error, in our respectful submission.  It is an error of law - the first error of law, we say, is a no evidence point, but that does not attract special leave.  To cure the no evidence point, this strange definition is given to what should be interpreted in the way in which the High Court has previously done so in Taylor v Stapley.  That is the second error in the Court of Appeal’s approach and that is the error, we say, which would attract the intervention of this Court.  It is not, with due respect, your Honours, an issue of fact; it is, we would say, quite a fundamental question of law because this issue of voluntarily subjecting yourself to an abnormal risk of injury is a phrase which pops up, as we have said, in these other compensation statutes.

KIRBY J:   It pops up, and it popped up in the old Act and it was considered in Taylor, and the Court of Appeal had regard to Taylor.  The principle was in their mind, they were applying the correct principle, you just say that on the facts they applied the wrong principle.  That is not a special leave matter.

MR HOEBEN:   With due respect, your Honour, they said they were applying the correct principle.  They were not.  Because if you look over at page 39 ‑ and this is just in conclusion - Justice Abadee says:

In this case where the worker is dead, intention can only be proved by inference. 

That goes without saying.

In such circumstances it is open to the tribunal of fact to draw the inference from the whole of the evidence.

At no point did the Court of Appeal, having rejected the speculative evidence, ever point to what other evidence would either justify this error of judgment or any other finding.  It is just stated but never identified.  The reason that occurs, your Honours, is because there was no evidence to that effect.  That then drives a person, using this case as authority ‑ and it is a decision of an appellate court which can be used in other States because of its status - it drives a person seeking to seek the basis of this decision to that, we would say, faulty and wrong definition.  That is the one I have referred your Honours to and that is quite contrary to Stapley. 

So, really, in our respectful submission, the Court of Appeal has not applied the correct principle.  The whole judgment is based upon a misunderstanding of what is an error of fact and an error of law, and I appreciate the Court has recently dealt with that, and to cure that problem is this faulty definition of what does or does not involve voluntarily subjecting oneself to risk.  That is the error.  It is not simply a question of fact, your Honours.

Perhaps in conclusion, your Honours, I could put it most succinctly in the way that Justice Cole did at page 30 in these terms, at about line 6:

There was no evidence that the act of crossing the street was other than voluntarily.  The presumption regarding crossing the street must be that it was voluntary.  To avoid that presumption or inference the trial judge assumed that because the deceased worker placed himself into a position of foolish gross danger, it must be assumed that he did so involuntarily.

Now, that is really the problem and ‑ ‑ ‑

TOOHEY J:   I do not follow that, as a matter of logic.  What is voluntary to be contrasted with, Mr Hoeben?  Presumably involuntary.

MR HOEBEN:   Indeed, your Honour.

TOOHEY J:   I mean, as what, as the will not going with the deed or ‑ ‑ ‑

MR HOEBEN:   One can imagine a particular number of illnesses where there could be quite a major argument mounted that what was done was not voluntary, so there is that group - so there could be medical involuntary conduct.  There could be the Taylor v Stapley situation, your Honour, where there has been a patent misunderstanding of the true factual situation, where the young man, having swum across the river or walked across a river up to waist height, found he could do that safely, tried to go back, the river had risen, it was deep, he was not to know and, therefore, an error of judgment, not necessarily the voluntariness as defined by the High Court, exercising free choice and intentionally doing what involves the abnormal risk.  They are the sort of situations which are outside the section.

But a situation where somebody steps off the median strip, against the lights, neither knowing or caring whether vehicles are travelling on the road, and he is struck by a vehicle clearly comes within the concept of voluntarily as defined by this Court.

TOOHEY J:   Does it come within the concept of voluntarily subjecting oneself to the injury?

MR HOEBEN:   We say yes, and we say it certainly would come within the approach followed by this Court in Taylor v Stapley.  The difficulty, of course, is the rather contorted way in which the Court of Appeal sought to avoid that factual gap in the case by its reliance on the special definition.  To overcome that factual problem in the case, that is the lack of evidence, the Court of Appeal was driven, although it kept on saying that it was not applying the Gallard definition, it in fact did and that is, we say, the fundamental error and that can be taken, if you like, because of the status of

the New South Wales Court of Appeal, where this particular section is invoked in other jurisdictions, as well as in New South Wales.  It is not a purely local problem.  They are our submissions.

DAWSON J:   Thank you, Mr Hoeben.  The Court need not trouble you, Mr Adams.

This case turns on its own facts and raises no point of principle which would warrant the grant of special leave to appeal.  Special leave is accordingly refused.

MR ADAMS:   I seek an order for costs.

DAWSON J:   Can you say anything about that, Mr Hoeben?  It is refused with costs.

AT 12.55 PM THE MATTER WAS CONCLUDED