Nichols v J. Blackwood & Son Steel & Metals P-L Trading as Horan Steel

[2007] HCATrans 804

[2007] HCATrans 804

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S370 of 2007

B e t w e e n -

JON LESLIE NICHOLS

Applicant

and

J. BLACKWOOD & SON STEEL & METALS P/L TRADING AS HORAN STEEL

First Respondent

D & R BOYLE ENTERPRISE PTY LIMITED

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2007, AT 2.43 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   If it please the Court, I appear with my learned friends, MR H.N. KELLY, SC and MR T.F. McKENZIE, for the applicant.  (instructed by O’Brien)

MR S.G. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR D.A. PRIESTLEY for the first respondent, your Honour.  (instructed by Wotton & Kearney)

MR J.E. SEXTON, SC:   May it please the Court, I appear for the second respondent.  (instructed by Goldbergs Lawyers)

GUMMOW J:   Yes, Mr Walker.

MR WALKER:   Your Honours, my client was injured performing a task which was identical in every respect with the task performed by other drivers who happened to be employees of the first respondent.  When I say “identical”, I mean like all truck drivers queuing up to load the respondent’s goods for their commercial distribution for the benefit of the respondent from its own premises, my client had to ensure that the load about to be transported on public roads on the truck he was driving was sufficiently secure and balanced so as to permit the trips to the customers to be carried out properly.

I say it is identical also because, but for the invisible badge that this case attached whereas my client was not an employee and the others, most of them, were employees, but for that it would appear that the respondent had appreciated the obvious risks of what is called with admirable plainness in the precautionary brochure “falling off trucks” ‑ ‑ ‑

HEYDON J:   First respondent.

MR WALKER:   First respondent.  I am so sorry, your Honour, all those references have been to the first respondent, I stress.  It had already appreciated the risk and properly responded to it as the law of negligence applying to the relationship in question would require.  To put it another way, it would be surprising, indeed startling, to hear it said on behalf of the first respondent as an employer that it was acting somehow gratuitously significantly in excess of what a reasonable response called for to the appreciated risk run by its own employees when fastening and using these restraints called “dogs” on the back of the trucks for the goods being loaded.

If we are right in that part of our description of the work scene, as it were, then we are left simply with the fact that my client not being a servant of the first respondent fell outside that which we say should have flowed from an exactly similar appreciation of risk, an exactly similar vulnerability, and in a way adapted to the notion of giving advice to people about what they should and should not do on premises, the same degree of what might be called control.

Now, I stress this is not control in the sense that one might find it in other areas of the law, this is the capacity without any unreasonable effort or without any fear of futility, the capacity for the first respondent to have made exactly the same suggestions and counselling as to safety to my client as it did make to its own employees carrying out in exactly the same way exactly the same task with exactly the same physical risks.

Now, in our submission, the case presents therefore a piquant vehicle for the following reasons.  First, it is likely to spread rather than diminish the practice of people behaving as if they were employees in relation to the actual job they are doing on a site without actually being employees, whether by body hire, labour hire or contracting out.  It is more and more likely rather than less and less likely, we would submit, that positions like this will obtain where on the same site for the same overall commercial enterprise the same job is being done with the same risks being created by people who radically differ as to their contractual status vis-à-vis the putative defendant, so it is a matter which is likely to be raised in the future.  In a way the decision, early decision, by this Court would assist.

The second reason is that the considerations by this Court in Stevens v Brodribb, of course, come from an earlier time in relation to the test for imposing a duty of care, or to a degree, seeing the scope of the duty of care in the case of employers compared to other relationships.  In our submission, this case would provide an opportunity for the Court to consider whether or not there is something special in the sense of superadded in either the imposition readiness to impose a duty of care or to see a particular content or scope of a duty of care when somebody is an employer as opposed to a commercial operator, as the first respondent was, with premises, as the first respondent had, where work was being done to its order, as was being done in this case, carrying risks which could be readily appreciated, as was done in this case.

In our submission, the case thus provides an opportunity to see whether in Stevens v Brodribb there is the germ of a principle which can be generalised outside the particular facts which dominated Stevens v Brodribb, namely, a set of contracts by independent contractors in the bush with inherently dangerous tasks being performed in various different ways.

GUMMOW J:   What do you say about paragraph 85 in the Court of Appeal?

MR WALKER:   Court of Appeal?

GUMMOW J:   Yes.  It is on page 68.

HEYDON J:   You might say something along the lines that they were dealing with breach of statutory duty there rather than tort, but even so it is a proposition that seems to have some relevance to tortious liability.

GUMMOW J:   But it relates back to paragraph 79 as well.

MR WALKER:   Yes, it does.  I should make it clear, the so‑called ‑ ‑ ‑

GUMMOW J:   That is a causation issue.

MR WALKER:   Yes, it is a causation issue special to this case, which needs to be confronted as to whether this is a suitable vehicle.  In our submission, the risk in question was one which was appreciated by those who prepared the advice given to employees and was the subject of advice.  The advice in question given to employees did not prohibit, purport to prohibit as it were, climbing onto the load and standing in the middle, but in our submission it contained admonitions which my client did not get, and it is for those reasons that the causation argument is one which is not obviously fatal in any logical way in the sense that even if there was a breach of duty by failing to give the advice in question ‑ ‑ ‑

GUMMOW J:   But a notice of contention would go on it, would it not, if it got here?

MR WALKER:   Your Honour, we can do nothing to anticipate or prevent that, and if that had not been in prospect it is now.  I am bound to point out that the BHP document in question, not just the statutory - the regulation, itself contemplated the possibility of getting onto the middle of a load.  So our point is that that would be a factual contention which would not at all complicate the record, that is, this is not a large record, it is not complex of its facts.  The prospects of us succeeding on causation must be considerable, bearing in mind the absence from the dealing with my client of the same advice and counselling that the employees themselves obtained in relation to the very matter at hand.

In our submission, that is not enough to deprive this case of the quality of an appropriate vehicle to test the rather important question of what the common law says by way of response to cases where, as I stress, people are performing work for the benefit of someone in equal position of vulnerability with an equal opportunity for advice to be given but happen simply not to be engaged in an old‑fashioned master/servant relationship.

GUMMOW J:   Where do you quarrel particularly with the Court of Appeal judgment on this question?

MR WALKER:   Your Honour, in particular, at paragraphs 66 and 67, Justice Tobias is referring to matters which are indifferently true of this man and all the employees doing exactly the same job.

HEYDON J:   A right of control over its own employees.

MR WALKER:   That is why when I used the word “control” earlier, your Honour, I said that in the sense that there was no difficulty in forcing the advice upon my client; their premises, their plant on premises, the hoists, et cetera.  Just as one has control over people with whom you have no contractual nexus, when they come onto your premises you have control in the sense that you say “Go no further without a hard hat”.  That is control, not in an employment master/servant sense, but in a relevant sense.

HEYDON J:   This is a factual challenge.  You are challenging the first sentence of paragraph 63:

the appellant neither exercised nor purported to exercise any degree of control ‑ ‑ ‑

MR WALKER:   No, I am really focusing on the way in which his Honour returns to that at the beginning of 66:

did not relevantly have control –

and we are saying, well, no, the relevant control is the capacity you had to make it clear that no one was to unload or load or tighten in a particular way and that they were to follow different procedures.

GUMMOW J:   Then there were the so‑called three factual aspects on pages 66 and 67, the third one of which was causation, which we have looked at, and then there are the first two on page 66.  What do you say about those?

MR WALKER:   Well, the first is the one I have already referred to.

GUMMOW J:   Yes.

MR WALKER:   The second, in our submission, goes no further than his Honour’s expression of what is called “significant doubt”.  It is not clear that his Honour made any finding in relation to 76.

GUMMOW J:   Yes.

MR WALKER:   If it please your Honour.

GUMMOW J:   We do not need to call on the respondents.

Given the particular factual circumstances in the case we are not satisfied that there are sufficient prospects of success to warrant a grant of special leave.  Special leave is refused with costs.

AT 2.56 PM THE MATTER WAS CONCLUDED