Nominal Defendant v GLG Australia Pty Ltd & Ors

[2005] HCATrans 420

[2005] HCATrans 420

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S334 of 2004

B e t w e e n -

NOMINAL DEFENDANT

Applicant

and

GLG AUSTRALIA PTY LTD

First Respondent

SALIM FAHD TLEYJI

Second Respondent

READY WORKFORCE PTY LIMITED

Third Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 JUNE 2005, AT 10.50 AM

Copyright in the High Court of Australia

__________________

MR P.J. DEAKIN, QC:   If the Court pleases, I appear for the applicant in that matter with MR P.J. NOLAN.  (instructed by Sparke Helmore)

MR J.E. MACONACHIE, QC:   I appear with MR N.J. POLIN for the first respondent, if your Honours please.  (instructed by Henry Davis York)

GLEESON CJ:   We thought we might be assisted to hear from Mr Maconachie, Mr Deakin.

MR DEAKIN:   If your Honour pleases.

GLEESON CJ:   For this reason, Mr Maconachie, the question is whether the decision of the Court of Appeal might reflect an approach that would now be regarded as inconsistent with Allianz.  I am not suggesting it is inevitable but ‑ ‑ ‑

MR MACONACHIE:   We would submit not, your Honours.  The decision of the majority in Allianz, of which Justice Heydon was a member, differs not in substance, we submit, from the approach taken by Justice Hodgson in the Court of Appeal, and the point that we make can be made no more clearly than paragraph 5 of the written submissions that we put in yesterday – the supplementary written submissions.  At paragraph 55 of the judgment of the Court of Appeal, which your Honours will find at 233, I think, of the appeal book, Justice Hodgson says, starting at the first line on that page:

Leave has not been sought to reargue these cases, and in my opinion they should be followed.  Since it was the vibration of the container that caused the box to fall on the plaintiff, and since the vibration of the container was caused by the driving of the motor vehicle and occurred during the driving of the motor vehicle, there is no doubt that the requirements of sub‑paragraph (i) –

of the definition of injury –

are satisfied, unless it can be said that the causal relationship is not close enough, for some reason.

The causal concept accepted in Allianz was that of approximate or immediate relationship.  That becomes a question of fact at the end of the day, and the Court of Appeal found that the driving of the forklift motor vehicle – and it is the forklift motor vehicle with respect to which one needs to focus, not the vehicle from which the material was sought to be removed - the driving of that vehicle caused a vibration in the ramp which led proximately and immediately to the event which caused the injury, that is, the dislodgment of materials within the trailer.  So that there was that degree of, as a matter of fact, found in this case.  There was that degree of approximation and immediacy which was found in Allianz to be the necessary causal connection.

So we say, simply as a matter of fact, whatever else one might say about the case, whether it is a loading case or an unloading case, which is a taxonomy which is to be avoided, the question is whether or not the requirements of the definition of “injury” are satisfied.  This Court said, in the majority judgment, proximate and immediate cause, find that.  If so, you are within the definition of injury.  It is no more and no less than that, we say.

We say that in substance what Justice Hodgson decided satisfies the test that was articulated by the majority in the Allianz Case, that it must have been the intention of the Parliament, we would submit, that there be an overlay, an overlap of the kinds of events that will respond to, say, a workers compensation policy or a public risk policy and a motor accident policy, because if you do not have that kind of overlay or overlap, there is a real risk that people who have all of the relevant kinds of insurances will fall between the cracks.

This case might be said to fall close to the line – we would say not – squarely within the definition of “injury”, for the reasons that I have just articulated, but if one characterises the causal connection required as being too narrow, you run the risk, the very real risk, that the insurance coverage of the various kinds that people acquire for not inconsiderable sums of money will not protect them.

All that the decision of the Court of Appeal in this case did was to define, as a matter of fact, that there was a close and immediate connection between the driving of the motor vehicle.  The driving of the motor vehicle by the driver was not negligent, but the use of the motor vehicle when driven was negligent.  That it can be otherwise characterised as an unsafe system of work is neither here nor there.  There is a close, proximate and immediate relationship between the vehicle driving on the ramp causing vibrations.  That happens during the driving of the motor vehicle, and that leads to ‑ ‑ ‑

HEYDON J:   But the driver was not negligent?

MR MACONACHIE:   No, he was not.

HEYDON J:   Why was the owner negligent?

MR MACONACHIE:   The owner was negligent in permitting that system, that use of the motor vehicle to occur.

HEYDON J:   Who ruled as between the employer and the owner?

MR MACONACHIE:   I am sorry?

HEYDON J:   The employer’s system of work was unsafe.

MR MACONACHIE:   That is one way of characterising it.  The use of the motor vehicle by the owner was unsafe.  That is the way we would say it is also capable of being characterised.

HEYDON J:   Was it not for the employer to devise the system of work whether it was to be safe or unsafe?

MR MACONACHIE:   There is no doubt about that, your Honour, but the mere fact that it can be characterised as an unsafe system of work does not deny the application of the definition of injury.  It can satisfy both negligent use, fault in the use of the motor vehicle by the owner by allowing it to be used, albeit driven properly by the worker, allowing it to be used in a way that can cause injury during the driving of the motor vehicle and that is what happened here, and it was the driving of the motor vehicle which gave rise to the vibration which caused the article to fall.  To use an expression that fell from the Chief Justice’s lips to Mr Richter, it is not rocket science.  That is the point.

The mere fact that it can be characterised as an unsafe system of work does not mean that it cannot and should not be characterised as fault in the use of the motor vehicle by the owner during the driving.  The findings of fact at paragraph 55 cause it to respond unless, as Justice Hodgson said:

it can be said that the causal relationship is not close enough –

He, plainly, was paying attention to the very concepts articulated in different words by the majority in Allianz to the very concept of close, proximate and immediate cause and found as a fact that it was.  That is our response to the application for special leave.  On the facts of this case, even if some different approach might be taken in another case, this is not the right case to determine whether there is a difference between the defect provisions in (iv) and the other three provisions in (i) to (iii), because the majority characterisation of the causal relationship as proximate and immediate is the very concept, in slightly different language, that the Court of Appeal applied, and that is our response to the substantial question that is raised by the special leave application.

GLEESON CJ:   Thank you, Mr Maconachie.  I should have mentioned that there is a certificate from the Deputy Registrar that she has been informed by the solicitors for the second and third respondents in these matters that they will submit.  We do not need to hear you, Mr Deakin.

In this matter there will be a grant of special leave to appeal.

AT 11.01 AM THE MATTER WAS CONCLUDED