Oswin v Commonwealth of Australia

[1993] HCATrans 12

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B44 of 1992

B e t w e e n -

TIMQTHY _HARREN OSWIN

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Application for special leave

to appeal

MASON CJ TOOHEY J GAUDRON J

Oswin 1 5/2/93

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA ON FRIDAY, 5 FEBRUARY 1993, AT 12.15 PM

Copyright in the High Court of Australia

MR R.R. DOUGLAS, QC: If the Court pleases, I appear with my

learned friend, MR E.J. READ, for the applicant.

(instructed by Nehmer Davenport Dean McKee)

MR V.K. COPLEY, QC:  If the Court pleases, I appear with my

learned friend, MR M.E. POPE, for the respondent.

(instructed by the Australian Government Solicitor)

MASON CJ: Yes.

MR DOUGLAS:  Your Honours would be familiar, I think, with

the facts of the case.

MASON CJ:	We are.
MR DOUGLAS:	The issue, we submit, which is raised in this

case is the extension, if you like, of what was not

decided in Groves v The Commonwealth. Groves

v Commonwealth decided that there was a duty of

care owed by the Commonwealth through its soldiers
or airmen to another soldier or airmen, but left

expressly alone the question of what standard of

care was to be applied in those circumstances.

The question, with respect, which was left

open by the High Court is, "What is a standard of

care which can reasonably be expected from an

organization such as the Army when training its

members in exercises which are required to be

carried out by them for the purposes of learning

and maintaining a satisfactory standard of

efficiency in the task which could reasonably be

expected to be performed by them in battle
conditions?". You will recall that the exercise

that this man was doing at the time was called a

"fireman's carry", which is designed to teach

soldiers how to carry wounded soldiers out of a

battle area, and the description of the carry is

given in the various judgments at trial and in the

Court of Appeal.

Groves case, Your Honours, was directed only

to the question of whether or not there was any

principle or reason of policy that would exclude

the operation or the ordinary rules of the common

law of negligence, simply because the plaintiff and

the defendant both happened to be members of the

armed forces.

GAUDRON J: But nothing about this case suggests that

anything turns on the fact that it was a member of

the armed forces, does it?

MR DOUGLAS: Well, yes, Your Honour. It is alluded to on a

number of occasions. I can deal with it quite

briefly, I think, if I take you first to the major

Oswin 2 5/2/93

findings of His Honour Mr Justice Kneipp in the
trial. There are two: the first at page 11 of the

record or the book, the second line, where he said:

Whatever was the weight of Captain Straughair,

I am satisfied, and I find, that the

plaintiff's accident was caused by his being

required to carry a weight which must be

regarded as being unacceptable, except in

special circumstances.

And secondly, at page 14, where he states he is

completely - - -

GAUDRON J: But that was not the case that you advanced at

first instance, in any event.

MR DOUGLAS: That is so.

GAUDRON J: And it was not the basis of His Honour's finding

at first instance.

MR DOUGLAS:  There was. one of the bases upon which the

Court of Appeal attacked His Honour's findings, if you recall: Their Honour seized upon the phrase

"except in special circumstances" but His Honour

was not there making findings which were germane to
his eventual finding of negligence. His eventual

finding relies upon facts which he finds at

page 14, which begin at line 32:

My conclusions are these. The extent of the

risks involved in carrying an unacceptable

load and the disastrous consequences which can

ensue if the risk eventuates are cogent

reasons for the proposition that the exercise

should either be avoided altogether or

conducted in circumstances which involve the

greatest possible minimisation of the risks

which is consistent with teaching and

maintaining efficiency in the exercise.	The
desirability of training a soldier in any

procedure which might enable him to carry a

comrade to safety is obvious and can be

accepted, but it ought not, I would suggest,

be allowed to elbow out concern for the health

of the trainee.

And, going over the page, His Honour then sets out

some additional findings of fact which appear to be

the main basis for the Court of Appeal intervening.
We say two things. First of all, the Court of

Appeal was not entitled to overturn the finding of

fact which was made on page 14 - I have just read

out - where His Honour found that the load itself

was such that he should not have been asked to

carry it in those circumstances. Then he goes on

Oswin 5/2/93

to make further findings which, we submit, were

only made to support the original finding, and they are the findings as to uneven ground and the run of

20 kilometers before the actual injury.

GAUDRON J:  Now, what do you say was the standard of care

that should have been observed?

MR DOUGLAS:  Your Honour, a standard of care higher than

that which is normal, because what he is being

asked to do is not the sort of thing that people

are asked to do in everyday life or work.

GAUDRON J: And what do you say its content was?

MR DOUGLAS: In what respect, Your Honour?

GAUDRON J:	In what respect was it breached in this case?
MR DOUGLAS:	It was breached by requiring him to carry an

excessive load, as His Honour found, of

Captain Straughair who weighed, on the evidence,

some seven to 15 kilograms more than he did.

TOOHEY J: When you say, a higher standard o.f care, what do

you mean, Mr Douglas?

MR DOUGLAS:  Your Honour, I mean, the army, when asking

persons to carry out dangerous tasks, should adopt

a higher standard, in the sense of supervising, for

ensuring it is carried out as safely as possible.

GAUDRON J: But you must say, must you not, that they must

not be asked to conduct a fireman's lift of

somebody of comparable weight, even; that it must

only be of somebody of significantly less weight,

if you want to - - -

MR DOUGLAS:  No, Your Honour. I say that he should not be

asked to carry someone of excessive weight, as

His Honour found.

GAUDRON J: Yes, but he did not.

MR DOUGLAS:  With respect, he did, Your Honour - - -

GAUDRON J:  He said any weight is excessive weight. Because

he found that the weights were not excessive in the

way particularized.

MR DOUGLAS:  That was on the case as originally pleaded,

Your Honour.

GAUDRON J: Yes.

MR DOUGLAS:  That is so, but on the case as eventually

pleaded, he found that the weight was excessive.

Oswin 4 5/2/93

GAUDRON J: That any comparable weight is an excessive

weight.

MR DOUGLAS:  That is not the phrase he used, with respect,

Your Honour. He found particularly, that

Mr Straughair was 7 to 15 kilograms heavier than

the plaintiff. He finds that, Your Honour, at the

bottom of page 10, top of page 11 of the

application book, immediately before the passage I

read out first.

Your Honours, the way the Court of Appeal

deals with those findings of fact again could be

referred to briefly, the main judgment of

Mr Justice Moynihan at page 44 of the record.	He
begins at the bottom of that page and says:

It was necessary for the Respondent to

establish a breach of duty by the Appellant

contributing (in a causative sense) to the

injury of which he complained.

And then he refers to Quinn v Cameron and Robertson

Ltd, and says:

In reaching the conclusions set out

above, the trial judge had, as has been said,

already rejected the Respondent's version of events and that his injury was caused by his being required to carry an "additional load".

That appears to be wrong, with respect,

Your Honours. The actual finding as to the

respondent's evidence was that the trial judge
rejected the plaintiff's version of the sequence of
events, as to in what time frame they occurred. He

did not reject the version that his injury occurred

when he was carrying Captain Straughair, and indeed

the evidence is set out by His Honour in his

judgment at pages 4 and 5 of the record.	So to
say, as Mr Justice Moynihan said, that the
plaintiff's evidence was rejected, in my word,

entirely, is incorrect. It was only the sequence

of events which was rejected, and it is from that

that His Honour Mr Justice Moynihan develops his

statements which I will not read out, where he says

that the trial judge was not entitled to come to

the conclusions in support of the primary finding

that he was carrying an excessive weight.

Mr Justice Pincus deals with them, but in a

different way, at pages 34 and 35 of the record.

Your Honours, we say two things. There was

evidence upon which the trial judge was entitled to

come to the conclusion to which he came; that is,

there was a breach of duty, that there was

Oswin 5/2/93

negligence.	The Court of Appeal was not entitled
to come to a conclusion contrary to that.	The

evidence was there to support it. They may have

been entitled to come to a conclusion that some of

the other findings of fact may not have been

supported entirely by the evidence.

GAUDRON J: But His Honour the trial judge did not really

assert what precisely the duty of care was, did he?

MR DOUGLAS:  No, he did not, Your Honour.

GAUDRON J: What he identified as matters constituting

negligence were a little dubious in some respects,

were they not?

MR DOUGLAS:  I think he was aware of that himself,

Your Honour, if you look at his judgment.

GAUDRON J: That having been so and His Honour being aware

of it, as you rightly acknowledge, there is scope,

is there not, for the Court of Appeal to consider

what might be said to be the duty of care in the

circumstances and to determine whether or not it

was breached?

MR DOUGLAS:  Your Honour, there may have been, as I said,

with respect to the matters contained on page 15 of

the record. They are the, if you like,

supplementary findings of fact by His Honour the
trial judge, but there was not with respect to the
primary conclusion he made at page 14 of the

record.

GAUDRON J: That there was a breach of a duty?

MR DOUGLAS:  Yes, Your Honour.

GAUDRON J: But the trial judge did not identify the content

of any duty.

MR DOUGLAS:  Your Honour, he said in effect that the

Commonwealth was negligent in permitting him to

carry a person whose weight was excessive in the

circumstances.

GAUDRON J: That is quite different, because when you look

to the circumstances you find that some aspects of

them are dubious.

MR DOUGLAS:  Your Honour, I am sorry; I am submitting that

the finding that he made in the first place, the

primary finding, His Honour is saying that the very

circumstance of excessive weight is sufficient for

a breach of duty.	The others are only
supplementary to that, Your Honour.	The Court of

Appeal may have had some ground for interfering

Oswin 6 5/2/93

with those which are set out on page 15 of the

record but not that which is the primary finding on

page 14.

GAUDRON J:  The duty of care in this case was not to allow

anybody to carry anybody whose weight was 10 to

15 kilograms in excess of their own, is that right?

MR DOUGLAS: That might be this particular case,

Your Honour, but expressed another way: not to

carry a weight which is excessive in the

circumstances, bearing in mind the fact this is not

a thing you do every day; it is a dangerous

exercise.

GAUDRON J: What are the circumstances?

MR DOUGLAS:  Your Honour, the circumstance is to do it - and

I perhaps have to rely upon one of these findings -

after a 20 kilometre run.

GAUDRON J:  And there is no evidence that that had any

ca~sal connection with the accident?

MR DOUGLAS:  No one says, Your Honour, that these men may

have been exhausted. That is one thing you can

take into account; you could perhaps infer the

fact that they were less fit than they were 20

kilometres earlier. His Honour does not say that

in terms, of course not; I appreciate that

difficulty. But His Honour is saying that to

require a person, be a soldier or not, to carry out

this dangerous exercise with a weight which is

excessive is in itself a breach of the duty of

care. That primary finding of fact should not have

been upset, with respect. Your Honour, we cannot

take the matter any further than that, with

respect.

MASON CJ: Thank you, Mr Douglas. The Court need not

trouble you, Mr Copley.	We are not persuaded that
this case, which depends very much on its own

facts, gives rise to a question of general

principle. Even if it did, we do not consider that

it is a suitable vehicle for the determination of

such a question. The application for special leave

to appeal is therefore refused.

MR COPLEY:	We would ask for costs, if the Court pleases.
MASON CJ:	You do not oppose that, Mr Douglas?
MR DOUGLAS:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 12.29 PM THE MATTER WAS ADJOURNED SINE DIE

Oswin 5/2/93