Paua Nominees Pty Ltd v Miller

[2005] HCATrans 232

[2005] HCATrans 232

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P74 of 2004

B e t w e e n -

PAUA NOMINEES PTY LTD

Applicant

and

RAYMOND FREDERICK MILLER

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 22 APRIL 2005, AT 12.32 PM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC:   If the Court pleases, I appear for the applicant with MR H.M. O’SULLIVAN.  (instructed by Srdarov Richards Burton)

MR W.S. MARTIN, QC:   If the Court pleases, I appear with MR K.J. BRADFORD for the respondent.  (instructed by Bradford & Co)

CALLINAN J:   We think we would be assisted by hearing from the respondent first.

MR MACONACHIE:   May it please the Court.

MR MARTIN:   If it please your Honours, our central proposition is that this is nothing more than a fact case.  The only relevant principle of law is the principle establishing the relevance of the terms of the contract to the ascertainment of the extent of the duty of care owed by a contractor.  That principle, in our submission, is not in doubt and has not been in doubt at least since the decision of this Court in Voli v Inglewood Shire Council and it has been reasonably considered in a number of instances, most recently, perhaps, in the Woolcock decision of this Court.

HEYDON J:   The applicant wants to challenge the correctness of the Wagon Mound (No 2).  That is a question of law.

MR MARTIN:   It is, your Honour, but, in our respectful submission, this case is not an appropriate vehicle for that challenge.  Perhaps I ‑ ‑ ‑

CALLINAN J:   Mr Martin, the appeal provisions in use in Western Australia, are they very different from the appeal provisions in New South Wales?  The reason why I ask you that is that this Court has taken a somewhat different view, in, for example, Fox v Percy, as to what appellate courts should do in fact cases.

MR MARTIN:   Your Honour, the ‑ ‑ ‑

CALLINAN J:   In other words, apply the clear words of the Act instead of mounting judge‑made propositions that appellate courts do not get into facts.

MR MARTIN:   Your Honour, the appellate provisions in this State are, to the best of my knowledge, in very similar terms to the provisions pertaining in New South Wales.  In our respectful ‑ ‑ ‑

CALLINAN J:   Which make no distinction between facts and law.

MR MARTIN:   Indeed.

CALLINAN J:   It is entirely judge‑made law, that proposition. 

MR MARTIN:   Indeed, your Honour, but the proposition that we would put is that given that the central issue was the ascertainment of the extent of the duty, the Court of Appeal were in as good a position as the trial judge to determine that question, and they did so on the basis of facts that were relatively non‑controversial, although issue was taken with them in the course of the appeal.  Your Honours, can I try and demonstrate the proposition that this is just a fact case and nothing more by taking your Honours to some of the findings ‑ ‑ ‑

CALLINAN J:   Leaving aside the question of the Wagon Mound (No 2), let us assume for present purposes that it is a fact case, but say the facts found or the factual conclusions reached are egregiously wrong.  Why should we not take the case on ‑ ‑ ‑

MR MARTIN:   Your Honour, if your Honours were persuaded ‑ ‑ ‑

CALLINAN J:    ‑ ‑ ‑ if there is an injustice?  In the interests of justice and justice to the defendant?

MR MARTIN:   If your Honours were persuaded that the facts were egregiously wrong, then that provision would, of course, come into play.

CALLINAN J:   Well, arguably wrong.  Why should it not come into play then?

MR MARTIN:   Yes, it would, your Honour, but can I now endeavour to persuade your Honours as to why this case does not fall within that category.  Your Honours, can I start with the findings of the trial judge at the bottom of page 15 of the application book.  I am sorry, perhaps the bottom of page 14.  The terms of the contract were not in doubt and, relevantly, in paragraph (c), provide that:

Instant Scaffolds WA will endeavour to get workers as close as possible to the workface utilising cantilevers etc. But because of the curvature of the mock-up and the fact that we will be utilising standard equipment only some areas may require a little extra reach, but at all times, safety will be paramount in the type of system we supply.

So there is an assumption of two obligations.  The first is: 

to get workers as close as possible to the workface –

and, secondly, that safety would be paramount. 

If I could take your Honours then to the top of page 16 where her Honour is dealing with the evidence, the principal witness called on behalf of the respondent, Mr McLean, and she acknowledges his admission at the top of page 16 that he assumed the workers would get to the top of the aircraft from the outside of the aircraft.  And then, very significantly, her Honour records Mr McLean’s statements in cross‑examination and she found him to be a witness of truth.  It says:

he had designed the scaffolding . . . and admitted that CIS –

who was the employer –

had no input into the design.  He admitted the scaffolders were the specialists concerning scaffolding and that CIS had no expertise in that field.  Mr McLean also admitted that as per the contract he attempted to get workers as close as possible to the surface of the fuselage by using cantilevers.  He admitted that the workers needed to get to the whole of the surface of the aircraft including the top but he considered the scaffolding would serve as the platform workers would use . . . He conceded that when standing on the cantilevered platform there was no way of getting to the top of the aircraft in section B. 

Relevant also, although not noted by her Honour, is the evidence recorded by the Full Court at page 56, and I will not take your Honours to it now, to the effect that only a licensed scaffolder could interfere with the scaffolding. 

So the point, your Honours, that emerges from all of that is that the task of erecting the scaffolding was given to a specialist and was given entirely to the specialist, who had complete control of that task.  It was not within the scope of the employer to do anything in relation to the format of the scaffolding that was erected and if it did so, it did so in breach of statutory provision.

Now, where that leads, in our respectful submission, is entirely contrary to the proposition put by the applicant as to the coherence principle, and the reason we put that is that where the employer, in this case, has relied upon a specialist subcontractor, and the task is entirely given over to that specialist subcontractor and put beyond the control of the employer, then the function of the law of tort in providing and imposing appropriate standards for safety would be seriously undermined if the law were to say that in that circumstance the contractor owed no duty of care to persons who would use the scaffolding for undertaking the very task that the scaffolder knows they are to undertake.

And so that is why we say there is absolutely no incoherence or inconsistency between the proposition that the employer owes a non‑delegable duty to impose a safe system of work, but, at the same time, the specialist contractor, who is given the complete control of the task of putting in the scaffolding, owes a not dissimilar duty to the worker who is to use the scaffolding.

If I continue on, your Honours, to page 17 where, in paragraph 3 and towards the bottom of that page under “Findings of fact”, it is said:

The only way the plaintiff could reach the top –

and this is the last half of that paragraph –

The only way the plaintiff could reach the top –

this is the top of the aircraft –

was to remove the handrail from the cantilevered platform and launch himself across grabbing the ladder beam as he went and scrambling up to the top. 

Then on the next page, at paragraph 6, her Honour finds: 

Mr McLean designed the scaffolding and knew there would be problems with workers reaching all parts of the fuselage because of its shape.  Mr McLean knew there was no way of getting to the top of the aircraft from the cantilevered platform.  He knew that workers had to get to the top to re-clad the aircraft but he did not know whether they would access the top from inside or outside the aircraft.

Although I remind your Honours of his evidence at the top of page 16, where he said he assumed that they would do it on the outside of the aircraft.

Now, the Full Court relevantly applied those facts and the key paragraph of its decision is at page 63 of the application book.  Paragraph 54 of the Full Court’s reasons states that:

What seems to us to be critical is that the respondent assumed the responsibility, under its contract with CIS, of endeavouring “to get workers as close as possible to the work face” . . . and of ensuring that safety would be “paramount” in the type of system supplied.

So that the assumption of those two obligations by a specialist contractor is obviously, the Full Court says, and we would respectfully submit correctly so, very pertinent to the identification of the ambit of the duty of care.  It is then said:

Moreover, it did so in circumstances in which, as we have said, it envisaged that workers had to reach the top of the aircraft and knew that this could not safely be done from the scaffolding. 

now, again, that relies upon her Honour’s finding of fact –

No other means of safe access to the top of the aircraft had been mentioned or offered to be provided by CIS.

and that is not in controversy –

The respondent did not make relevant inquiries.  Having regard to the responsibility it had assumed, it should have.  In our view, the respondent ought to have known that there was no safe access to the top of the aircraft.  In those circumstances, there was, in our opinion, a real risk, which was reasonably foreseeable by the respondent, that CIS’ employees would injury themselves in attempting to access the top of the aircraft –

and that, with respect ‑ ‑ ‑

CALLINAN J:   Mr Martin, what do you say about the response that in effect is made to that at pages 76 and 77 in paragraphs 20 and 21?

MR MARTIN:   Your Honour, in this particular case, because of the facts which were found by the trial judge and applied by the Full Court consistently, we would say, with the principles in Fox v Percy, the scaffolder knew the task to be undertaken and had assumed, by contract, the burden of getting that scaffolding as close as possible to the aircraft and of producing scaffolding for which safety was the paramount concern.

CALLINAN J:   But not of being an insurer of the employer’s failure to adopt a safe system of work.

MR MARTIN:   No, and we do not put the duty as high as that, but what we do say is that in circumstances which her Honour has found, the scaffolder knew the work to be undertaken, the contract records the scaffolder’s knowledge of the need to get the scaffolding as close as possible to the fuselage of the aircraft, then it is not, with respect, the equivalent of insuring the employer to say that the scaffolder should do what it has undertaken to do, discharge the area of its responsibility, having regard to the safety of the workers who will be called upon to use the scaffolding.

CALLINAN J:   Having regard to, also, the employer’s primary duty and greater duty to provide a safe system of work, and on the assumption, one might argue, that the employer would do that.

MR MARTIN:   Well, your Honour, the fact that the employer owes a not dissimilar duty to impose a safe system of work does not ‑ ‑ ‑

CALLINAN J:   A higher duty, Mr Martin.

MR MARTIN:   A higher duty and a non‑delegable duty.

CALLINAN J:   And your client is not party to the contract, anyway.

MR MARTIN:   No, your Honour, but he was using scaffolding which it was the entire province of the scaffolder to erect, and in respect of which the employer had no right to control or direct the scaffolder as to the manner and form of its construction.  So, in that circumstance, we say there is no ‑ ‑ ‑

CALLINAN J:   But it could, could it not?  It could easily say that.  It could simply say, “You have not provided scaffolding for which you have contracted.  Do so”.

MR MARTIN:   But, of course, the employer could not be taken to know what form of – where you have this unusual scaffolding, because of the shape of the fuselage, the employer could not be taken to know what other forms of scaffolding might have been safely provided to get the workers closer to the area where they had to work, that being the contractual duty assumed by the scaffolder.  Now ‑ ‑ ‑

CALLINAN J:   Did the evidence show that what your client was doing had been done either by him and others, or just by others for some time?

MR MARTIN:   Yes, it does, and that would suggest, of course, that the employer was probably also in breach of the non‑delegable duty, but the fact that the employer was also in breach provides no absolution to the specialist contractor who had the responsibility for the entire area of this particular part of the job. 

So your Honours, we say, therefore, and I will not take your Honours through the critical paragraph of the decision of the Full Court, but we say that process of reasoning was entirely open to it on the facts, that it is a process of reasoning that is uncontroversial.  Its correctness or otherwise is entirely dependent upon the view one takes of the particular facts and circumstances, and gives rise, on true analysis, to no question of general principle at all.  We say it was sufficiently open to the Full Court to take this case outside those cases in which leave is granted in the interests of justice.

If I could take your Honours briefly to the special leave questions identified by the applicant at page 74 of the application book.  Special leave question 1, we say, is entirely uncontroversial – the principles applicable there are well established – and special leave questions 2 and 3, we say, are entirely questions of fact turning upon the particular circumstances of this case, such as the knowledge of the contractor, the particular task undertaken by the contractor and so on.

If one then goes in conclusion, your Honours, to the application for special leave to appeal and the grounds, starting perhaps at page 68 of the application book, ground 2 – and these, of course, mirror the draft grounds of appeal – ground 2 is nothing more than a challenge to the finding, so I will not dwell on that.  Ground 3 asserts that the Full Court went beyond the contract.  In our respectful submission, the Full Court did nothing of the kind.  It relied entirely upon the contract and its express terms and went no further, so ground 3 gives rise to no arguable ground of appeal.

Ground 4 is the coherence principle and I have already put to your Honours our submission on that.  Ground 5 presumes that the Court of Appeal found that the contractor owed a duty to the employer, but the Full Court made no such finding, so ground 5 goes nowhere, with respect.  Ground 6 deals with the question of foreseeability.  Again, we say that was essentially a question of fact.  The Full Court has made a determination in the paragraph to which I have take your Honours to the effect that this particular hazardous activity was foreseeable, having regard to the knowledge which the contractor had, and, again, we say that was within the scope of the findings open to the Full Court consistent with Fox v Percy, and it gives rise to no sufficiently arguable ground of appeal to justify leave.

Paragraph 7, we have some difficulty understanding, with respect, but, in any event, we say has no particular application to this case where the particular method was foreseeable. 

CALLINAN J:   Mr Martin, independently of the matter which I am just going to put to you, I think you have almost finished on the facts?

MR MARTIN:   I have, your Honour.

CALLINAN J:   Independently of that matter, because we think that we should grant special leave, or we are not persuaded that we should not – we are persuaded that we should, even on the factual questions – but in the applicant’s reply, for the first time at page 89, Wagon Mound (No 2), the in effect overruling for Australian purposes of Wagon Mound (No 2) and the resurrection of Caterson v Commissioner for Railways are raised.  The applicant obviously wants to rely upon them, and will need, I think, a much more specific ground of appeal to do so, which we will ascertain in a moment – whether that is so.  But would you like to say anything to us in respect of that, because you have not really had an opportunity to do so yet.

MR MARTIN:   Your Honour, it is my instruction that these matters were not ventilated below and the case was not put this way before either the trial judge or the Court of Appeal.  That is not to say that it cannot be ventilated now if your Honours were to think that this is an appropriate case.  But if your Honours were to take that view, in our respectful submission, it has some implications as to the conditions upon which leave should be granted, and, in particular, if leave is to be granted, so that this is to be a vehicle for the ventilation of issues of general importance, it should be done on the basis that my client is indemnified for the costs of that exercise in any event.  That is all I would wish to say, your Honour.  If, obviously, leave is to be granted, we would seek that it be granted on condition that the present applicant undertake to indemnify the respondent for the costs of the appeal in any event.

CALLINAN J:   Right.  Thank you, Mr Martin.  Yes, Mr Martin – Mr Maconachie.  Sorry, Mr Maconachie. 

MR MACONACHIE:   I get it wrong myself from time to time, your Honour.

CALLINAN J:   You heard what our inclination is.

MR MACONACHIE:   Yes, your Honour.

CALLINAN J:   What do you say, really, about raising the Wagon Mound (No 2) in its current application – first of all, whether this is an appropriate case in which to argue it?

MR MACONACHIE:   We submit it is.  The trial judge found that the foreseeability requirement was not satisfied.

CALLINAN J:   There is a specific finding to that effect, yes.

MR MACONACHIE:   Yes, there is, your Honour.  It is at page ‑ ‑ ‑

HEYDON J:   21.

MR MACONACHIE:   Yes, I am sorry, your Honour, I am looking through the judgment of the Court of Appeal.  Page 19 of the application book in the last sentence, paragraph 55:

I am unable to see how it could be reasonably foreseeable to a scaffolder that a worker in the position of this plaintiff would alter the scaffolding and place himself at risk of harm by undertaking such a dangerous manoeuvre.

Now, it was conceded in the Court of Appeal that he did not alter the scaffolding, but there is no issue but that the scaffolding was altered, and, from the point of view the position of the scaffolder, it matters not whether it was the plaintiff, one of his co‑workers or, indeed, CIS.  But there is a finding of fact, or a fact and value, that alteration to the scaffolding and the use to which it was put was not foreseeable.  The Court of Appeal disagreed with that and said it was foreseeable.  We say, in response to Mr Martin’s argument – he relies on that finding in the Court of Appeal – we say that the Court of Appeal, on the facts of the case, were not entitled to interfere with it.  More importantly, for present purposes, even if they were ‑ ‑ ‑

CALLINAN J:   But you sought to maintain the whole of the judgment at first instance in the Court of Appeal.

MR MACONACHIE:   Yes.  There was really only one factual question that was litigated in the Court of Appeal and that was found in my favour.

CALLINAN J:   Mr Maconachie, assuming all of that to be correct, this is a matter of considerable general importance.

MR MACONACHIE:   Yes.

CALLINAN J:   What do you say about the other proposition that was put by Mr Martin?

MR MACONACHIE:   I am not sure – there were a number of propositions put ‑ ‑ ‑

CALLINAN J:   The one that you should indemnify him for costs.

MR MACONACHIE:   I beg your Honour’s pardon.  To that we say this.  Those instructing me are interested in this case and this case only.  It is not an institutional defendant in the sense of an insurance company or the like.  Public funds, through the HIH rescue package, fund this litigation.  We succeeded at first instance in what we contended in the Court of Appeal and will contend in this Court, if leave is granted, was an unexceptional judgment by the trial judge.

We are in the situation of asking this Court to give us special leave to examine that which the Court of Appeal did, because the plaintiff, dissatisfied with what we say is the appropriate and proper judgment, appealed to the Court of Appeal, and the Court of Appeal came to its conclusion at paragraph 63 principally because it overlooked that which the trial judge found to be the fact.  That is, there is a limitation on the contractual obligation of the scaffolder, giving rise to the four or five ills of which we complain, the Voli point, the Smith v Leurs point and, ultimately, because of the view taken by the Court of Appeal, the Wagon Mound point.

We say that we should not have to indemnify someone who has, as it were, taken the odds to it in the Court of Appeal, got a judgment that we say wrongly. 

CALLINAN J:   Leaving that aside for present purposes, you have really said what you want to say about that, I think.

MR MACONACHIE:   About costs, yes.

CALLINAN J:   Yes.

MR MACONACHIE:   Your Honour, if it becomes absolutely critical to the granting of leave, with great reluctance, we would accept the term that Mr Martin asks for, but we say, for the reasons that I have given, that it is quite inappropriate.

CALLINAN J:   Just one other matter, Mr Maconachie.  If we grant leave on the Wagon Mound point, I think your notice of appeal will need amendment.

MR MACONACHIE:   I would have to amend it, and I apologise ‑ ‑ ‑

CALLINAN J:   And it ought to be raised very clearly.

MR MACONACHIE:   Absolutely, your Honour, and I would propose to raise it in perhaps a slightly more elegant form in the terms set out in paragraphs 8 and 9 of the reply on page 89B of the application book.  It would need some refinement and I do apologise for not having come here with a form of ground of appeal.

CALLINAN J:   Thank you, Mr Maconachie.  Is there anything further you want to say, Mr Martin?

MR MARTIN:   Your Honour, only on the question of costs.  The current applicant is, in a sense, representing the insurance industry in relation to these issues and therefore seeks these questions of general principle to be ventilated.  The appropriate order therefore, in our respectful submission, is the one I identified and I think it should be accompanied by what I understand to be a usual order to the effect that the current applicant undertake not to disturb the costs orders made by the Full Court.  That is all I wish to say in reply.  Thank you, your Honour.

CALLINAN J:   Is that the only condition that you would seek, that the applicant not disturb the orders made for costs?

MR MARTIN:   And that we be indemnified for the costs of the appeal.

CALLINAN J:   Yes, thank you, Mr Martin.  There will be a grant of special leave in this case. 

With respect to Mr Martin’s application that some form of indemnification of costs should be ordered as a condition of the grant of special leave, we would order that that application be adjourned into the Court hearing the substantive appeal.

MR MARTIN:   May it please the Court.

CALLINAN J:   You can either renew your application there, Mr Martin, or make a fresh application, but it is noted that that matter has certainly not resolved against you at this stage.

MR MARTIN:   Thank you, your Honour.

CALLINAN J:   Is there something you want to say, Mr Maconachie?

MR MACONACHIE:   Only this, your Honour ‑ ‑ ‑

CALLINAN J:   There is a condition I should have mentioned, Mr Maconachie, and that is that you amend your notice of appeal along the lines which you submitted you would do.

MR MACONACHIE:   That is the only matter that I wish to raise, within the terms required by the Rules for the filing of the notice of appeal.  May it please the Court.

CALLINAN J:   Thank you, Mr Maconachie.  Would you adjourn the Court until 2.00 pm, please.

AT 1.00 PM THE MATTER WAS CONCLUDED