Pope v Teepee Trophies Pty Ltd & Workers' Compensation Board of Qld

[1996] QCA 400

OF QUEENSLAND	(Defendant by Election)
BRISBANE ..DATE 26/09/96
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COURT OF APPEAL	[1996] QCA 400
MACROSSAN CJ PINCUS JA LEE J
Appeal No 238 of 1995

GEOFFREY RAYMOND POPE Appellant

(Plaintiff)

and

TEEPEE TROPHIES PTY LTD First Respondent

(Defendant)

and

THE WORKERS' COMPENSATION BOARD Second Respondent

JUDGMENT of the Supreme Court given in an action for damages for personal injury; there is also a cross-appeal.

The primary Judge found that the appellant plaintiff suffered serious injury as a result of an attempt to carry a 20 kilogram box of marble parts up stairs. His Honour held that the defendant in the action was guilty of a breach of its duty as the appellant's employer, a company which made and sold sports trophies. However, the Judge held that the appellant was guilty of contributory negligence and responsibility was apportioned 60 per cent against the appellant and 40 per cent against the employer. The appellant attacks the apportionment saying that it should be varied in favour of the appellant, whereas the respondent Board, the defendant by election below, contends that the decision should be varied in its favour by dismissing the appellant's claim, or by altering the apportionment so as to place a greater responsibility upon the appellant.

The Judge's findings were in substance as follows. His Honour took the view that it was unnecessary for employees at the premises where the accident happened to carry such heavy loads and the practice should have been to ensure that the boxes, of the kind that the appellant carried, were only half full of marble components when carried up the stairs.

His Honour thought it to be an unnecessary and unreasonable risk to allow employees to carry such heavy boxes as the appellant carried. He held that from the time the employer company was incorporated the practice either evolved or

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continued of persons carrying heavy boxes of marble
components. At the time of incorporation the directors of
the employer were the appellant and his brother and each of
their wives, but six months before the injury complained of,
the brother and his wife left the company and the directors
then were the appellant and his wife only.

The Judge referred to the fact that the appellant as director took the part of supervising generally the way in which the manufacturing operations of the company were performed and that his wife supervised the sales, recording and administrative side of the business. Having read the passages and the evidence to which we were referred I am of the view that this description of the appellant's duties may not be entirely accurate; however the appellant's case does not depend upon that point. The Judge was not prepared to find that the appellant was solely responsible for the employer's breach of duty. He held, in effect, that the two directors, had they ever considered the matter, ought to have required that employees not attempt to carry and lift such a weight as was attempted to be taken up by the appellant. His Honour was not prepared to describe the fault of the employer as being co-extensive with that of the appellant, but said that it was quite unnecessary for the appellant to carry the box up in one trip and that it was "a simple and obvious step for him to carry only half the weight".

His Honour described the risk he took as "obvious and foolish" and said that it was taken for no apparent reason

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other than to save himself the necessity of making two
trips. The Judge took the view that as between the
appellant and his wife, it was the appellant who should bear
the greater part of the responsibility for failure to
implement a safe system of work. His Honour, as I have
said, apportioned liability 60 per cent against the
appellant.

This is challenged by counsel for the appellant who, however, acknowledges frankly the difficulty in setting aside such an apportionment. It was argued that of the two directors at the time of the injury, the plaintiff/appellant bore no more than equal responsibility for the system of work, and that having regard to the apportionment fixed in Nicol v. Allyacht Spars Pty Ltd (1987) 163 C.L.R. 611 (which is, of course, a decision of the High Court) the Judge's view can be seen to be too generous to the respondent. It is my opinion that the facts of this matter are too different from those of the High Court case to make the comparison of the apportionment in the two cases a useful process.

There is, in my view, no real substance in the suggestion that the apportionment should be altered in favour of the appellant. For six months prior to the occurrence of the injury the plaintiff had joint responsibility with his wife for the relevant operations and, of course, he was a person who if he chose could have decided not to carry the excessively heavy box. It might appear a little artificial to say that the directors should have considered the matter

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and adopted a policy about the proper weights to be carried,
but it seems to me clear that the appeal must be dismissed.

The cross-appeal urges the view that any fault there was was the fault of the appellant, but the Judge has found otherwise and has treated the appellant's wife as partially responsible, as one of the two directors, for what occurred.

I have already suggested that some might think there is a degree of artificiality about this; but having regard to the Judge's advantages in having seen and heard the relevant witnesses, there is no satisfactory basis upon which the finding could be upset.

Mr Griffin QC, who appeared for the respondent argued that there is no evidence of such a practice as the Judge held to exist. In my opinion that is not so and it is easy to find evidence of practice supporting the Judge's finding; for example at page 5. The cross-appeal should also be dismissed. I would dismiss the appeal with costs and dismiss the cross- appeal with costs. There remains a question of costs of the record.

THE CHIEF JUSTICE: I agree.

LEE J: I agree

THE CHIEF JUSTICE: Now, got anywhere with the costs of the record, or is that going to be an issue which will stagger on.

MR MORRIS: Your Honours, we would very much hope to resolve

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it now. I do have copies of what I'm instructed is all of
the relevant correspondence if I may hand that up.

THE CHIEF JUSTICE: And could you summarise the effect of it.

MR MORRIS: Your Honours, the situation is that on 1 March the other side required that all evidence relating to liability issues be included. On 8 March my solicitors, whilst acknowledging the respondent's right to include all such material, suggested that from the outline of argument it didn't really appear that the respondent sought to rely on all of that material and suggested in the interests of reducing costs for both parties an attempt has been made to identify those parts of the evidence which will be relied on in the appeal and reserve the right to refer to that letter on the question of costs if the attitude didn't change.

On 14 March my solicitors sent a follow up letter only really seeking a response and on 20 March the respondent's solicitors wrote saying that they had discussed the contents of the correspondence with their counsel. He tells us in his experience any matter on liability can be referred to by the Court of Appeal and it is dangerous to leave anything out. He suggests that if you wish to nominate any material which you say is not relevant you should do so.

PINCUS JA: What happened after that?

MR MORRIS: Your Honour, there's no correspondence to indicate that anything happened after that.

THE CHIEF JUSTICE: So, you tried and go nowhere, is the way you put it, and then despaired of trying to carry it further forward - became too difficult.

MR MORRIS: Yes, Your Honours.

THE CHIEF JUSTICE: So, what do you wish to say then about the remaining issue.

MR MORRIS: Your Honour, simply this. It may be suggested that the correspondence only insisted that all liability evidence go in, but as I said earlier the difficulty with that is that the way in which the case was conducted at trial involved the proposition that prior inconsistent statements had been made to medical practitioners and were evidenced by medical reports and so one couldn't sort of go through it and say this medical report or this doctor's evidence.

PINCUS JA: That really has nothing to do with your appeal though. The way in which you appeal.

MR MORRIS: Nothing at all, Your Honour, but once it is said that-----

PINCUS JA: It didn't seem to have much to do with Mr
Griffin's-----

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MR MORRIS: No, but what it is that all liability material has to go in then one couldn't as it were say - these passages from this doctor's evidence are relevant to liability in these passages are solely relevant to quantum.

PINCUS JA: Well, the medical stuff could have all have been left out without much risk. I mean it's said to be dangerous but if any emergency arises and the danger eventuates then you can always hand up a copy of - Mr Justice Gibbs in the High Court said that he holds the record. He said he had a record that came up to his waist and not a page of it was referred to. He thought that must be a kind of world record.

MR MORRIS: Your Honours, the gravemente of my submission is as I suggested earlier that four-fifths of the cost of preparing the appeal record should be paid by the respondent. May I also say something. Your Honour Mr Justice Pincus proposed an order for costs where there were orders each way for-----

PINCUS JA: Yes.

MR MORRIS: In my submission it is more practical simply to make no order as to costs rather than to risk each party taxing cost then trying to set off the-----

PINCUS JA: Well, they usually agree with that, don't they.

MR MORRIS: One would hope so, Your Honour.

PINCUS JA: I don't think they balance out though, I think you'd finish up paying most of it, wouldn't you, under this order. That seems to be the practical result of it.

MR MORRIS: Well, Your Honours, apart from the costs of the appeal record which in a sense we'd have to prepare in any event as appellant, attendances today-----

PINCUS JA: I have the impression though that all that Mr Griffin's side would have to pay would be such part of the costs, the enhancement of the costs due to the cross-appeal, that's my vague recollection. I think the order I made works against you really.

MR MORRIS: Possibly it does.

PINCUS JA: I don't think they just balance.

MR MORRIS: Well-----

PINCUS JA: That seems to be the orthodox order though, doesn't it? If you look up the books that seems to be what people do.

MR MORRIS: Well, Your Honour, it certainly is orthodox in the sense that similarly - it is similar to a situation at a trial where an action is dismissed and a counterclaim is dismissed.

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PINCUS JA: No, I'm talking about appeals specifically.

That's what's usually done, I think.

MR MORRIS: It is, Your Honours.

PINCUS JA: But you say we shouldn't do it in this case because - you shouldn't do what's usually done in this case because what?

MR MORRIS: Really because the fault is equal. The appellant failed and the respondent failed.

PINCUS JA: Yes.

MR MORRIS: The two arguments were both sides of the same coin.

THE CHIEF JUSTICE: On the same issue.

MR MORRIS: Precisely, with respect.

PINCUS JA: And in a sense you started it though. If you hadn't appealed they mightn't have prosecuted. They might have thought, "Since we're there we might as well complain ourselves".

MR MORRIS: Alternatively for all one knows if they hadn't lodged a notice of cross appeal the appeal may not have been prosecuted. One just doesn't know what would have happened.

PINCUS JA: We know who the appellant is though.

MR MORRIS: Yes. I can't say more than that Your Honours.

THE CHIEF JUSTICE: What do you want to say about the cost of the appeal record, Mr Griffin, and also - well, I suppose it's not too late to add anything if you wish to support Mr Morris in respect of the costs of the appeal itself and the cross appeal.

MR GRIFFIN: Well, so far as the record is concerned, Your Honour, we were asked what was our attitude as to restricting the content of the appeal record. We said everything relating to liability should go in and if they thought something different they should tell us. In my submission it was appropriate for everything relating to liability to go in. It was a contribution case so any aspect of liability could have become relevant in assessing the relative contributions of the plaintiff and the company.

But in any event what happened then was that the appellant's solicitors simply went ahead and put in a record that contained everything and-----

THE CHIEF JUSTICE: But the reality is that a negotiation was attempted to be started designed to restrict the size of the appeal record and really it got nowhere with your side, did it?

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MR GRIFFIN: Not on the basis, however, that we suggested that anything relating to quantum should go in. Simply on the basis that we said everything relating to liability should be there. And that's clear enough.

THE CHIEF JUSTICE: Well, if the other side is not responsive when an invitation is issued to restrict the appeal record, it will always have the same fate.

MR GRIFFIN: In my submission what should have happened here was exactly what my instructing solicitors proposed. That is to say the material relating to liability should go before the court. So far as the costs generally are concerned we would ask for the orthodox order that had been announced.

THE CHIEF JUSTICE: We're having a look at the correspondence that's passed between the two sides. I don't think that this is a case where we should make any order in respect of the costs of the appeal record. I would add that negotiations about such matters are highly desirable but this doesn't seem to be the case where any other order is called for.

PINCUS JA: I agree.
LEE J: I agree.

THE CHIEF JUSTICE: No further order.

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