Puttick v Fletcher Challenge Forests Limited - [2008] HCATrans 207

[2008] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M1 of 2008

B e t w e e n -
JANINA PUTTICK EXECUTOR OF THE ESTATE OF RUSSELL SIMON PUTTICK
Applicant
and
FLETCHER CHALLENGE FORESTS LIMITED
Respondent
Application for special leave to appeal

GLEESON CJ
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 MAY 2008, AT 9.30 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.R.C. GORDON, for the applicant. (instructed by Slater & Gordon)

MR C.L. PANNAM, QC: If it please the Court, I appear with my learned friend, MS L.G. DE FERRARI, for the respondent. (instructed by Freehills – Melbourne)

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the nature of the case upon which the choice of law decision was made, upon which then the discretionary stay was granted, was, in truth, as we have put in our written submission, that which is shown in the pleadings extracted by the learned President at application book page 45. It differs somewhat from the way in which the majority characterised it, but in our submission, it is incontestable, as his Honour concluded in paragraph 58 on that page, that the “cause for complaint” found in the negligence action, being the cause for complaint to be taken for the purposes of the argument as being the nature of the wrong in question was not simply one of the pleaded particulars of negligence, namely, instructing Mr Puttick to go to overseas asbestos plants, but rather causing or permitting him to be exposed to asbestos in factory sites in Belgium and in Malaysia.

GLEESON CJ: Do we know whether the law of Malaysia is different from the law of Belgium?

MR WALKER: We do not.

GLEESON CJ: Suppose it is, which would be the law that would be applied in the hearing of this action, the law of Malaysia or the law of Belgium?

MR WALKER: That much is completely unventilated in the record at present. One thing seems appropriate, that is not to rely upon any presumption of either similarity with the forum or with each other. They may well be different; they are likely to be different. There are two possible answers to the Chief Justice’s question. The first is that there was in fact more than one tort, that is, more than one cause of action in negligence, or whatever is the appropriate name for the delict in each of those countries.

The other possible answer appropriate to the nature of the application for a stay based upon the invidiousness of the forum applying New Zealand law is that it will not matter which of Malaysia or Belgium is the appropriate system of law, either operating concurrently for two separate torts committed on two separate occasions, or operating one to the exclusion of the other, because they will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] HCATrans 207
Decision Date

CaseChat Overview and Summary

The case of *Puttick v Fletcher Challenge Forests Limited* concerned a dispute between the appellant, Mr. Puttick, and the respondent, Fletcher Challenge Forests Limited. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the respondent had breached its duty of care to the appellant by failing to take reasonable steps to prevent the appellant from suffering injury. Specifically, the court had to consider the scope of the employer's duty of care in relation to the provision of a safe working environment and the adequacy of the precautions taken by the employer in the circumstances.

The High Court ultimately found that the respondent had not breached its duty of care. The court reasoned that the employer had taken reasonable precautions to mitigate the risks associated with the appellant's work. The employer had provided appropriate safety equipment and had implemented safety procedures. The court applied the principles of negligence, focusing on the concept of reasonable foreseeability of harm and the reasonableness of the employer's actions in response to any foreseeable risks. The court concluded that the employer's conduct was consistent with that of a reasonable employer in the circumstances, and therefore, no breach of duty had occurred.

Orders