Reilly v Tobiassen

[2009] HCATrans 172

[2009] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P3 of 2009

B e t w e e n -

PETER JOHN PATRICK REILLY

Applicant

and

SVEIN GERHARD TOBIASSEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 31 JULY 2009, AT 2.01 PM

Copyright in the High Court of Australia

MR G.T.W. TANNIN, SC:   May it please the Court, with MS L.A. EDDY I appear for the applicant.  (State Solicitor for Western Australia)

MR J.G. HANLY:   May it please the c, I appear with MR J.T. BISHOP for the respondent.  (instructed by Hotchkin Hanly)

FRENCH CJ:   Yes, Mr Tannin.

MR TANNIN:   Thank you.  This application for special leave raises a number of questions.  Firstly, the proper interpretation of the term “practicability” as used in the Occupational Safety and Health Act in this State and in the Commonwealth, New South Wales, South Australia and the Northern Territory, they are the issues reflected in draft grounds 2, 3 and 4.  Then, secondly, the question of how the statutory requirement to ensure, so far as practicable, the relevant safety status, by which term I encompass the different expressions in sections 21(1), 22(2), 22(1) and 23(3)(a) of the Act can be discharged and, in particular, whether the statutory requirement to ensure the relevant safety status can be discharged, as it was in this case, by engaging and relying solely upon the very person to whom that duty was owed.

Now, the concept of practicability is defined in section 3 of the Act.  I will not take your Honours to the definition.  I trust you have had the opportunity to read the papers.  On the agreed facts here – and I will not delve greatly into the facts, other than to simply emphasise a few points – the respondent was the registered builder in charge of the construction.  The planned process of construction involved the erection of units 1 and 2 prior to the erection of unit 3.  If that occurred, there was adequate cross‑bracing and, therefore, lateral restraint which would have prevented the accident.  Due to some issues with some council approval, unit 3 preceded those earlier units without them being in place and in those circumstances there was inadequate lateral constraint which led to the collapse of the beams and the death of the rigging contractor.

Now, there was expert evidence here that persons in the occupation of the respondent, that is, registered builders, would have known about the risks associated with the absence of lateral restraint.  However, neither builders, nor riggers – which was the occupation of the deceased man – would have known how to address the risk.  That would have required an engineer to know how to address the risk and a number of alternative means of providing adequate lateral restraint.  They are agreed facts. 

The Court of Appeal here determined that the relevant knowledge when considering “the state of knowledge” in the definition of practicable equates to the knowledge of the person in the position of or in the occupation of the duty holder.  The reasons for decision at paragraphs 44 through to 50 and 53 to 59 encompass that finding.  In our submission, the reference in section 3 of the statute is, “to the state of knowledge” generally, not to the specific knowledge of the person in a position of the duty holder.  As a matter of ordinary language, “the state of knowledge” encapsulates what knowledge exists objectively and, in our submission, the use of the definitive article demonstrates that.  It points to an entirely objective concept of knowledge, that is, what is objectively knowable and not limited to the knowledge held by any particular person.

KIEFEL J:   On that view, it would not matter how difficult it was for someone to obtain that knowledge, they would be liable under the Act on your interpretation.

MR TANNIN:   Not necessarily.  I appreciate against us is the respondent’s argument that we are seeking to impose some form of absolute liability.  We are not doing that.  Our submission is that, as the decision of this Court in Slivak and particularly the judgment of her Honour Justice Gaudron points out, the statutory duties imposed by this and other Acts like it are greater than that of the common law.  They impose a duty.  I am referring, of course, to the judgment in Slivak.  Perhaps I can take your Honours to tab 3 of our book of authorities, particularly at page 322 of the judgment and paragraphs 51 and 52 of her Honour’s judgment.  I hope those documents have reached your Honours.

FRENCH CJ:   Yes, thank you.

MR TANNIN:   There her Honour, with great respect, eloquently puts the position that:

The statutory duty imposed by s 24(2a)(a) of the Act differs from the common law duty of care in at least two important but related respects.  The first significant difference between the statutory duty an the common law duty of care is that s 24(2a)(a) imposes a duty to ensure the safety of construction workers, not simply to prevent a foreseeable risk of injury to them.  The statutory duty is a duty to protect against all risks to construction workers, if that is reasonably practicable.  In the words of Lord Upjohn in Nimmo v Alexander Cowan & Sons Ltd, the duty is to make the structure “100 per cent safe (judged of course by a reasonable standard of care) if that is reasonably practicable and, if it is not, to make it as safe so far as is reasonably practicable to a lower percentage”.

What we are saying, with respect, is that the statutory duty ‑ ‑ ‑

KIEFEL J:   Her Honour was in dissent, was she not?

MR TANNIN:   Yes, but not on that point.  All we are simply saying is that in relation to the character that is imported to each of the sections we are referring to, that is, the duty to ensure, how is that discharged?  On the facts of this case we can illustrate how, with great respect, demonstrably inadequate the Court of Appeal’s judgment is because here the registered builder who was directing the course of the work and who was directly responsible for the sequence of work that led to the risk was unable to discharge the duty that he owed to the person by relying on the very same person.  That annihilates, with great respect, each of the statutory duties that are imposed, each of which, on the authority that I have cited, are greater than that of common law.

KIEFEL J:   In that regard, are you referring to the holding by the Court of Appeal that, whilst it might have been outside his expertise, it was within his belief that riggers have the necessary understanding or knowledge?

MR TANNIN:   Yes, and that comes because, with respect, the Court of Appeal here appears to have confined the risk, that is, one of the factors in relation to which the state of knowledge is to be ascertained, in a way that was inconsistent with the greater definition.

KIEFEL J:   Perhaps we are a little at cross purposes.  What I wanted to ask you about that was whether or not the Court of Appeal in stating or making that observation was going further than was necessary in the sense that it was something in addition to the finding on the evidence made by the magistrate about the evidence of Mr Van Der Meer who said that, whilst there was an objective state of knowledge of engineers, builders and riggers of a need for lateral restraint, builders did not have the knowledge of the means necessary to address the risk.  He did not go on to say that in this case the respondent was reliant upon the riggers to do something-

MR TANNIN:   Yes, that is entirely correct, your Honour.  That is entirely correct.

KIEFEL J:   Yes.  You are then relying upon something that the Court of Appeal added which may not have been essential to the outcome of the appeal.

MR TANNIN:   It is essential in the sense that it is added in a context where, in our submission, the Court of Appeal confined the idea of risk to the specific risk of the collapse of the rafters due to the torsional pressures and whether there was inadequate restraint of the rafters rather than looking at the risk as it is defined in the Act by reference to determining what is practicable in the sense of minimising the degree of risk that harm or injury might occur. 

The way that the result comes up in the individual case, in our submission, demonstrates how narrowly confined those duties are by reference to the Court of Appeal’s judgment.  It cannot, as I repeat, be a proper exercise of a duty that the person to whom it is owed is responsible for its discharge.  At common law that would not be the case.  Certainly it cannot be the case under a statute which has a continuing duty to ensure something. 

The Court referred to an earlier judgment of this jurisdiction in Devcon, which was a construction of section 19 of the Act.  Relevantly, section 19 requires particular duties to be imposed on a person to the extent that they control the workplace.  In that case there was an inadequate amount of evidence about control.  That is distinct from the provisions we are talking about where there is an abiding duty to ensure.  What this application raises, at least in draft grounds 7, 8 and 9, is how and when that duty to ensure is discharged; whether or not it is an abiding duty. 

So it cannot be fairly said in response to us that we really were seeking to impose strict liability.  What we are seeking is a proper construction of the character of the duty to ensure and that is a duty that is found in all of the other Acts.  It is a phrase that is used in the Commonwealth under the Occupational Health and Safety Act.  It is a phrase that is used in Victoria under the Occupational Health and Safety Act.  It is a phrase that is used in the New South Wales legislation, the Occupational Health and Safety Act, and it is a phrase that is also commonly used in Tasmania and, indeed, in South Australia.  So the point is a large one. 

In relation to the third of the grounds, your Honours will see that we have drafted a total of ten draft grounds of appeal.  Can I just simply for ease of reference ease your Honours’ concerns about that.  Grounds 2, 3 and 4 are the same ground but there are three separate charges.  Grounds 4, 5 and 6 are the same ground on the same issue but they are again referable to each charge.  Grounds 7, 8 and 9 are the same point.  Then ground 10 is the question of the extent to which the work was work which the registered builder was engaged.  I would simply rely on my written submission in that regard.  In terms of the propriety of special leave, the matters raised here are of public importance, in our submission.  They are important in the circumstances of the justice of the particular case and they also involve ‑ ‑ ‑

FRENCH CJ:   They do turn a little on the judgment of facts of the particular case.  There is plenty of room, is there not, even within the concept of practicality or practicable for judgments as to reasonableness?

MR TANNIN:   That is correct.  So, it is really the second point that raises the public importance issue.  That is the construction of the statute, on this construction, whether the Court of Appeal has effectively removed liability from the respondent in circumstances where it is the action of the respondent that created the risk in question and whether the person engaged to carry out the work died as a result of that risk and whether or not the Court of Appeal’s construction severely narrows the scope and extent of the obligations imposed by the statute.

Given, in our respectful submission, the proper focus of the provisions which, on the authority of this Court, are provisions that are protective and which need to be construed in a way that facilitate that protective purpose, that is a construction that should not be continued.  The special leave point, as I have emphasised, raises questions that are common to issues in other States and there is an inconsistency, at least arguably, in the way that the considerations under sections 21, 22 and 23(1)(a) of the Act have been discharged by reference to earlier decisions, that is, the Devcon Case.  Otherwise, I rely on my written submissions.

FRENCH CJ:   Thank you, Mr Tannin.  We will not need to hear from you, Mr Hanly.

The question before the Court of Appeal of the Supreme Court of Western Australia in this case was the requirement of section 21(1)(b) of the Occupational Safety and Health Act 1984 to ensure that the health and safety of persons not be adversely affected so far as is practicable. “Practicable” is defined in the Act as “reasonably practicable having regard”, inter alia, to “the state of knowledge” about the risk of injury occurring. The Court of Appeal held that the state of knowledge refers not only to what is known but also to who might be expected to have that knowledge.

There was evidence which had been accepted before the magistrate at first instance that a person in the respondent’s position could not have been expected to have the knowledge of the means necessary to address the risk in question in the case and that he did not have actual knowledge.  The observation of the Court of Appeal that the respondent believed the person injured had the necessary knowledge was not essential to the outcome of the appeal. 

In our opinion there are insufficient prospects of success to warrant the grant of special leave and special leave will be refused.

MR HANLY:   The respondent would seek an order as to costs, your Honour.

FRENCH CJ:   Mr Tannin, can you resist an order for costs?

MR TANNIN:   No.  Costs are appropriate.

FRENCH CJ:   Yes, all right.  Special leave will be refused with costs.  Thank you.

AT 2.17 PM THE MATTER WAS CONCLUDED