Rogers v Canterbury Bankstown Rugby League Football Club Limited

[1994] HCATrans 420

..

.

• •

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl88 of 1993

B e t w e e n -

STEVEN FREDERICK ROGERS

Applicant

and

CANTERBURY BANKSTOWN RUGBY

LEAGUE FOOTBALL CLUB LIMITED

Respondent

Application for special leave

to appeal

MASON CJ
GAUDRON J

McHUGH J

-~

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 8 AUGUST 1994, AT 12.24 PM

Copyright in the High Court of Australia

Rogers 8/8/94

·~ 1

MR T.K. TOBIN, QC:  May it please the Court, I appear with

my learned friend, MR M.L. WILLIAMS, for the

applicant. (instructed by Gregory J. Halpin)

MR S.T. WHITE:  May it please the Court, I appear for the

respondent. (instructed by G.J. McIntyre & Co)

MASON CJ: Yes, Mr Tobin.

MR TOBIN:  Your Honours, on page 114 of the application

book, the application is stated to be for leave

against the whole of the judgment of Their Honours

in the Court of Appeal. That is an error. The

application is limited, as would any appeal, to the
question of whether Their Honours erred on the
question of an award of exemplary damages against

the Club, that is the respondent in these

proceedings.

GAUDRON J:  And there is an ambiguity even in that, is there

not? What precisely do you say should have

happened in relation to exemplary damages?

MR TOBIN: Their Honours ought to have awarded, in addition

to what they did award, exemplary damages against

the Club.

GAUDRON J: In the same amount? Should the judgment against

the Club have been the same amount as awarded

against Mr Bugden?

MR TOBIN:	No, Your Honour.
GAUDRON J:	It should have been over and above that?

MR TOBIN: Yes, Your Honour.

McHUGH J: I do not understand that, I must confess. This

seems to me to be a classic case that if the old

system of pleading was in action, that this
submission would not be made.	How can you get

different damages against the Club when it is sued

vicariously? It was not sued as an independent

tortfeasor, was it?

MR TOBIN:	No, our case is vicarious liability.
McHUGH J: Well, that is the beginning and end of it.	How

can the Club be liable for more than the employee?

MR TOBIN:  Your Honour, our submission was that the Club

ought to have been liable for an award of the order

of $150,000 and the basis of that award should have

been for deterrence.

Rogers 8/8/94

McHUGH J: No, but what you are doing is: against somebody

who is not liable in any primary sense, you are

saying that person should pay more damages than

somebody who is liable.

MR TOBIN:  Your Honour, we would not accept the disjunction

between the vicarious liability of the Club and the

liability of Mr Bugden in the way that Your Honour

puts it.

McHUGH J: But if you pleaded it under the old common law

system of pleading, you would not have an

independent count against the Club; you would be

suing it as a joint tortfeasor with the employee.

MR TOBIN:  The way it was pleaded, Your Honour, was that

Bugden was the employee of the Club, Bugden

performed the acts. The employer and Bugden were

liable. That was the way it was put. That is, by

dint of the relationship of employer/employee, that

Canterbury Bankstown was liable as was Bugden, and

it was liable for the act of Bugden.

McHUGH J:  I understand that, but I am afraid as a matter of

legal principle I do not understand how a person

who is vicariously liable for somebody else's tort

can be required to pay more damages than the person

who is liable.

MR TOBIN:	We would put it this way, Your Honour - - -
McHUGH J:	It is not like Caltex where there were two

independent tortfeasors. The plumber committed his

own wrong and the company committed its own wrong.

MR TOBIN:  We would put it this way, that the court was

entitled in light of the conduct of Bugden and in

light of the conduct of the Club, that is either

strict vicarious liability or vicarious liability

including wrongful conduct by the Club, to award
punitive damages against both. In deciding the

punitive damages to be awarded, the principle of

punishment of one of the two parties liable for

damages would not resolve the question as to

whether the Club might pay more or the same as

Bugden.

The way we would put it, Your Honour, is that

once it is established or accepted that the Club

could be liable on the principles of vicarious

liability strictly, if I can use that shorthand, or

by dint of its own wrongful conduct in a form of

recklessness in employing that person, once that is

established and there is an entitlement by the

court to award exemplary damages, then the matter

remains at large weighing up, among other things,

capacity to pay and weighing up questions of

Rogers 8/8/94

punishment and deterrence, how much should be

awarded against the Club and against the employee

of the Club who acted in a manner attracting

exemplary damages. That is to say, Your Honour,
the threshold question is whether there is a form of conduct or of relationship, that is there is a form of recklessness or of simply master/servant

relationship, of a kind which would entitle the

court to have awarded exemplary damages.

When that question is resolved, then the issue

is not whether Canterbury Bankstown is to be

mulcted $7500 or less because, on one view of it,

the act of the employee must be more grievous in a sense as a personal act of an individual than that

which could be attributed to a corporation. There

is no parity in a sense.

McHUGH J: But the corporation has done nothing in this

case. It has done nothing independently which

would entitle you to get a verdict against it.

Have you read the The Koursk? I have not read

The Koursk for 30 years but I thought it said in

this sort of situation you can only have one

judgment.

MR TOBIN:	Your Honour, in this case we would submit, following the principles in XL Petroleum, there are
two judgments available in exemplary damages, two
awards available.

McHUGH J: But they are two different torts; The Koursk,

(1923) P, if my recollection is right.

MR TOBIN:  Your Honour, the way we analysed it below was

that Mr Justice Glass's decision, where he

discussed the relevant principles, in Connell v The

Commonwealth - - -

McHUGH J:  You say Connell is wrong?

MR TOBIN:  No, I do not, Your Honour. I read Connell and

his reference to the work that, among others,

Your Honour authored on that question, to be in our

favour. That is, if you approach the question of

vicarious liability in the way that

Mr Justice Glass did in Connell's case, you attribute to the employer that degree of liability

which is brought about by the conduct of the

employee. Once the vicarious liability attaches to

the tort and not to, as Mr Justice Kitto put it in

Darling Island Stevedoring to the conduct, once

that happens, we submit that a plaintiff is

entitled to punitive damages against both. That

is, it is sufficient on the analysis of vicarious

liability by Mr Justice Glass in Connell to

establish the relationship and the act of the

Rogers 8/8/94

employee, and following Deatons v Flew, that it was

in the course of employment. At the end of the

day, Your Honours, this case raises quite starkly

the question of whether simply by dint of that

relationship punitive damages are available to my

client.

McHUGH J:  I must say I would have thought myself that you

should have been arguing for Mr Justice Kitto's

point of view and that it was really the employer's

tort here, not the employee's tort for which you

have a vicarious liability. But leaving these

questions of high principle, what about the facts

of the case? How can you get the case off the

ground on the facts?

MR TOBIN: Your Honour, the facts are these as found: the

player Bugden attacked the head of Steve Rogers,

took him out of the game and took him out for most

of the first part of the season by smashing his

jaw. The case below was that this was a direct

trespass to the person. There is no aspect of

negligence or no aspect of recklessness pleaded

with regard to that act. The act, it was found by

His Honour at first instance, was vicious. It was

found to be capable of killing the opposing player.

This was not an indulgence by counsel or a flight

of fancy by the court. Both at first instance and

on appeal, Their Honours returned to the theme that

it was an assault, a direct trespass to the person,

of a kind capable of killing the opponent.	Those
facts were not controverted.

Again it was found that the act was carried

out by the employee in the course of employment,

and that founded the cause of action as pleaded by

the plaintiff. On those facts His Honour at first
instance refused an award of exemplary damages.

Their Honours on appeal by 2:1, with

Mr Justice Mahoney dissenting, awarded exemplary

damages against Bugden and refused exemplary

damages against the Club. What was found against

the Club - and again these findings are set out in Mr Justice Giles' judgment in the Court of Appeal -

was that it had revved up the players beforehand to

stop players, including Rogers. That was one act.

Second, that conduct in breach of the rules that attracted the intervention of the judiciary in

the past had not been regarded as in contravention

of the contract of the players with the Club and

had not attracted any censure or complaint by the

Club directed to Bugden or to any other player

about whom evidence was given. So that was, if one

could put it this way, a policy of the Club.

Rogers 8/8/94

Thirdly, Their Honours held that the

particular act was not authorized. That is, there

was no permission or authority given with regard to

the particular assault. We do not cavil with that

finding, but what we do say, Your Honours, is this:

if you take the findings as they stand in the

alternative to strict vicarious liability

attracting exemplary damages, that conduct was

precisely of a kind that would expose the employer,

Canterbury Bankstown, to exemplary damages

following the principles that are touched on in the

secondary statement of torts in the United States

jurisdictions.

In the United States jurisdictions, a

considerable number, but not half, of the States

accept strict vicarious liability as founding

exemplary damages. The majority require some

element of what is called wrongful conduct by the

employer to bring that employer within the field of
exemplary damages. What we submitted below was

that the conduct of the Club, permissive with

regard to violence and silent with regard to

censure of players engaging in violent acts on the

football field, was sufficient to ground a claim

for exemplary damages against the Club.

MASON CJ: Would you not need something more; encouragement,

inducement, instigation?

MR TOBIN:  No, Your Honour. We in fact challenged that

below, as we do here, as one of the grounds of this

application. Their Honours clearly used those

words and combinations of those words with regard

to the decision they made. They based it in effect

on an absence of authorization of the particular

act.

GAUDRON J: But you are asserting an independent cause of

action against the Club, are you not, in that

argument rather than the same cause of action

asserted against Mr Bugden?

MR TOBIN:  No, with respect, Your Honour, we do not say that

that constitutes a separate cause of action. We

say that if the vicarious liability count strictly

is rejected as it was below, then there is a

question as to whether there is a scope for
exemplary damages where there is conduct of a

wrongful kind which of itself would not necessarily

be tortious.

GAUDRON J: But if it is not vicarious liability, it must be

an independent cause of action against the Club,

must it? There is no other basis for iiability,

either vicarious or independent, for an independent

cause of action.

Rogers 6 8/8/94

MR TOBIN:  Yes, but the vicarious liability will only

attract exemplary damages if there is some kind of

wrongful conduct. Now, the wrongful conduct may

not itself constitute a separate tort. We did not

conduct the case on the basis that there had to be

a separate tort established as against the

employer.

McHUGH J: But the court decides that they are joint and several tortfeasors in respect of one tort. If there is one tort, there can only be the same

amount of damages for it, can there not? I do not

know why you are not entitled to get exemplary

damages against the Club. That is another mystery

to me. I would have thought it is an automatic

right of entitlement for exemplary damages against
the - in relation to the same amount that the

player -

MR TOBIN:	Yes, but at the end of the day, Your Honour, the court made the decision that it could not award
exemplary damages against the Club without
something more. In other words, in effect some separate conduct that may, as Justice Gaudron put
to me, constitute a separate cause of action. But
our submission below and here is that the Court should consider whether a vicarious liability is
enough against both to attract awards of exemplary
damages and not of the same amount.
GAUDRON J:	I take it, though, you do not say vicarious

liability was sufficient to attach to exemplary

damages, and it was wrong to approach the

calculation of exemplary damages on the basi·s of

Bugden's ability to pay? You do not say that? You

do not seek to increase the exemplary damages

payable by both?

MR TOBIN:  We seek to have an award of exemplary damages

against the Club and not limited in quantum to that

awarded against Bugden. That is to say - - -

GAUDRON J: Without increasing Bugden's -

MR TOBIN: Without increasing Bugden because Bugden is

not -

GAUDRON J:  It must be a new cause of action, must it not?

MR TOBIN: With respect, not, Your Honour, because if the

analysis of vicarious liability is correct, if that

is sufficient of itself to attract an award of

exemplary damages, then the Court is entitled to

look at the means of both parties involved and

award different amounts of exemplary damages

against one or the other of the people involved.

Rogers	8/8/94
McHUGH J:	I do not understand how you could have two

different amounts of damages in respect of the one

tort.

MR TOBIN:	We had one set of - - -
McHUGH J:	I know what your argument is, and it is not like

Caltex where there are two torts. There is the

plumber's tort and there is Caltex's tort, so you

could hit the company much harder than you hit the

plumber. But here there is only one tort.

MR TOBIN:  Your Honour, the award that we seek is an award

against the Club. If that award were to replace

the award against Bugden, then that would be a

course which we would pursue.

McHUGH J: That is why I said to you earlier that I thought

the argument you would be relying on is what

Justice Kitto said in Darling Island v Long. You

would say it is always the employer's tort and what

Bugden did is merely the act which creates the liability in the employer, but it is the employer's

liability, not Bugden's, which is primary.

MR TOBIN: Yes. Perhaps I have misunderstood the dispute

between Mr Justice Kitto and Mr Justice Fullagar. I had understood it to be the other way; that is,

the use of the term "the defendant's conduct and

the defendant's liability".

McHUGH J:  No, Justice Fullagar says it is a true vicarious

liability. You fix the liability of the employee

first and then the employer is liable for that

liability. Justice Kitto says no, it is the

employer's tort. Historically Justice Kitto was

right.	If you look at the old forms of pleading up
to about 1850, Justice Kitto was right.	What he

overlooked, in my respectful opinion, and what

Justice Fullagar did not was that there had been

this evolutionary shift in doctrine once the old

forms of pleading were abandoned in 1852.

MR TOBIN:  I see the time expiring fast.

McHUGH J: Yes, you are in injury time at the moment.

MR TOBIN: This is a case where - if I can leave this direct

issue, there is a question of public importance

which Their Honours' judgments reiterate and we say by applying the wrong principle avoid. That is the

consequence of violence of this kind, potentially

fatal, pursued in public for profit - I do not say

that critically - for mass entertainment, for

educative purposes for the young of the community

is a question of public importance that really

cries out for the Court to intervene. What more,

Rogers 8/8/94

one would ask, is required for a club to be liable

in punitive damages other than the conduct as found
against Canterbury Bankstown employee.

Finally, in sporting events of this kind where direct trespass to the person, albeit lawful, is at least half of the purpose of the game in the

defensive mode, if that be the case, one asks the

question:  when would there be a case of this

simplicity before the Court to resolve the question

of whether exemplary damages should go to the Club?

As Your Honours please.

MASON CJ:  Mr White, first of all, why is the applicant not

entitled to an award of $7500 exemplary damages

against the Club?

MR WHITE: Because, Your Honour, there was no finding that

the Club had authorized, incited or condoned the

act which is complained of.

McHUGH J: There does not have to be. If the tort is

committed in the course of the employer, the

employer if liable for whatever damages Bugden is

liable for.

MR WHITE:  I may be arguing against myself there,

Your Honour, but we say no, that is not correct,

with respect, that in deciding whether a defendant,

be it an employer or a joint tortfeasor, is liable

for exemplary damages, one must look at the conduct

of that particular defendant. For example, in

Broome v Cassell, the great problem the House of

Lords had was that there were joint tortfeasors and

they did not have the benefit of the legislation

that we have in New South Wales. A judgment had to

be obtained for the same amount against all the

defendants, some of whom were liable in exemplary

damages, some of whom were not. The House of

Lords, in overcoming that problem, held that the

maximum amount each of the joint tortfeasors could

be held liable for was the lowest figure that had

been awarded.

McHUGH J: Yes, but there were separate torts there. One

was the publisher, another one was the writer and

so on. They were independent torts. Here there is

only one tort.

MR WHITE:  Your Honour, I appreciate that. Our submission

is as at page 109 of the application book.

Mr Justice Giles found in order for the Club to be held liable in exemplary damages, there must be an

authorization on the part of the Club.

Rogers	8/8/94
McHUGH J:	I read that and, with great respect to

His Honour, on my understanding of the authorities

it is wrong.

MR WHITE:  In relation to my friend's argument, he says that

on a strict vicarious liability approach, it must

follow or it should follow that the employer is

liable for exemplary damages. We say that that is

just totally contrary to the principles upon which

exemplary damages are granted. They are granted to

punish and deter the defendant who has acted in

conscious and in contumelious disregard of a

plaintiff's rights.

If the defendant, being the Club in this case,

has not authorized the conduct and is innocent of

the quality of wrongfulness which attaches to it,

it cannot be said that it is conscious in the way

in which that term is used, "conscious and in

contumelious disregard of the plaintiff's rights".

Secondly, we say that it is illogical to punish the

Club in those circumstances when it is guilty of no

wrongdoing itself. Throughout the judgments of the

trial judge and the Court of Appeal, it was found

that the Club had not authorized, incited or

condoned the act complained of.

GAUDRON J:  If it had, it may well be that there would be a

separate and independent cause of action. There

might well be one for negligence in allowing a

lethal player on to the field.

McHUGH J: 

If they had encouraged him, they would have owed

a duty of care, one would have thought, to players
in the position of Mr Rogers and there would have

been a tort on the part of the Club.

MR WHITE: 

We certainly accept that there is a prospect of a

club being held liable for exemplary damages in those cases, and we accept that. But the trial

judge and the Court of Appeal expressly found that

not the situation, although the trial judge and the	in the factual circumstances before them, that was
Court of Appeal held that in other circumstances,
in other factual circumstances, the Club may be
held liable, and we accept that proposition. But the finding of fact both at trial and in the Court of Appeal was clearly that the Club had not authorized or incited the conduct which is
complained of.

McHUGH J: But take a case like Cotogno v Lamb. There is a

car being driven by somebody, not the person who is

insured. The car is driven at somebody and there

is an award of exemplary damages against the

driver. You must enforce damages against the owner

of the car and ultimately against the Government

Rogers 10 8/8/94

Insurance Office or whoever is the relevant insurer

because that person is statutory liable, is

vicariously liable for the damages of the driver.

There is no difference here, is there? You do not

have to have anything extra.

MR WHITE:  With respect, Your Honour, one does. Exemplary

damages not being compensatory, they are to punish

the wrongdoer. With respect, one cannot say that

it must follow - - -

McHUGH J: But that confuses two things. One, it confuses

your vicarious liability and your independent

liability. The independent liability here is the

liability of Bugden for which your client is

vicariously liable. He goes down for $100,000, so

do you, so long as the tort was committed in the

course of employment. I do not see how you can

escape payment of $7500 additional for exemplary

damages.

MR WHITE:  Your Honour before referred to the Kitto view

expressed in the Darling Island case. His Honour,

as I understand it, was putting forward the

proposition that - - -

McHUGH J:	I think I said Justice Kitto, not the Kitto view.
MR WHITE:	I beg your pardon. Mr Justice Kitto was putting

forward there the proposition that you impute the

conduct of the employee to the employer, but

His Honour also said you exclude the wrongfulness

of the conduct on the part of the employee when you

so impute his conduct to the employer. In my

submission, the inference that can be drawn from

that is that His Honour was not suggesting that you

impute the quality of wrongfulness of the

employee's conduct to the employer such that

exemplary damages must attach to the employer.

McHUGH J:  I do not dispute that. If you accept

Justice Kitto's point of view, I think most of what

you have been saying is correct.

MR WHITE:  We would also say, Your Honour, that

Mr Justice Fullagar's approach is not inconsistent

with the proposition I am putting forward. As I

understand what His Honour was saying in the same

case, it was a true vicarious liability. You

attach the liability of the employee to the

employer. You need only show a tort has been

committed in the scope of the employment and

therefore it must follow the employer is liable,

even though he may not owe a personal duty to the

third party. In my submission, that does not mean
that the employer is also liable for the exemplary

damages by reason of the way in which the act has

Rogers 11 8/8/94

been carried out by the employee. In my

submission, there is no basis to say that because

an employer is vicariously liable, it must follow

he also wears the exemplary damages component of

the award.

McHUGH J:  He must wear all the damages, whether it is

damages for personal injury, for loss of wages,

whatever it might be - Griffiths v Kerkemeyer:

exemplary damages. As a matter of policy the law

makes the employer pay because he has got the deep

pocket. You cannot rationalize the law of

vicarious liability in terms of legal theory. It

depends on policy.

MR WHITE: At most, in this case the employer, the Club,

would be liable for $7500. We would submit that

there certainly is no basis to suggest that it

should be liable for more than $7500, especially

having regard to the findings of fact of the trial

judge and the Court of Appeal.

Your Honours, that was, in my submission, a

critical part of the applicant's case. If there is

any further assistance I can give you. But in my

submission, we say primarily the Club does not wear

the exemplary damages accruing to the player

because there has been no finding of authorization. In any event, we say if it does, it is only limited
to $7500. Those are my submissions, if the Court

pleases.

MASON CJ: Thank you, Mr White. Yes, Mr Tobin. What do you

say about this $7500?

MR TOBIN:  Your Honours, we have come to seek more on

appeal.

MASON CJ: Yes, I realize that, but I just want to know at

the moment what is your attitude?

MR TOBIN:  Our view is that they must be liable for at least

$7500. On the findings of fact - - -

MASON CJ: That did not emerge very clearly from the

materials you have presented to the Court.

MR TOBIN:  No, it would not, Your Honour, because I sought a

large award of damages against the Club.

MASON CJ: Can I just ask you this question: does a verdict

for $7500 against the Club mean anything to you?

In other words, is it an award that Mr Bugden would meet or you could reasonably expect Mr Bugden to meet?

Rogers 12 8/8/94

MR TOBIN:  The Club itself we would expect to meet -

Mr Bugden has not appealed on the award of

exemplary damages against himself.	So that in fact
has passed into history.

MASON CJ: It is academic, so we need not worry about it?

MR TOBIN: No, Your Honour. Hursey's case, if I can deal

with it very briefly, arose out of the

Chief Justice of Tasmania's award of damages with

regard to the conspiracy to injure by unlawful

means, namely picketing. His Honour the

Chief Justice of Tasmania found in the language of
exemplary damages against the Waterside Workers'

Federation. There was a difficulty on appeal to

the High Court as to what entity - the federation

as an Australia-wide organization or the Hobart

branch - was in fact liable. At page 82,

Mr Justice Fullagar dealt with what it was which

the federation could be said to have done. About
half-way down the page he refers to the picket line

of 12 February 1958:

conduct of which Healy -

the federal secretary, I think -

expressed disapproval - I do not think that

any federal officer actually participated in

the picketing. But the members of the

governing body of the federation were well

aware from the beginning of what was going on,

and the federation made it known to th~

branch, and took steps to make it known to the
public, that the branch had their full support

and sympathy in "the struggle". Speaking of

the "picketing", Healy said: "We gave our

support by not directing any alteration to

it". That is, I think, the truth and, so far

as appears, the whole truth, but I think that

it is enough to make the federation liable.

It makes it clear that acts which were prima

facie acts of the federation were never

repudiated or forbidden by it.

That would seem to be the basis then upon which

His Honour, in the leading judgment on the

quantification of damages, took the award of

2500 pounds to each of the plaintiffs and reduced

it by dint of the provocation by the plaintiffs of

the members of the Waterside Workers' Federation.

But the conduct found against the national body was

in fact inaction:  "We gave our support by not

directing any alteration to it".

GAUDRON J: There was a continuing state of affairs there.

Rogers 13 8/8/94

MR TOBIN: Yes, over many months, Your Honour.

GAUDRON J:  Which is a little different from this case.

MR TOBIN: Yes. But it would seem to support - on the

evidence, at any rate, that Mr Justice Fullagar

traversed here, it would seem to support the view
that a failure to repudiate or forbid may be

sufficient - it was sufficient here - to constitute

the conduct prima facie of the federation

attracting exemplary damages against the

federation.

McHUGH J: But that was because the federation was a

tortfeasor.

MR TOBIN: It was the tortfeasor.

McHUGH J: Yes, it was the tortfeasor.

MR TOBIN:  But the difficulty of the case would appear,

Your Honour, to be that there was confusion as to

the juridical status of the branch as against the
federation. In the resolution of that question,

perhaps the basis of the award against the

federation is not so clear. But as expressed by

His Honour, inaction in the sense of a failure to repudiate, simply going along with, was sufficient basis for it. That does not directly come to the question in issue here because the issue here

relates to a course of conduct over a period of

time prior to the assault in question and the

contention that we made that the defendants are

liable for that particular conduct. If

Your Honours please.

MASON CJ:  Thank you, Mr Tobin. The Court will take a short

adjournment to consider the course it will take in

this matter.

AT 12.58 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.05 PM:

MASON CJ: Having regard to the absence of necessary

findings of fact and the state of the evidence, the

primary submission of the applicant is bound to

fail. As to the secondary question, whether the

award of exemplary damages for $7500 should be made

against the Club as well, it is conceded that such

an award is of no practical value. The application

Rogers 14 8/8/94

is therefore refused. There will be no order as to

costs. The Court will now adjourn until 10.15 am

in Canberra tomorrow.

AT 1.06 PM THE MATTER WAS ADJOURNED SINE DIE

Rogers 15 8/8/94