Shirreff v Elazac Pty Ltd

[2012] HCATrans 354

[2012] HCATrans 354

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M176 of 2011

B e t w e e n -

LINTON SHIRREFF

Applicant

and

ELAZAC PTY LTD

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2012, AT 1.06 PM

Copyright in the High Court of Australia

MR R.P. GORTON, QC:   If the Court pleases, I appear with
MR M. PILIPASIDIS for the applicant.  (instructed by Slater & Gordon)

MR M.F. WHEELAHAN, SC:   May it please the Court, I appear with my learned friend MS B.Y. KNOESTER for the respondent.  (instructed by Hall & Wilcox)

MR GORTON:   In this application, your Honour, special leave is sought and if special leave is granted it is desired by the applicant that there be a rehearing or a reconsideration of the issue as to whether the applicant was an employee of an independent contractor.  As the Court will be aware, the trial judge determined that the applicant was an employee and the Court of Appeal decided that he was an independent contractor.  We say that matter is a significant difference to the parties and of importance to the applicant but we concede that by itself it would not give rise to a special leave application. 

Further, there is in the application the complaint that the Court of Appeal did not consider properly the issue of negligence so far as Elazac was concerned in relation to failure to comply with occupational health and safety regulations.  That again is something that we would seek to agitate on appeal but there was sufficient uncertainty as to whether that issue was raised and presented to the Court of Appeal in a way that would allow for special leave. 

The point that we say justifies special leave being granted is what we would describe as the cavalier way in which the Court of Appeal has approached the issue of negligence on the part of an employer to an employee in the situation of Mr Shirreff, if they had accepted and approached it on the basis that he was an employee.  The particular paragraphs of the Court of Appeal judgement referred to in our submissions between 46 and 50 or 51.  In 46, the basis of the court’s approach is set out that they are considering the issue of the duty of care and say it is unnecessary for us to consider whether the duty is in accordance with Stevens v Brodribb because:

even if the plaintiff was properly to be regarded as an employee . . . his claim must fail for the following reasons. 

So they are setting out at that point to approach the matter as if it is a master’s duty in relation to the servant and non‑delegable duty of the type that is identified in McLean v Tedman as opposed to other cases where the employer has a duty to make up and carry through on a duty of care.  So their approach is taken, let us approach this as if the highest standard of duty of care were required, and then the conclusion is that there was no evidence as to what the employer knew or ought to have known about the use of the ladder in the lift shaft or the fitness of the applicant to perform the work and the fact that the employer did not know what problem had to be rectified in the list and how it was to be pursued.  So they then in 49 say:

The defendant did not know what work would have to be performed.  The method of performance of whatever work was required and who it was performed by were left to the discretion of the plaintiff. 

It is clear, in our submission, that the matters analysed in 47, 48 and 49 of the judgment, leading to the conclusion in paragraph 50, that:

there was no evidence of any breach of duty on the part of the defendant.

constitute a description of the duty of care of an employer which is manifestly not the duty of care of an employer.  It is not the duty of care of an employer – sorry, it is not the obligation of an injured worker to prove as part of his case what the employer in fact knew about the work situation or what was required to carry into effect the directions that an employer had given to perform work.  It is for a plaintiff in that situation to prove that there was not an appropriate system of work or that the work was carried on in an unsafe place and it is not a duty to establish that the employer actually knew those things in circumstances where it should have known them.  The issue is perhaps exemplified in paragraph 51 of the judgment, where is says Mr Morgan, who is effectively the employer, did not give evidence but halfway down the paragraph:

Notwithstanding this fact, we see no basis for concluding that Mr Morgan (Elazac) would have had any basis for thinking that the plaintiff would personally perform the necessary work rather than the work being employed –

for that word “employed” when first appearing I think read undertaken –

being [undertaken] by the employed lift mechanic, Mr Lawler. 

Earlier in that paragraph, in the second line, the Court of Appeal makes it clear that it does not know whether Mr Lawler was employed by the plaintiff, Mr Shirreff, or by the defendant, the respondent in these proceedings.  If he was, in fact, an employee of the respondent in these proceedings, there would be no doubt, in our submission, even if he had been sent into the lift well by Mr Shirreff, that he, as an employee, was owed a duty of care and the duty of care required the provision of a safe system of work, required the employer, I suppose, firstly, to identify what the work was that is to be required of the employee, and then to provide a safe system of work, to take into account the facts that he knew or ought to have known about the physical capacity of the person undertaking the work, and should take into account the safety of the environment in which the work is performed. 

The environment in which the work is performed is part of the general rule of negligence that used to be separately treated as occupier’s liability and is enhanced by the provisions of section 14(b) of the Wrongs Act of Victoria which imposes duties on occupiers, so that either as employer or as occupier of the building, the respondent in these proceedings owed a duty of care in relation to the state of the premises.  The trial judge found that the applicant suffered injury when he was descending a ladder in the dark, pitch black, carrying a torch and other tools, and with a cast on his left hand, and that the light and the ladder and the hand condition that he suffered from were all contributory to his injury being suffered.

BELL J:   The respondent draws attention to paragraph 34 of the Court of Appeal’s reasons on application book 97 and says that those findings are not in issue.  These are the findings that your client:

had considerable control over how work was to be performed – being able to allocate his own employees or employees of the defendant to a particular task –

and so forth.

MR GORTON:   Yes.  They were findings that were open on the evidence that was presented.  But those findings do not mean that there is not a duty of care, and it was incumbent upon the court to analyse that duty of care in all its respects, including the place of work where the work was carried out.

BELL J:   Is this part of your submission directed to that point in the court’s reasons where, having determined against you that your client was not an employee, the court nonetheless went on to make some observations about the position in the event that he were?

MR GORTON:   It did not do it, as we read the judgment, saying in the event that we were wrong about him being an employee or not.  What they have done is said there cannot be a duty of care or a breach of duty by the employer by the respondent in this case because if you looked at him as an employer and as an employee, there would be no breach of duty of care established on the evidence, and they have not gone on and said how they would look at it if he were otherwise having a duty of care.

The error that they have made is in looking at the duty owed to an employee.  They have not properly categorised the requirements of that duty or the impact of what they say is a lack of evidence presented at the trial.  So if they had properly analysed the duty of care owed to an employee, they would have said in these circumstances there is a duty of care owed to him as an employee and it has been breached.  They could not have said there is a duty of care owed to him as an employee and it is not shown that it has been breach because there is a lack of evidence about what the employer knew.

So, having made that mistake in analysing the duty of care owed by an employer to an employee, they have said that that is the end of our consideration.  Because he would not get there on this wrong analysis, he cannot establish a breach of a duty of care.  In that analysis, they have not taken into account in any realistic sense, any obvious sense identifiable, the fact that the work operation was performed in the dark – the pitch dark – which is something that they knew about but it is decided in paragraph 42, we do not have to work out whether this work was performed in pitch darkness or not.

It is clear, in our submission, that the Court of Appeal approached it as in asking the question about employer/employee, asked the question and answered it incorrectly on the duty of care imposed on an employer and employer, and did not further consider the issues that – having got that wrong, they applied that wrong analysis to him whether he be an employee or an independent contractor.  On that basis, he has lost his case.  The reasoning process has identified in the Court of Appeal an improper analysis of the duty of care owed by an employer to an employee and, in effect, at the same time approached the duty of care attributable to a contractor in the Stevens v Brodribb situation wrongly as well.

So, apart from the gross injustice done to the applicant by his case of considerable financial significance being dismissed, there has been raised an important issue as to how the duty of care should be identified for (a) an employee, (b) a contractor, and (c) someone who falls perhaps into the middle of the hybrid sort of relationship where he is working part of the time under complete direction and control and part of the time on a different basis.  I think that is really the submission we make.

HEYDON J:   Yes, thank you, Mr Gorton.  We need not trouble you, Mr Wheelahan.

We are of the opinion that if special leave were granted the resulting appeal would have insufficient prospects of success to justify the grant of special leave.  Therefore, the application must be dismissed with costs.

AT 1.23 PM THE MATTER WAS CONCLUDED