Slivak & Anor v Lurgi (Aust)

[2000] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A18 of 1999

B e t w e e n -

ZDENKO JOSIP SLIVAK and BAHRJA SLIVAK

Applicants

and

LURGI (AUSTRALIA) PTY LTD

First Respondent

BHP MARINE AND GENERAL INSURANCE PTY LTD

Second Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MAY 2000, AT 10.11 AM

Copyright in the High Court of Australia

MR C.J. KOURAKIS, QC:   If the Court pleases, I appear with my learned friend, MR A.L. TOKLEY, for the applicant.  (instructed by Moran & Partners)

MR R.C. WHITE, QC:   If the Court pleases, I appear with my learned friend, MR A.V. POSSINGHAM, for the respondent.  (instructed by Kelly & Co)

GLEESON CJ:   Yes, Mr Kourakis.

MR KOURAKIS:   Your Honour, can I deal at the outset with section 24(2a), and it is the construction of that section which is the principal ground agitated on this application.  Your Honours will find that under tab 1 in the applicant’s book of authorities.  Your Honours, that subsection is an important innovation in terms of occupational health and safety legislation because of the ‑ ‑ ‑

GLEESON CJ:   Mr Kourakis, can I interrupt you to direct your attention to page 40 of the application book. 

MR KOURAKIS:   Yes.

GLEESON CJ:   You have obviously launched into an argument relating to ground 2.

MR KOURAKIS:   Yes.

GLEESON CJ:   Do we need to concern ourselves with ground 3 or, for your purposes, is it sufficient to concentrate on ground 2?

MR KOURAKIS:   It is sufficient really to concentrate on ground 2, if the Court pleases.  Ground 3 does involve a consideration of the terms used by the learned Chief Justice which are not necessarily clear.

GLEESON CJ:   Yes, go ahead.

MR KOURAKIS:   Your Honour, I will deal briefly with ground 3 after I have considered section 24(2a) though.  Your Honours, it was an important innovation in terms of occupational health and safety legislation because it reflects a decision to attack the cause of accidents at their source.  That is, recognising that accidents might be avoided by attention to the first step in a construction process that is designed.  Although, to some extent that subsection is unique to South Australia, the questions of principle that arise out of its construction, and to which I will refer in a moment, can have wider application.

If the Court pleases, the first matter that I draw attention to in subsection (2a) is the fact that it imposes a duty to ensure safety in the construction process.  That is, it is not limited to ensure that once construction is completed the use of the structure will be subsequently safe.  So much, really, is common ground.  But the next matter that emerges from that subsection is to consider whether that obligation requires the designer to have regard to risks which might arise because of the negligence of others or carelessness of others, such as the worker involved or the worker’s employer, the person who constructs.  It is the applicant’s submission that that subsection does require the designer to have regard to the possibility of an accident arising because of the carelessness of others, if that carelessness is foreseeable, if an accident arising in that way is foreseeable.  If it is, and if the means of avoiding the accident can be implemented and are reasonably practicable, then the duty was breached.

The respondents contend that the duty is limited to ensuring that the design in itself will not create a risk of injury.  That is, they say the duty is only to ensure that there is no risk of injury, to ensure safety, if the design or if the structure is built as designed.  In my submission, such a limited duty is inconsistent with the way in which duties expressed in statutes such as this have been construed in the past.  It is common ground that when an occupational health statute imposes a duty to ensure the safety of workers in so far as is reasonably practicable, the employer is bound to consider the risk of injury arising from the employee’s own negligence.  There is no reason to construe the duty imposed by subsection (2a) on designers in any more limited way.

Indeed, your Honours will see that similar duties are imposed upon manufacturers with the response in subparagraph (b).  If the duty is so limited then, on the respondent’s case, it would not be necessary for a manufacturer to include within a component or ‑ ‑ ‑

GLEESON CJ:   Mr Kourakis, we will hear what Mr White has to say about this proposed ground 2, but what do you want to say by way of support for ground 3?

MR KOURAKIS:   If the Court pleases, it is clear that it is for the courts to determine the standard of care in cases of negligence, including professional liability.  Universal practice is a consideration but in the end it is for the court to determine it.  Accordingly, it is not necessary, for a plaintiff to make out the case at common law, to have an expert witness from the profession concerned saying it is universal practice to adopt this safety procedure, or that many of us do adopt the safety procedure, or that some of the best of us do.  That evidence, although desirable, is not necessary.  A plaintiff will make out his or her case much more easily if that evidence is given but, in the end, the standard is for the court to determine.

In the learned Chief Justice’s reasons from page 24 of the application book and from paragraph  27, the passages that start from there show that the learned Chief Justice has gone too far in requiring a plaintiff to lead evidence from a member of the profession to the effect that a prudent member of that profession would have adopted the safeguard contended for.

GLEESON CJ:   Where do we find that?  Which is the particular passage you complain about?

MR KOURAKIS:   If the Court pleases, at page 24 of the application book first.  Paragraph 27 is the first consideration of it.  His Honour said:

For the appellant’s submission under this head to succeed, in my opinion it is necessary to conclude that the design, as embodied in the construction drawings, is not consistent with proper or sound engineering practice, taking account of what could reasonably be expected to be achieved by persons carrying out the fabrication –

The latter part of that sentence simply goes to the question of foreseeability and it is accepted that the professional must foresee the risk of injury but it is not the case, as is suggested in the first part of that sentence, that it is necessary to show that the safeguard contended for is adopted as a matter of engineering practice, as it exists.  Your Honours, the last sentence in that paragraph might suggest a more proper approach but, on consideration, is not, in fact.  His Honour says:

Current industry practices and standards would have to be taken into account in determining what could reasonably be expected of persons carrying out the fabrication and erection process.

GLEESON CJ:   Well now, he does not say, “Current industry practices and standards are determinative of what could reasonably be expected”.

MR KOURAKIS:   No, but his Honour is not there even considering the practice and standards of designers.  He is considering the practices of the constructor simply as a guide to whether the risk of injury, by exceeding the tolerances, was foreseeable and, with respect, his Honour is quite right.  But that is that the practices of constructors and the extent to which they might exceed tolerances is relevant to the question of foreseeability.  But that does not in any way qualify the determinative, in my submission, role his Honour places on the practice of the engineers in deciding whether the safeguard ought to have been adopted.  But, with respect, his Honour’s emphasis on current design practice is repeated.  Your Honours, at the last sentence in paragraph 28:

The appellant needed a finding that the prudent engineer would have realised that the design tolerance might be exceeded –

That is so.  Obviously the finding of the judge was required.  But when we go to the next paragraph, his Honour ‑ ‑ ‑

GAUDRON J:   Can you stop there?  The judge rejected the submission to that effect, is that correct?  You have no finding as to foreseeability?

MR KOURAKIS:   No.  The finding was simply that, given the risk of injury, the plaintiff had failed to show that it was reasonable to require a designer to adopt this safe method.  There is no finding ‑ ‑ ‑

GAUDRON J:   Is there a finding about foreseeability at first instance?

MR KOURAKIS:   I do not think there is, if your Honour pleases.  Can I just have a moment to check that?  Your Honour, at page 12 the reasons, at paragraph 22, for his Honour Justice Prior rejecting the submission really appear there.  Because of the approach which was adopted, in a sense, the question of foreseeability was not addressed, and for that reason I do not have the specific ‑ ‑ ‑

GAUDRON J:   Yes.  Well, there is no finding against you on that issue.

MR KOURAKIS:   Yes, that is right and, in fact, the mere fact that there is no finding either way shows, in my respectful submission, the way in which the case both before first instance and on appeal went wrong, with respect, by placing too much emphasis on requiring evidence from an expert in the field of the profession concerned as to what reasonable practice would be whereas, in fact, the correct approach would have been to ask, “Is it foreseeable that the tolerances might be exceeded?”  And there was uncontradicted evidence from Mr Fowlie, the engineer, that that was so.  Your Honours will see that at page 25 where the evidence is set out.  Your Honours will see that in the answer at line 5:

No, there will always be tolerances in construction.  And they can be over or under the design set out –

and as to the particular variations at line 20 he says:

I think, in my opinion, the variations are getting towards the outer end of what would be reasonable.

Your Honours, the variations that led to the plate being unsupported and falling were larger than were necessary to have it fall, that is a much smaller variation than that which, in fact, occurred in this case would still have led to the plate falling and according – Mr Fowlie’s evidence that the variations in this case were at the outer end of the range shows that variations of a smaller range which still would have led to the plate falling are foreseeable.  The only suggested position against that appears on the other page, at page 26.  He was asked:

Where he, I assume it’s a he, had provided for tolerances as to certain measurements in the construction that he would expect the structure to be erected and completed within those tolerances.

A.  In my opinion, particularly where tolerances had been specified, he would have relied on those.

Q.  And it would be reasonable for him to suppose that the person constructing it would comply with those specified tolerances –

and he said yes.  With respect, that is not to the point and is not the relevant question.  Obviously a designer would expect and hope that the constructor will meet the design specifications.  The real question is, “Was it foreseeable that the constructor might not build within those variations?”  And the answer on page 25 from the expert that was uncontradicted was that the variations in this case were at the outer range of what might be encountered.  So there was, in my submission, clear evidence upon which there could be a finding of foreseeability.

Once there is such a finding, so simple was the suggested precaution that, in my submission, a finding that it was unreasonable not to adopt it was almost inevitable, even at common law and certainly on an application of subsection (2a), and I can briefly come back to that.  His Honour the learned Chief Justice, with respect to that subsection, commenced his consideration of it at the foot of page 26 by saying that it was not clear to him whether there was any relevant difference between the common law duty and the statutory duty.

In my respectful submission, in the case of the statutory duty, the question of practice within the area is even of less relevance.  Practice on the question of whether the safeguard was reasonably practicable might be only some evidence as to whether the suggested safeguard was reasonable and practicable but it could not in any way be determinative of the duty

which is set by the legislature and it is a duty to ensure safety so far as is reasonably practicable, the only question therefore being, “Was it foreseeable?  Was the precaution reasonably practicable?”  If so – and if it is not adopted, breach has been made out, and it does not matter one bit what other engineers do or do not or what the particular engineer who is called says, almost, if you like, about the ultimate question as to what it is reasonable to expect an engineer to do or not to do.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Kourakis.  Yes, Mr White.

MR WHITE:   If the Court pleases, may I respond in the reverse order to the special leave questions which have been identified by the applicant and so deal with the question of the common law duty first of all?  The question that is raised with respect to the common law duty is whether there is a special rule which would limit the tortious duty of care applicable in claims of negligence against professional engineers to the standards applied by practising engineers and we say, with respect, that special leave is not required for that point to be agitated.

In effect, what the applicants wish to raise is the so‑called Bolam principle again in this Court, that is to say whether a professional person is negligent if he acts in accordance with the practice which has been accepted as proper within his or her professional body.  This Court considered that question in Rogers Whitaker in 1992 and confirmed the law in this country to the effect that ‑ ‑ ‑

GAUDRON J:   But was the law correctly applied in this case?

MR WHITE:   We would say, with respect, your Honour, it was and can I come to that in just a moment because, in short, what we will say is that in actual fact there was no evidence of professional practice at all presented to the trial judge in this case, so it was not a matter of the court looking to see what was appropriate professional practice.  It was a matter of the court looking to see what evidence there was which would suggest that there was a risk to which the common law duty of care should respond, and it was for that purpose that the trial judge and the Chief Justice went to Mr Fowlie, the engineer’s, evidence to see what it was that was identified as being the relevant risk.

GAUDRON J:   And they said there was no evidence of any – do I read them correctly in saying no evidence from which it could be inferred that there was a risk of the builder exceeding the tolerances?

MR WHITE:   No evidence of a risk from which it could be inferred that the ordinarily competent designer would have done something extra and, in particular, taken measures which were postulated by Mr Fowlie.

GAUDRON J:   The risk surely is of a builder exceeding the tolerances.

MR WHITE:   Yes.

GAUDRON J:   That does not seem to me to be a matter that needs expert evidence.  Anyone who has had a house built knows that the tolerances are exceeded and the walls are never, or rarely, exactly straight.

MR WHITE:   Your Honour, this was something called a “bag house filter”.  It was a fume extraction plant, the purpose of which was to extract particulate matter from the atmosphere.  It was a rather complex ‑ ‑ ‑

GAUDRON J:   And what were the tolerances, 2 millimetre something.  I am sorry, what were the tolerances?

MR WHITE:   The relevant tolerances for this particular accident were plus or minus ‑ ‑ ‑

GAUDRON J:   Two millimetres in a building how high?

MR WHITE:   It went 18 metres high.  This accident occurred at a point about 15 metres high.

GAUDRON J:   And it was a tower‑type building?

MR WHITE:   Yes, it was, your Honour.

GAUDRON J:   And we all know about the leaning tower of Pisa.  This one was - the only tolerance allowed was 2 mm.

MR WHITE:   These were the Australian Standards ‑ ‑ ‑

GAUDRON J:   And you say you need expert evidence that it is not foreseeable that a builder might build something more than 2 mm out of alignment?

MR WHITE:   Yes, one would in this case, because this was a precise engineering structure with quite precise plans.  The engineer accepted that this was a case in which the structure had to be erected precisely, that the Australian Standard tolerances were applied, that is to say, the tolerances specified by the appropriate Australian Standard, and that it was reasonable for the designer to expect that the structure could be, and would be, erected within those design tolerances.  So the real question here was, to what extent should the designer ‑ ‑ ‑

GAUDRON J:   But is that the question?  Is the question whether it was reasonable for him to expect that they would be so designed or is it a question that they would be so constructed or whether it was foreseeable that they might not be?  Now, I tell you why I ask that question.  If you ask the first question, it might be a question whether there was a relevant relationship such as to bring about a duty of care between the designer and the construction worker down the track.

MR WHITE:   Yes.

GAUDRON J:   But it does not seem to me to be, once you accept that there is such a relationship and the statute imposes that relationship, does it not?

MR WHITE:   Yes, it does.

GAUDRON J:   Then the question of foreseeability of the possibility that a 2 millimetre tolerance will be exceeded does not really seem to require expert evidence, does it?

MR WHITE:   Your Honour, we would say, with respect, that it does, given that this is a structure which had very precise drawings specified to the point of 1 millimetre and then with a tolerance either two sides of that and it was something which ‑ ‑ ‑

GAUDRON J:   In an 80-metre tower.

MR WHITE:   It was something which had to be constructed so that it would be sealed in all respects so that the air could not pass by the filters.  But coming back to the relevant question, your Honour, the Chief Justice identified that question in paragraph 28 of his judgment.  It is at page 24 of the application book, where he said:

Putting the matter a little differently, the appellant needed a finding that a competent engineer would not have designed the support structures and cell plates as Lurgi did, because a competent engineer would realise that there was a real risk of the design tolerances being exceeded, in the process of construction and erection, resulting in the overlap of the cell plate over the supporting structures being so slight that there was an unacceptable risk of something happening that could give rise to a loss of support on two adjacent sides.  The appellant needed a finding that the prudent engineer would have realised that the design tolerance might be exceeded to such an extent that this would result.

That, we say, was the ultimate critical question and it was properly identified by the Chief Justice and on all the review of the evidence he was satisfied, as were his fellow judges, that the evidence did not justify a conclusion that the reasonably ‑ ‑ ‑

GAUDRON J:   I do not understand what the reasonable confidence that it would not be has to do with anything other than the existence of a relationship.

MR WHITE:   Your Honour, it went to two questions, in our submission.  In relation to the common law, it went to the foreseeability of injury and particularly the identifying of the risk which might give rise to injury, and in relation to the breach of statutory duty, it went to the identification of the risk in respect of which it could be said that it was reasonably impracticable to take precautionary measures.  Under the breach of statutory duty, it is not necessary to guarantee the safety.  It is not even necessary to do that which is practicable.  It is only necessary to do that which is reasonably practicable, and the authorities make it quite plain that what is reasonably practicable is always to be measured in proportion to the nature of the risk and the magnitude of the risk which is being safeguarded against.

So this question of the extent to which it could be thought that this particular structure and the cell plate might be constructed out of tolerance was the critical question, and we say that that has been identified accurately by the Chief Justice in that passage.  The balance of his judgment is really an assessment of the evidence to see what there was from which it could be concluded that a designer sitting at his drawing board should have appreciated the risk with this particular structure and this particular design of the matter being erected out of design and then not being accommodated by the person who was designated to build it.

The other thing that we say about it – and this bears on both the common law duty and the breach of statutory duty – is this, that naturally we have an accident here and we know how it happened, and so the tendency is to focus on the precise circumstances which led to this particular accident.  But the duty placed on the designer, if it is as wide as the applicants suggest, is that he or she must identify every place in the point of construction at which the constructor might depart from the design and then consider ‑ ‑ ‑

GAUDRON J:   It is a question whether it is foreseeable but, once the statute imposes that duty owed directly to the construction worker, what else could it be?

MR WHITE:   Well, your Honour, it is only a duty to do with what is reasonably practicable.  Those are the critical words here.  On the authority, that means identifying the risk and the magnitude of the risk and the likelihood of the risk being realised, and the other obviating steps which might be available.  On the other hand then one looks at the expense and the inconvenience and any other countervailing factors which might bear on this.  But critical to all of this is the identification of the risk which is to be guarded against.  In this case it was, critically, the extent to which it was reasonable to think that the constructor might depart from the design.  That meant not only with respect to this particular feature ‑ ‑ ‑

GAUDRON J:   Well, it was not really departing from the design.  It was exceeding the tolerances, exceeding what were fairly fine tolerances.

MR WHITE:   More accurately, your Honour, exceeding tolerances, but tolerances specified for a particular purpose.  This was not a brick wall, these were things that were being fabricated.  The evidence was that quite precise measurement and cutting was available using computer aided cutting equipment and that it was reasonable, in the passage we have seen quoted, for the designer to expect that it would be constructed in accordance with those design specifications.

In any event, your Honours, I will just return to the common law aspect, quickly.  We say that it is not necessary for this Court to grant special leave in order to review the application of the Rogers v Whitaker principle in this case.  It has been confirmed in that case in the related profession of a supervising architect.  The same principle was identified by this Court in 1965 in the Florida Hotels v Mayo Case, which is in my learned friend’s book.  It is not suggested by us that that is the inappropriate principle and we say, with respect, that it was not suggested by the trial judge that that was the principle not to be applied.  Nor, when one properly understands the Chief Justice’s judgment, did he apply an incorrect principle.

We would make those same submissions in relation to the applicants’ suggestion that section 24(2a)(a) – I am sorry, I will put that another way – that the Chief Justice failed to apply section 24(2a)(a) in the proper way by again making practice of current professional engineers decisive of the issue.  He has not done that, he has gone to the evidence of the professional engineer for the purpose of seeing what assistance he has in identifying the risk which must be guarded against.

The second question which the applicants raise in relation to the breach of statutory duty is one going to the onus of proof.  As to that, we draw the Court’s attention to the fact that the applicants seek to raise in this Court a question about the onus of proof which has not been raised either before the trial judge or before the Full Court.  Indeed, before the trial judge the applicants accepted that they had the onus in all respects in this case.

But even putting that to one side, we say that the question of onus does not raise any question of principle, which deserves or warrants attention from this Court.  This Court has looked at the question of onus in a case which involves a breach of statutory duty involving a failure to take, or to ensure that ‑ ‑ ‑

GLEESON CJ:   We are having a breakdown in communications at the moment.  We will adjourn until it is repaired.

AT 10.44 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.51 AM:

GLEESON CJ:   I am sorry for the interruption, Mr White.  We will not deduct that from your time.

MR WHITE:    Thank you, your Honour.  At the time of the break, your Honour, I was about to come to the question of onus in relation to the alleged breach of statutory duty and I was making the submission that a grant of special leave was not required for the elucidation of that question because it has, in effect, been determined by two decisions of this Court, the first in 1990 in Chugg v Pacific Dunlop, which is No 10 in the applicants’ book, and the second being Waugh v Kippen in 1986, which is No 3 in the respondents’ book.

In Chugg it was a criminal prosecution, not a claim for damages for a breach of the duty.  The breach alleged was one of failing to provide and maintain, so far as practicable, a working environment which was safe and without risk to health and it was the question of onus which was raised squarely for determination by the Court.  The Court held that the onus of proving all elements of the offence was on the informant and the basis for that finding was that the qualifying words “so far as practicable” formed part of the statement of the obligation involved.

Now, it is true that Justice Deane in that case indicated that he would have been prepared to find differently if it was a claim for damages rather than a prosecution, and it is also true that the Justices who wrote the majority judgment, Justices Dawson, Toohey and your Honour Justice Gaudron, referred only to the fact or relied on the fact that this was a section which created criminal liability only.

Justice Brennan, on the other hand, said that the result would have been the same whether it had civil or penal consequences and in that respect he referred to the second case I mentioned, Waugh v Kippen, and the Court will see the passage from Waugh v Kippen quoted in Justice Brennan’s judgment at page 252 where he said, in effect, that the language must be read consistently.  It could not have one meaning in a prosecution and another meaning in civil proceedings.  The quote, if I may just read it, at the bottom of page 252 at tag 10 was this:

“the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer.  The legislature cannot speak with a forked tongue.  Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings, the elements that make up the obligation will be the same in each case.  For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action.”

We also draw attention to the fact that Justice Deane in the Pacific Dunlop Case at page 254, third‑last line on the page, drew attention to the weight of authority which favoured that view.  In this case, section 24(2a)(a) gives rise both to a civil right of action but also can be the subject of penal consequence.  I refer to section 58 of the South Australian Act.

GAUDRON J:   I just do not understand how this arises.  Nobody has really considered section 24(2a)(a) other than to say it is the same as the common law.  How does it arise?  What do you say, that the plaintiff could never discharge the onus of proof required?

MR WHITE:    Your Honour, with respect, it was dealt with by the Chief Justice at the bottom of page 26 and the top of page 27 of his

judgment.  He started in paragraph 32 by referring to the appellant’s reliance on section 24(2a)(a) and then said:

It is not clear to me what, if anything, that provision adds to the common law obligation to exercise the appropriate level of care and skill.

He went on to say that if it was the same as the common law then it was covered by what he had already said and then in the third‑last line said:

To the extent that this provision might add something more, I consider that it has not been shown that the design fails to ensure so far as reasonably practicable that the structure is designed so that persons who are required to erect it are safe from injury.

Now, we say implicit in that is that the Chief Justice was having in mind who it was who had the onus and it was just not something that had been argued before him as an issue but, in any event, if one reads the balance of that paragraph, one sees that the Chief Justice goes on to identify the conventional matters to which one has regard when considering whether or not a particular precaution or a step was reasonably practicable or not.

So we say, with respect, section 24(2a)(a) was argued before the court, argued on a basis that it was accepted that the applicants had the onus.  In effect, the Chief Justice resolved the issue against the applicants because he was not satisfied that the evidence showed the type of risk of injury or the sort of risk of injury which would make it reasonably practicable for the designer to have inserted some sort of safeguards or failsafes in the event that the constructor failed to erect the structure in the way that was designed.

The last point we make about section 24(2a)(a) is that it is unique to South Australia.  We have set out at tag 11 of the respondents’ book of authority, the statutory provisions which apply in the other States which concern duties of designers and we make the submission that there is simply no equivalent of the section 24(2a)(a) in those States.  So the particular provision which the Court is being asked to interpret is a local provision which would have relevance in South Australia only.  Those are the submissions of the respondent.

GLEESON CJ:   Thank you, Mr White.  Yes, Mr Kourakis.

MR KOURAKIS:   If your Honours please, there has been no finding that the risk of exceeding tolerances was unforeseeable nor any finding, as might have been implicit in my learned friend’s last submissions, that it was not reasonably practicable to adopt this.  The critical finding, the final conclusion of Chief Justice Doyle, at page 27 in paragraph  32, reads only to this effect:

While the conclusion that the design was itself safe is not necessarily the end of the matter, there is no evidence here to suggest a risk of injury that would have caused a designer to embark upon the further measures suggested by Mr Fowlie –

So, the only finding is that the risk of injury was not shown to be sufficient to cause a designer adopting current practices to adopt the safeguard and, indeed, implicit within that very section is a recognition that, nonetheless, there is some risk and, in my respectful submission, that is not surprising, from Mr Fowlie’s evidence or as a matter of commonsense.

Your Honours, the question of the onus of proof on section 24(2a) might only incidentally arise depending on how the Court considers all the evidence if leave is given on the statutory duty question.  But if leave is given, and that is considered, the sharp dispute between President Kirby and Appeal Justice McHugh, as they then were in Kingshott, would have to be resolved and it remains unresolved.  There is much doubt as to where the onus lies in statutory provisions which enact a criminal liability and provide a remedy in damages.

Although it is a local statute, it remains important to South Australia and, in my respectful submission, the principles that will be considered in that construction would have applicability to those other statutes which speak of a designer’s duty on the assumption of proper use.  Statutes expressed in that way would also raise the extent to which negligence by the user ought to be considered by the designer or manufacturer.  Although every statute must be construed on its own terms, the questions of principle, in terms of how such statutes designed to ensure occupational safety ought to be construed, will have some, at least, incidental effect on that question.

If your Honours please, to illustrate what, in my submission, was the error in the approach of Chief Justice Doyle, although we might all reasonably have expected that there would not be the break in the transmission that we have experienced, it certainly was not unforeseeable.  If the Court pleases.

GLEESON CJ:   I suppose the corollary of that is we were negligent in not guarding against it.

In this matter there will be a grant of special leave to appeal limited to the ground set out in paragraph  2 of the draft notice of appeal with the papers.

We will adjourn for a short time to reconstitute.

AT 11.01 AM THE MATTER WAS CONCLUDED