Slivak & Anor v Lurgi (Aust) Pty Ltd

[2000] HCATrans 348

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A18 of 2000

B e t w e e n -

ZDENKO JOSIP SLIVAK and BAHRJA SLIVAK

Appellants

and

LURGI (AUSTRALIA) PTY LTD

First Respondent

BHP MARINE AND GENERAL INSURANCE PTY LTD

Second Respondent

GLEESON CJ
GAUDRON J
GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 9 AUGUST 2000, AT 10.16 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 appellant.  (instructed by Moran & Partners)

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

GLEESON CJ:   We have received notification from the second respondent that it does not wish to appear and make any submissions.

HAYNE J:   Just before you begin, Mr Kourakis, as the parties have been informed, I hold shares in the Broken Hill Proprietary Company Limited, which I assume is the ultimate holding company of the second respondent.  I feel no embarrassment about that fact, as I would understand that the parties having been informed do not wish to raise any aspect of that matter.

MR KOURAKIS:   That is so.

MR WHITE:   Your Honour, I indicate that Mr Wallwork, who is the solicitor for the second respondent, has asked me to convey to the Court that the second respondent does not have any concern about the matter your Honour has disclosed, and nor does my client.

HAYNE J:   Thank you.

GLEESON CJ:   Yes, Mr Kourakis.

MR KOURAKIS:   If the Court pleases, the issues arising from the construction of section 24(2a) and its application in this case are effectively these, in my submission:  the first is whether the duty of a designer who designs a structure to ensure, so far as it is reasonably practicable, the safety of those who erect it is limited to ensuring safety arising from inherent risks in the design itself, or whether it extends to taking into account the risks which might arise from what is foreseeable about the construction and, in particular, a foreseeable excess, if you like, or exceeding the tolerances specified in the design.  In short, is it necessary for the designer in drawing the design to have regard to a variation from the specified tolerances, if such a variation is foreseeable in the course of construction.

GUMMOW J:   Now, section 24 is a penalty section.

MR KOURAKIS:   It is both.  Obviously, it is both a claim which can allow for civil recovery for damages ‑ ‑ ‑

GUMMOW J:   Why?  That is assumed, is it?

MR KOURAKIS:   It is assumed.  This was an action for that and no point was taken about it.  There is a history in this State of mounting such action.

GUMMOW J:   Right.

CALLINAN J:   The second reading speech, I think, makes it fairly clear too, does it not?

MR KOURAKIS:   I think it does, but I am afraid I have just assumed that this was an action and, as I say, it is common in South Australia and there is a long history in respect of this Act and its predecessor.

GLEESON CJ:   Another thing that seems to be common in South Australia that is not a matter of dispute but could affect the orders we make in certain eventualities, is that wives always seem to join in the action.  Is it because there is some legislation here that produces facts or results that when a worker is injured, the worker will normally look around for somebody other than the employer to make liable?  I presume that is because he cannot sue the employer, is that right?

MR KOURAKIS:   Yes, that is so.  I am not sure what your Honour the Chief Justice’s reference to the wife joined ‑ ‑ ‑

GLEESON CJ:   Well, the wife was a party to this action, was she not?

MR KOURAKIS:   Yes.  A Wrongs Act claim, loss of consortium claim.

GLEESON CJ:   So that is what seems to happen here:  the worker sues somebody other than the employer and then the wife joins in claiming a loss of consortium.

MR KOURAKIS:   Yes.

GLEESON CJ:   Is it common ground between the parties that if your appeal succeeds, the actions of both Mr and Mrs Slivak will have to go back to first instance for an assessment of damages?

MR KOURAKIS:   Yes.

GLEESON CJ:   Then there would also have to go back for decision the proceedings between the first respondent and the second respondent.  Is that right?

MR WHITE:   That is so, your Honour.

GLEESON CJ:   Yes, thank you.

MR KOURAKIS:   If the Court pleases, the second issue which arises necessarily from that and overlaps to an extent, is just what is meant by the phrase “reasonably practicable”, but more particularly, just what factors bear on or are relevant to an assessment of whether a particular precaution is reasonably practicable.  The next issue which arises is just how much evidence is necessary to prove the fact that humans are fallible and that mistakes might occur, and the limits of that notion in determining whether a risk is foreseeable.

Finally, the question of onus may arise.  The appellants’ position is that there was sufficient evidence at the very least to shift the evidentiary onus to the respondent, and the respondent never called any evidence, and that this case can be effectively decided in the appellants’ favour on that basis.  But to the extent that the Court finds against us as to that evidentiary basis, then we still agitate and maintain that there was within the section a shift of the persuasive onus as to proof of what is reasonably practicable.

GLEESON CJ:   Mr Kourakis, which is the precise provision we are concerned with?

MR KOURAKIS:   The precise provision is section 24(2a).

GLEESON CJ:   Thank you.

GAUDRON J:   Section 24(2a)(a)?

MR KOURAKIS:   Yes.

CALLINAN J:   Page 359 of the appeal book, I think.

GAUDRON J:   And that has to be read in the context of subsection (2), I take it, particularly subsection (2)(b)?  It says:

Without derogating from the operation of subsections (1) and (2) ‑ ‑ ‑

MR KOURAKIS:   Yes, if your Honour pleases.  If the Court pleases, I propose to simply go to one plan to commence with to give the Court an overview of the structure itself before returning very quickly to the section and the authorities which bear on the issues that I have outlined.

GUMMOW J:   Where do we find in the further amended statement of claim the allegation by the second plaintiff beyond the allegation in paragraph 9 on page 3 that she was married to the first plaintiff?

MR KOURAKIS:   Your Honour, it may not be there, but the reason for that is that the appeal books have been trimmed to exclude references to, or the basis for the damages.

GUMMOW J:   I want to know on what footing the second plaintiff was suing.  I do not know at the moment.

MR KOURAKIS:   Sorry?

GUMMOW J:   I do not know at the moment what cause of action the second plaintiff had.

MR KOURAKIS:   The second plaintiff ‑ ‑ ‑

GUMMOW J:   I want to know from the documents, not from what you say.  Why does the amended statement of claim cut out at page 6?

MR KOURAKIS:   Because that dealt with the question of damages.  The second plaintiff’s entitlement to damages arises by reason of negligent harm to her husband and for which, pursuant to the terms of the Wrongs Act, she is entitled to compensation.  The statement of claim in full can be provided as soon as we can arrange it, but it is not anticipated that that might become an issue.

GUMMOW J:   It is not a question of whether it is an issue.  One has got a right of judgment.  One has to begin at the beginning.

MR KOURAKIS:   If the Court pleases, we have cut too much at least in that respect.  We will provide a copy as soon as we can.

GUMMOW J:   All right.  There are three volumes here.

MR KOURAKIS:   Yes.  Can I take the Court to the third of those volumes to provide some overview of the structure and its design.  Can I take the Court to page 302.  Your Honours will see there the drawings of the structure from various elevations.  Can I just take the Court to the top two.  Your Honours will see towards the top left‑hand corner, near the letter C, a reference to US cell plate, and then a little to the right of that, the letter R.  It is at that level in the structure that the four cell plates were placed.  It was from there that the appellant fell.  Indeed, going across the structure your Honours will see a figure of a person at the top of some steps, and that there shows the level from which he fell.  Indeed, from about where the person is drawn, the evidence was there was an entrance from outside of the structure on to the cell plates which had been placed in position the day before.

Your Honours, at the letter C, you will see the reference to RL 21.625.  That is a level at which on that diagram the – that reference is to metres the cell plates were.  But that has to be understood by reference to a datum or starting point that was taken by the engineers.  If I can take your Honours to the bottom right‑hand drawing, your Honours will see there the number 000 equating that to what is called an RL, or a level of 6100.  I will just take your Honours to that to explain this:  that for the purpose of the drawings, a level by reference to a reference point that has not been specified was chosen.  That level was at some 6.1 metres from a reference point, that that point became the zero point for the drawings and calculations of distances from it.  It is for that reason that in subsequent drawings your Honours will see that the cell plates are described as being at a level of about 15.525 metres.  The difference is just the difference between what was taken as the starting point and the reference to another point.

If I can ask your Honours just to briefly look back at the drawing on the top left-hand side, that shows the south elevation, accordingly, from west to east, left to right, as your Honours are looking at the diagram, the dimensions were about 8.6 metres.  If your Honours look at the diagram ‑ ‑ ‑

GAUDRON J:   Sorry, the dimensions of what were 8.6 metres?

MR KOURAKIS:   The structure which your Honours can see there.  That elevation, that face, where it was about 8.6 metres.

GAUDRON J:   High?  Wide?

MR KOURAKIS:   No, no, across, from west to east, left to right as you are looking at that diagram.  Accordingly, being at about 8.6 metres internally, there were two cell plates next to each other from that elevation, from that plan.  If your Honours move to the diagram immediately to the right showing the east elevation, from left to right is effectively from south to north, that distance was about 9.6 metres.  Again, two cell plates placed within there so that there are a total of four cell plates at that level in what has been described as a two by two formation.

As I said a moment ago, and your Honours no doubt know, the plaintiff fell from the level of the cell plates.  If one takes that level to have been 15 metres from the datum point that the designers used, that is a distance of about some 50 feet, something like twice the distance we stand here from the ground.  Your Honours, I will return to the plans which follow to show in more detail the design, what was allowed for, and just how the process of aligning the plates was approached and how that led to the fall later.  But I want to return to the section itself.  Before returning to section 24(2a), can I ask your Honours to, in the appellants book of documents, go to the first tab where extracts from the Act are set out.  Section 3(b) identifies as an object of the Act:

to eliminate, at their source, risks to the health, safety and welfare of persons at work;

and that expression of the object reflects precisely what was said about the object of these sections and the amendments in the second reading speech.  Can I next take your Honours to section 23A because, in my submission, that is the first of a number of sections leading up to 24(2a).

GUMMOW J:   Well, you have odd numbering practices in this State.  My print is 23a.  At some stage these became capital A, did they?  I have been around this circuit before in Adelaide and I can never get a straight answer.

MR KOURAKIS:   It is simply a difference in the print.  It is the very first section after section 23 that I want to take your Honours to.

GLEESON CJ:   How should we refer to it in a judgment?

MR KOURAKIS:   Little “a”, I think.

GUMMOW J:   No, I do not think that is the latest perceived wisdom.  I may be wrong.

MR KOURAKIS:   I may have to ‑ ‑ ‑

GLEESON CJ:   Is it referred to in the Courts below?

MR KOURAKIS:   It certainly was.

CALLINAN J:   Page 359 is one reference.

MR KOURAKIS:   I do not know that 23A was referred to.  It does not help to look at how 24(2a) was referred to, which is what we discussed in the Courts below.  But I am told that there was a change between the printers that existed at about the time of the accident to how it exists now.

GUMMOW J:   Presumably in this State printers just do not change things because they want to.  How does it all happen?

MR KOURAKIS:   I do not know.  Can I take your Honours to ‑ ‑ ‑

GUMMOW J:   Well, maybe you should.

MR KOURAKIS:   If your Honour pleases, I accept that.

GUMMOW J:   I do not see why I should have to go and find out.

MR KOURAKIS:   I will find out and provide that information to the Court.

GUMMOW J:   Very well.

MR KOURAKIS:   Section 23A is the first of a number of sections, in my submission, which imposes a duty designed to achieve the elimination of risks at their source.  In that case, that is 23A, the design of a building that will be used as a workplace.  In my submission, it must be in the context of that section that the legislature had in mind the designer turning his or her mind to how the factory might be used and to what was foreseeable as to how workers might go about their employment, so incorporating into the design safety measures to safeguard against their own inadvertence.

GLEESON CJ:   Has it been held by some decision, or is it common ground, that contravention of these provisions creates a civil liability?

MR KOURAKIS:   It is common ground.

GUMMOW J:   How does it then attach to the wife?  How does the wife take advantage of it?

MR KOURAKIS:   The statute does not attach to the wife directly.  The wife’s claim ‑ ‑ ‑

GUMMOW J:   It does not attach to anybody directly.

MR KOURAKIS:   No, but by reference to ‑ ‑ ‑

GUMMOW J:   By a process of construction, you get out of a private cause of action out of the breach of statutory duty.

MR KOURAKIS:   Yes.

GUMMOW J:   I follow that, but then what is the action of the second plaintiff?

MR KOURAKIS:   It piggy-backs the action of the ‑ ‑ ‑

GUMMOW J:   That is a metaphor; that does not help me.

MR KOURAKIS:   It is an action given by the Wrongs Act ‑ ‑ ‑

GUMMOW J:   By the Wrongs Act?

MR KOURAKIS:   Yes.

GUMMOW J:   By what section of the Wrongs Act?  We are being asked, in effect, to enter a judgment for both plaintiffs for an amount to be assessed, so one needs to know on what footing it is going to happen.  I cannot just say it was a piggy‑back.

MR KOURAKIS:   Your Honour, I will have to provide you ‑ ‑ ‑

GUMMOW J:   We will come back to it, but one needs to know these things.

MR KOURAKIS:   That information will be provided, if your Honour pleases.  The next section which imposes a similar duty with that purpose in mind is section 24(1)(b), a duty imposed on the manufacturers and importers of plant.  In my submission, again, a proper construction of that section would be to extend the duty to incorporating safeguards against inadvertence by workers in the workplace.

If I can now turn to section 24(2a).  In my submission the issues, or the questions, which arise for a designer when designing a structure is to have regard to and to consider what risks might arise in the course of construction.  In this particular case, as your Honours will see in a moment, there was evidence that it is foreseeable that notwithstanding the specification of tolerances in a design, those tolerances may be exceeded in the construction process.  Indeed, the learned trial judge referred to that as a construction tolerance, if you like.

It is my submission that that section requires the designer to have regard to it.  It does not have the limited worth of simply ensuring that there is not an inherent defect in the design itself.  Such a limited construction would add, in my submission, nothing to the common law position.  The enactment of this provision in the context of the object in the second reading speech, in my submission, was designed to do something more, and that is to provide for the safety of workers whilst erecting it.  In the sense of taking precautions against their own inadvertence, it has been long recognised that accidents can happen because of that reason.  This statute and this provision simply recognises that much can be done to avoid it.

HAYNE J:   How do you relate the contention that the designer must foresee the possibility of design tolerances being exceeded to the language used in (2a)(a)?  How is that idea engaged by the language of (2a)(a)?

MR KOURAKIS:   By the words in the second line:

the structure is designed so that the persons who are required to erect it are, in doing so, safe from injury and risks to health;

HAYNE J:   The obligation is an obligation to:

ensure so far as is reasonably practicable that the structure is designed –

to achieve a particular result.  Do you relate the submission you have just made to the task of design?  Do you relate it principally to the expression, “so far as is reasonably practicable”, or do you relate it principally to the result that the section is intended to have achieved?

MR KOURAKIS:   The intended result is the essential guide, if you like, is the reason a certain purpose of construction is given.  But the duty that we contend for is limited to the design, because in the end the designer is only that, the designer.  We do not contend that there is a duty to then over and above the design supervise the construction in some way.

GLEESON CJ:   I may not understand the technical terms accurately, but is it the case that to say that the design tolerances have been exceeded is to say it has not been constructed as designed?

MR KOURAKIS:   It has not been constructed according to the design, for that reason.  In my submission, though, it will be a matter of fact and degree.  Some variations might be so great that it can be said that the workers are not engaged in the process of erecting the structure that was designed.  There will be other variations where, in my submission, it could be said that notwithstanding strict departure from the tolerances allowed, effectively the workers are still engaged in the erection of the designed structure.

CALLINAN J:   Did the specifications make any provision at all for tolerances?

MR KOURAKIS:   Yes.

GAUDRON J:   But you say, in essence, that given the nature of the structure being designed, the tolerances were inadequate.

MR KOURAKIS:   The tolerances were very small.  Because they were small, it was foreseeable – and Mr Fowlie said this, in our submission – that in the course of construction they might not be met.  Given that it was foreseeable that tolerances of that size might be exceeded, there was a simple further design element that could be incorporated to prevent men falling to their death or serious injury because of that foreseeable variation.  That design element was simply the diagonal struts.

GAUDRON J:   But that is to say – I mean I do not understand entirely why you say “inherent defects”, you make a dichotomy between inherent defects.  If it was the sort of building in which the safety of workmen required greater tolerances, then that seems to me to be a design defect.  You can call it maybe other defects, but it seems to be capable of description as a design defect.

MR KOURAKIS:   If your Honour pleases, that is so.  The dichotomy I sought to draw was this:  as I understand the respondent’s case, it is this, that a design is only unsafe if, necessarily, in the course of construction, even following the design, a risk of injury will arise.

GLEESON CJ:   This is where the inadequacy of my technical understanding cuts in, I am afraid.  When I read the numbers involved here, I could say I have no idea whether that appears to be a surprisingly small tolerance or a large tolerance or the sort of tolerance you would expect.  Is there some evidence that exists on that?

MR KOURAKIS:   Yes.

GLEESON CJ:   Without going into the detail of it at the moment, could you just give a page reference to that?

MR KOURAKIS:   Yes, it is Mr Fowlie’s evidence, which is repeated in the judgment, and that evidence is at page 64 of the first appeal book, going over to 65.

GLEESON CJ:   Thank you.

MR KOURAKIS:   If I can just say something more about that dichotomy.  There may well be designs that, if followed to the letter, or the smallest deviation if you like, can, if nothing else goes wrong, be erected safely, but that is not the test, in my submission, of a safe design under this section.  A safe design is one which takes into account those variations which might be foreseeable, such as those spoken of in the evidence to which I just gave the reference.  That is the only distinction I draw between “inherent defect” and a design which takes into account that sort of variation.

GLEESON CJ:   If you are talking about a metal plate, or a number of metal plates, which are to fit inside a tower, how does the concept of tolerance operate?  Presumably it is intended to fit.

MR KOURAKIS:   Yes, but so that the structure, which was a filtration system for fumes, can do its work and have all the components fitted within it, in the course of construction the designer says, “Well, you can vary by X mm, and everything will still fit and the function will be served”, nothing, it is accepted, it appears, given the Australian Standards – and I will come to those in a minute – can be constructed to the precise millimetre.

GLEESON CJ:   Presumably when you are trying to fit something into something else, there is a limit to the tolerance you can allow.

MR KOURAKIS:   Yes, exactly, and there were limits to the amount, if properly designed, of movement that the cell plate could give once in place, if there had not been a variation from the tolerances in the overall structure that held the cell plates together such that the cell plate would not have fallen.  However, given the variation in the construction of the supporting structure in this case, when the men came to move the plate, more movement than was designed for took place, with the result that the cell plate gave way and that the men fell to the ground.  It would follow from what your Honour the Chief Justice was saying that the cell plates had to be smaller than the external frame so that they could fit into it, obviously, but greater than the space which was bounded by the supports, the shelves if you like, upon which the plate rested when it was placed into the tower.

HAYNE J:   Are the tolerances accurately described in Mr Fowlie’s report at 290 at line 27 as being “(+0/-2)”?

MR KOURAKIS:   Yes.

HAYNE J:   Thus, measurements were given of the plates.  They were to be constructed no larger than the specified length.  If they were to be constructed within tolerance they could be constructed 2 mm shorter than the specified lengths.  Am I understanding it correctly?

MR KOURAKIS:   Yes.

GAUDRON J:   And what is 2 mm?  About a thumbnail?

MR KOURAKIS:   Less than that.

GAUDRON J:   Less than a thumbnail.

MR KOURAKIS:   In a total structure of just over eight by just over nine.

GAUDRON J:   Metres?

MR KOURAKIS:   Metres, yes.

HAYNE J:   In structures, particular structures, that were 4700 x 4210, to talk of the overall structure is, surely, not to compare the right thing.  We are talking about the tolerances on the plates.  The plates were 4700 x 4210.

MR KOURAKIS:   In so far as we talk about the tolerances on the plate, yes, but the other part of the construction which would affect whether the plates fell was the support structure and each face of the tower that I took your Honours to had space for two cell plates but was fabricated as one piece and so one is talking about the construction of the sides to the tower in the sizes that I have spoken of, about 8½ x 9½ metres.

GAUDRON J:   Was the problem the failure to comply with the tolerances in the shelf or in the tower?

MR KOURAKIS:   Both, in the plate and the tower, both.  The excesses in the structure were significantly greater than the fabrication variation in the cell plate.  Most of the variation occurred in the larger structure which was, as I say over 8 by over 9.

GUMMOW J:   Now the actual assemblage of the structure was by Lucon, was it?

MR KOURAKIS:   The actual employer was Lucon, yes, and the assembly was by Lucon.

GLEESON CJ:   Who actually manufactured the articles that were supposed to be subject to these tolerances?

MR KOURAKIS:   The plaintiff’s employer, Lucon.

GLEESON CJ:   Right.  So Lucon was the manufacturer and the assembler?

MR KOURAKIS:   Yes.

GUMMOW J:   Why can you not sue Lucon?

MR KOURAKIS:   In this State an employee cannot sue the employer.  The entitlement is only to workers compensation benefits.

GLEESON CJ:   That is why you always look around for somebody at fault other than the employer.

MR KOURAKIS:   Yes, which is what your Honour the Chief Justice raised earlier.

GUMMOW J:   What section produces that result?

MR KOURAKIS:   It is 45, I think, of the Workers Compensation and Rehabilitation Compensation Act, 54.

GUMMOW J:   Section 54, thank you.

MR KOURAKIS:   Whilst your Honour Justice Hayne was considering Mr Fowlie’s report, if you go to page 295 in volume 3, your Honour will see set out by dot point the various reasons Mr Fowlie explained the cell plates falling and they were accepted by the learned trial judge.

The first dot point, the “bowing of the” walls was not necessarily a variation in the fabrication tolerances at all but simply the effect of putting up steel plates in walls of that size, that they would bow, and if the Court was to go, for example, back to page 291 where Mr Fowlie’s report, which was tendered, referred to statements he had obtained about the procedure, one would see at the foot of 291 the third dot point, the part of the very erection process was:

to pull the side (external) wall back to the cell plate –

So to the extent that the walls bowed or were not up against the cell plate firmly it was part of the very construction process that was undertaken in this case to bring them back.

GLEESON CJ:   Without in any way pre‑empting the outcome of the point with which we are concerned, is it fair to read those comments by Mr Fowlie in this way, that where he gives a possible explanation followed by the words “as constructed” he is blaming Lucon ‑ or potentially blaming Lucon, and where he gives a possible explanation followed by the words “as designed” he is potentially blaming Lurgi?

MR KOURAKIS:   Yes, potentially but, I think, in fact he is simply ‑ ‑ ‑

GLEESON CJ:   Yes.  He is just dealing with possibilities at the moment but he is saying if that is the possibility that would be a construction fault and if that is the possibility that would be a design fault.

MR KOURAKIS:   Your Honours, I was going to go to the authorities after looking at the section.  Whilst we are on Mr Fowlie’s report can I just take your Honours to some other parts of it which explain something about the accident.  On page 292 under the heading “Site Surveys” at about line 20 your Honours will see a reference to the extent of the bowing to which I have just referred.  That is not necessarily not cutting steel to the right dimension or being outside the tolerance but it is just the effect of the fact that there is flexibility in the wall when it is put up and your Honours see that there was bowing of the walls at 14 mm and 13 mm.

Your Honours will see in the penultimate paragraph on page 292 a discussion of the possible placements of the cell plates, given the way in which they were constructed, so as to leave the plates unsupported on one side completely but with only small overlaps at the corners of the remaining side and what is described there in that paragraph is, in fact, set out diagrammatically in the diagrams which were attached to Mr Fowlie’s report.  Your Honours can see starting at page 297 – I will take your Honours to that paragraph if your Honours open it out.

GUMMOW J:   Before you go to that, how do you overcome the finding by the trial judge at 345 line 25?  Your client, the first of your clients:

sustained his injuries as a result of an unsafe system of work, lack of proper supervision and a failure by –

Lucon –

to carry into effect the defendant’s design and specifications…..no proof that the design of the structure was itself defective.  If the support structure and the cell plate had been constructed as designed the cell plate would not have fallen –

et cetera, et cetera.  We have to overcome that, have we not, in order to find for you?

MR KOURAKIS:   No.  Your Honour, there can be more than one cause for the accident and the plaintiff, the appellant, has always accepted that the reason that the plate fell was, at least in part, because of the negligence of the employer.  That does not preclude an action against another tortfeasor if the admission of that tortfeasor has also contributed to the accident and that is the basis ‑ ‑ ‑

GUMMOW J:   But there is a finding:

There is no proof that the design…..was itself defective.

MR KOURAKIS:   Yes, but if the Court pleases, in my submission, all that goes to is the ‑ what I describe as the inherent defect question, that is that it was not the case that an accident would necessarily happen if this design was constructed to the letter.  That is all that is directed at.

GLEESON CJ:   Is your case that the statutory obligation on the designer was to anticipate the kind of error that was made by the builder and to cater for it further in the design?

MR KOURAKIS:   Yes, and that that obligation arose so long as it was reasonable to foresee that variation and secondly, if it was reasonably practicable to cater for it in the design.

GLEESON CJ:   Now that is an issue to which the trial judge addressed himself, did he not?

MR KOURAKIS:   In my submission, no.  The only passage where he, in fact, dealt with 24(2a) is two pages earlier.

GLEESON CJ:   But hang on.  That was the basis of your common law negligence claim also, was it not, that it was negligent of the designer not to have anticipated error of the kind that was made by the builder and to have incorporated a further design feature to safeguard against such error.

MR KOURAKIS:   Yes, yes.

GLEESON CJ:   Well now, he found against you on your common law claim on that basis.

MR KOURAKIS:   Yes, he did.

GLEESON CJ:   So unless you challenge that finding you have to persuade us, do you not, that the statute adds something to the common law duties?

MR KOURAKIS:   Yes, and that is our case.

GUMMOW J:   Then you need some findings to give effect to that construction of the section, which you do not yet have.

MR KOURAKIS:   No, but we have no finding against us that it was not ‑ ‑ ‑

GUMMOW J:   No, no.  You do not yet have them for you.

MR KOURAKIS:   No.

GUMMOW J:   You want us to make them.

MR KOURAKIS:   Yes.  Your Honours, can I just go back to page 343.  His Honour the learned trial judge dealt with section 24(2a).  In fact, this might be at least in partial answer to your Honour Justice Gummow as to how 23A ought to be described, but at about line 48 on page 343, your Honours will see that the learned trial judge said:

I agree that s23A is not intended to apply to a building in the course of construction and that no breach of (2a) of s24 was made out.

That was the way in which he dealt with the breach of statutory duty.  Can I go back to page 345 and I have only really so far answered the issues your Honours have raised in so far as causation.  Can I take your Honours to line 30.

HAYNE J:   Which page?

MR KOURAKIS:   Page 345 back to the passage that his Honour Justice Gummow took me to and to line 30.  The learned trial judge’s finding was this:

It was reasonable for the designer to expect that the structure would be erected within the specified design tolerances.  Had this occurred the accident would not have happened.

Now, your Honours, both as to the common law duty and as to the statutory duty, the error that is disclosed in that finding and, in my submission, which was repeated in the Full Court, is that, in effect, it asks the wrong question or at least does not yet ask the relevant question.  One might foresee a number of different courses of construction that might follow, not just one.  One can easily say in most cases it is reasonable to expect that the design tolerances will be met.

GAUDRON J:   But that, surely, must depend on the tolerances allowed.

MR KOURAKIS:   Yes.

GAUDRON J:   Yes.  And here you have a circular building, is it, essentially circular building?

MR KOURAKIS:   More rectangular, I think.

GAUDRON J:   Rectangular, of some considerable height.  One knows that high buildings do not always remain in trim, as it were, and you have got thumbnail sized tolerances.

MR KOURAKIS:   Yes, and it is my submission that, in a practical way, courts deciding these questions can look at that broad overview.  At the very least, though, in this case, that sort of overview is supported by the evidence of Mr Fowlie that I will come to in more detail in a moment.  But, even assuming that one can say of tolerances this small that it is reasonable to expect that in most cases they will be met by the constructor, that still does not answer the critical question, was it reasonably foreseeable that in enough cases they might not be met?

GLEESON CJ:   Right.  Now, you say the finding on page 345 lines 30 to 32 addresses the wrong question?

MR KOURAKIS:   Yes.

GLEESON CJ:   What do you say is the right question, that is what is the question we should ask ourselves?

MR KOURAKIS:   Was it foreseeable, reasonably foreseeable that in enough number of cases those variations might be exceeded?

GAUDRON J:   No, that cannot be right.  You do not have to say in a significant enough cases, do you?  This was a one‑off design, was it not?  You have to ask the question, was it reasonably foreseeable that the tolerances would be exceeded?

MR KOURAKIS:   If your Honour means would in every case be exceeded then, in my submission, that is too high a test.

GAUDRON J:   What do you mean in every case?  This is a one‑off construction project.  There were a number of tolerances for various aspects of it.  The exceeding of the tolerances in any one respect, presumably, if of sufficient magnitude, would have resulted in this shelf falling.  Was it reasonably foreseeable that any, or all, of the tolerances might be exceeded?  That is really all you have to ask.

MR KOURAKIS:   If your Honour pleases, put in that way, whether they might be exceeded, that is my submission.

GAUDRON J:   Well, reasonably foreseeable has its own problems of semantics, but if they might happen they are reasonably foreseeable.

MR KOURAKIS:   Yes, and that is the question that has not been asked.

GAUDRON J:   You have to then go and say, “If it was reasonably foreseeable, were there practical measures?”

GLEESON CJ:   Well, the question that has been answered, which you say is the wrong question is, it was reasonable to expect that the structure would be erected within the tolerances.  Now, you do not challenge that finding.  What you say is that that finding is inconclusive on the statutory duty.

MR KOURAKIS:   Yes, because the question that ought to have been asked was the one put, with respect, by her Honour Justice Gaudron.

GLEESON CJ:   I understand that, but now, let me get it clear.  Do you seek to challenge the finding made on page 345 line 30 or are you confronted with concurrent findings of fact?

MR KOURAKIS:   The same finding of fact was simply accepted by the Full Court so there are those concurrent findings.

GLEESON CJ:   I know that part of your answer to that problem is to say that finding is inconclusive, it does not address the right question.  But in so far as it be relevant to know this, do you challenge that finding?

MR KOURAKIS:   No.

GLEESON CJ:   You do not.

GAUDRON J:   Well, why not?  I must say in your position I would challenge it.

MR KOURAKIS:   Because, in my submission, it says nothing more than it was reasonable for the ‑ ‑ ‑

GAUDRON J:   Maybe it does.  Maybe it says that the tolerances were sufficient.

HAYNE J:   If it was reasonable for a designer to expect construction within tolerances, it seems to me almost inevitably, perhaps inevitably, to carry with it the assertion the tolerances were reasonable and, if that is so, then the slope is looking a bit steep, Mr Kourakis.

MR KOURAKIS:   We challenge that it says that and if it is to be read as saying that then that is challenged but that is, in our submission, not what it says.  If his Honour had said it was reasonable for the designer to expect that the structure would always be erected within the specified tolerance, then we would be in difficulty, but that is not what the finding is.

HAYNE J:   I read his Honour as saying two things.  It was reasonable to expect that it could be done.  Not only could it be done, it was reasonable to expect that it would be done.  Perhaps if you want to insert some notion of would probably, would likely, perhaps it is to be read in that form.

GAUDRON J:   I must say, however, when I read that sentence, what it seems to me to be saying is that the duty of a designer is simply to design a structure which, if built in accordance with the design, is safe.  I must say when I read it in context that is what it seems to be saying.

MR KOURAKIS:   That is what his Honour Justice Prior seems to be saying.  Yes.

GAUDRON J:   Seems to be.

GLEESON CJ:   His Honour has come to that conclusion after discussing the evidence of Mr Fowlie on the preceding pages and, as I understood what happened at the trial, Mr Fowlie was, in effect, invited to criticise the designer and say that the designer did not make reasonable allowance for error on the part of the builder and Mr Fowlie responded to that invitation in an extremely cautious manner.

MR KOURAKIS:   Yes.

GLEESON CJ:   And the trial judge then had to work out what he did with Mr Fowlie’s evidence.

MR KOURAKIS:   Yes.  But, your Honour, that issue – what a reasonable designer would have done ‑ had some importance, though not conclusive importance on the common law duty, but in my submission had no relevance to the statutory duty.

GLEESON CJ:   That is really what we are arguing about, is it not?

MR KOURAKIS:   Yes, that is one of the criticisms.

GLEESON CJ:   I realise you say the finding is inconclusive but do you go so far as to say it is irrelevant?

MR KOURAKIS:   I say that what another designer would have done, what another designer and designers generally might have considered reasonable is irrelevant to the question of breach of the statutory duty.  It has some bearings, sometimes important bearing on the question of the common law duty.  It has no bearing on the question of breach of the statutory duty and that is the position that is taken by the learned authors of McHugh and Glass on employers’ liability and the passages in that are included in our book of authorities.

GLEESON CJ:   Maybe you ought to take us to that.

MR KOURAKIS:   Yes.  Can I take your Honours to tab 2 of our book of authorities and to page 160 of the extracts from the text and can I take your Honours about just over halfway, about two‑thirds of the way down to the sentence commencing:

Notwithstanding the assimilation of the common law duty and the statutory duty on the issue of reasonable practicability, it is submitted that it is erroneous to regard the duty imposed by s.40(1) –

that was a safe access provision but the formula was effectively the same:

as equivalent in all respects to the common law duty.  At common law, an employer is not guilty of negligence unless a risk of injury existed, which it was reasonably practicable to eliminate, and the failure in all the circumstances to do so was unreasonable.

In my submission, that is the essential difference in that “in all the circumstances” might include the practice currently adopted and accordingly, notwithstanding the finding that there was a reasonably practicable precaution, a defendant might be excused if, in all the other circumstances including practice, a common law duty was not imposed.  The authors go on:

But the issue of unreasonable conduct is irrelevant to s.40(1).  Upon proof of a foreseeable risk of injury, which it was reasonably practicable to obviate, the occupier will be liable.  It would be no answer, as in an action for breach of common law duty, that the particular means of access accorded with common practice throughout the industry.

It is for those reasons that, in my submission, was irrelevant to the question of the designer’s duty, what other designers might have done and accordingly, Mr Fowlie’s caution in evidence is not relevant.

GLEESON CJ:   We are regularly being told, particularly by the first author of this book, how undemanding the test of foreseeability is.  That carries with it some consequences in relation to the other parts of the requirement, does it not?  It is one thing to say it is reasonable to expect a builder to adhere to the design tolerances but if you ask, is it foreseeable that a builder might not adhere to the design tolerances, if the answer to that question is yes, the consequence of the statutory provision is that if it is reasonably practicable to guard against the consequences of that, you must do so.

MR KOURAKIS:   Yes.

GLEESON CJ:   And that is what your argument comes down to.

MR KOURAKIS:   Yes, and as to that question of reasonable practicability, again the evidence, in our submission, was really one way in that, again, in Mr Fowlie’s report, when he discussed the preventative measure at the foot of page 295 in volume 3, he described the measure as:

a straightforward, inexpensive preventative measure –

GLEESON CJ:   Does that mean the consequence of the statute is that the designer is required to incorporate into the design protection against every foreseeable risk of departure from the design?

MR KOURAKIS:   If it is reasonably practicable to do so, yes.

GLEESON CJ:   If it is reasonably practicable for them to do so.

MR KOURAKIS:   Yes.  And that must have been and, in my submission, can only have been what the Parliament had in mind given the second reading speech, and it accords exactly with the objects that I took your Honours to.

HAYNE J:   Let me test it in this way.  A designer may design a stud wall to be built with timber of a particular grade and if designed with timber of a particular grade the wall will bear the weight which it is intended to bear.  Do you hypothesise a case where the designer knows that buying the cheaper grade of timber, a well‑known economy means of builders, and that if it is built with the cheaper grade the roof will fall down, therefore you have to design it with studs every 6 inches, not every 12 inches.  That is the consequence of the argument, is it not?

MR KOURAKIS:   Yes, but in the end that argument will be determined by the evidence as to whether that is reasonably practicable or not.

HAYNE J:   So if the designer knows that brickies routinely economise on the amount of cement put into the mortar, they have to design the structure to take account of that fact.

MR KOURAKIS:   No.  I do not say that they must.  Certainly, they would have to turn their minds to it but the question of reasonable practicability would arise and whether taking those steps would, in fact, guard against the economies or not and how effective taking the steps would be would be a very relevant circumstance, just as in Marshall v Gotham the preventative measure there of setting up props to prevent the mine walls falling down was not going to ensure safety so it was not practicable to do it.

GAUDRON J:   But are you in the same area of discourse when you are talking about materials as when you are talking about design tolerances, when you are talking about measurements.  You may be in a quite different area because in one situation you are, presumably, designing a structure of a particular kind, namely with particular material.  In this case it is not so much that you are talking about a structure of a particular kind as a structure which just might happen not to be true in its alignment.

MR KOURAKIS:   With respect, I adopt that distinction.  The other way of putting that, though, is that it may be that it could be said there is no, really, reasonably practicable method of safeguarding against skimping with materials, it being a conscious act if you like.  But the question of some variation by reason of inadvertence or otherwise intolerances is one that can be guarded against.

HAYNE J:   But does it perhaps point to whether an essential step in your argument is the reasonableness of the tolerances incorporated in the design, in this way, following the studs and cement mortar examples.  I do not know how these plates were fabricated but one can imagine hand cut, machine cut, laser cut, cast, all manner of forms of fabrication of plates which, I assume, carry with them different achievable tolerances and, assumedly, different prices to the person purchasing them.

Now, does that perhaps suggest that when you are examining the liability of the designer you have to examine whether the tolerances built into the design were, themselves, reasonable tolerances?  If they were, the designer is not in breach.  If they were not, then the designer should have done something to protect the people who were to construct.

MR KOURAKIS:   Our submission proceeds in this way, that - the question is not simply whether the tolerances of plus or minus 2 mm in terms of the fabrication in the workshop, for example, and in the placement of bolts was unreasonably small or not.  The appellant’s case really focuses on those tolerances as they applied at the cell plate level, a level at which the designer knew men would get on to the plates for the purposes of aligning them.  It was envisaged within the very erection procedures that men would stand on these steel plates supported by just millimetres of overlap with the angle iron and other supports internally, to position them, to align them.

GLEESON CJ:   Is there anything in life more foreseeable than error?

MR KOURAKIS:   If your Honour pleases, that is the general approach which the courts can and have taken in deciding whether there has been a breach of these sections and whether something is foreseeable and in this case it simply reinforced what Fowlie said, and I will take your Honours to it.

GLEESON CJ:   If you have to design against the possibility of error, where does that leave you?

MR KOURAKIS:   It would almost be impossible to do a second level of design over everything in the whole structure.

GLEESON CJ:   It does not have to be a fail-safe design, does it?

MR KOURAKIS:   No, and it is only what is reasonably be practicable.

GAUDRON J:   You design with tolerances because you can foresee error.  That is the nature of design tolerances.  So, there is nothing novel in that idea.  Maybe at the end of the day, whichever way you approach it, the question in issue which has never been really decided, unless implicitly decided at page 345, is whether the tolerances were reasonable.  If the tolerances were reasonable then, on any view, you must fail because the design cannot be said to have been a cause of the accident.  I think probably whichever way you look at it you have got to confront that and that finding.

HAYNE J:   Which invites attention to whether you set out to prove a case which included, as an element of the evidence led, the tolerances designed were unreasonable tolerances.

MR KOURAKIS:   Not as to the whole structure overall but as to the cell plates, yes, and it is there that the focus of the appellant’s case is, and that is, given the fine tolerances, given the small amount of overlap that was allowed for at the plates on which the men would work, some 50 feet above the ground, was it foreseeable that an error might be made.  In our submission, yes, because of the general recognition of human fallibility in Fowlie’s evidence.  Was there something that could be done?  Possibly two – a number of things.  You could allow greater tolerances, generally.  That is not one that was pursued particularly vigorously.  All that the appellant said at trial was given the small room for error in terms of what it was designed for, given the small amount of overlap, four straps designed in at that level would ‑ ‑ ‑

GLEESON CJ:   You use that expression “small amount of error”.  Now, that really involves an evaluation which, unless it is supported by the evidence, has no impact on my mind at all.  I just do not know whether or not, having regard to the nature of the activity that was being carried on here, the tolerances are “small”.  I can read the numbers and I can compare the total length with the amount of the tolerance but that does not convey to me any information about whether it is small.  I just see the numbers.

MR KOURAKIS:   Yes, if your Honour pleases.  Can I go to volume 1 and Mr Fowlie’s evidence?

GLEESON CJ:   Yes.

MR KOURAKIS:   I think I should go to that now, starting at the bottom of page 64.  At line 36 he is asked – Mr Forbes Fowlie is asked at the foot of page 64 whether he had noticed that some allowance for design tolerance had been made.  At page 65:

There were tolerances indicated on the overall dimensions, the cell plate itself.  There were no tolerances indicated on the dimensions of the structure into which the cell plate was going to be placed.

He is then asked about a page in his report in which he spoke of the amount of overlap that would have been allowed.  His report had spoken even on the as designed basis how much overlap there might have been on the supporting angle iron and internal beam supports for the cell plate and it was 11 ‑ ‑ ‑

HAYNE J:   Just at line 9 of the transcript it is, “adjacent sides would produce”.  It should be, I think from the report, “reduce”.

MR KOURAKIS:   Yes.  For reasons that I will go to when I go to the plans, the actual amount ‑ ‑ ‑

GAUDRON J:   Can I just interrupt you there?  Do I understand at that stage, line 9, that movement by 1 mm in that situation would result in the shelf falling?

MR KOURAKIS:   No, would result in it being unsupported on one side.

GAUDRON J:   Well, if it is unsupported on one side, that is right, and somebody stands on the unsupported bit you go down.

MR KOURAKIS:   No, it still needs to be unsupported on two sides.

GAUDRON J:   Does it?  Yes.

MR KOURAKIS:   Yes.

HAYNE J:   And movement of 1 mm?  Is not the effect of Fowlie’s evidence that if the dimensions had been smaller by 1 mm, that is, if the plate had been 1 mm narrower, less length, whichever way, there would have been a fall, not movement.

MR KOURAKIS:   It would require both.  This evidence there which is taken from his report, envisages the plate, as designed, moved within the supporting structure to an extreme corner so that ‑ ‑ ‑

HAYNE J:   And at least tolerance or greatest tolerance, perhaps - at greatest tolerance there would have been 1 mm of support left.

MR KOURAKIS:   Yes, and 11 mm on the other side.  Can I just tell your Honours this, when your Honour Justice Hayne said the “greatest tolerance” what he had taken into account was only the tolerance on the cell plate.  He had not taken into account the tolerance on the support structure and so if he had ‑ ‑ ‑

HAYNE J:   But he had given evidence there were no tolerances indicated on the dimensions of the structure into which it was to be placed.

MR KOURAKIS:   There is some dispute between us as to whether that is what he meant in that answer.  In fact, there were tolerances allowed on the structure itself.  Certainly in calculating the 11 mm and 1 mm he had assumed a tolerance on the plate itself, that is, that it had been built 2 mm smaller.  He had not taken into account, for the purposes of those calculations, building a structure 2 mm larger.  If that is built in on the design itself, if the cell plate was moved to the extreme position there was a 1 mm gap along an entire side and an overlap on the adjacent side of only 9 mm.

GLEESON CJ:   Just remind us what Mr Fowlie’s expertise was.

MR KOURAKIS:   He is an engineer, a structural engineer.

GLEESON CJ:   Was he ever asked whether proper design practice was departed from by having tolerances of this magnitude?

MR KOURAKIS:   No, but he recognised that the Australian Standards were that structures of this nature could be designed within – well, it was the Australian Standard that they be designed within a variation of plus or minus 2 mm.

GLEESON CJ:   I am not sure what to take from that.  What follows from that?

HAYNE J:   Nothing to your advantage, I assume, Mr Kourakis.  Possibly, something to your disadvantage.

MR KOURAKIS:   Yes, all that was said was that it was the Australian Standard and then that slid into discussion about what it was reasonable to expect.  I still want to read down as to what he said, but in answer to your Honour the Chief Justice, no, that specific question was not put.  There was talk about the Australian Standard and, again, discussion about what a designer might reasonably expect, which, in my submission, begs the question.  It is suffice to say at this stage that on the design itself it was possible for the plate to be left unsupported by 1 mm on an entire side and by only 9 mm on the adjacent side which, accordingly, created a risk of falling if there was a variation of just 9 mm over and above that allowed for in the design by the constructors.

GAUDRON J:   And, you are talking about the variation then of the outer structure for which no tolerances were built in.

MR KOURAKIS:   They were in fact specified on the plans.  There were tolerances and Mr Fowlie was taken to that later, and I will take your Honours to that, and those tolerances were plus or minus 2 mm.  If those tolerances are combined with the cell plate tolerances to which the answer at about line 10 is directed, then in fact rather than there being a 1 mm overlap there is a 1 mm gap and only 9 mm rather than 11 mm support.  So, I say that all that was then required over and above the deviation or the tolerance allowed in the design itself was a further 9 mm error, if you like, in the construction process to allow the plate to be unsupported on both sides.

GLEESON CJ:   Now, you say that but what did Mr Fowlie say about whether that was unreasonable?

MR KOURAKIS:   Can I take your Honour to line 25 on the same page – 65:

Would you have considered that a prudent designer would have allowed greater than a possible one millimetre overlap each as constructed, to allow for reasonable variances in construction.

His answer was:

That would seem to be the prudent thing to do.

GLEESON CJ:   How do you relate that to the facts of this case?

MR KOURAKIS:   The question is related to the fact of this case.  Mr Fowlie is giving evidence that it would seem to be prudent in this case to have allowed for more than 1 mm of overlap – that is overlap of the plate on its supporting shelf – within the structure.  The supporting shelf that I describe is made of angle iron on the external walls and beams forming an internal cross to support all four plates.  So, Mr Fowlie’s evidence is that it would have been a prudent thing to do.  Now, that might be done by so designing it so that there would always be more than that amount of overlap plate on the supporting shelf.  The other alternative and the one upon which the appellant more strongly relies is that the four supporting struts just beneath the plate would have served the purpose of safeguarding that risk.

GLEESON CJ:   When say “more strongly relies” I had not picked up, I must say, that one of the aspects of the case the appellant was seeking to make out was, having regard to that evidence on page 65 at line 29, it was negligent not to allow a greater than possible 1 mm overlap.  I had understood your case to be that there should have been another supporting arrangement under all this to allow for the possibility of departure from design.

MR KOURAKIS:   Yes.  Your Honour, there was no evidence about how that extra overlap on the shelves could be achieved and what would mean for the design and so, necessarily, that part of the case is obviously weaker and the submissions that have been made have been directed towards that.  I do not intend to take your Honours to evidence that says anything, really, about how you might have gone about designing a greater support by putting in, for example, wider angle irons or that sort of thing because it was not canvassed but that answer is directed towards just that, that the amount of overlap allowed, prudently, ought to have been exceeded.  There were a number of ways in which it could be done but the one actually postulated in Mr Fowlie’s report is the struts and I took your Honours to that measure as described in his report.

GAUDRON J:   And, if not exceeded, some other measure should have been taken to compensate for the – so, it was really an alternative case, yes.

MR KOURAKIS:   The evidence that was given was really on that alternative to struts underneath.

GAUDRON J:   Yes, but there were other measures besides greater tolerances but given the margin involved, if they did not exceed those tolerances then they should have done something else.

MR KOURAKIS:   If they were not going to allow for a wider overlap they should have done something else – that was the struts.  In the end, in terms of the evidence that was led, it was predominantly on that.  I do not ask from this Court a finding that some other measure, for example, placing in wider angle irons ought ‑ ‑ ‑

GLEESON CJ:   Do you ask from this Court for a finding that the tolerances allowed for in the design were unreasonably narrow?

MR KOURAKIS:   As to the structure generally, no, but as to how it affected that point in the structure on which men would have to stand to position the plates, yes.  That does not mean, though, that there had to be a separate design tolerance, if you like, for that part of the structure because, practically, the simple design element was to include the struts beneath it.

GLEESON CJ:   In that list of things that Mr Fowlie set out in his report as to possible explanations of the accident, some potentially blaming the building and some potentially blaming the designer, I do not see any reference to inadequate tolerances.

MR KOURAKIS:   No, and there might not have been.  I am not sure that that in any way affects what he has to say about the safeguard at page 295, the preventative measure.  What he set out as to the causes of the accident at page 295 is, as it were, simply a discussion of that which did exist, the state of the structure at the time and the activity that was performed on it to explain as a matter of fact what convergence of factors caused the fall.  That does not detract at all from his description of the preventative ‑ ‑ ‑

GAUDRON J:   He certainly does relate design features, or if you read it in the way the Chief Justice has suggested, as a cause of the accident, namely, the “flexibility” “as designed” the “cut-offs” of “the corners” “as designed”.

MR KOURAKIS:   Yes.  The “width of the shelf angle supports”.

GAUDRON J:   Yes, "as designed” so he certainly attributes design as a contributing cause.

MR KOURAKIS:   Yes.

HAYNE J:   Just as to flexibility, was that discarded by the trial judge, the bowing of the plate?

MR KOURAKIS:   No.  Flexibility of the plate itself under its own weight, yes, but not the bowing of the wall.

GLEESON CJ:   Well just a moment, it presumably took that decision before it heard the submissions that were going to be made on behalf of the plaintiff?

MR WHITE:   It did, your Honour, but ‑ ‑ ‑

GLEESON CJ:   So it was not led into that decision by any failure on the part of the plaintiff to raise a particular argument?

MR WHITE:   Your Honour, there had been an opening and various things said during the course of the trial.  The passage which we quoted in the written submissions came after the decision was taken, it is true.  We do not say we were induced by that particular statement but it was the fact that the appellants in outlining their case to the trial accepted onus of proof in respect of every element and it was not suggested at any stage that the first respondent bore any onus, in particular when the amendment was made to raise section 24(2a)(a), which was at almost the very conclusion of the plaintiff’s case.  It was said that that was done on a basis that would not cause any embarrassment to the defendant, nor cause a disruption to the trial.

So it is not just a matter of that statement that we rely upon but the very way in which the trial was conducted.  Hitherto in this State it has been accepted that it is the prosecutor in a prosecution for a breach of one of these offences and the claimant in civil proceedings to prove all elements.

CALLINAN J:   Can you apply for a non‑suit in this State?  Is there any reason why you cannot do that?

MR WHITE:   I think, your Honour, that the ability to apply for a non‑suit does remain but it is very rarely used.

GLEESON CJ:   Yes, thank you, Mr White.

MR WHITE:   With respect to the onus of proof we have set this out in our written submissions in paragraphs 52 and following.  We rely upon, in effect, a combination of two decisions of this Court.  First, the decision in Chugg where this Court held that an alleged failure to provide and maintain, so far as is practicable for employees, a working environment that is safe and without risk to health, then in a prosecution for that then the onus with respect to practicability was on the informant.

We say that quite apart from the absence of the adjective “reasonable”, that section is otherwise relevantly indistinguishable from section 24(2a)(a) and that for the same reasons, in a criminal prosecution, the onus would be held to be in all respects upon the prosecutor in this case.  And secondly, that there ought be no different rule applying where there is a prosecution on the one hand or a civil action on the other.             We rely, in particular, upon the judgment of this Court in the decision of Waugh v Kippen.  We have set out the relevant passage in paragraph 56 of the written submission.

It is true that in the New South Wales Full Court in Kingshott the section involved both a criminal sanction and a civil sanction.  The case before the court in Kingshott involved a civil claim only and the majority were not deterred by the fact that the onus might also be the same, that is to say, the onus with respect to reasonable practicability resting upon the defendant in a prosecution.  However, Waugh v Kippen was not cited to the court in Kingshott.

GUMMOW J:   Justice McHugh’s judgment is consistent with Waugh v Kippen, is it not?

MR WHITE:   Yes, your Honour.

CALLINAN J:   And the dissenting speeches of Lords Reid and Wilberforce in Nimmo.  You would rely on those also, would you not?

MR WHITE:   Yes, your Honour, and we have set out in the written submissions the references to the passages in the House of Lords where the view has been taken there that wherever the onus lies it must be the same both in a criminal action or in a civil action.  In our respectful submission, that ought to be so and must be so.  It is difficult to discern any reason in principle why there could be a shifting onus according to the nature of the proceedings if the elements of the cause of action or the elements of the prosecution are the same.

GLEESON CJ:   Yes, thank you, Mr White.

MR WHITE:   Those are the submissions of the first respondent, your Honour.

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

MR KOURAKIS:   If the Court pleases, some factual matters first.  It is not accepted that there was no reason to anticipate movement of the plate into the most extreme position which would leave it, on the respondent’s concession, 1 mm unsupported on one side.  The evidence of the workers, Slivak at page 17 and Lloyd at pages 100 to 101, describe exactly how that might occur as part of the alignment process.

Secondly, it is not accepted that Mr Forbes Fowlie made any concession as to his evidence at page 65 being mistaken.  Rather, the allegation that that evidence at page 65 and, indeed, 66 was given on the mistaken assumption that no tolerances were specified for the structure generally was never put to Mr Forbes Fowlie.  His answer at page 80 that I took the Court to in my submissions was to the effect that he knew about those specified tolerances even when he wrote his report and in any event, such a construction of his evidence is simply inconsistent with the answer at page 65 on line 33 where he says:

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

Clearly, he contemplated a variation from the design in cases where a tolerance had been specified.  It is Mr Forbes Fowlie’s evidence at page 66, in particular, which is evidence of the foreseeability of the variation.  It is not the case that the designer need foresee the exact way in which a number of accumulated errors lead to the variation.  In this case, all that needed to be foreseen was that a variation caused by whatever reason of as little as 9 mm, as on the respondent’s concession the design itself in certain situations allowed for only that little support together with one unsupported side, and Mr Forbes Fowlie’s evidence is the evidence we rely on to show that.

GLEESON CJ:   But is it the case that the precaution that you say the designer should have taken was precaution against departure from the design?

MR KOURAKIS:   Yes.  In the sense of exceeding the tolerance.  In my submission, that is different from not incorporating a design element at all.  For example, if the supporting struts had been incorporated it might depend a bit on circumstances but generally one would expect it not to be reasonably practicable to foresee that that design element would be ignored altogether.  That is a different thing to exceeding tolerances and in so far as your Honour the Chief Justice asked where it might all end, the line is reasonable practicability and it would be applied reasonably and one would not constantly be chasing one’s tail as to each of the suggested precautions.

Your Honours, in our submission the duty is more stringent if it provides the paradox that the more specific or detailed the design the more it is necessary to incorporate a design element, then that is a paradox which has been legislated by the Parliament, no doubt because of the premium that it puts.

GAUDRON J:   I wonder if it is really a paradox.  There has been talk about departing from the design.  It would have been quite different if these people had decided to build a brick wall instead of a steel encasement.  We really are talking about tolerances, are we not, which may be of some importance in the context of section 24(2a) when you are required to ensure.  Maybe you are required to ensure that the tolerances are within a wide range or that some other precaution is taken, which is really quite a different thing.  That is really right at the heart of the designing.  That is how you would, as a designer, normally ensure that the building is safe, as it were.

MR KOURAKIS:   Yes, that is the submission we make.  If the Court pleases, the unsafeness, if you like, or the danger in the design can appear by reason of omission as well as what is actually ‑ ‑ ‑

GAUDRON J:   But the section does not talk about danger in the design.

MR KOURAKIS:   No, it requires the design to ensure safety and it is no answer then to say, “Well, look, there is nothing in this design or what we can see of it on the plans which causes a danger”.  The duty might not be met precisely because the safety straps have not been placed into the design. 

As to one of the points in the chain of reasoning raised by your Honour Justice Hayne as to the requirement to look at the structure as it is being erected, Mr Forbes Fowlie gave evidence at pages 60 and 61 as to precisely why it is critical for engineers to look at the fact that the component parts are erected separately and then put together and that critical danger issues arise in the course of that construction for that reason.

As to the words themselves, “must ensure”, those words but in a slightly different section appeared also in Austin Rover at tab 5 of the appellants’ authorities.  The particular discussion of how those words were construed in the context of that subsection appears in the speech of Lord Goff at page 627.  The duty was described in this way:

Subject to limited qualification embodied in the phrase “so far as is reasonably practicable,” it seems to me that the duty imposed upon the defendant to ensure that the relevant premises are safe and without risk to health for any use for which they are made available is prima facie absolute.

On that question again, those words, in my submission, must mean at least that the designer is required to take all reasonably practicable precautions to ensure that safety and there is no overriding defence or excuse such as might be might be found in the common law that for some other reason it is reasonable to ignore the risk, although the precaution, because it involves no expense or is otherwise easily achieved, might still be reasonably practicable.

If your Honours please, as to the onus of proof, the submission that there was something said before final addresses which induced the defendant not to call evidence cannot be accepted at this stage.  Certainly, if it is a concession we can make we will tell the Court otherwise but our position is that the statement upon which the respondent has relied until now occurred after the close of the case and there should be no order sending it back for reconsideration if the appellant is otherwise successful.

As to the failure to make any submissions about the onus of proof below, leaving aside the question of prejudice, if there is none, then, in our respectful submission, this Court ought to apply the onus as in law it ought to be applied.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Kourakis.  We will reserve our decision in this matter.

AT 3.20 PM THE MATTER WAS ADJOURNED