Suehle v The Commonwealth

[1967] HCA 13

HIGH COURT OF AUSTRALIA

Windeyer J.

SUEHLE v. THE COMMONWEALTH

(1967) 116 CLR 353

3 May 1967

High Court

High Court—Action in tort against Commonwealth—Basis of liability—Law applicable—The Constitution (63 &64 Vict. c. 12), s. 75—Judiciary Act 1903-1966 (Cth), ss. 56, 64, 79, 80, 80A.

Decision

May 3.
WINDEYER J. delivered the following judgment: -
This is a distressing case, and in that sense a hard case, because of the sympathy one must feel for the plaintiff. Mr. Staunton has done all that could be done on his behalf; but I have come to the conclusion that his action must fail. (at p354)

2. The plaintiff, a man now aged thirty-four, is a migrant from Germany who came to this country in 1952 and is now a naturalized Australian. He has been for some time in the service of the Commonwealth. He, a skilled and conscientious workman, was badly hurt while carrying out the duties of his employment. It is understandable that he has sought to obtain some monetary compensation beyond the limited amount to which he is, no doubt, entitled under the Commonwealth Employees' Compensation Act 1930-1964 (Cth). The amount that he can recover under that Act is limited; and as the law stands at present the maximum amount obtainable appears inadequate having regard to the costs he has incurred and the injuries he has suffered and their continuing consequences. However, he can only succeed in an action for damages if he establishes negligence on the part of the Commonwealth. That is, if he establishes a breach by the Commonwealth, by some agent or servant of the Commonwealth, of a duty owed to him, and that because of that breach of duty he suffered harm. (at p354)

3. As a defence of contributory negligence was raised on the pleadings I asked counsel when the case began what law it was suggested I should apply - that is by what law the rights of the parties should be determined. The question was I thought important because until recently the law of New South Wales on the point was the common law unmodified by statute. In that State, where I am sitting to try the action, the statutory provision permitting an apportionment of damages when both parties are negligent came into force too late to affect this action. Therefore if the action is to be decided according to the law of New South Wales and the defendant's allegation of contributory negligence is established the plaintiff must fail. On the other hand, if it is to be decided according to the law of South Australia, where the events said to give a claim in tort occurred, contributory negligence on the part of the plaintiff would only be a ground for reducing the damages he could recover if he succeeded in establishing negligence on the part of the defendant. (at p354)

4. The question is complicated because the action was commenced in the Canberra Registry of the Court. It was removed to Sydney for hearing. This was with the assent of both parties, but at the instance of the Court and primarily so that the case might be heard during the present sittings here. (at p355)

5. The plaintiff contended that the law to be applied was the law of South Australia, the defendant that it was the law of New South Wales. In the view I take of the facts it has become unnecessary for me to decide this question. But it was argued; and, as it seems desirable that I should state by what law I considered I was governed in exercising jurisdiction, I may say that I have taken it to be the law of South Australia. I shall state very briefly why I think that is the correct view, without entering into any detailed discussion of the authorities to which I was referred. In my view the liability of the Commonwealth for a tort has its source in s. 56 of the Judiciary Act 1903-1965 (Cth). This Court has jurisdiction to entertain such an action by virtue of s. 75 of the Constitution. But in my view the Constitution does not of its own force subject the Commonwealth to liability in tort at the suit of a subject. The Judiciary Act I consider does that. I say this having regard especially to what Dixon J. said in Werrin's Case (Werrin v. The Commonwealth (1938) 59 CLR 150, at p 167 ) although I am aware that the reasoning of the majority in The Commonwealth v. New South Wales (1923) 32 CLR 200 , and some later judgments in this Court can be invoked for a contrary view. If, as I think, it is s. 56 of the Judiciary Act which makes the Commonwealth liable in tort at the suit of a subject, then, in my view that section also provides the answer to the question of the law to be applied when a subject brings such a suit. That, as I said during the hearing, is because s. 56 seems to me to contain within itself an implication that the law to be applied is the law of the State where the tort was committed and the cause of action arose. That is because jurisdiction in such a cause is not exerciseable by all courts which, anywhere in Australia, have jurisdiction in actions arising out of "foreign" torts. The section states that a plaintiff who sues the Commonwealth in contract or tort may do so in this Court, or in the Supreme Court of the State or Territory in which the claim arose, or (since the amendment made in 1960) in any other court of competent jurisdiction in that State or Territory. These are the only courts in which an action can be brought by a subject against the Commonwealth. From this I conclude that the intention of the Parliament of the Commonwealth when it made the Commonwealth liable at the suit of a subject was that, in whichever court of those authorized to try it the action is brought, it is to be tried according to the lex loci delicit ; and when the action is brought in this Court that becomes the lex fori. I see no reason at all for supposing that the law to be applied in such a case should vary according to whether the action were brought in a South Australian court or in this Court and that in this Court it would depend upon whereabouts in the Commonwealth the Court should sit to try the case. I do not think that ss. 79 and 80 of the Judiciary Act compel me to any such conclusion. The policy which they reflect is, I assume, that when this Court exercises jurisdiction in a State in a matter which might have been litigated in a court of that State the law which it is to apply should be the same law as the State court would apply in like case. Sections 79 and 80 thus attract the State law (including the rules of private international law applicable as part of the State law), and make it govern the proceedings in this Court. But those sections apply only when the laws of the Commonwealth do not otherwise provide. And in my view s. 56 is a law of the Commonwealth which makes a different provision. The defendant sought to displace this conclusion by reference to s. 64; but I do not think it has the effect suggested. Section 80A has a bearing on the matter. But whatever effect it has on procedural aspects, I am not satisfied that it affects the substantive law applicable in an action brought pursuant to s. 56. I was referred among other case to Parker's Case (Parker v. The Commonwealth (1965) 112 CLR 295 ), and to what I said there. That case however had some peculiar and special features. The tort was not committed within any State. The events out of which the action arose occurred on the high seas. The cause of action was not one known to the common law, being for compensation for the consequences of death, a claim which could only be based upon some statutory provisions equivalent to Lord Campbell's Act. It was conceded by counsel in that case that this Court had jurisdiction to entertain the action and to decide it in accordance with the law of Victoria: and, for reasons which I gave, I accepted that view. But, whether or not I was right there, this case is very different. Here the cause of action arose in South Australia and under the common law. The common law has been modified for South Australia by the provisions of the Wrongs Act of South Australia allowing apportionment of damages in cases of contributory negligence. And this statutory modification of the common law would I think be applicable in the case if the facts called for its application. I say this because, notwithstanding what Jordan C.J. said in Washington v. The Commonwealth (1939) 39 SR (NSW) 133 , the references in the Judiciary Act to the laws of the States (e.g. in s. 64) are now regarded as having an ambulatory effect. They are not tied to State law as it was in 1903. (at p357)

6. I need say no more as to the law to be applied, as in my view of the facts of this case the question ceased to be important. The topic is, I recognize, tangled and technical. One may hope that someday Parliament may do something to simplify it. (at p357)

7. The plaintiff's case is that the defendant, his employer, failed in the common-law duty of a master to take reasonable care for the safety of his servants. After the evidence was presented - the case had been put in more than one way in the pleadings - the allegation came down to this, that the plaintiff should have been warned of a danger that he might encounter on premises where he was required to work. At the time when he was hurt he was employed as a driller in the Petroleum Technology Section of the Bureau of Mineral Resources, a Commonwealth body. He had been in this employment for some time. He was experienced in drilling operations; and had been promoted to the grade of "driller grade 2". At the time with which this case is concerned he was a member of a party engaged in exploratory drilling for the purpose of a survey which was being made by the Bureau of Mineral Resources. The party had been for some time working in the district near Mount Gambier in South Australia. There it was under the direction and command of a Mr. Raitt, a geophysicist. He apparently indicated the particular localities where drilling was to take place; and he had charge generally of arrangements for the conduct of the operations. The party had a number of vehicles, some fifteen in all. These included three drilling rigs. The other vehicles were of an ancillary character, water tankers, petrol tankers, Land Rovers and so on. Of the three rigs, two were what are known as Carey rigs: the other was a Mayhew rig. They were mounted on vehicles. On each there was a mast that could be elevated for ordinary use in drilling. The masts were elevated and lowered by a mechanism operated by the engine and controlled by levers. The masts of the Carey rigs were approximately 20 feet in height when elevated. That of the Mayhew rig was 10 feet or 11 feet higher, that is to say it was over 30 feet. The plaintiff himself was in charge of all three rigs. He had three men under him, one for each rig. (at p357)

8. Some time before the events out of which this claim arises Mr. Raitt had arranged that the vehicles of the party should be parked at night and at weekends in premises known as the Old Power Station at Mount Gambier. This place is an area of land on which there are a number of buildings. It extends from Ferrers Street to Compton Street and has a frontage of approximately 125 feet to Compton Street and 180 feet to Ferrers Street and a depth between the two of 380 feet. It was called the Old Power Station because at one time electricity had been generated there. That was when the Corporation of Mount Gambier supplied electricity for the town. When the provision of electricity was taken over by the Electricity Trust of South Australia the generating installation was moved from the Ferrers Street-Compton Street premises to another location. But a sub-station remained on the premises. At this sub-station current of 33,000 volts was stepped down by a transformer to 11,000 volts. It was conducted thence to other transformers in the town area where it was further stepped down to the voltage supplied for domestic use. The Old Power Station area was, apart from the sub-station, not much used at the time Mr. Raitt arranged that his vehicles might be parked there. But it had not been abandoned. People worked there. There was an office fronting Ferrers Street which was used by the Electricity Trust for administrative purposes; and some use was made of a store and other buildings. But most of the buildings which had been used as part of the generating plant were vacant. Between the buildings and behind them there were open spaces on which vehicles could be parked. The whole area was fenced in and locked at night. It was thus a suitable place for parking the Commonwealth vehicles. There was plenty of room in various parts of the area for the parking of vehicles of the number that Mr. Raitt's party had. (at p358)

9. Some time after the events now in question, and not as a result of anything to do with this case, the sub-station was moved: but at the relevant time it was in regular operation. As I have said, it contained a transformer and also a circuit breaker. It was situated about 80 feet in from Compton Street. It was surrounded by a chain wire fence eight feet high. The gates in this fence were kept locked. The overhead conductors, that is the wires or cables which conducted the power in and out, came in from Compton Street. They were carried on standards which gave the wires a clearance above ground level of 27 feet or more. There were in all six conductors, three lines being for what might be called the intake, carrying 33,000 volts, and three lines carrying out the stepped-down current of 11,000 volts. (at p358)

10. The accident out of which this case arose occurred on 31st July 1965. The plaintiff, forgetful of the danger of doing so, or perhaps never having appreciated it, raised the mast of the Mayhew rig while it was standing underneath the power lines. He did this to facilitate replenishing the oil in part of the mechanism. The mast came in contact with one of the 33,000-volt lines. There was a great electric flash. The plaintiff, who had been standing on the rig with his hand on a lever, and another employee of the Commonwealth, one Murphy, who was near him were hurt. The plaintiff's hands and feet were badly burnt. He has had long periods in hospital. The injuries to his feet have had serious and permanent consequences. He will never be able to work again as a driller in the field. He is still employed by the Commonwealth, but as a storeman, and his wages in that capacity are considerably less than he was getting as a driller. (at p359)

11. He has given evidence that he had thought the wires were dead, and it is contended on his behalf that the defendant failed in its duty to take reasonable care for his safety in that it did not warn him that the wires were alive and carrying current of high voltage. Such a warning, it is said, should have been given in some form or another, and could have been given by roping off the portion of the area that was directly underneath the overhead wires. At some time since the accident a fence has been erected by the Electricity Trust. But this, of course, provides no evidence that the Commonwealth was negligent in the way alleged. It is not suggested that the Old Power Station was an unsafe place for the purpose of parking vehicles. There was no danger at all in using it for this purpose. It was not really necessary to park a rig or any vehicle underneath the wires, for there was room elsewhere on the premises for all the vehicles. But in any event there was no danger in using the space under the wires if the mast of a rig was not raised. There was no more danger in simply parking a vehicle underneath the wires there than there would be in having any vehicle stand in a street or anywhere else under electricity-bearing wires. (at p359)

12. The plaintiff was aware of the risks in raising a mast near overhead electric wires. That he admits. One of the men under him, who was called as a witness, says that the plaintiff warned them to be careful of the wires to the sub-station. The plaintiff does not admit having done so; but he does say that he told the men to be careful of overhead wires on an occasion when they were drilling near a road where there were electric wires. (at p359)

13. The first and critical question is: Could it have been reasonably foreseen or expected by Mr. Raitt, or by any other person in a position to give directions on behalf of the Commonwealth, that the plaintiff or anyone else would do what he did? I think not. The plaintiff himself was an experienced and competent man. He was in charge of the rigs and their drivers were under his direction. He could decide whereabouts within the premises the rigs should be parked. It would not have been reasonable to suppose that he, knowing the wires were there, would without any inquiry assume them to be dead. Whether in fact he acted in ignorance or from inadvertence, it cannot I think be said that the plaintiff was hurt because the Commonwealth had failed to take due care for his safety. The question of contributory negligence on his part really does not arise for decision as I consider that no negligence by the Commonwealth has been shewn. Therefore I refrain from making any specific findings on this aspect of the case, especially as Murphy was also injured and, if he should make any claim, the acts or omissions of the plaintiff could arise for consideration in other proceedings. There are, however, two or three things which I think I must say, for they bear on the suggestion that the plaintiff should have been warned of the presence of the wires. (at p360)

14. The plaintiff has given three accounts of how the accident occurred - one in the witness box, two out of Court. There is no doubt that the mast was raised for the purpose of oil being added to part of the mechanism of the rig. It was said that there was no need to raise the mast to get at the place where the oil was to be inserted, and evidence was called for the defendant to support this proposition. I said at the time that this seemed to me irrelevant or at best a side issue. There is no doubt that the plaintiff thought that to do what he wished to do about the oil it was convenient to raise the mast. In the witness box the plaintiff said that he assumed always that the wires were dead and that therefore there was no need for him to exercise any great care in bringing the mast up. However, he had before the case began given other accounts of the accident. He had told a South Australian Factories Inspector, who had asked him about the matter soon after it occurred, that he had left the yard to get the oil for the rig. Then, according to this witness, he had said: "When I came back with the oil the truck was parked under the wires. Murphy started the truck and I was at the back ready to elevate the mast. I was looking at the bottom of the mast to see that nothing was caught. I did not look up. The next think I knew was an explosion and I had been thrown clear." (at p360)

15. Later - the plaintiff says after he came out of the Canberra hospital about six months after the accident - he signed a document which contains a typewritten statement which was, it seems, prepared for his signature from notes made by Mr. Raitt who had visited him in hospital to obtain his account of the incident. This reads as follows: "I was inspecting the Mayhew drilling rig after the regular maintenance had been carried out. I noticed that the oil level in the power flow (extra drive on pull down) looked a bit low and I decided that it should be changed. The Mayhew was parked on the North side of the E.T.S.A. yard, between the power plant and Compton Street, facing North. I went into town to purchase the necessary oil and when I returned to the yard I called to A. Murphy to help me. Murphy said that he thought that the maintenance was finished but I said that the oil should be changed. Murphy then said that he would start the engine and walked round to the cab. While he started the engine, I took the controls at the back of the Mayhew. I started to raise the mast so that we could get at the oil. Murphy came to the back of the rig and held the sand-line so that it didn't catch on the foot of the mast. We were in these positions when the mast hit the power lines. The Carey drilling masts had on previous occasions been erected in roughly the same positions and I forgot that the Mayhew mast is longer." There is no evidence that the masts of the Carey rigs had ever been elevated under the power lines. They had on occasions been elevated not far away - "in roughly the same position" - in the course of the doing of ordinary maintenance on them. If they ever were erected under the power lines they would not have reached them. (at p361)

16. The evidence which the plaintiff gave in the box and the statement he signed are not readily reconcilable as explanations of how it was that he raised the mast in a place unsafe for that purpose. In cross-examination he agreed that he had not told Mr. Raitt, when giving him an account of the accident, that he thought the wires were harmless. The most probable explanation of the accident is, I think, that the plaintiff raised the mast overlooking the presence of the wires overhead. This seems to me more likely than that he was conscious of their presence but thought he could safely disregard them. Whether if he had remembered they were there he would nevertheless have done what he did in a belief that they were dead, I do not have to decide. However, as bearing on the allegation that the Commonwealth was negligent in not telling him they were alive, it is important to notice how extremely unlikely it was that he or anyone using the premises would act on an assumption that they were dead. The plaintiff had known the place for some time, a matter of two or three weeks before the accident. The sub-station was separated from the rest of the premises by its own fence. On the fence were notices warning against entry, bearing the words "Danger" and "33,000 volts". The sub-station was an obvious electric installation. There was nothing in its appearance to suggest that it was not in operation. The overhead wires obviously connected it with the wires in the street. There was the usual humming noise of a transformer. It may not have been very pronounced; but it was clearly audible in the immediate vicinity. And on top of all this the plaintiff had been told that the gate in the street fence nearest to the sub-station must be kept clear for the use of the Electricity Trust. (at p362)

17. I think I should say something about the statement which the plaintiff signed. Its importance is obvious because of the inconsistencies between it and what he said in evidence and also for such admissions as are contained in the last sentence. But it is not the plaintiff's own composition; and, having heard the evidence, I am not satisfied that it is correct in all details. I do not think that the plaintiff himself noticed the oil level was low. I think it much more probable that he was told this by the man who, under him, was in charge of the Mayhew rig. This man was not present when the accident occurred. After carrying out the regular maintenance he had then left the premises. Before leaving he had parked the rig under the wires. But there was of course no reason why it should remain there; and if the mast were to be elevated anyone who appreciated the risk would have first moved it back a few feet. (at p362)

18. In the course of the hearing I made some criticism of the document containing the plaintiff's statement because it appeared to be only a photographic copy and not the original. It seems, however, that what happened was that the plaintiff was asked to sign, and did sign, the copy which was tendered. His signature appears in two places on the document. The matter which I have quoted appears above his signature on the second page. As to the first page and the part of the second page which is below his signature I think now that, although not objected to, I should not have admitted these. I draw no inference from them. The document purports to be a driver's report. It is on a form apparently used by drivers of Commonwealth vehicles which are involved in traffic accidents. The date on which the plaintiff's signature to it was obtained is not stated. He is said to be at the time in the Canberra hospital although it seems he signed it after he had left. There are statements in it which, although attributed by it to him, he would not be able, except on hearsay, to make. For example, he would have no knowledge, I should think, whether or not the accident was reported to the police, for he was taken at once to hospital at Mount Gambier: nor would he know whether the overhead power lines had been damaged. Then, on page 2, there is a plan shewing, among other things, where other persons and vehicles were when the accident occurred. This obviously was made from information provided by persons other than the plaintiff. It is below his signature and cannot be regarded as part of his "driver's report". During the hearing I expressed dissatisfaction about some other aspects of this report and the way it was used in these proceedings. I adhere to what I said. It seems that discovery of documents was not sought, and apparently leave to administer interrogatories was not given pursuant to Order 32. Nevertheless each party submitted to the other what were described as interrogatories. Those submitted on behalf of the plaintiff asked, among other things, for copies of any reports the defendant had of the accident. The defendant did not answer. I almost got the impression that this report had been withheld from the plaintiff so that it might be used as some kind of pitfall for him. In my view the Commonwealth's legal advisers should have ensured at an early stage that the plaintiff had a copy of the document signed by him. When a man in the service of the Crown is asked to sign a document prepared for his signature and purporting to be a report by him to his superiors in the service of events which may have consequences in law for him, I would have thought that he should at the time be given a copy of what he had signed. The present document purports to be the plaintiff's own report. If he had written it out himself he could have kept a copy. His hands were too badly burnt for him to write himself at the time - but the document was compiled as being his report. It is his report of events which might give rise to a claim by him for compensation or damages, or claims by the Commonwealth or Murphy against him. (at p363)

19. I must dismiss the plaintiff's action. I have felt some doubt as to the order I should make as to costs. Counsel for the Commonwealth is instructed to ask that the plaintiff pay the Commonwealth's costs, but leaves the matter to my discretion. (at p363)

20. Of course anyone who brings an action against the Commonwealth must expect the ordinary fate of a litigant if he fails in his action. The Commonwealth has submitted itself to actions of contract and tort: and in such an action costs may be awarded in the same way as in an action between subject and subject. Section 64 of the Judiciary Act so provides. Nevertheless one expects the Crown to be diligent to ensure that actions between it and a subject are brought to trial without unnecessary expense. It is a serious reflection upon the administration of the law that the trial of an ordinary negligence action to-day should be made a needlessly expensive proceeding for the parties. That certaily occurred in this case. For it both parties are responsible. But it seems to me that the Commonwealth should have used the pre-trial procedure for which the Rules of Court provide. By a summons for directions under Order 31 much expense might I think have been saved. The case was one in which the issue of liability might well have been tried before any detailed evidence was called as to damages. And, even if that course were not thought desirable, much expense could have been saved by admissions. For example, to call medical witnesses from Canberra to Sydney - and if I had not protested one would have been called from South Australia too - to assent in the witness box to leading questions obviously formulated in terms of written reports they had furnished, seems to me to have been only a waste of the time of the witnesses and an expense to the litigants. The testimony of these witnesses, all called on behalf of the plaintiff, was not contradicted or in controversy. It was not cut down or advanced in any significant way by such slight questions as they were asked by way of cross-examination. Moreover much of their evidence, such as details of surgical treatment given - there being no suggestion that it was not proper treatment - could only be remotely relevant. The damages the plaintiff suffered could not depend upon what exactly was the treatment given in the past. It depends upon the enduring consequences of the injuries, upon what the future holds. All that was relevant of the medical evidence might, I would have thought, have been satisfactorily proved by written reports if these had been made the subject of a notice to admit. Neither could I see any need for the plaintiff to bring the Town Clerk of Mount Gambier to Sydney to prove matters not in any way in dispute, or for the defendant to bring a Factories Act inspector from South Australia to prove what the plaintiff had said to him. Notices to admit should have been given. Likewise I could see no need for the defendant to bring a departmental witness from Canberra to prove the wages, allowances and grading of the plaintiff as a servant of the Commonwealth before and after the accident. A certificate as to this would I assume have been admitted by the plaintiff. The Commonwealth might well have answered, and answered promptly, some of the questions that were submitted to it by the plaintiff by way of proposed interrogatories. It may be that the questions as a whole were too far-reaching. But many of them could have been answered; and had that been done much needless expense would have been avoided. (at p364)

21. The order I make is as follows: I dismiss the action. I order that the plaintiff pay one half of the defendant's costs; and, as the questions submitted on behalf of the plaintiff to the defendant by way of interrogatories were not answered and thus were fruitless, the defendant is to have no costs in respect of them. There will be the usual order as to exhibits. (at p365)

Orders

Orders accordingly.