T.N.T. Transport Pty Ltd v Cross

[1988] HCATrans 192

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al6 of 1988

B e t w e e n -

T.N.T. TRANSPORT PTY. LTD.

trading as T.N.T. TRANSPORT

SYSTEM

Applicant

and

BARRY JOHN CROSS

Respondent

Application for special leave

to appeal

MASON CJ
WILSON J

BRENNAN J

TNT

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 26 AUGUST 1988, AT 9.34 AM

Copyright in the High Court of Australia

AIT 1/ 1/VH 1 26/8/88

MISS E.F. NELSON, QC:  May it please the Court, I appear with

my learned friend, MR T. ANDERSON, for the

applicant. (instructed by Ward Nolan & Co)

MR T.A. GRAY, QC:  May it please the Court, I appear with my

learned friend, MR F. DI FAZIO, for the respondent.

(instructed by Mahony & Partners)

MISS NELSON:  May it please the Court, this is an application

for special leave to appeal from a decision of the Full Court of the Supreme Court of S.outh Australia

which heard an appeal from Justice Bollen in an

action for damages for negligence by the respondent

against his employer, the applicant. The submission

fundamental to the applicant's case is that the

Full Court has, by its judgment, imposed upon an

employer an onus which goes far beyond the common

law duty to supply suitable plant and equipment and

to maintain that plant and equipment in reasonable

repair.

The Full Court has, in our submission, effectively

extended the duty of care of an employer to embrace
the roles of a designer and manufacturer and supplier

of equipment to the extent that it is now, if that

judgment is to be seen as a precedent, incumbent upon

an employer, having purchased a perfectly satisfactory

piece of equipment suitable for the task it is called
upon to perform, to modify the design of that

equipment and to anticipate trends in design.

MASON CJ:  Can it operate as a precedent? I should have thought

there is much to be said for the view that essentially the court was resolving an issue of fact; an issue of fact that arose in connection with 11 was there a breach

of the employer's duty of care?'·'	In other words,
was there a breach of duty?

MISS NELSON:  I would answer Your Honour by saying one has to go

back to the first question which is, what is the

employer's duty of care? And it is my submission that

the Full Court, in following Justice Bollen at first

instance, in fact extended that duty of care to

embrace that of a designer and of a manufacturer and

then, by finding that the employer had not modified

the design of the truck, found that it was in breach;

so that really, I have to take my argument back a

step and say that it is the expansion of the duty of
care that is really complained about, because, putting
this case in perspective, this man, the respondent,

wasavery experienced truck driver. This was a

delivery truck around the metropolitan area.	He had
driven road transports interstate.

He was getting out of the cabin of the truck and

he had a fall. Four million of those trucks had been

sold in the 16 years that preceded this case -

internationally - and in Australia, 2000 had been

sold in each of those 16 years. There had never been a

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complaint about the access and egress to the cabin

of; this truck, nor, indeed, was there a recorded instance

of the truck providing a problem in that respect.

It was accepted generally that it was, at the time

of purchase by the employer, the applicant, a

perfectly acceptable truck; it conformed to the standards that

then applied. The accident happened in 1982 and

there was some suggestion in the evidence, and

perhaps it went beyond a suggestion, that at that

time manufacturers and designers were considering

it desirable to provide hand -rails. Not that they
were, in all cases, providing hand-rail or handgrips,

but there was some school of thought in the design

fraternity that that might be a desirable thing, and the

basis of the original judge at first instance's

decision and that accepted by the Full Court was that

the employer was liable because it failed to modify

the design of the truck by adding hand-rails to

facilitate access and egress.

BRENNAN J:  Miss Nelson, was there any adoption of a standard of

care - duty of care owed by the employer different

from that laid down in HAMILTON V	NUROOF and
FERRALORO?

MISS NELSON: Well, I say that there was, may it please

Your Honour.

BRENNAN J:  As a matter of fact or as a matter of law, are you

saying that?

MISS NELSON:  I say as a matter of law. I know that it is

very difficult to look at that in a hypothetical

sense without its application to the facts of this

particular case and, in this case, it is not a

case where it was or could have been argued that

there was a failure to maintain the plant in a

safe condition. The argument really addressed was

that the step was perhaps smaller than it should

have been, looking at it from standards applicable

in 1982 to standards applicable in 1975 when the

truck was purchased.

There is some suggestion, and I do not put it

higher than that, that there was some degree of
wear on the step but, of course, that was not the
respondent's case at first instance. His case at

first instance was that the step was loose, that it

had come away from the side of the truck and that

he had fallen as a result of that. That hypothesis

was rejected by the trial judge who then went on to

say well, it really did not matter because, in his

view, there ware other steps that the employer

could have and should have taken, that is to say,

the addition of hand-rails for the driver to grasp

getting into and getting out of the truck.

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MASON CJ:  Your heavy reliance on the particular facts of

this case does suggest that the question is unlikely

to generate an important question of principle or

elaboration of an important question of principle.

MISS NELSON:  With respect, Your Honour, I do take issue there

because I say, and I take my words to some extent

from the judgment of Justice Prior in the Full Court,

that the Full Court decision, in effect, says that

an employer must redesign plant and equipment, even

if the defects in design:

Were only obvious through improvements on

that design with other more modern vehicles.

And in the relation to this specific case he goes on

to say that the employer had a duty to see that this

1975 truck:

Was in good order and condition by 1982 standards.

That appears at page 38 of the appeal book and it is

my contention that that really sets out a principle

of law that is wide-reaching in its effect in relation

to the duty of an employer.	The passage starts at
line 14:

It was objected that the employer could not be called to answer for defective design in the truck, particularly if the defects were

only obvious through improvements on that

design with other more modern vehicles. I do not

agree. The employer is required to maintain

a proper system of continuing supervision

and inspection.

And he then referred to DAVIE V NEW MERTON BOARD MILLS

LIMITED. I indicate, whilst I am talking about that

passage, that my learned junior assures that in his

research there is no case in Australia which seems to

have decided, on the basis of the ratio of DAVIE V	NEW MERTON BOARD MILLS, nor indeed does it seem to
have been approved or not followed and I would have thought that might have some relevance in this
particular application. His Honour Justice Prior
then went on to say:

See, particularly, the remarks of Lord Reid

at 646 where His Lordship says an employer

"is not liable for the negligence of an

article he has bought, provided that he .....

has made any inspection which a reasonable

employer would make." The employer here had

to take reasonable care to see that the truck

was in good order and condition by 1982 standards.

The employee makes good his claim.

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I make two comments about that having an application
as a matter of law. First of all, I suggest that

His Honour has misconceived the duty of an employer

to maintain plant in reasonable repair with a duty,

as he sees it, to inspect and somehow remain abreast

of developments in design so that plant is constantly

updated whether it might, on research, appear to be

necessary or not. That is a very all-embracing

principle of law. The second comment I make, which

really is ilJustrative only of my argument, is this:

if this accident had happened in 1977,before there

had been any discussion in the design and manufacturing

industry about the desirability or otherwise of adding

hand-rails, conceivably this employer could still have

been held liable, applying the same principles.

WILSON J: But, Miss Nelson, that rather overlooks the part

that the wear and tear of the step plays,

is it not? Here was a truck that had been,
presumably, in active use for seven years and the

step had become, to some degree, worn and slippery, and that rather distances you a little, or at least

to some extent, from the central point you are making

about simply taking a vehicle from a manufacturer as

it is.

MISS NELSON: If I deal with the factual background to that, I

say that there is a misconception particularly in the

Full Court decision about that. There really was no

evidence that the step was worn or, that if it was,

it was any more than the paint on the step having

been worn away by people treading on it. In other

words, the plaintiff's case was not that he fell

because the step had not been maintained and therefore

it was worn and therefore he slipped on it. The

inspection of this particular truck and the step
attached thereto, the culprit step, took place more

than a year after this alleged accident and there

was some dispute about how the accident happened, if

it happened at all, but the trial judge resolved that

I cannot complain about that now.

But there was no evidence sufficient to find, on

the balance of probabilities, that failure to maintain

the step in proper condition was the cause of the

accident and, indeed, if Your Honours look at the

judgment of the Full Court, nowhere does any judge

say that it was a failure to maintain the step that

caused the accident. It is viewed as:

Wear apparent on t!!e small step and.added

handrails. -

as being a conglomerate culprit for the accident.

Those are the words used by Justice Prior on page 38,

line 7, where he said:

It should at least have reduced the wear apparent

on the small step and added handrails -

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so that he talks about the size of the step and

that is a design defect, if it is a defect at all -

and added handrails -

and again, that is a design defect, if it is a

defect at all:

The wear apparent on the step -

is not viewed by anyone, not even the judge at first
instance, as being the cause of this man's accident
and, indeed, with respect, there was insufficient

evidence for such a finding. Of course, the paint

had worn off the step but the evidence of inspection

and the photographs that were tendered at the trial

were taken - I thought it was 14 months, but certainly
a year - after the accident. Even on that basis I

do not think anyone seriously urged that that was

the problem.

The real argument in this case was that, because

in 1982 some designers might have put a larger step

there and some designers might have thought it

prudent to add hand-rails, that the employer was

responsible for failing to modify those designs as
the manufacturers saw them as being undesirable some
seven years later. If I can, perhaps, just give

Your Honour Justice Wilson the reference to the judgment of the Chief Justice; he said at page 24 of the appeal book at line 21:

The evidence shows that there was some wear and tear on the step which would have a tendency

to reduce the grip and make it more slippery

when wet.

Now, whilst I say there is some misconception in

His Honour's mind about the evidence in this case,

nevertheless accepting what he says as being correct

not go so far as to say on that evidence along there for the purpose of the argument, I say that he does	is quite simply a failure to maintain plant and
equipment and therefore the employer is liable in
negligence, because he goes on to say:

The risk inherent in the design called

for vigilance to notice and remedy anything

which might intensify it.

So that there really any normal wear and tear is

being considered in the context of an employer's

liability to be able, from an area quite beyond its

expertise, to observe a risk inherent in the design,

a risk which was not recognized by anyone at all at

the time at which the truck was purchased and

manufactured. It really does put an employer in

a very difficult situation where he is called upon

AlTl/6/VH	6	MISS NELSON, QC	26/8/88
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to do more than to supply plant which is suitable

for its purpose and which has no defects capable

of being detected on reasonable inspection.

latent defect in the drift that was supplied

Of course, I accept that this is different from was a

that caused the accident. But putting this case

in the perspective in which I suggest it has to be

viewed, I submit that the learned Chief Justice in

the Full Court, whilst saying in one breath that

the appellant was not required in the circumstances to modify the design of the Bedford truck which was designed according to the standard of the time of

its manufacture, simply because additional safety

features were incorporated into trucks manufactured

at a later date - that passage starts on page 24

at line 11 - then completely, in the next sentence,

in my respectful sentence, contradicts what he has

just said - - -

MASON CJ:	What page is that?
MISS NELSON:	Page 24.
MASON CJ:	Yes - line?
MISS NELSON:	Line 11:
I do not think that the appellant was
required -

is the line.

MASON CJ:	Yes.
MISS NELSON:	He then, in my submission, contradicts that,

having paid lip service to what was the submission

of the appellant, by saying:

Management ought to have realized, however,

that the design of the truck involved

alert to ensure that it was maintained in a some risk of injury and ought to have been

condition which would avoid any increase in

that risk.

And in particular, I say that the beginning of that sentence, the first part of that sentence, imposes

as a matter of law, a duty on an employer to make

his own assessment of plant and equipment and their

design and to acquire somehow an expertise in the

area of design and manufacture:. So that it does
extend the existing common law duty of an employer

to purchase suitable plant and plant which is not defective, and I put aside the question of latent

defects. But, having done that, it imposes on an

employer an on-going onus tobe alerted to the design

AlTl/7/VH	7	MISS NELSON, QC	26/8/88
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of the truck, to direct his attention to the

design of plant, to exercise his mind as to whether

or not it could be better designed. Now that, with respect is the manufacturer's duty of care, not the employer's.

(Continued on page 9)

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BRENNAN J:  But this is a duty of maintenance that the

Chief Justice is speaking of there, is it not?

MISS NELSON:  He is speaking of two duties, I think,

Your Honour. He speaks first of all of the

obligation on the employer to realize that

the design of the truck involved some risk

of injury.

BRENNAN J: Well that is not necessarily a matter calling

for great expertise. Take, for example, an

automatic guard on a machine which operates

by a rubber or leather belt, surely the

employer is required to keep an eye on that

belt and to see that it is not worn out.

MISS NELSON:  With respect, I accept that, Your Honour.

That is the duty to maintain something in

reasonable repair.

BRENNAN J: Yes. Is that not all that the Chief Justice

is saying?

MISS NELSON:  With respect, I do not think he is. I think

he certainly says that it should be maintained

in a condition which would avoid any increase in

that risk and the risk he is talking about is

the risk of injury arising out of the design
of the truck and, I say that is a separate

thing all together.

WILSON J: But he nevertheless is saying that liability

would attend only an increase in the risk resulting

from failure to maintain; an increase in the risk,

not the initial design risk.

MISS NELSON:  Yes, I accept that, Your Honour, but - - -

BRENNAN J: And that accords precisely with the formulation

of safeguarding against an unnecessary risk of

danger.

MISS NELSON: What was the unnecessary risk of danger in

this case? Out of something in excess of

four million trucks, and presumably people get

in and out of them every day, there had never

been a suggestion that the size of the step,
or the position of the step, or the lack of
handrails somehow was likely to constitute a

risk of injury to the respondent, or indeed to

anyone else. Now, experts were called who

talked about design, and the improvements in design
and the reasons behind that, and that sort of

thing. But it is one thing for an expert in that

field to make those cormnents; it is quite another

thing to impose that onus upon an employer whose

liability I suggest really is restricted to

maintaining the equipment he has bought in a

reasonable condition. Now, one has to acknowledge

AIT2/l/JM	9	MISS NELSON, QC	26/8/88
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that wear and tear occurs and that the minute

something shows signs of wear you do not

throw it out and buy a piece of new equipment.

There is a point when wear and tear is tolerable

and I suggest in this particular case that

probably was the situation. The gravamen of the

respondent's argument at first instance was

first of all that he said the step was loose,

it had come away from the truck.	Now, that was
rejected.	But then he advanced his case on a

second argument which was that there should have

been handrails there; that somehow the employer

should have anticipated that this one man,out

of several million,'would by reason of the design
of the truck and the means of access to and

egress from the truck, realize that it was a

danger and put handrails there. That really

is the ratio, I suggest, of the Full Court's

decision that there was some ongoing onus on
an employer to keep abreast of design developments,

to anticipate design developments and to

accommodate those in plant and equipment, and I

suggest that is the point that arises out of
this Full Court decision which merits the
attention of this Court; its capacity to be

interpreted as standing as a precedent for an

employer having that ongoing duty is there.

I suggest, with the greatest of respect, that if this case had simply revolved around

the wear on the step, of which there really
was not very much evidence at the time of

the accident, then this respondent would not

have succeeded at first instance. He succeeded

because there was a misconception in the learned

trial judge's mind,which was endorsed by the

Full Court, that the employer had this continuing

onus to oversee the design and modify it if

necessary.

Now, I suppose I cannot stress, and I

do not stress, the argument that just because

he is one man in four million does not mean

that there was not a real risk, albeit a minimal

risk. I have quoted Your Honour the Chief Justice's

words in WYONG SHIRE COUNCIL V SHIRT too often to

say that, but it is a relevant factor in the context

of this case.

So, I summarize by saying that the design of

the truck when bought was acceptable and safe.
The truck had presumably accommodated very

many drivers over the years, as had the other

four million or so trucks, and there had never

been any suggestion that this was a problem.

The use of handles to assist drivers was really the subject of discussion in the designing and manufacturing industry in the late seventies and

AIT2/2/JM	10	MISS NELSON, QC	26/8/88
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in the early eighties and this accident happened

in 1982. There was no suggestion that at the

time the truck was purchased it was unsuitable

for the purpose for which it was being used.

I suggest that the respondent would not have

succeeded at first instance had his case been

based upon an argument that the step was so

much the subject of wear that it was unsafe and

indeed that is not the finding of the trial judge,

and that is the observation of the Full Court.

The Full Court talk about the size of the step,

the inevitable wear on the step in conjunction

with the design of the truck and by that I mean

the size of the step and the lack of handrails.

Negligence must be due to a want of reasonable

care on the employer's part. It is my submission
that that was not demonstrated in the context
of a failure to maintain its plant and equipment.

It could only be - that is the employer - found

negligent on the basis that it had a duty to

modify the design of the truck, which duty the

employer failed to discharge. So that my argument

is that it is an error to extend the duty of care

of an employer to that extent. If the duty cannot

be extended to that extent then there was no breach.

The thrust of the Full Court decision, I

suggest, means that an employer has not exercised

reasonable care if he purchases and supplies to

any employee plant which is suitable for the

purpose and which conforms to accepted standards

unless he continues somehow to modify that design

almost in anticipation of the design being used

by the manufacturer.

I would argue that this case really is getting

very close to a situation which His Honour

Justice Windeyer thought was dangerous in

DA COSTA V COCKBURN SALVAGE AND TRADING PTY LTD.

I read that passage to Your Honours at page 205.

It is the second paragraph:

The case, as presented, seems to me to

be another instance of a tendency to say that

simply because an accident happens to a man

at work, which conceivably could have been by

some means avoided, the system of work was

unsafe and the injured man's employer was

responsible.

And I emphasize the words "which conceivably could have been by some means avoided" because in this

case the means suggested by which the accident

could have been avoided was the modification of

the truck in its design. His Honour then, further

down the page, refers to the decision in VOZZA V TOOTH,

and goes on to say:

AIT2/3/JM 11 MISS NELSON, QC 26/8/88

It is always important to remember that the

fact that an accident happens to a man at

work is not of itself evidence that those

in control of the work or responsible for

the manner of its performance were negligent.

If a man be unreasonably exposed to the risk

of injury that fact must ordinarily be

apparent before he was injured. An intelligent,

instructed and reasonable observer must then

have foreseen the possibility of an accident.

It must have been clear then that the employer

was failing in his duty to take reasonable

care for the workman's safety.

So, that latter passage takes me to the argument
that this was not reasonably foreseable and I

do not expand on that because I have really

addressed those issues in the course of my

first argument, which is that the duty of the

employer has been extended somehow.

The other ground of proposed appeal which

arises with which I can deal fairly briefly

is the failure to warn. I say in relation

to that that His Honour the Chief Justice was

not particularly enthusiastic about that as

an argument in favour of the respondent,

because all he says about that is perhaps a
warning was called for, that is, a warning that

the driver should alight from the truck backwards

instead of forwards, or jumping out, or whatever

he did. I do not think Justice Legoe deals

with it at all. Justice Prior, at page 38

says at line 9:

It should also have warned or instructed

the respondent about dangers inherent in

the use of the vehicle against the acquired

knowledge of its dangers.

And I interpolate there to say that inherent

in that proposition is that firstly the employer

has an onus to acquire knowledge about improvements

in design and danger in existing design and

secondly, that he should somehow have warned

the respondent about what he calls the dangers

inherent.

What I say about that argument is that

it is at odds with the decision of the Chief Justice

Mr Justice Gibbs in McLEAN's ROYLEN CRUISES V McEWAN,
which is on my list of authorities. That was the

case of the deckhand who was throwing out a

cable to moor a ferry. The argument there was

that he should have been warned that if he put

his hand out too far it would be caught, as it

was, between the ferry and the wharf. He was

an experienced deckhand. He failed on appeal in

AIT2/4/JM	12	MISS NELSON, QC	26/8/88
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the High Court and His Honour made certain

observations about the duty of an employer

to warn an employee of risks.

Before I take Your Honours to the particular

passages in that judgment on which I rely, I

reiterate that this respondent had been driving

sort of truck that goes around the

trucks for something in excess of 20 years. truck, the

metropolitan area. He had had substantial

experience on much larger road transports going

interstate. He was a highly experienced man

and the evidence was, as he conceded, that if

someone had told him to get out of the truck

in a particular way, he probably would not have

taken any notice. But, in any event, I say

that getting into and out of the truck did not present an unusual danger. It did not present

a risk which was unreasonable in the sense that

the employer had a duty to protect his employee

from that unreasonable risk of injury.

MASON CJ:	But a warning is very much at the side of the
case, is it not?
MISS NELSON:	I think so, sir.

MASON CJ: Essentially liability was found arising from

other considerations.

MISS NELSON:	I think that is quite correct, Your Honour, and I really deal with it briefly by saying
that the former Chief Justice in this Court said, at page 425:

No detailed rules can be laid down; the

question simply is whether in all the
circumstances of the case the taking

a reasonable care -

of a reasonable care, I think that should read -

by the employer involved the giving of a

warning.

It was a restatement of the position. I merely

take Your Honours to that case and to those

particular passages at page 425 to reinforce that

argument. But I do accept that that was

somewhat peripheral to the issue.

MASON CJ: Yes.

MISS NELSON:  If it stood on its own, it might not merit

this application. And the failure to maintain
the step to the point of it being unreasonably

worn. is a peripheral issue because - - -

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BRENNAN J: Is it unreasonable or unnecessary

that we should be thinking about? It is

an unnecessary risk, is it not, which has

to be guarded against?

MISS NELSON:  For the purpose of my argument, It really

does not matter.	I am quite happy to accept
that particular adjective.	I merely say

that the step in this case was not worn

to the point where it presented an obvious
danger, and it was not really the crux of
the decision that the employer had failed to
maintain the step and it was that failure to
maintain which was responsible for the

accident and therefore the employer was negligent.

This case really revolved around whether the

employer should have employed his crystal ball

and put handrails there in various positions

on the truck. It is that particular aspect

that the applicant complains of and seeks leave

to appeal in respect of.	I have covered all
the matters I wish to put.

MASON CJ:	Thank you, Miss Nelson.	The Court need not
trouble you, Mr Gray.

The issues sought to be raised here concerns breach of an employer's duty of care to its

employee. The issue is one of fact and in

the circumstances of this case its resolution

will not result in any elaboration of general

principle. We do not read the judgments in

the Full Court as amounting to a statement of

general principle or as extending existing

principle. Rather the judgments deal with

matters of fact which should have alerted the
employer to a risk of injury. In the

circumstances, the case is not an appropriate

one for the grant of special leave to appeal

and the application is refused.

MR GRAY:  May it please the Court, we seek an order for

costs.

MASON CJ:	You cannot oppose that, Miss Nelson?
MISS NELSON:	I would not have thought so, sir.
MASON CJ:	The application is refused with costs.

AT 10.14 AM THE MATTER WAS ADJOURNED SINE DIE

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