Taouk v Alexandrou

[1989] HCATrans 305

.

.

',;-~J'

-

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S99 of 1989

B e t w e e n -

MICHAEL TAOUK

Applicant

and

N. ALEXANDROU, S. ECONOMIDIS,

S. GEREMIADIS and E. ARAPADIS

Respondents

Application for special leave

to appeal

Taouk

MASON CJ
BRENNAN J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 DECEMBER 1989, AT 12.37 AM

Copyright in the High Court of Australia

SlT 10 /1/RB 1 8/12/89

MR B.J. GROSS, QC:  May it please the Court, I appear with

MSC. RIMMER, for the applicant. (instructed by

Cameron Gillingham Boyd)

MR J.S. COOMBES, QC:  And I, if the Court pleases, appear with

my learned friend, MR P.J. DEAKIN, for the respondent.

(instructed by Hickson Lakeman & Holcombe)

MR GROSS:  Your Honours, may I commence by handing up four

copies of photocopy material. At the top of that

material, Your Honours will find the agreed

transcription of extracts taken from the notes taken

by His Honour Mr Justice Cole of the opening address

of plaintiff's senior counsel and of the closing

addresses of both counsel. It is agreed between the

parties that these extracts and the transcription are

accurate. This transcription replaces an earlier

transcription which is exhibit E, but which was not

for some reason reproduced separately in the book.

MASON CJ:  Mr Gross, what we need to identify is a question of

general principle which would warrant the grant of special leave to appeal. Where do we find that in

all this mass of material with which we have now been

endowed?

MR GROSS:  Your Honours, we find it in the affidavit and we have

endeavoured to set out there those matters of general

principle and public importance which ought warrant

the granting of special leave. We have summarized

those in paragraph 6 of the affidavit which is to be

found at page 80, lines 8 to - - -

MASON CJ:  How do you identify, how do you formulate the

question of principle?

MR GROSS:  Where in fact a case is brought within the pleadings

and there is evidence directed to the particular matter,

where in fact there is no amendment of the pleadings

to narrow the issue and there is no clear evidence

that the trial was conducted on a more narrow basis

than the pleadings, the burden is upon the defendant

to show that the case was brought otherwise than

under the pleadings.

Second, where in fact it is contended, in this case

by the defendant, that the point was not taken below, it

is not sufficient merely to raise that matter. The

defendant in such circumstances has an obligation to

show that a case otherwise within the pleadings was not

in fact presented at trial. The issue of whether the point was taken at trial was resolved in the Court of

Appeal by the court ignoring the pleadings and drawing some inferences which, in fact, were incorrect from the

evidential materials. There was a particular circumstanc~

in this case which also gave rise to a particular

injustice, namely that the court, although invited to

SlTl0/2/RB	2	8/12/89
Taouk

look at the transcription of argument taken by the

trial judge, apparently did not do so.

If Your Honours would very briefly go to that

transcription it becomes quite evident that the point

was taken in the opening address and indeed - - -

BRENNAN J:  We do not really get to that until you have made

a special leave- - -

MR GROSS:  Your Honours, I will stay within the matter of

general importance. It is frequently a problem that

disputes of this kind arise at appellate level. The
disputes are more likely to arise when, in fact, it

concerns a matter in respect of which court reporting
staff do not ordinarily take a note and where one

conm1only does not have available either the notes of

the judge or any other means of validating exactly

what occurred.

In our submission, it is a matter of public

importance to establish that in those circumstances

either the Court of Appeal should go to the judge's

notes and establish what happened or, alternatively,

should resolve the matter against the party who bears
the burden of persuasion that the case was conducted

otherwise than in accordance with the pleadings.

BRENNAN J:  I could not describe that point, as at present

advised, as anything other than the most minute of

practice points that does not deserve a moment's

consideration by an appellate tribunal.

MR GROSS:  We would seek to put it otherwise, Your Honour.

MASON CJ: Well, at least by the ultimate appellate tribunal.

MR GROSS:  Your Honours, in our submission, it infrequently

occurs and it is in the nature of the things that the

problem can arise again. It does, in our submission,

represent a matter of tne relevant degree of importance.

MASON CJ: But really, it is a point that should be governed

by practice and principles established by intermediate

courts of appeal.

MR GROSS:  Your Honour, that would plainly be the preferable

situation but the minutia of practice do not seem to

be embodied either in court rules or in clearly laid

down appellate decisions at intermediate level. In

our submission, the-

MASON CJ:  But there would be no end to our work if we took

aboard cases of this kind and laid down prescriptively

rules of procedure that were to be applied.

SlTl0/3/RB	3	8/12/89
Taouk

MR GROSS: Well, Your Honour, without repeating myself, in

our submission the primacy of the pleadings and the

need to go to the more reliable information is of

paramount importance and the appellate courts require

guidance on that particular point.

MASON CJ:  I could understand the force of your proposition if

you were dealing with a case that came from anywhere

but the State of New South Wales, but I should have

thought that the expression "primacy of the pleadings"

is an appeal to philosophy that has been obsolete in

this State for many years.

MR GROSS:  But, Your Honour, there continues to be the lurking

risk either that the pleadings will be insisted upon

or, worse still, that although the pleadings do cover

the matter, one will be ambushed - and I say that in

a nice way - in an appeal situation by having to

retrospectively work out whether or not the case was

conducted on some different basis.

McHUGH J:	But you have got a further hurdle to get over, have you not, on a special leave application because the
Court of Appeal unanimously held that even if the issue was argued at the trial, no negligence was made out.
MR GROSS:	It is convenient to deal with that second aspect

now, if I might. That is said by the court at page 54,

lines 12 to 15. His Honour proceeded to do that and,

of course, if in fact the same result would arise
anyway in the proper exercise of intermediate appellate
power, the point that we complain of in the first half

of our grounds of appeal would not be of any

significance in terms of what we have lost. But in our

submission, when the Court of Appeal adopted that

alternative approach, of assuming in our favour that the

point was taken, it did so in a constrained way so as

to deny to us the benefit of the rehearing on the

evidence to which we were entitled. I can fairly

quickly demonstrate that, if I may. If Your Honours

would go to page 54 and following, I will take

Your Honours to the passages which show that on

reviewing the matter afresh, as it were, Justice Mahoney,

with whom the other judges agreed, resolved the matter

but with the plaintiff still carrying the handicap of

not being permitted to rely upon material which

otherwise might be available on such a reassessment of

the evidence. At line 25 on page 54 His Honour says:

There were risks involved in doing tyre

fitting work and the risk of doing it without

a cage was well recognised by the defendants. and his going it had been forbidden, firmly and repeatedly.

SlTl0/4/RB	4	8/12/89
Taouk

I then pass over the next sentence. At line 4:

It is not necessary to decide whether, as

a matter of principle, the conception of

reasonableness embodied in the present tests

will require, or ordinarily require, that an

employer take precautions to ensure that an

employee does not do what he is not

authorised or is forbidden to do. The

present is not such a case. In the present

case, the possibility of the plaintiff doing

tyre fitting work had been raised and the

defendants had started to teach him what to

do. Therefore, to this extent, the

possibility that he might do it was before

the minds of the defendants.

His Honour then says:

And the question which the plaintiff

has posed is a more limited one. It is

accepted that the risk of the plaintiff

doing tyre fitting work did not require

that the defendants have him supervised by

somebody present to stop him. That

possibility has been expressly abandoned

and -

and, Your Honours, we now emphasize the next part -

having in mind the way in which the trial and

the appeal has proceeded, it would, I think,
be unfair to the defendants to consider the

precautions which they should have taken

generally. The question that has been posed is,

and is only, whether the defendants were in

breach of their duty by not warning the plaintiff

of the dangers in tyre fitting work to which I

have referred. More precisely, the question

is whether, in addition to what the defendants

had done in forbidding the plaintiff to do

the work or do it in the presence of

Mr Alexandrou, they should have added a

warning of that kind.

Here, His Honour narrowed even further our case on reassessment of the evidence because, as Your Honours

will see from the amended notice of appeal, pages 85

to 87, particularly if Your Honours would go to

page 86, what we were complaining about was that

there was an obligation not just to warn but also to

instruct. So that in the reassessment of the evidence

His Honour left the instruction matter completely out

of account, even though, as Your Honours will see from

His Honour's notes - that is Mr Justice Cole's notes

at trial - failure to warn and failure to instruct were

both put as part of the plaintiff's case.

SlTl0/5/RB	5	8/12/89
Taouk

So His Honour then proceeds to consider the question

of warning, but subject to that constraint at line 20

page 55. Can I then take Your Honours further to

where the error is repeated at page 56, line 14 and

following:

In deciding what should be the response

of a reasonable man and whether a particular

precaution is necessary, it is, as was

indicated by Mason Jin WYONG SHIRE COUNCIL

V SHIRT, relevant to consider the difficulty

and inconvenience to the defendants involved

in giving the warning. It may be accepted

that the precaution warning him in this way

would not have involved the defendants in any

loss or inconvenience and, as the events

showed, if there was an injury it was

possible it might be significant. But it is

also relevant to consider the extent to which

it was necessary, and to which it would have

occurred to the defendants that it was

necessary, to give this warning.

And, Your Honours, we emphasize the next sentence

in this regard:

And, in this regard, the court is again faced with the difficulty because of the way in

which the plaintiff's case was presented at

the trial. On one view, it was obvious, even

to a worker not fully instructed in the field,

that there were dangers involved in tyre

fitting work if the work was not done with

the necessary skill and precautions. If this was so, then the need to give a warning that, if the plaintiff did the work, he would face

those dangers, might not, to a reasonable

man, exist: at least, it might appear

minimal. But the extent to which this was

obvious does not appear to have been dealt

with in terms at the trial:

And we emphasize in the same vi1:!!rf this sentence, Your Honours:

insofar as the court is to act upon a

conclusion in this regard, that conclusion

must depend upon inference from material

arising in the course of dealing with other
issues more directly raised at the trial.

For myself, I find it unsatisfactory to reason

from a conclusion based upon such inferences

to a decision that the defendants were negligent

in failing to warn the plaintiff of these

dangers. Had the matter been pursued, it may

well have been clear that no warning was

necessary to alert the plaintiff to the relevant

dangers.

SlTl0/6/RB	6	8/12/89
Taouk

His Honour then eventually finds, line 24:

if there was a failure by the defendants to

warn the plaintiff of the risk of injury if he

disobeyed their instructions, that failure

did not constitute a breach of the defendants'

duty to the plaintiff.

So that, in our submission, the alternative

reassessment of the evidence was entirely unfair to

the plaintiff because His Honour visited upon the

plaintiff the consequences of not taking the point
which had already been found in the first part of

the judgment.

Your Honours, I can very quickly point out, if

Your Honours wish me to, the various locations where

it is absolutely plain beyond argument that these
points were not only in the statement of claim, in
the opening, dealt with by the plaintiff in-chief and
re-examination, dealt with by Mr Osman, the expert,

and also dealt with by the def~ndant in cross-exam.ina.tion. Toe submissions of defendants' counsel and plaintiff's counsel Your Honours

have at the top of the material that has just been

supplied and it is plain that even defendants' counsel,

at page 57 of those notes, is saying, in what appears

to be the opening part of his argument, which is the

first part that is noted down by His Honour

Mr Justice Cole under the heading "Liability" - it is the third page in, Your Honours, in the written

materials -

Liability. 1. Has plaintiff proved breach of

duty in nature of failure to properly instruct

which is causally related to injuries received?

Now, there is an obligation, in our submission, to

warn and instruct and the Court of Appeal did not look

at the matter of instruction at all. Yet, in fact,

it is plain that it has been dealt with throughout

the case and, indeed, is the opening salvo in the

defendants' counsel's submissions in closing argument.

So that, Your Honours, this may not be a case

that can clearly be characterized as being of the

greatest public importance but the failure of justice
in the particular case is an aggregious one. It may
well be that a point of public importance does arise

in this way - and these are my final submissions - that

where in fact a preferred version of events given by

the plaintiff is rejected by the trial judge, it still
becomes the obligation of the trial judge, in the light

of the pleadings, to determine whether on the facts

found by him the defendant has been negligent, and in

our submission that was something that Mr Justice Cole

failed to do and it is something that the Court of

Appeal itself failed to do in reviewing the matter.

That completes my submissions.

SlTl0/7/RB	7	8/12/89
Taouk

MASON CJ:  The Court need not trouble you, Mr Coombes.

We are not persuaded that the proposed appeal

raises any question of general principle. The case

is therefore inappropriate for the grant of special

leave and the application is refused.

MR COOMBES:  I ask for costs, Your Honour.

MASON CJ: You do not oppose costs, Mr Gross?

MR GROSS:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 12.55 PM THE MATTER WAS ADJOURNED SINE DIE

SlTl0/8/RB	8	8/12/89
Taouk