The Queen v Hughes

[2000] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S132 of 1999

B e t w e e n -

LIFTRONIC PTY LIMITED

Applicant

and

EROL UNVER

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 APRIL 2000, AT 12.20 PM

Copyright in the High Court of Australia

MR B.M.J. TOOMEY, QC:   If it please your Honours, I appear with my learned friend, MR P.J. MOONEY, for the applicant.  (instructed by Vandervords)

MR H.N. KELLY:   If it please your Honours, I appear with my learned friend, MS S. THODE, for the respondent.  (instructed by Gibsons Lawyers)

GLEESON CJ:   Yes, Mr Toomey.

MR TOOMEY:   If your Honours please.  Your Honour, the respondent was employed by the applicant to work in a business which involved the painting and movement of steel girders.  He was instructed, with his fellow worker, Mr Dawes, to use lifting hooks which were pieces of reinforced steel about 3 feet long with a hook fashioned in the end of them with a transverse handle at the top.  He was also instructed that he was to keep his back straight and bend his knees.  The manner of use of the hooks was that they were inserted through holes in the girders and then the hook was lifted, bending the knees, straightening the knees, lifting the girder and moving it on to some timber which was only a couple of inches high to keep it off the ground while it was painted.

The respondent found it uncomfortable to paint the girders on the ground a couple of inches above the ground.  So, he devised his own system in disobedience of the instructions he had been given.  He told the apprentice with whom he was working to get a couple of trestles and then he manually, with the - - -

CALLINAN J:   Mr Toomey, there was no dispute, was there, that there is evidence upon which a jury could reasonably act in finding both negligence and contributory negligence?

MR TOOMEY:   That is correct, your Honour.

CALLINAN J:   And your submission is that it was entirely a matter for them.

MR TOOMEY:   Absolutely.

CALLINAN J:   That they were given appropriate directions and there was evidence for each and that there was absolutely no basis for intervention by the Court of Appeal?

MR TOOMEY:   That, with respect, is our case, your Honour.  May I say this, just to add a couple of short facts:  the evidence of the respondent’s expert was that the method adopted substantially increased the risk of injury and the jury - - -

CALLINAN J:   That is a matter for the jury anyway.

MR TOOMEY:   Yes.  Well, it was, entirely, and the Court of Appeal, to compound, we say, the error of interfering at all, the judgment of Justice Brownie in the Court of Appeal omits two of the most relevant factors which would have led the jury to their high finding on contributory negligence which is that the new system required - - -

CALLINAN J:   It may only seem high because it is not done very often, perhaps.

MR TOOMEY:   Indeed, your Honour.

GLEESON CJ:   What were the two factors?

MR TOOMEY:   The two factors were that the system that the respondent substituted required him to bend his back and lift and he was, in fact, doing that when he injured his back.  That was not mentioned in the Court of Appeal.  And the other thing that was not mentioned in the majority judgment was the evidence of the respondent’s expert that his activities had increased the risk of injury; that the system he adopted in disobedience of his instructions increased the risk of injury to him.

GLEESON CJ:   What was the breach of duty upon which the verdict for the plaintiff was based?

MR TOOMEY:   There was evidence that the girder was too heavy, that it should have been lifted by more than two men.  That would have been the basis of the finding for the plaintiff/respondent.

GLEESON CJ:   What do you mean by “too heavy” in that context?

MR TOOMEY:   That there was a risk of injury in any event in having two men handle a girder of that weight, but the jury would have been entitled to take into account the evidence of the apprentice who was working with the respondent, and whom they obviously accepted, to the effect that it was comparatively easy to lift the girder with the lifting hooks and very hard to do so by bending over and manhandling it as required by the system which the respondent substituted.

In our respectful submission, it was simply a case where the decision of the constitutional tribunal was overturned without any legal basis for doing so.  It was not the opinion of the Court of Appeal which mattered.

GLEESON CJ:   I thought perversity was the expressed basis.

MR TOOMEY:   It was, your Honour. 

GLEESON CJ:   Well, that is a legal basis, is it not?

MR TOOMEY:   Well, it is, yes, but it means that two members of the court must have held there was no possible basis for that finding and, in our respectful submission, that was transparently wrong, that is, for a finding of the level of 60 per cent. 

As the cases say, these matters are always, by a judge or a jury, matters of balance, proportion, discretion, and this was a case pre-eminently in which those factors were to be taken into account and it is our submissions that the Court of Appeal did not do so.  It simply substituted its own view for that of the jury which was the constitutional tribunal.  May it please your Honour.

GLEESON CJ:   Thank you, Mr Toomey.  Yes, Mr Kelly?

MR KELLY:   Your Honour, we certainly accept that it is unusual for an appellate court to interfere with a finding of a jury and, in the circumstances of this case, we simply say that it was unreasonable and unjust and, as the Court of Appeal subsequently found, perverse to find a contributory negligence finding of 60 per cent.

If I could take your Honours very briefly to page 76 of the application book which sets out the crux of the judgment of Acting Justice Brownie and your Honours will see at about point 4 there where he refers to:

If the system of work provided involved employees working in conditions of discomfort, it was plainly foreseeable that –

the worker –

might take some steps to –

in effect, make the working conditions easier.  He further goes on, at about point 20 to say, in fact, what the worker did.  He changed:

the system so as to reduce the discomfort and inconvenience of working for hours (with interruptions when moving the rails) in a crouched, kneeling or similar position.

Now, importantly, we then go to about line 35 where his Honour says:

That is, so far  as the evidence shows, the appellant did not foresee or even turn his mind to the possibility that the modified system he adopted carried a risk of injury. 

CALLINAN J:   Perhaps he should have turned his mind to it.  It was contrary to his instructions.  He should have turned his mind to why the instructions were given in the first place.  How can you possibly say, as Justice Brownie did, that that was inadvertence?

MR KELLY:   Well, your Honour, he had the opportunity of looking at the transcript of evidence and that was the opinion or conclusion that he formed.

CALLINAN J:   Yes, but how can you say, when he has a duty for his own safety, that it is an excuse that he did not turn his mind to it, particularly when he decided of his own initiative entirely to disobey the instruction?

MR KELLY:   Well, your Honour, in the circumstances of a worker in uncomfortable conditions, taking it upon himself to change the system, clearly the jury were entitled to make a finding of contributory negligence which they did.  However, in the whole context of the issue, as the Court of Appeal found, and as one of those factors the evidence was that the appellant did not foresee or even turn his mind, it was the court’s opinion that that finding, in the circumstances, was perverse.  And, your Honour, they were entitled to do that.  They clearly had regard to the well‑established principles laid down in Podrebersek v Australian Iron and Steel which your Honours have been referred to, and that was the conclusion that the court drew.

Your Honours, even if you accept the submissions made by Mr Toomey, it is our submission that this is not a matter in which special leave ought be granted.  It does not comply with the requirements in section 35A.  There is really no matter of special importance or, indeed, as referred to in the section, as to why your Honours would grant special leave.  All the applicant could say in these proceedings, really, is the Court of Appeal got it wrong, therefore your Honours should grant special leave.  With respect to the submissions made by Mr Toomey, that is not what the function of this Court is.  The function of this Court is to grant special leave in certain circumstances as set out in section 35A.

CALLINAN J:   In the interests of justice, so far as the defendant is concerned.  It may be an unfashionable view but defendants have an interest in justice too.

MR KELLY:   Well, your Honour, I do not want to repeat myself.  I have made the points and I say that this is not one of those matters.  That is what I am saying.

GLEESON CJ:   Mr Toomey.

MR TOOMEY:   May it please your Honours, the form of the argument of the respondent, with respect, makes our case.  What he says is – he points to matters of fact which were considered by the Court.  Those, in our respectful submission, were matters for the jury and the jury did consider them and in what we say was a clear case of high contributory negligence arrived at a proportion 60:40 and, in our respectful submission, any decision by a court that that was perverse in the circumstances of this case was indefensible.  May it please your Honours. 

I am sorry, can I just say about the special leave point.  With respect, what your Honour Justice Callinan said must be right.  The justice in the particular case, if it is clear that the Court of Appeal was wrong, would demand a grant of special leave.  May it please your Honours.

GLEESON CJ:   In this matter there will be a grant of special leave to appeal.

We will adjourn for a short time to reconstitute.

AT 12.32 PM THE MATTER WAS CONCLUDED