Thomas v General Motors Holden Limited

[1988] HCATrans 326

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A24 of 1988

B e t w e e n -

RAYMOND THOMAS

Applicant

and

GENERAL MOTOR'S HOLDEN LIMITED

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

GAUDRON J

Thomas

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 NOVEMBER 1988, AT 11.13 AM:

Copyright in the High Court of Australia

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MR R. EVANS:  If the Court pleases, I appear for the

applicant. (instructed by Dixon Gallasch Pty Ltd)

MR D. CLAYTON:  May it please the Court, I appear for the

respondent. (instructed by Finlaysons)

BRENNAN J:  Mr Evans, before you conrrnence I notice that

on the front page of this document there is the

name of a company of solicitors.

MR EVANS:	Yes.
BRENNAN J:	And I notice on the affidavit that was filed

today there is the same name. Do we take it that

this is an application in which a solicitor on the

role of the High Court is in fact acting?

MR EVANS:  That is as I understand the position, that he

is employed by the incorporated firm of Dixon

Gallasch Pty Ltd.

BRENNAN J:  The question is whether the application is made

by a solicitor?

MR EVANS:  Yes. I apologize to the Court, I have not had

time to consider the full implications of what

appears on be file of the Court. I am somewhat

in a dilemma, but I would ask Your Honours to hear

the application on an undertaking that any

regulation that has to be carried out in relation

to the instructing solicitors will be attended

to at the soonest possible time.

BRENNAN J:  Yes, very well, we will hear the application

on that basis, Mr Evans, but it should be clearly

understood that applications can be made to this

Court only by those who are enrolled as

practitioners and that an application which is

made by a body other than those who are enrolled

purporting to be solicitors may, in fact, be

acting in a way which would attract the coercive

powers of this Court.

MR EVANS:  Yes, Your Honour. I would like to hand up a

book of materials for the assistance of Your Honours. is a preliminary issue as to time. Your Honours

will have noticed that the application was filed

some seven days out of time.

BRENNAN J:  You need not delay on that subject, Mr Evans.

MR EVANS:  I am grateful to Your Honours. If I could refer

the Court to the outline of argument appearing at the front of the materials book. It is submitted

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Thomas

that this application raises an important question

of construction, namely, of a regulation having a

very wide application throughout the State of

South Australia. If I could take the Court to

the particular subordinate legislation which is at

page 63 of the materials. It can be seen that the

regulation is pitched at protecting workers from

falling and it applies to all factories throughout

South Australia. In the Full Court only two of the judges gave reasons relating to the question

of statutory construction and they came to opposite

conclusions. Justice Bollen, in dismissing the

appeal concluded that the platform on which the

applicant was standing was neither a work place nor
elevated. His conclusions appear at page 42 of

the application book at the middle of that page.

He first of all says that he respectfully

agreed with the primary judge as to his construction

of the regulation and that passage is quoted. The

effect of the initial construction was that the

platform, because it was only used in a transient

way, was not a work place. His Honour the learned

trial judge excluded the operation of the regulation

for that single reason. But His Honour Justice Bollen

went further and he was also able to find that not

only was it not a work place but it was not elevated. reasons, which is about 10 lines from the bottom of

that page. He stated:

Nor in my opinion was the stool -

which is a platform -

"elevated". It stood on the floor.

With the greatest respect that is a very curious construction to place on the word "elevated". It

would suggest that from the point of view of the learned judge's view of the constructio~ that for	it to be elevated it must have been suspended from
the ceiling. Quite obviously if it rested on the floor the legs at least had to stand on the floor
and, with the greatest respect, the learned judge has begged the question as to whether it was an
elevated platform or not.

If I could take the Court to some photographs

which were exhibited at the primary hearing. They

appear at the back of the materials book, page 80.

They show what some witnesses referred to as stools which were referred to by the learned trial judge

and, indeed, the judges in the Full Court as

platforms. Clearly the photographs demonstrate that they are working platforms made of a heavy steel construction with an intermediate step at

one end.

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The judges also referred to other exhibits

of another type of platform altogether, which

photographs appear at page 81, but it is readily

visible that although the platforms are somewhat

wider and larger they are of comparable height and,

of course, one sees clearly that they are guarded.

The issue, with respect, before this Court is whether

on a true construction of regulation 19 workers
are protected from falls from relatively low heights.

If I could go back to His Honour Justice Bollen's

reasons at the same page, page 42, having decided

the fact that the platform stood on the floor did

not cause it to be elevated, went on to say:

As I say, it stood on the flcor. It was not

a catwalk nor is the stool something or

some place which Reg.19(1) contemplates.

That regulation is concenred with "Falls of

Persons". But it is concerned with falls

from high places or at really dangerous

places.

The applicant takes issue with that construction

and submits that there is nothing in the wording

of regulation 19 which would limit its application

to falls from high places. As to the definition

of "work place" it is submitted that the majority

judgment of the Full Court were in error in coming

to the view that the platforms were not work places.

I would refer Your Honours to two authorities of

this Court, which are included in the materials.

Firstly, the TRANSFIELD case which appears at

page 16 of the materials book; it commences at page 12. The passage that I would like to refer

the Court to is at page 16. Perhaps if I could

refer to page 12 initially to glean the facts.

That was a decision in relation to construction

safety regulations which were in force in New South

Wales and the plaintiff fell from an unfenced beam

and he had been moving about the site in the capacity
as a supervisor.	The question was whether the place

from which he fell, in the terms of that particular
legislation, was at a place from which he would be

liable to fall. Just digressing, it is of interest

that that particular regulation also specified a

minimum distance of 1.8 metres, but it is to be
remembered that the context of that case was against
construction safety when you would expect workers

to be at higher places than you would reasonably

expect them to work in a factory situation.

The South Australian subordinate legislation

is made under the FACTORIES ACT, not under the
SCAFFOLDING ACT or any Act dealing with construction.

If I could take the Court to page 535, appearing

at page 16. It was stated that:

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Once it is accepted that "place" is not

limited by reference to a particular form

of safeguard and that the regulation is

concerned to prescribe protection for a

workman working where he is exposed to

the risk of falling, it follows that the

words "working at a place" cannot be

restricted to the case of a workman whose
duties require him to work at a particular

place but extend to any workman whose working activities place him, however

fleetingly, in a position from which he would

be liable to fall the prescribed distance.

With respect, that cuts wholly across the reasoning

of the learned trial judge Justice Jacobs.

DAWSON J:  Well, not really because "place" there is only

the equivalent of where, as appears from the quotation - from the words of Sir Owen Dixon

just above, whereas work place is not the equivalent

of where.

MR EVANS:  Well, could I take Your Honour to the words

of the regulation which, for the sake of convenience,
appear in the headnote of that case and the salient

expression is:

"for securing the safety of any person

working at a place from which he would be

liable to fall".

Now, with respect, those are the words of the drafter in a different State and, in my respectful submission, the term "work place" in the legislation before

the Court is equivalent to working at a place. It

is a way of saying the same thing in one word.

BRENNAN J:

That may not be so, ney it not, Mr Evans? Say, for example,

you have what is obviously an elevated work place,

a steel grill situated 20 feet above the ground

with a railing which conforms, in all respects,
with the South Australian legislation but the workman

has to climb upon the railing in order to reach

a wire or something that has to be repaired

i!Illilediately above him on this particular day.

In those situations would you say that the top of
the railing is a work place which itself has to

be railed or would you not say that the New South

Wales regulation under consideration in TRANSFIELD

required none the less a taking of precautions
to prevent the man from falling from the top of

the rail?

ME EVANS:  Yes, I am grateful to Your Honour's example and, with respect, that may be taking the matter reductio.

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Incidentally, there is an English decision which

considered much the same extrapolation and that was the case of GILL where a worker was working on a sloping roof and that judgment was referred

to in the Full Court. It is copied and contained

in the book of materials. It was held there that
the situation of a sloping roof made it impractical
for appropriate guard railing to be installed but

a few years later the Court of Appeal decided another

case on very similar facts where there was a flat

roof. That is FERGUSON's case. It was held under

the same legislation that a flat roof was a working

place. Although the boundaries were large they

were defined and it was possible for an employer

to erect railing around the perimeter of the roof

whereas in contradistinction where there was a

sloping roof it was illogical to expect the

erection of railing because it would be very hard

to come within the definition, the particular
definition, of the requirements as to the height

of railing.

If I could refer the Court to the other authority,

which is DRISCOLL V SCOTT. That, again, concerns
scaffolding regulations and the issue before the
court was whether the planks that the plaintiff
was standing on amounted to a working platform
within the meaning of that particular legislation.

The case for the employer was that because the platfonn was away from an adjoining-wall of a building it

did not constitute scaffolding and therefore a

working platform. The case was decided against

the employer and I cite it for the dicta of

His Honour Justice Murphy, which appears at
page 598, page 8 of the book, about line 40 where

His Honour .said:

A platform is normally a flat raised surface.

Working platform inreg 16(iv) should bear

its natural meaning, thatis, of a platform

where work is done.

He refers to another English decision of KELLY.

It is not necessary to attempt to describe

exhaustively the various arrangements which

do and do not consitute a working platform.

It is sufficient to state that the arrangement

on which the appellant was working at the

time of the accident was a working platform

within the meaning of reg 16(iv).

In my submission the expression "elevated work place" should be construed according to its ordinary and

natural meaning. Elevated means "raised". There

is no prescription in the legislation as to the

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height at which it should be raised and, indeed,

the thrust of the regulation is to protect workers

from falling.

BRENNAN J:  What would you say if you had a stool in the

stricter sense, that is, a four legged small platform

with a back on it and that was carried around now

and again to give the person additional height to

do a job, would that be a working place, working

platform?

MR EVANS:  In my respectful submission it would be but, again,

I contend that the factual situation here is easier

to argue than that one.

BRENNAN J:  It is, and I am putting an extreme instance to you

in order to see whether the essential quality of

elevated work place, as you would have it, can

be identified in a way in which I think your argument

now tends to go.

MR EVANS:  Yes. Well, with respect, Your Honour, in my

submission that would not do violence to the language

of the regulation in that a stool may be three feet

height, or perhaps higher. It may have access

steps to it and in that situation it almost becomes

a ladder and, of course, we have seen from time to

time ladders with the platforms on the top with a

hand rail. In my respectful submission that would

be a working platform or a working place. It is

interesting to note that in the equivalent

legislation in England both terms are found in the same

subregulation, working place or working platform.

But to take the long bow, if it is that, and turn to

the other face cf the coin, if I can take Your Honours

back to the photographs at page 81.

In my respectful submission, that platform

is closer to the platforms in the photographs at

page 80 than Your Honour's example, Your Honour the

presiding Judge's example.

BRENNAN J:	The photographs at page 80 are not precisely the same as the instrument that was used in this case,
is that correct?
MR EVANS:	At page 80?
BRENNAN J:	Page 80.

MR EVANS:  No, Your Honour. The evidence is that to the

best of the applicant's belief he was standing

on a platform identical with the photographs on

page 80.

BRENNAN J:  With the access step?

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MR EVANS:	With the access step.	But he fell at the end

which did not have the steps.

BRENNAN J:  I see, yes.

MR EVANS:  The steps appear at one end. There were other

photographs tendered of different kinds of platform

but much the same. They have not been included

in the materials but with my learned friend's

consent I could hand up a photogr~ph showing

another type of platform.

BRENNAN J:	You have no objection?
MR CLAYTON:	No objection.
MR EVANS:	It is fair to say that the evidence of the

applicant was that whilst those other platforms

were nearby and used, he believed that he was standing

on a platform of the type shown at page 80 and

there is no evidence called by the employer to

contradict that.

BRENNAN J:	Yes.
MR EVANS:	It can be seen from the photographs that although

the platforms were smaller than the type appearing in the photographs at page 81 that the height from the ground was the same and involved one access step,

and for whatever reason the platforms in the latter

photographs were securely fenced. Whilst it was

said by the primary judge that the stools, as he

referred to them as, were movable, there was absolutely

no evidence that they were ever moved, that they

remained in situ each side of the production line

and the task of the applicant was to wipe down the

car bodies as they were approaching the spray

painting booth for their final coats of paint.

BRENNA..~ J:  We have read the judgments, you do not need to

which you contend as a proposition of law? What elaborate on those. What is the proposition for is the proposition of law for which you contend?

MR EVANS:	Well, it is the applicant's case that on a proper construction of the regulation that the platform
is an elevated work place and clearly on the evidence
it was not guarded.  So if I could take the Court
to regulation 19(2), but before leaving subregulation (1)
if I could, with respect, reiterate the duty imposed on the employer, the employer being an occupier of
industrial premises.  The duty was to securely
protect every elevated work place so as to safeguard
persons from falling.
DAWSON J:	What page is the - - -
MR EVANS:	That is at page 63 of the materials that I handed

up, or if Your Honours prefer the regulation is

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set out in the judgment of the dissenting judge,

Justice Matheson, at page 23 of the application

book.

BRENNAN J: Well, there is no doubt that the basic

proposition that you contend for is whether or

not that stool which is shown on page 80 of your

supplementary materials is an elevated work place

within regulation 19(1)?

MR EVANS:  Yes, that is the nub of the case, if Your Honours

please, and that is what the applicant contends

for.

BRENNAN J:	Yes.
MR EVANS:	In support of that contention it is submitted that

the only reasoning in the Full Court judgments,

being that of Justice Bollen, strains itself away

from the natural and ordinary meaning of the

regulation and, with the greatest respect to the

learned judge, it would seem that he has pictured

a situation which is more appropriately regulated

by construction regulations where workers are

habitually working at high places.and that the

intention of the legislature in relation to the
industrial safety code regulations affecting

factory premises is to protect workers in any situation

where they are working in an elevated work place.

Now, with the greatest respect to that

submission, I concede that any platform 1mder the

definition of "elevated work place" would satisfy

the requirements of the regulation. A platform,

if one can imagine a context, two or three inches

high would be an elevated work place. But to avoid

a ridiculous result one, with respect, has to look

at the other words in regulation 19, indeed, have

regard to the title, to the innnediate heading, "Falls
of Persons - Protection".	Then subregulation ( 1)
that the protection is:

to safeguard persons from falling.

So, in my submission, wherever there is a risk of

a fall, indeed, a chance of a fall, at whatever height,

that regulation is invoked. If I could take Your Honours

now to the second part of the regulation which

specifies the type of protections required - - -

BRENNAN J:  Do so if you think it is necessary to

make your point for special leave, but not if it is

for the purpose of promoting the appeal, which is

not now being heard?

MR EVANS:  Well, can I do so quickly, if the Court pleases.

2(a) gives the employer one option and 2(b) a final

option. If I could take the Court to the Australian

Standard 1657 that is recited in 2(a), which appears

at page 67 of the materials.

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MR EVANS (continuing):  The title refers to the "Design,

Construction and Installation of Fixed Platforms,

Walkways, Stairways and Ladders." In my

submission, that is misleading. The word "Fixed"

applies to ladders because, reading further down

under 1.1, it clearly indicates that portable

ladders and the requirements relating to them

are not included in the Code. But for the sake

of the argument, conceding that the standard

only applies to fixed ladders, I mean

fixed platforms, in my submission, the particular

platform was fixed; it was fixed in that it stood

on the ground by its own weight and although it was

smaller than the other platforms seen in the

other photographs with the guard-rails, it was

certainly a weight in substantial platform and

moreover, akin to the law of property. The intention

was for the platforms to remain in situ and fixed

in that sense.

BRENNAN J: Mr Evans, we do not really need to go into the

law of property to decide an application for

special leave.

MR EVANS:	In my submission, it was a fixed platform and
therefore attracted the rules under that standard.
If I could take the Court to the standard and,
in particular, at page 71 of the materials. Rule 3.2.1.1 refers to the requirements of guard
railing.
BRENNAN J:	Was that the guard railing for which you would

contend?

MR EVANS:	It would have been very difficult to have applied that particular form of guard railing to the
size of the platform.

BRENNAN J: Well, what is the protection for which you contend

this working platform should have been equipped with?

MR EVANS:  That, is my submission, I am obliged to say that it

has to comply with the Australian standard if it

has application.

BRENNAN J: What, that guard railing provision there?

MR EVANS:	Yes.
BRENNAN J:	So that in this case it would have, what, three

sides guarded and the other not?

MR EVANS:  That is so because that would be against the car body.

BRENNAN J: No, against the step of access.

MR EVANS: There would be a door to the step much the same as

the guard railing in the photographs at page 80, if

the Court pleases.

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BRENNAN J:  So that it would be guarded on three sides?

MR EVANS:  With an access gate. Now, it is interesting to

note that under rule 3.2.1.3 that the only

exemption from guard railing is where the:

sides and edges of a platform the level

of which is not more than 300 rrnn above that
of an adjacent platform or floor -

and even then the ends of the platform have to be

distinctly marked. And I submit that even if the

standard does not apply, that that lends support

for the intention of the regulation to prevent

falls from even levels above 300 millimetres.

But to go back to regulation 19. If the Court

was of the view that it was impracticable to

enforce the specifications laid down in Australian

Standard 1657, the employer still fails because

his last resort is to install some:

other approved method of safeguarding which

will enable all persons to move safely

throughout the industrial premises and allow

workers to perform their normal duties in a

safe manner.

Now, the evidence is all one way. There was no

safe guarding and the option to the employer would

have been to have obtained approval by the

regulating authority under the Act and regulations

which, for the sake of interest, is the chief

inspector, for some other form of more practicable

guard railing.

BRENNAN J:  Now, Mr Evans, we have identified the point that

you have to make and that is whether or not this

stool is an elevated work place.

MR EVANS:	Yes.
BRENNAN J:	Is there any other submission you wish to make

in support of that proposition?

MR EVANS:	With respect, no, Your Honour, that is the case
as far as that point is concerned.

BRENNAN J:  Yes. Do you base any of your application for

special leave on the common law count?

MR EVANS:  Yes. If I could refer the Court to page 3 of the

outline of submissions, and I make this point very

briefly. It is submitted that the Full Court, in

particular, Justice Bollen who wrote the main
judgment, has misinterpreted a passage of this

honourable Court in BRAISTINA. If I could take

Your Honours to page 37 of the application book

about half-way down, immediately above the judge's

passage commencing "That case is a modern statement".

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It is respectfully submitted that the learned judge

seized on the warning against exaggeration of the

changes in community standards relating to

industrial safety.

Further down, he directs himself as to the

potential for the facts in this case to attract

some other standard from the traditional standard

due to new technology and he is readily able to

say that the particular platform did not impress him

as being particularly new technology. But whilst he

talks of modern ideas, with respect, he has not

addressed himself to changing attitudes of

ideology relating to old technology and whilst

the platform is something that has been in existence

for donkeys' years, with the greatest respect,

the decision in BRAISTINA is to bring a change as

to the philosophy to be applied and; indeed, the
standard to be applied to the test of what is
reasonable even in the use of old technology.

Just to sl.llilIIlarize it: that the message from that case, in my respectful submission, is that both

new and old technology have to be considered in the light of more modern ideas or ideology. It is the applicant's case that the judgment clouds

the message that BRAISTINA was intended to give.

For that reason, the granting of an application for special leave to clarify or reclarify the law

is also warranted.

BRENNAN J:  We need not trouble you, Mr Clayton.

So far as this application relates to the

applicant's common law claim, no question of law

of general public importance is raised. The only

question is the correctness of the application of

established principles to the particular facts of

the case. There is insufficient reason to doubt the

correctne~s of the decision to warrant the grant of

special leave. ·

So far as the application relates to the

interpretation of regulation 19(1) made under the

INDUSTRIAL SAFETY HEALTH AND WELFARE ACT 1972 of

South Australia, the conclusion that the stools

shown in the photographs on page 80 of the

applicant's book of materials is not an elevated

work place within the meaning of that regulation

is, in our view, correct. It would therefore not

be appropriate to grant special leave to appeal.

Special leave is accordingly refused.

MR CLAYTON:	I apply for costs if the Court pleases.
MR EVANS:	I do not oppose that application.

BRENNAN J: With costs.

AT 11.52 AM THE MATTER WAS ADJOURNED SINE DIE

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