Transfield Pty Ltd v Manners

[1992] HCATrans 310

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P18 of 1992

B e t w e e n -

TRANSFIELD PTY LTD

Applicant

and

PAUL MANNERS

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

TOOHEY J

Trans field 1 16/10/92

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 16 OCTOBER 1992, AT 12.18 PM

Copyright in the High Court of Australia

MR C.D. STEYTLER, OC:  May it please Your Honours, together

with MR A.V. McCARTHY, I appear on behalf of the

applicant. (instructed by Messrs Parker & Parker)

MR C.L. ZELESTIS, OC:  May it please Your Honours, with my

learned friend MR H.J. DIXON, I appear for the

respondent. (instructed by Messrs Lawrence &

Howell)

MASON CJ:	Mr Steytler.
MR STEYTLER:	Your Honours, the question in issue in this

application really boils down to that of where an

employer has paid workers' compensation to an
injured workman who has been injured in the course

of a motor vehicle accident and the workman has

brought a common law claim against the tortfeasor

who was responsible for the accident, and that

claim has been dismissed, whether the employer, in

those circumstances, can still recover the

compensation paid pursuant to the provisions of

Workers'
section 93 of the Western Australian for damages in respect of the payments made.

The short point which, in our submission,

arises is that the majority of the Western

Australian Full Court held that the employer could not maintain such an action because an issue estoppel arose against the employer essentially because, as part of its cause of action, the

employer had to prove that the worker had, at the

time of the accident, a cause of action against the

.tortfeasor and because that issue is the same as

the worker's action against the tortfeasor, an
issue estoppel arose by virtue of a relevant degree

of privity.

Our submission is that it is on that point

that the majority erred. We submit that there was

no privity and that the decision in the first

action, the worker's action, was no bar to the

decision in the second.

Perhaps if I can ask Your Honours to look at

section 93 of the Western Australian Act which

hopefully is in the bundle of papers which - - -

MASON CJ: It is set out in the judgments, is it not, in the

application book?

MR STEYTLER:  Yes, it is. We did prepare an outline of

submissions and a bundle of authorities which -

DEANE J:  We have those.

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MR STEYTLER:	You have them?	I am obliged, Your Honour.

The section is common to some of the States in

Australia, at least in the opening three lines.

What it says in section 93(1) is:

Where the disability for which compensation is

payable under this Act was caused under

circumstances creating a legal liability in

some person other than the employer to pay

damages in respect thereof but neither the

employer nor any person for whose negligence

the employer is legally responsible was

negligent -

and then going to (b):

the employer is entitled to be indemnified by

the person whose negligence caused the

disability to the worker ..... to the full
extent of the employer's liability to pay

compensation under this Act, whether or not

the defendant has discharged his liability to

pay damages to the worker by judgment or by

settlement or otherwise.

And, as we understand the judgments of the

majority, what they held was that because the

applicant was obliged to prove that the accident

was caused in circumstances creating this legal

liability in the third party to pay damages, the

indemnity claim was effectively made under or

through the workman and that there was consequently the requisite degree of privity between workman and

employer as regards the workman's action.

Our submission as to that is that it is plain

from the terms of the statute that what the

employer has is a statutory right which is personal
to it and which is separate and distinct from the

right which the worker has to recover damages at

construction, we submit, is supported by authority common law against the respondent and that	in the High Court in the case of Tickle Industries
v Hann, which is No 2 in our list and in the
bundle. Without reading from that case, what it
basically concerned was the Northern Territory
Workers' Compensation legislation which was, in our
submission, relevantly similar to our own.

Chief Justice Barwick in that case, with whom

His Honour Justice McTiernan agreed, referred to

earlier English authority, which was decided in the

context of the 1906 United Kingdom legislation

which seems to be the origin of most of the

Australian provisions, and His Honour made the point in respect both of that legislation, the

English legislation, and the Northern Territory

Trans field 3 16/10/92

legislation that the employer's right of indemnity

was, and was intended to be, independent of the

action or inaction of the employee.	Now, that is
said at pages 327 to 328.

MASON CJ:  Mr Steytler, it might be to our advantage if we

called on the respondent at this stage. You will

have an opportunity in reply if need be to meet

anything that arises.

MR STEYTLER:  As Your Honour pleases.

MASON CJ: Yes, Mr Zelestis?

MR ZELESTIS:  May it please Your Honours. Putting aside,

Your Honours, the question of the claim for damages

for loss of services, there were really two issues

in the case below as we have endeavoured to set out

in our outline of submissions; not only the one

which is raised by the application.

There were two grounds of appeal below. One

was framed in terms of a conclusion forced by the

proper construction of the Act and the other was

framed in terms of privity and, in our respectful

submission, on a proper understanding of

Justice Rowland's reasons, with whom Justice Murray

agreed, we succeeded below on both grounds.

Let me briefly explain the construction

submission. To do that requires me to direct

Your Honours' attention a little carefully, unfortunately, to section 93 and section 92 to elucidate some features of it. Before doing that,

can I perhaps say - and I should say what the submission is. Our submission is that on the

proper construction section 93(1), once the alleged

tortfeasor has been held not liable in an action by

the worker, then he is not a person whose

negligence caused the disability to the worker

within the proper construction of that expression
in section 93(l)(b).	We say that is an argument

independent of the doctrine of privity.

And there was a separate ground of appeal

framed slightly differently but nevertheless

raising this conclusion on the proper construction

of section 93(1) below that I will take

Your Honours to in a moment.

MASON CJ: But that interpretation of the provision does not

accord with the interpretation of the similar New

South Wales' provision given to it by the Court of

Appeal in the McDonald case, does it?

MR ZELESTIS:  We say, with respect, that it is not similar

and there are two features of it which we would

Trans field 4 16/10/92

want to identify which we say are important. The

first thing to notice about section 93, of course,
is the peculiar juxtaposition in the same

subsection in which the right to pursue proceedings

at common law is expressly preserved for the

worker, that is, (l)(a), the indemnity is

conferred. The indemnity is not conferred in a

separate subsection even, let alone a separate

section. It is conferred within the very

provision, the very subsection, which contemplates

that the worker may bring common law proceedings.

Now, the second thing, and this is a very

important point of distinction with statutes

elsewhere is section 93(2)(b), the effect of which

is that where the worker succeeds against the

tortfeasor but suffers a finding of contributory

negligence, the indemnity is correspondingly
reduced - the indemnity of the employer, the idea

being, of course, that workers' compensation

remains a benefit to a worker in respect of his own

carelessness. He does not have to, in effect,

suffer a diminution from his damages of the

proportion of workers' compensation which

represents his negligence.

So, a question is immediately raised under

section 93(2)(b): contributory negligence of the

worker found where? Found in an action brought by

the worker against the tortfeasor, or may that be

disregarded and relitigated in an action brought by

the employer against the tortfeasor. The third

important feature of section 93 is subsection (5)

which provides:

If the worker has been successful in

proceedings to recover damages against the

defendant and does not recover the full amount

of such damages and any portion of the

compensation under this Act paid by the

employer to the worker has not been refunded

to the employer ..... then the employer may, at his own expense and in the name of the worker

and upon giving the worker an indemnity

against all costs and expenses, sue and

recover from the defendant the amount of any

balance of such damages -

in other words, the employer who has sat back and watched the worker succeed against the tortfeasor

can come in on the judgment and enforce it to his

own benefit.

Now, section 93 is, to some extent, in the

wrong place. It really should precede section 92

which is also relevant here because section 92

contains some provisions which might be described

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as machinery provisions which work out the way in

which the indemnity can apply in some cases.

Section 92 begins by dealing with the case

where the worker does bring a separate action,
which is authorized by section 93, and in

subsection (b):

if the action proceeds to judgment, including

the acceptance of an offer to consent to

judgment, against the employer only or against

the employer and the defendant -

then you deduct -

from the amount of the judgment -

the compensation. That is, that is the mechanism

whereby, in that circumstance, the indemnity is

given effect to. The reduction for contributory

negligence is preserved.

Similarly, in subsection (c), although worded

differently, in our respectful submission, where

the action proceeds to judgment against the

defendant, only the tortfeasor, the reference to

payments and expenses referred to in paragraph (b)

picks up the deduction for contributory negligence.

DEANE J:  Mr Zelestis, you are going a bit fast for me. I

have not quite followed your point on section 92, I

am sorry.

MR ZELESTIS:  I need to go back one step: section 93(l)(b)

confers the right of indemnity. There are some

cases in which the statute deals with the means of

implementing the indemnity, and there are other

cases that it does not specifically deal with, for
example, where there is a settlement by agreement between worker and tortfeasor. But in some cases

the indemnity has a mechanism linked to it which is
in section 92.	So that under (b) and (c) in

section 92, in those circumstances, the indemnity

is given effect to by the statutory idea of a

charge on the judgment and a deduction of moneys

from the judgment.

So the position, in summary, is this: you

begin by the statute expressly authorizing the

worker to take common law proceedings and in the

same breath, conferring the indemnity. The statute

plainly binds the employer to a successful outcome

of the worker's action because it gives him the

mechanism of getting a deduction from the damages

in section 92 and it gives him the mechanism in

section 93(5), if the judgment is only partly

satisfied, of enforcing it himself.

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DEANE J:  And none of these features were in the New south

Wales' case?

MR ZELESTIS:  No, and importantly the section 93(2)(b) is

not, the contributory negligence one. Elsewhere in

Australia that finds expression in the separate

equivalent of our Law Reform Act. But here you can

have a case where, on our respectful submission,

the worker sues the tortfeasor; succeeds, but is

found liable for contributory negligence of

99 per cent, and we would say that the reference to

"contributory negligence" in section 93(2)(b) must

be a reference to contributory negligence found in
proceedings referred to in section 93(l)(a) brought

by the worker.

TOOHEY J:  Does that mean, Mr Zelestis, that these two

sections, 92 and 93, cannot operate unless the

worker has actually sued a negligent third party?

MR ZELESTIS: With respect, no, not at all. It does not

deal with the case'where there is an agreement, it

deals with the case where the worker takes

proceedings and those proceedings reach a judicial

conclusion on the merits. We do not, for a moment,

contend that any expression in section 93(1)

controls the case of a consent judgment or the case
dealt with in Tickle on its facts which was the

worker's cause of action being statute barred. All
we are saying is where you take proceedings - and

the word "proceedings" there obviously includes "to

their final judicial resolution" - in a context in

which the employer is bound by a successful

outcome, in the sense if the worker wins, the
employer gets the benefit of the judgment - if the

worker wins but suffers contributory negligence,

the plain intention must be that it is that

contributory negligence which affects the

employer's indemnity. He does not get a chance to

sue the tortfeasor himself and say, "Well, I think

I can show that the worker was less contributory
negligent".	You are then left with the one

circumstance, "What about if the worker sues and

fails? Is the employer, in that circumstance, on
the proper construction of this section, able to

say, 'Well, I'm free to have another try. '"

Now, we say, for the reasons I have given,

that the scheme of the section, when there are

proceedings taken to their resolution on the merits

by a judge, is not to put the employer in the
position of having, in effect, the benefit of the

outcome if it is in his favour, but not the

disadvantage of the outcome if it is against him,

and that on its proper construction the words in

section 93(l)(b):

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indemnified by the person whose negligence

caused the disability -

cannot be satisfied where in the proceedings

mentioned in section 93(1)(a) taken by the worker,

the contrary is found.

Perhaps I should take Your Honours to the way

in which that was dealt with below. Firstly, the

grounds of appeal, page 55: there was set out in

Justice Rowland's decision two grounds, and it is

1 ine 2 5 , ( 1) ( b) :

The learned trial judge should have held, upon

the proper construction of s 93(1) -

and it goes on. Expressed, perhaps, a little

generally but it was a ground of appeal.

Well now, in our respectful submission, it was

dealt with by Justice Rowland, beginning at page 59

where, at line 3, he begins to speak of:

the effect and policy of s 93(1) is quite

clear.

He says what the workers has to prove; he carries

on with that. He speaks of "the purposes of the

Act" at the bottom of the page; refers to the

worker suing at the top of the next page:

Manners succeeded in those proceedings and the

effect of the judgment is that Manners was

found by a court of competent jurisdiction not

liable -

and the next paragraph:

That, with great respect to all who say

differently, is the end of the matter.

issue has been resolved by a court of	The
competent jurisdiction.

And His Honour goes on for a few pages to deal with some points which were made against that submission

but does not come to the question of the issue
estoppel point until the top of page 66. So, we

say that the reasons up until then, although not directly expressed in terms of "I'm dealing with

ground l" were His Honour's reasons with reference

to the first ground of appeal, and at page 66

His Honour goes on to deal with the alternative

submission about issue estoppel and upholds that.

Justice Murray, at page 70, lines 3 to 5,

expressed his agreement with Justice Rowland but

then went on to add his own views on the privity

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point.	He did not mention ground 1 of appeal at
all.

The Chief Justice, who dissented, set out the

grounds of appeal and although it is perhaps a

little more oblique in His Honour's reasons, in our

respectful submission, he is to be understood as

having dealt with ground 1 in a passage beginning

at page 32 in which he begins at line 18 by

referring to the relevant policy, sets out the Act

and, ending at page 39, at the bottom of the page:

It would seem to me that the provisions

of.s 93(l)(b) highlight the independence of

the employer's statutory cause of action for

indemnity from the worker's cause of action

for damages. This provision raises a further

question -

then goes on to deal with privity. So, although

once again perhaps a little oblique, His Honour has

rejected our submission on construction but

nevertheless there were two, not one, points below,

and we say that the first issue, the construction

issue, is one in which the court was wrong. That

issue is not even attacked in the special leave
papers as they were originally filed, and I am not

sure that it is attacked now.

So, we say that does not raise a special leave

point. It is a point peculiar to the construction of this Act and we say, in any event, the judgment

was right.

In relation to the question of privity, we say

that the relationship between the worker's cause of

action and the employer's cause of action is

affected by all the points we make on the

construction argument and that because it is an

element of the employer's cause of action that the

tortfeasor should be liable in damages to the

worker, meaning, according to Justice Windeyer in Watson's case, have a cause of action against the

tortfeasor, that there is a sufficient connection

between the employer's statutory right and the

worker's cause of action for it to be said that one

is derived from the other, because one is

necessarily affected by the other, particularly in

relation to contributory negligence, if we be right

on the c~nstruction of section 93(2)(b), that is,

if it be right that a finding of contributory

negligence in a worker's successful action binds

the employer. That then is really showing you that

both from a construction point of view and from a
privity point of view what the worker does has a

direct effect - what he does in terms of an action

has a direct effect upon the employer's right.

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In relation to the damages question, that has

not really been aired very much below at all. None

of the judges from the district court judge up has

turned his mind to it. There has been no

elucidation of it. We say that merely attempting

to prove the compensation payments, without

attempting to prove true loss or damage was not

enough, and we refer the Court to John Holland in

which it is said that, by a single judge, I think -

yes, in the Northern Territory - that compensation

payments which are paid under a statutory

obligation are not themselves caused by a loss of
services so as not themselves to represent damaged

suffered, and there was no attempt here to prove

any damage.

That is not mentioned in the papers as a

special leave point and we would say that in any

event any application, if it was allowed against our opposition, should not extend to the damages

point. Those are our submissions.

MASON CJ: Yes, thank you, Mr Zelestis. Yes, Mr Steytler.

MR STEYTLER:  Thank you, Your Honour. Your Honour, just

going first to the question of my learned friend,

Mr Zelestis's comments with respect to what

His Honour Mr Justice Rowland found, perhaps if I

can ask Your Honours to look at page 59 of the

application book, which I think is the page that my learned friend referred to, starting about half-way

down the page. His Honour Mr Justice Rowland says:

Leaving aside the way in which all of

these matters can be established, in this case Transfield must establish, as against Manners:

(i)     that Papalia suffered 'disability .....

(ii) Manners is liable to pay damages to

Papalia arising from the same incident.

And then going over the page to page 60 about

line 6, His Honour says:

Manners succeeded in those proceedings -

the earlier proceedings -

and the effect of the judgment is that Manners

was found by a court of competent jurisdiction

not liable to pay damages to Papalia in

respect of his negligence because Papalia was

found not to have sustained compensable

injury -

and then His Honour says:

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That, with great respect to all who say

differently, is the end of the matter.

Now, we had initially read His Honour's

judgment as really dealing with the privity point

which His Honour then goes on to address but if

His Honour is dealing there simply with the point

of construction then, in our submission, His Honour

was clearly in error because it has been

established by Tickle Industries, it is established

again in the case of Government Insurance Office of

New South Wales v McDonald and in the Borg Warner

case that there does not have to be a persisting

liability, there need merely be a liability at the

time of the incident. As I read what His Honour is

saying there, if that was what was intended, "Well,

you have to establish that Mr Manners is liable.

There is a judgment which says he isn't.

Therefore, you can't." Now, if that is what

His Honour was saying, well, it conflicts with all of those authorities and, in our submission, would

not be sustainable.

In that respect, it is true to say that our

draft notice of appeal does not specifically

address that point.	We did make available to our
friends an amended draft.	I do not know that we

need to trouble Your Honours with it unless

Your Honours would wish to see it but it does

simply cater for that argument as well, an amended

draft notice of appeal.

As to the arguments which my learned friend put on the construction of section 93, he first

raised the proposition that one must read

section 93(l)(b) together with section 93(l)(a).

Section 93(l)(a), he says, essentially authorizes

proceedings by the worker against the tortfeasor

and then (l)(b) goes on to deal with the indemnity

section.	I can mention to Your Honours that for
any relevant purpose, similar provisions to those,

93(l)(a) and (b), appeared in the legislation which

was considered in the case of Tooth & Co v Tillyer

which in turn is considered in the other cases to
which we referred and, in our submission, that

provision, 93(l)(a), does not alter the question of
construction and the separate and distinct nature

of the employer's indemnity action from that of the

worker.

As to the submission that the provision in

section 93(2)(b) really somehow or other alters the

situation by reference to the requirement that if

there were negligence by the worker which causes or

contributed to the disability, then the indemnity

is to be reduced by that proportion, in our

submission, that does not raise any different

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point. The situation remains the same, that if the

employer was not a party to the proceedings in

which the contributory negligence was established,

and if it was not a privy to those proceedings,

well then, it is not bound, in our submission, by

what happened there and nor, as a matter of

construction could one read into section 93(2)(b)
some requirement on the part of the draftsman of

the legislation that somehow or other the employer

was to be bound by those proceedings if he was not
a party to them.

I do draw this additional distinction that

section 92, to which my learned friend also
referred, that section deals with a situation in

which the worker is successful. He either gets a

judgment or he gets some money which is paid into court and it does not address the situation which

we have here in which the worker is unsuccessful

entirely. So, we would submit that on both those

bases, what my learned friend has put to

Your Honours is not an answer.

Lastly, on the question of the common law damages, my learned friend has said that we do not

raise that as a special leave point. Well, that is

not correct, Your Honours. It is raised in

paragraphs 11, 12 and 13 of the affidavit. It is

also raised in the draft notice of appeal.	What we
say about that can be put very briefly.	We submit
that two things arise from that.	The first is that

even if there were some construction argument with respect to the question of privity or otherwise as regards the workers' compensation claim, there is

none, clearly, as regards the damages claim and

there is either, for the purposes of that claim, a

relevant privity or there is not. In our

submission, the damages claim is equally separate

and distinct and that there is no basis for any

finding of privity as regards that.

If one looks at what Their Honours found at

page 69: in the case of His Honour

Mr Justice Rowland, His Honour simply says:

It is also unnecessary to deal with the

common law claim by Transfield.	The issue is
still the same.

And His Honour then goes on to say, "In any event"

they did not prove their damage.

Now, in our submission, the issue, if it is

the same, would result in the same answer and that

is to say there was no relevant privity and,

indeed, we would say it is not the same, in any

event, because the one, of course, is a statutory

Trans field 12 16/10/92

claim and the other is not. So, there is, perhaps,

a question of construction in the one although we

would submit it does not assist my friends, but

there is not even that in the other.

So far as the inability or the failure of the appellant to prove damage, we have put the

submission in our outline of submissions that at

the very least, on the preponderance of authority,

the medical expenses which were incurred by the

worker and which were paid by the applicant were

recoverable in the common law action and in that
regard we rely on the cases which are, I think, set

out - they are Nos 13, 14, 15 and 16 of our list of

authorities, and we submit that in each of those

cases, that is:  Commonwealth v Quince,

Commissioner for Railways v Scott, Sydney City

Council v Bosnich and then also, in fact, the case of Marinovski v Zutti, No 18, we submit that one can draw from each of those that the medical

expenses are recoverable in a common law action
although, I think, Mr Justice Fullagar in one of
those cases makes the point that in His Honour's
opinion, at least, that would not be by way of a
per quad action but simply by way of an ordinary

action for damages.

DEANE J:  Nobody seems to have dealt with this below, did

they?

MR STEYTLER:  Only His Honour Mr Justice Rowland who really

dismisses that in a line on page 69 by saying:

In any event, in such an action the appellant

must provide damage. The amount paid by it

pursuant to the Workers' Compensation

legislation is irrelevant for that purpose.

But that amount included some statutory allowances which were medical expenses.

DEANE J: Well, was that argued and pointed to and put

properly.

MR STEYTLER:  As I understand the position, Your Honour, it

was argued. I was not the counsel below and so, to

some extent, at a disadvantage, and I am sure my

friend will correct me if I am wrong, but my

understanding from reading the outlines below was

that it was an argument which was put.

MASON CJ:	Can you respond to that, Mr Zelestis?
MR ZELESTIS:	I am not sure what the question was.

Certainly, there was an argument put to the Full

Court based upon the claim for damages. But I am

not sure that it was put that - it was confined to

Trans field 13 16/10/92

the medical expenses. My recollection of it is

that it was said that the compensation payments

were a measure of the loss. It is the position

that a statutory amount of some $22,000, I think,

did include some $3000 which were medical expenses
but my recollection does not - it is not good

enough for me to say that the claim below was put

with reference to that as being at least something

they could get a toe-hold on.

DEANE J: Justice Rowland obviously missed the point, if

that was the point that was being made.

MR STEYTLER:  Yes, I may just mention, Your Honours, that

the - I do not know that any distinction was drawn

between medical expenses and other items of

workers' compensation below but His Honour

Mr Justice Malcolm, at page 52, says in lines 13 to

15:

In these circumstances -

by reason of the conclusions to which His Honour

had come -

it is not necessary to consider the

alternative claim for damages for loss of

services.

And as I have mentioned, His Honour

Mr Justice Rowland deals briefly with that at

page 69, and then at page 77 His Honour

Mr Justice Murray says in the last four lines on that page:

I agree also that the same conclusion

will be reached whether one considers a claim

for an indemnity under the statute or a claim

at common law for the loss of Papalia's

services -

So, in my submission, it seems that the point was

argued, even if no distinction was drawn between

medical expenses and other payments of compensation

and that is the one point that we make about that.

But the second point that we make, with respect to those common law damages, is that the findings of

Their Honours Justice Rowland and Justice Murray go

very widely. Once they accept that the doctrine of

privity encompassed also that common law claim,

well then, in our submission, it would encompass a

variety of common law claims. And one can think of

a number of examples which might be caught by this,

what we would submit, extended doctrine.	The
illustrations which we might mention for

Your Honours is if, for example, there was an

action for a declaration on some third party

Trans field 14 16/10/92

security as, for example, where a mortgagor or

guarantor brought an action for a declaration that
the principal indebtedness had been discharged or
did not exist for whatever reasons, when the debtor

had already failed in similar proceedings, there

would, applying this authority, be found to be a

relevant privity.

The similar situation would prevail perhaps,

to take another illustration, in an action by a

with the situation of contract for the benefit of a

builder against a subcontractor for negligence when
the owner had already sued the subcontractor and
failed.and then refused to pay the builder. There

might also be other situations under the Western

third party.

So, we would submit that having regard to the

width of the findings of the majority in any of
those situations, now, in Western Australia, there
would be a finding of privity because in each case
the second plaintiff would have to prove as part of

his cause of action the same facts and cause of

action, in effect, as had been proved by a

plaintiff in earlier proceedings.

So, in our submission, Their Honours erred,

both in regard to the question of privity under the
statute and in regard to the common law claim and,
indeed, if my learned friend is right in the way in

which he construes His Honour Mr Justice Rowland's judgment, then we would submit that the error goes

even further in the sense that what His Honour

seems to be finding is that there had to be

established a present liability in the respondent.

If, indeed, His Honour was saying that, it does not

seem to have been said by His Honour

Mr Justice Murray, who specifically refers, I

think, to an extract from one of the cases which

makes the point that the liability does not have to

be a persisting or continuing liability. That is
done at page 72 where His Honour refers to the case

of Tooth & Co v Tillyer to which I have earlier

referred.

Unless there is something else in which I can

assist Your Honours, that, essentially, is the

submissions which we make.

MASON CJ: Thank you, Mr Steytler. The Court will take a

short adjournment to consider this matter.

AT 12.53 PM SHORT ADJOURNMENT

Trans field	15	16/10/92
UPON RESUMING AT 12.57 PM:

MASON CJ: There will be a grant of special leave to appeal

in this matter but the grant will exclude the

ground relating to common law damages.

AT 12.57 AM THE MATTER WAS ADJOURNED SINE DIE

Trans field 16 16/10/92