Westcourt Ltd v Coatz

[2004] HCATrans 262

[2004] HCATrans 262

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P26 of 2003

B e t w e e n -

WESTCOURT LIMITED

Applicant

and

KENNETH ARTHUR COATZ

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 2004, AT 10.41 AM

Copyright in the High Court of Australia

MR G.R. HANCY:   May it please the Court, I appear for the applicant.  (instructed by Messrs Godfrey Virtue & Co)

MR. W.S. MARTIN, QC:     May it please the Court, I appear with MR B.G. BRADLEY for the respondent.  (instructed by Bradley Bayly)

McHUGH J:   Yes, Mr Hancy.

MR HANCY:   Your Honours, the proposed appeal raises an issue about what is required to establish liability and negligence.  It asks whether it is sufficient simply to prove the accident, followed by persuasion without evidence, that the particular risk that manifested as the accident was foreseeable and readily avoidable. 

The argument that we seek to advance is that this approach amounts to the application of a mechanical test, theoretical possibilities, but the proper approach is for a judgment of breach to be founded on more than theoretical foreseeability and avoidability of a particular risk, but that it must have a foundation in evidence, following an evaluation of broader considerations leading to judgment that reflects to what might reasonably be expected in the real, rather than theoretical world.

HAYNE J:   Now, that is to state the questions at a very high level of abstraction.  The case against the defendant as ultimately framed in the re‑amended statement of claim gave as the last particular of negligence, in effect, causing or permitting pieces of mesh to become buried and concealed thus creating a hazard.  That was part of the factual debate at trial.  It was resolved against you on appeal.  What general proposition would you say that this Court could state that would be of utility?  It must at least begin with the question of fact thus presented, where you won at trial, you lost on appeal, but beyond that, where would we go?  What would we add?

MR HANCY:   Your Honours, this problem that we have identified was identified by the New South Wales Court of Appeal more than a decade ago.  It was also identified by the review of negligence, the Ipp Committee, and it does not appear to have been tackled directly and solved in the meantime, and it is a problem of going from particular risk identified by the fact of the accident, and then theorising on foreseeability and avoidability and stopping there, and saying that is enough to establish negligence.

Now, there is a logical difficulty with that that was also identified by Justice Clarke in the New South Wales Court of Appeal ten years ago, and that is that in many cases there will be a multitude of particular risks, and if you take any one of them individually it will be not difficult to establish theoretically that they are foreseeable and avoidable.  But when you look at them collectively and ask the same question of the collection, then that is a different proposition entirely, because it may not be such an easy task to avoid each and every individual particular risk.

So that is the nature of the theoretical or logical problem presented by finding liability on this truncated test and what it does is it has the potential to lead to decisions as we contend it did in this case, where someone who did exercise care or was not shown to have not exercised care - and there were clear factual findings to that effect, that was the conclusion of the trial judge - being held liable in negligence.

It is not just a decision or a problem confined to the particular circumstances of this case.  It is one of much broader and general application because, if this type of methodology is allowed to continue, then the problem presented to the applicant here will be repeated in cases to come, and no doubt, it has been repeated in many cases between the time of Inverell Municipal Council v Pennington, which we refer to in the written submissions, and reflected unfortunately, in the decision before us.

Going back to the pleading, the particular case that was pleaded, your Honour, as you correctly identified, was causing or permitting mesh to sink and become a hazard.  Now there is a particular difficulty for us in this case with that in that the particular findings that were made in the court below but not by the trial judge, were not based on evidence or argument presented at trial, that is, in the case of Justice Murray, he found the particular established because in his view, the applicant could have provided a hard stand area or kibbles, or in Justice Steytler’s view, the applicant could have insured and directed that pieces of mesh were stacked on other rubbish. 

Those suggested precautions were not pleaded.  They were not precautions that were argued at trial, although there was reference made to kibbles.  They emerged on appeal and they emerge out of the judgments of the court below, so there is obvious unfairness in this particular case, and it is an unfairness of a kind that could be repleaded in many cases to come, because if a case is not presented at trial based on a clear pleading - and the pleading here does not clearly reflect the findings against us - if it is not then based on evidence, it then leads to the scope of imagination of the appellate judge what proportion should have been taken.

McHUGH J:   Yes, but what is the matter with what Justice Murray said at page 53, line 15 where he says:

There was nothing, in other words, to suggest that it would be to impose an unreasonable burden on the respondent to require such measures to be taken to avoid the risk inherent in buried rubbish and building materials such as wire mesh.

Now what is wrong with that as a matter of principle? 

MR HANCY:   We accept that there were findings that there were theoretically available precautions, and we accept that they may not have been impractical or expensive and the like, but we say that there has to be more than that because there are many, many other considerations that were not considered by Justice Murray and established.  To take this as an example, if your Honour just moves up that paragraph a bit where his Honour says:

It does not seem to have been suggested that, having regard to the magnitude of the risk and the probability that rubbish of this kind would become buried on a site such as this, the expense, difficulty and inconvenience of taking such measures precluded the respondent from implementing them.

The question of magnitude of risk does not seem to have featured at all in the reasoning or in the evidence.  It is just as you will see there, it is just a statement of an issue, but his Honour Justice Anderson did deal with these evidentiary considerations.  On page 59 if you turn to that, at paragraph 30 at about line 5 you will see that he says:

There was no evidence that the respondent knew or ought to have known that it was there –

that is, the mesh –

There is no evidence save for the accident itself, which enabled the trial Judge to make a judgment about the magnitude of the risk of injury to persons such as the appellant.  On the face of it ‑ ‑ ‑

McHUGH J:   The other Justices did not accept that, and commonsense suggests that they are probably right.  I mean, you do not require evidence about every point in these cases, even about reasonably practicable alternatives.  Commonsense might suggest what was a reasonably practicable alternative.  You could not get anything simpler than what occurred in this case.  It is hardly a case for expert evidence.

MR HANCY:   No.  We accept that there will be cases where common experience or commonsense will be sufficient, but there will be many cases, and we say this is one, where it was not sufficient.  There was not evidence, even from the plaintiff himself, to explain why it was that the mesh, even sunken in sand, was a particular danger or described at some point, I think in Justice Murray’s decisions, as a snare.  I mean, that is just a label. 

The evidence of the mesh was that – and it varied depending on which statement of the plaintiff is relied on - it was a 4 inch square or a 6 inch square.  Now, why that should prove to be a trap and a hazard to a plaintiff, particularly in this case, who knew that there was mesh on his own evidence because he was moving mesh at the time of his accident, and knew that at least part of that mesh was buried because the part he was moving was partly buried, why that should be a hazard on commonsense grounds was not there at all.

In terms of expert or industry evidence, perhaps to put it that way, about what builders do, there was no evidence – and this is the point Justice Anderson made - about the inadequacy of precautions that the applicant did take, or about the adequacy and effectiveness of any alternative precautions, particularly the alternative precautions suggested by the majority. 

The reference to kibbles in Justice Murray’s decision – there was not evidence that that was frequently used by builders or shown to be effective, and one might ask whether, if that was a methodology used, what need would there be for a person such as the respondent at all, whose job it was as a skilled contractor, to enter the site to clean it?  There was no evidence to suggest that a direction to tradesmen, most of whom presumably would be contractors, to put mesh or any other type of rubbish that might cause an injury in a particular position, no evidence that that was regularly or usually adopted or adopted by anyone at all, let alone shown to be effective.

We contend, your Honours, that this is not a case where commonsense and common experience could govern the selection of precautions, although we do accept there will be cases where it can.

McHUGH J:   That only means if we accept what you say, that the Court of Appeal got it wrong and the Full Court got it wrong on the facts, there is no special leave point in the case.  This Court has laid down the principles about employers’ liability on numerous occasions.  It has laid down the principles concerning reasonably practicable alternative on numerous occasions.  If judges do something in disregard of the evidence, then it is always open to you to go back to the Court of Appeal as soon as the judgment is given and ask for them to reopen the judgment.  We cannot be taking everyone of these cases up because a party complains that the facts have been found wrongly by the intermediate appellate court.

MR HANCY:   Two points can be made about that, your Honour.  One is that it is not an employer’s liability case.  This was a contractor ‑ ‑ ‑

McHUGH J:   I know it is not, but it is the same sort of principles, it is on a worksite. 

MR HANCY:   Yes, and it is not just a case confined to its facts.  The methodology is a methodology which, if it is allowed to continue, will lead to reasonably careful people being held liable to pay damages, because it is a methodology that is logically flawed, as this case illustrates.  It is a methodology that is based on hindsight reasoning, not evidence. 

Here the majority developed or came up with expected precautions that were not even pleaded, let alone the subject of a dispute at trial.  There is a normative element, obviously in breach of duty questions here, and your Honour says it is a fact case, and the traditional analysis is that it is.  But it is not a pure fact case, because it is not a case about something that happened.  It is a case about a court’s evaluation of someone’s conduct, so it has that normative element. 

We would say it is akin to a point of law, if not a point of law, because it is not difficult to reframe what the majority did below in terms of duty, because what they have, in effect, done is they have substituted the duty for the duty to exercise reasonable care, this duty.  It is a duty to avoid a particular risk that is theoretically foreseeable and avoidable, and all of this done with the benefit of hindsight.  Now, that cannot be the law.  It is not the law.  If it is allowed ‑ ‑ ‑

McHUGH J:   It is not the law and you will not find that in this case.  I mean, cases are not authorities for their factual situations.  It has been pointed out again and again.

MR HANCY:   We accept that, your Honour, but again, it is the methodology or truncated negligence calculus that was applied here, identified as a problem more than a decade ago, identified as a problem in the review of the law of negligence, and exemplified in this case as a continuing problem.  If the problem continues, people will continue in the future to be held liable to pay damages when they have acted carefully.

Now your Honours have not raised other questions but we, of course, rely on the written submissions.  As to whether there is sufficient doubt we, of course, rely on the dissent of Justice Anderson, and I should make the observation, if I have not made it clearly enough already, that the problem that we see is that the truncated test that was applied here led to the court overlooking the absence of evidence of other relevant factors, absence of evidence of relevant factors being, of course, we say, important in the evaluation of negligence, the absence of evidence of those factors not something that leads the decision‑maker simply to ignore them.  Important ones here were the magnitude of the particular risk, not addressed at all.  The likely efficacy of suggested precautions, not addressed at all.  Industry practices, not addressed at all, but in the reasons of Justice Anderson, a number of these omissions were dealt with. 

As to it being an appropriate vehicle, we rely on the clear findings of the trial judge, and I should also make the point that the way in which the case was argued emerges from his Honour’s reasons on page 24.  It was simply this, paragraph 63:

The plaintiff says the defendant owed him a duty not to allow the site to become hazardous by, for example, requiring rubbish to be placed in piles and not allowing it to become buried in sand –

That was the case that led to the conclusion of the majority, but not the conclusion of the trial judge.  His conclusion is at 26, paragraph 75.  He found that:

The defendant took reasonable steps to keep building and site rubbish within the building envelope . . . Both parties accept that that was an attempt to keep rubbish in specific piles . . . There is no particular evidence of how the hidden mesh came to be where it was –

Now we say that is proper for him to consider the absence of evidence of an important criterion.  At 76 he said:

There is no evidence as to exactly how much more [the applicant] should have done in that regard . . . It is not obvious what else it could do to remove such items except engage such a contractor as the plaintiff.

It was not suggested at trial there should be a hard‑stand area or a direction to staff to put pieces of mesh on piles, or even that a kibble should be provided.  Justice Anderson pointed out there was only some vague evidence from the respondent that with two other builders that he did work, they provided kibbles for him, which would not have made any difference in this case if he had to go to the pile anyway.

The point I wanted to make about this is that it is not at all clear why those findings were not reasonably open to the trial judge, and if they were reasonably open to the trial judge, they should have been left untouched by the majority of the court below.

McHUGH J:   Why?  It is a rehearing.  The court makes its own findings, it does not just rubber stamp the findings of the trial judge.  It can take them

into account, but it is bound, as judgments of this Court, Fox v Percy and other cases have recently reemphasised, it is up to the Full Court to make its own findings, and if credibility issues are involved, then what the trial judge has found will be of great importance, but it is the duty of the Full Court to make its own findings.

MR HANCY:   Yes.  The point I can make in response to that, your Honour is, the trial judge made his findings based on evidence, or the absence of evidence of matters about which there should have been evidence.  The majority of the Full Court did not.  Those are my submissions.

McHUGH J:   Thank you.  We need not hear you, Mr Martin. 

This case does not raise any general principle for determination, but involves the application of well‑known principles to the facts of the case.  There is nothing about the case that warrants the grant of special leave to appeal.  Accordingly, the application is dismissed with costs. 

AT 11.02 AM THE MATTER WAS CONCLUDED