White v Bunning Bros Pty Ltd

[1989] HCATrans 26

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P25 of 1988

B e t w e e n -

LEON CHARLES WHITE

Applicant

and

BUNNING BROS PTY LTD

Respondent

Application for special leave

to appeal

BRENNAN J

GAUDRON J

White

McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 17 FEBRUARY 1989, AT 12.56 PM

Copyright in the High Court of Australia

C2Tl3/l/HS 1 17/2/89

MR E.J. MYERS:  May it please Your Honours, I represent

the applicant in this matter. (instructed

by Shaddick Owens and Richards)

MR R.A. MACKNAY:  May it please the Court, I appear for

the respondent in this matter. (instructed by

Cocks MacNish & Co.)

BRENNAN J:  Yes, Mr Myers.

MR MYERS:  May it please the Court. I filed in this

matter applicant's points of arguments and it

would by my intention to follow through those

points of arguments, although not necessarily

to read them verbatim. Your Honours will see

in the applicant's points of arguments that

firstly set out is a summary of the arguments

which it is proposed to make and the errors of

law on which the applicant relies to sustain the

application for special leave. The first argument

summarized is that the Full Court and the trial judge erred in that the effect of their finding

was that it was necessary for the respondent to

foresee the precise way in which the applicant

was injured, and the applicant says that both

courts failed to distinguish between the

foreseeability of the risk which gave rise to the

injury and the foreseeability of the precise way

in which the applicant was injured.

The second argument will be that the

Full Court erred in finding that the case argued

on appeal was not the case argued at the trial, and we would say that because on the pleadings, upon the evidence and upon the closing address
of the applicant's counsel to the trial judge
the issue of the improper stacking of the sheets
of chipboard were clearly raised and the third

error which we would say was made by the Full Court

is that it found that the applicant was precluded

from relying on particulars in the statement of

claim that pleaded negligence because of the unsafe

stacking of the sheets of chipboard and we say

th a t the Fu 11 Court was in error b e ca us e in e f f e c t

the trial judge found the stacking to be unsafe

and we would say that upon the pleadings notice

was given of the issue of unsafe stacking and
that the pleadings were wide enough to support

the submissions made at the trial and on appeal

by the applicant.

C2Tl3/2/HS	2	17/2/89
White

MR MYERS (continuing):  And lastly, we would say that _the finding

of the Full Court and the trial judge that the
applicant was a volunteer and therefore the respondent

was not liable was an error of law in the absence of

clear finding that a successful defence of volenti had

been raised or that the applicant was guilty ot

contributory negligence and we would say that the
reasons why special leave should be granted are that a

direct:ion is required with the concept of "volunteer"

has no place in the modern law of negligence if

it is regarded as something distinct from a plea of

volenti.

We would secondly say that, as a reason why

special leave should be granted, that the finding of
the Full Court that the applicant was confined by

the particulars in the way found by the Full Court

is an error which appears. on the face of the record

and, as such, is proper for consideration by a court

of review and thirdly, by reason of a reliance by

the Full Court on the pleading issue and the finding
that the case, on appeal, was different to the case
at trial, the applicant has been deprived of proper

consideration of the merits of the appeal.

Now, the background of the application is set

forth in the application book, pag~ 89 to 91 and it

is contained in paragraph 1 of the affidavit in support.

Your Honours will see that the applicant was injured

when a customer in the store of the respondent,

on 8 September 1981 - the store was a hardware store,

a self-service hardware store - it was, in fact,

20 sheets of dimension seven feet by four feet,

and weighing 30 kilograms each, fell on him while he

was being served as a customer in the respondent's store.

The initial action was heard in the District Court

of Western Australia and the balance of paragraph 1

down to subparagraph l(k) sets forth the history

of the matter. In effect, the trial judge dismissed the action for negligence and that was upheld by the

Full Court. His Honour the trial judge reserved his

decision, at paragraph l(h) on page 90, provisionally

assessed damages at $62,746.60.

(Continued on page 4)

C2Tl4/l/VH	3	17/2/89
White

MR MYERS (continuing):  So it is against the finding of the

Full Court or it is by reason of the finding

of the Full Court that the applicant now seeks

special leave to appeal. In my points of argument

adverting to that, on page 3, I have set out

the heading of four areas already indicated,

perhaps, to Your Honours.	I will not read the
headings;	I will go straight on to page 4 on

the points of argument because the headings are

repeated above the substantive argument.

In support of the special leave grounds

which are in the affidavit in support - and the

grounds that I am now referring to are grounds 2(a)

and 2(e) - ~round 2(a) appears on page 91 of

the application book and sets out that the appeal
should have been allowed on the grounds set out

in the notice of appeal filed in the supreme

court and ground - - -

GAUDR0N J:  In that context, Mr Myers, what precisely do

you say was the foreseeable risk?

MR MYERS:  The foreseeable risk was the risk of the stack

of chipboard falling should sheets be removed

from the front. His Honour the trial judge
made a finding that that risk was foreseeable.
If I can take Your Honours to His Honour's decision
on page 59, near line 10, there is a paragraph

which starts just above line 10, when he says:

I am not satisfied that the defendant was

in breach of that duty. True, the presence
of the smaller sheets in front the larger
sheets presented a problem: there was a
foreseeable risk that if left to his own

devices, a customer wanting a larger sheet

would attempt to move the smaller sheets

and would be injured as the plaintiff was.

And then he goes on to say:

But the plaintiff was not left to his own

devices.

But the real point, I think, is that it was

foreseeable that the chipboard stack might fall

if sheets were moved from the front.

GAUDR0N J:  Does not the trial judge go on then to say:

It was not foreseeable that a customer would behave in that manner -

suggesting that the criterion of "neighbour"

had not been met?

C2Tl5/l/SDL	4	17/2/89
White

MR MYERS: Well, that is where the applicant has difficulty

with his decision, Your Honour, because he has

found that the risk was foreseeable; that is, that

the stack might fall should sheets be taken from the front and it seems what he then says, really,

goes as to whether the negligence caused the

accident or whether the applicant was contributorily

negligent. The risk is the risk of the sheets falling

and falling, if those sheets are moved from the front.

Now, on the evidence - - -

BRENNAN J: Is that the relevant risk or is it the risk which,

in truth, eventuated which is the relevant risk;

that is that the customer would act in that way and

cause the sheets to fall?

MR MYERS: Well, I would submit that the relevant risk is, as

identified, in a self-service store where customers,

on the evidence, were free to select their own pieces

of merchandise and chipboard, the foreseeable risk

was whether or not the stack might fall if sheets

were taken or moved from the front, as found by

His Honour. Now, to say that you have to foresee

that a customer would act in a particular way,

really, goes to the question of foreseeing the

precise way in which the accident occurred.	You
could say, equally, for example, in the cases

referred to in my list of authorities, in WYONG

SHIRE COUNCIL and also INTROVIGNE, that it might

not be foreseeable that a boy would swing on a
halyard, for example, in particular circumstances
but the risk that boys might skylark or pupils might

skylark was the risk that was foreseeable and the

fact was that flag-poles were not meant for that

and, in a similar way, this is a self-service

store. Customers are free to walk about, select

their own items and, if there is a risk that a

stack might fall if sheets are moved from the front,

that, in my submission, Your Honours, is the

foreseeable risk that a store has to guard against.

BRENNAN J: Well, that is -one can see in that a very powerful

argument on a question of fact but you have the finding

of fact against you, as Justice Gaudron has pointed

out, at page 59 line 21.

MR MYERS:  Yes. We would submit and submitted to the Full Court

that that was not really a finding that was open to

His Honour and then we would say that the Full Court

did not address that issue properly because the

Full Supreme Court went off on another tangent as

to the question of pleadings and the question of

particulars. So that, in my points of argument,

one of the things that I rely on is the fact that

the applicant has not had a fair go in the appeal

court. The thing has not been properly reviewed in

the appeal court.

C2Tl6/l/SH	5	17/2/89
White

BRENNAN J:  Does that do full justice to what the Court of

Appeal said at page 86?

MR MYERS:  On page 86, Your Honour - yes, that does - yes,

that is the last two sentences, is it, Your Honour?

BRENNAN J: Well, Their Honours did say what the question was

and it was a question which harks back to that finding

on page 59 and the problem, as I see it, Mr Myers, is

that you have a finding which is an unhappy finding

from your point of view, by the trial judge. You

have an acceptance of that finding by the Full Court

and you have, therefore, got concurrent findings by

both courts below on what is a question of fact.

(Continued on page 7)

C2T16/2/SH	6	17/2/89
White

MR :MYERS:  Except I am not sure that it is as simple as

that, Your Honours, because in coming to the

conclusion that he did, the trial judge does

not seem to have analysed the principles of

law correctly and the finding upon which the

Full Court seems to rely is that the

plaintiff was a volunteer, or the plaintiff

was acting of his own initiative and that

appears to be the basis of the Full Court's
decision and it is really wound up with that
concept of'volunteer~ whether the way in which
the applicant acted discharged -or did not
give rise to-liability on the part of the

respondent. It is so intertwined, I would

submit, with those concepts that you cannot

really separate it out because if His Honour

was wrong in the way that he approached the

foreseeability issue, it has led him

in the circumstances to misapply it to the

facts.

The facts referred to by Your Honour as

concurrent findings of fact is really the
decision that he was acting as a volunteer,

that he was acting on his own initiative and

we would say that that really is not a finding

that was open on the evidence. Before you

can decide whether or not he is acting as a

volunteer and whether or not the respondent
is discharged from liability, you have got to
decide what relevance has the question of

volunteer got in this situation.

BRENNAN J:  But the problem is not one of volenti,

or whether a person volunteered; the question

is whether what he did was foreseeable.

MR :MYERS:  Yes, well, the error there, I would submit,

is that that fails to distinguish between

the foreseeability of the risk which is likely

to give rise to the injury and whether it is

necessary to be able to foresee the precise way in

which an accident might occur.

McHUGH J: Although that distinction is correct in

principle, does it apply in this case? There

was no risk from these sheets while they were

static, it was only if somebody intervened that

a risk could occur.

MR :MYERS:	That is so, Your Honour.
McHUGH J:	So the question really is whether it was

foreseeable in a general way that somebody

would interfere with the sheets while Mr Powell
was there with a customer, or an employee was

there with a customer?

C2Tl7/l/JM	7	17/2/89
White

MR MYERS:  In that, the applicant even though - notwithstanding

it may be concurrent findings of fact, we would

submit that it is quite clear that both the trial

judge and the Full Court came to a wrong

conclusion there because you have a self-service

store, the evidence was that the customers were

free to select their own merchandise. In

this particular situation there were a stack

of 20 sheets of chipboard, each weighing

30 kilograms. There was some difficulty in

getting the - there was one person to service the

applicant, a Mr Powell. There was some difficulty

in getting the sheet, which was the last one in

the stack, that is the closest sheet to the

frame, that was a larger dimension piece of
chipboard. I would ask Your Honours to envisage

the size of the piece of chipboard; it is a very large piece of chipboard. It was at the back of

the stack and what Mr Powell did was climb up

on the frame and try to draw it out from the

back against the weight of the stack. The

question of whether it was foreseeable, that

a customer might come to his aid in some way

by taking the pressure off the front by moving

sheets, in my submission, really can only lead

to one conclusion. So, if it comes to the

crunch of challenging concurrent findings of

fact, I would be prepared to make that submission.

(Continued on page 8)

C2Tl7/2/JM	8	17/2/89
White

BKENNAN J: Yes, the problem that you face, of course, is getting

special leave to do so.

MR MYERS:  Yes, of course, that is so. There are other grounds

which I would submit might found the special leave

application and I have set them out. His Honour the trial judge - if I can perhaps go to the question of

the volunteer. His Honour1in making that finding on

page 59,you will see has said, just above line 20:

In moving the smaller sheets he was acting as a volunteer and, as is pleaded in the

defence, 'contrary to the request and

direction of the defendant's employee'. In

my opinion it was not foreseeable that a

customer would behave in that way.

One of the reasons that we say that His Honour was in error - and it is not clear what he was saying, really -

is because when he refers to that part of the

defence - mi.ch is on page 97, Your Honours, and the

relevant part is on page 9~ of the application book.-

that is a pleading as to contributory negligence.

Now, he seems to have based his finding upon that

fact, that the applicant was a volunteer, but he does

not appear to be distinguishing whether he is finding

the existence of a duty of care, the foreseeability
of the risk or whether he is making a finding with

respect to contributory negligence. To get to the

situation of making a finding about contributory

negligence it would first be necessary to make a
finding that there was negligence because otherwise

there was no need to get to that situation.

~o it is not clear from His Honour's reasons

what exactly was the basis of his finding.	He has
used the words:

it was not toreseeable that a customer

would behave in that way.

But it is immediately preceded by the words:

In moving the smaller sheets he was acting

as a volunteer and, as is pleaded in the

defence, 'contrary to the request and

direction of the defendant's employee'.

So that was one of the other grounds of the application

for special leave and neither the trial judge nor the Full Court appeared to have analysed the situation in

terms of firstly, deciding whether or not there was

negligence and then secondly, deciding whether or not
there was contributory negligence because,if it was
a question of the neighbour principle or foreseeability,

they would never have needed to get to the defence.

C2Tl8/l/BR	9	17/2/89
White

That seems to be the way in which His Honour has framed his reasons for finding -that is, His Honour

the trial judge - has framed his reasons for fin ding

against the applicant. ~o it is not just a question

of him finding that it was not foreseeable in the

sense of going to the existence of the duty of care,

it is a question of whether His Honour is really

saying that or he is really saying that the

applicant was contributorily negligent.

We would say once again the Full Court

really says nothing about that. All they say on

page 85,near line 10, is:

we do not consider that the learned Trial

Judge was using the term "volunteer" in the

sense suggested by the appellant. He was

using it in the sense of the appellant's

rendering unsolicited assistance.

So the Full Court has not dealt with the issues that

were raised on the appeal, that is, the analysis into
negligence and then the question of whether or not

there was contributory negligence and that is a

ground upon which we would say special leave ought

to be granted. We would say, if I could revert to my -

I think the principles in WYONG SHIRE COUNCIL and

lNTROVIGNE are sufficiently well known.	I will not
read those.	On page 6, if I could go to the second

ground, we would say that the Full Court erred because

it found that the case argued on appeal was not the

case argued at trial. Those findings are found on

page 83 near line 38 and page 85 line 13. But we would

say it was quite clearly pleaded and the pleading is

set out in the Full Court's reasons on.page 79.

(Continued on page 11)

CLTl~/2/BR	10	17/2/89
White

MR MYERS (continuing):  And if Your Honours look at particulars

(h) and (i), that was particulars of negligence

in the statement of claim as alleged by the

applicant, it was:

Failing to stack timber for sale in manner

allowing a sheet or sheets to be extracted

from the stack in safety.

Stacking the timber in an unsafe manner in

all the circumstances.

So that the issue of stacking, quite clearly did arise

on the pleadings and the Full Court appeared to confine

say, "Well, that was not the case argued at the

trial because the applicant answered one particular,

the request for particular, in a certain way." The

appeal court sets out that particular on page 80

and it is a detailed statement by the applicant

in his particulars of how the accident occurred.

The Full Court seemed to take the view that because

he has detailed in his particulars the way in which

the accident occurred then he was precluded from

relying on the issue of stacking at the trial and

we would say that that is clearly wrong because

nothing in that particular referred to by the

Full Court precludes the issue of stacking.

BRENNAN J:  Mr Myers, these questions do not really arise unless me

overcomes that first problem that we drew your

attention to, really.

MR MYERS:	No, well that is so, sir. If Your Honours take the
view that it is a concurrent finding of fact and it was one that was open on the evidence and you
are not prepared to disturb it, well, the applicant
has problems, certainly.
BRENNAN J:	I do not wish to cut you off in any submissions you

wish to make; it is simply a question of whether

you wish to say anything further on that first point

and whether, if you are not barred by that first

point, these other problems then arise.

MR MYERS:	I think the only submission that I can make is really
to reiterate the one already made, or perhaps to make
two points. One is that the Full Court seems to have directed most of its attention to the pleadings issue
and the particulars issue and did not really, in my submission, analyse the principles relating to
negligence, contributory negligence, and foreseeability
in particular, and what it has said on page 86 almost appears, if you like, as an afterthought. There does
not appear to have been any real review by the Full Court of the evidence as the Full Court should
have done if it was properly exercising its appellate
function and, whilst not quite the same as in MORRIS' case which is referred to in the authorities, I would
submit that it is very similar; that the Full Court

C2Tl9/l/VH	11	17/2/89
White

has really just relied on the trial judge; it has

not independently reviewed the evidence which gave rise to His Honour's finding and that is the basis for the decision or those reasons given on

page 86, and I do not think I can take that point

any further.

BRENNAN J:  Yes, thank you. That is all you wish to say or

do you wish to say something else?

MR MYERS:	No, my friend was making a move, Your Honours,and
he must have understood you as to be ~ayingto me
that is all you wanted to hear. Well, tfie other
points, I would submit, sir:  I really do rely
on the argument as set out in the points of
argument.  I think they are fairly clearly set out.
I have filed so that you can see in the full
context, a book or some papers I have called
"The Composite Pleading" which shows the statement
of claim - the paragraph of the statement of claim, then the request relating to that particular
paragraph and then the answer.

In relation to whether the question was open

on the particulars, I would refer Your Honours to

page 8 of the composite pleadings.

(Continued on page 13)

C2Tl9/2/VH	12	17/2/89
White

MR MYERS (continuing):  I do not think I need to read it, I

will just refer Your Honours to those. But that shows

the paragraph in the statement of claim, the

defendant's request and,Your Honours,apart from that

I would rely on the matters in the points of argument.

Those would be my submissions, Your Honour.

BRENNAN J:  Thank you, Mr Myer. We need not trouble

Mr Macknay, I regret to say, Mr Myers.

MR MYERS:	May it please Your Honours.
BRENNAN J:	The applicants failure in the court below

followed from a finding of fact that it was not

foreseeable that a customer of the store would not intervene when the store assistance was attempting

to extract a sheet of chipboard from a stack on an

A frame. That finding was not overturned on appeal.

It is soley a finding of fact and special leave

should not be granted for the purposes of challenging

it. There is no question of public importance raised

by the case and special leave to appeal is therefore

refused.

MR MACK.NAY:  Yes, if it please, Your Honours, I wonder whether

I might seek an order for costs of the application

in the event of that finding?

BRENNAN J:	Do you have any objection, Mr Myers?
MR MYERS:	No, Your Honours, I do not think I can say much

about that.

BRENNAN J:  Special leave to appeal will be refused with costs.

MR MACKNAY: If it please Your Honours.

AT 1.27 PM THE MATTER WAS ADJOURNED SINE DIE

C2T20/l/SR	13	17/2/89
White