Zuvela v Cosmarnan Concrete Pty Ltd

[1996] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S96 of 1995

B e t w e e n -

PETER ZUVELA

Applicant

and

COSMARNAN CONCRETE PTY LTD

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 15 APRIL 1996, AT 10.19 AM

Copyright in the High Court of Australia

MR C.T. BARRY, QC:   May it please the Court, I appear with my learned friend, MR P.A. BEALE, for the applicant.   (instructed by Plowman & Thom)

MR B.M. TOOMEY, QC:   If the Court pleases, I appear with MR J.A. McINTYRE for the respondent.   (instructed by Vandervords)

DAWSON J:   Yes, Mr Barry.

MR BARRY:   Your Honours, may we seek to demonstrate two things.  First, that there was error in the Court of Appeal and, secondly, that the error was of a character which warrants the grant of special leave.  The error in the Court of Appeal, in our submission, was that there was no proper basis upon which the Court of Appeal could have, or should have, interfered with the trial judge’s finding of fact.

To demonstrate that, it is necessary to go to what the trial judge decided and to go to the way in which the Court of Appeal dealt with the same material on the same narrow question of fact.  It appears in the trial judge’s readings in page 5, line 20, of the application book where the same point that was argued in the Court of Appeal by the respondent was argued at trial.  His Honour at first instance:

asserted that the plaintiff could and should have shortened the handle, in the usual way.

And his Honour goes on:

However, given the plaintiff’s evidence -

and he refers to certain conversations.  He then goes on:

and my acceptance of the plaintiff as a truthful and reliable witness ‑ ‑ ‑

GUMMOW J:   There are findings of fact there in your favour.

MR BARRY:   That is right.

GUMMOW J:   How do they get overturned in the Court of Appeal?

MR BARRY:   Because - and this is the special leave point - the Court of Appeal, confronted with the same evidence, made two mistakes.  Firstly, that they made no allowance at all for the advantages enjoyed by the trial judge in hearing and seeing the particular witness.  The second, and this is the special leave point, is that this particular witness was a man who was struggling with a language that was not his own, not the first of such litigants to give evidence in courts which customarily assess or determine entitlement to damages in litigation of this nature.

The trial judge obviously had to try to work out what it was this man was trying to describe in terms of the atmosphere that occurred in the yard and at the workplace when he was required to use this inappropriate tool.  The trial judge necessarily relied upon not only what the man actually said in his garbled or broken English, but also the communication of what was occurring between the worker and his employer, or boss, on site.  That formed part of the way which the trial judge assessed the facts for the purpose of making these findings of fact.

There is not a word of that in the Court of Appeal’s judgment.  The Court of Appeal, without even paying lip‑service to those advantages or disadvantages simply overturned the trial judge’s findings of fact.  Our special leave point is that it ought to have been the case, as a matter of the administration of justice, that if you have a litigant, as there was here, who was obviously struggling with a language that was not his own, the Court of Appeal ought to have recognised that that was a feature of the trial process, during which the trial judge made certain findings of fact, which ought to have made them more reluctant to interfere than might they otherwise have been required to do by Abalos and those other cases.  They are not.

DAWSON J:   Your point is that this is not just a case where, on appeal to this Court, there may be a difference of opinion with the Court of Appeal?

MR BARRY:   No.

DAWSON J:   This is a case where the Court of Appeal made a fundamental error?

MR BARRY:   And it is a matter of importance because, particularly in litigation of this nature, most of the people who go before courts and tribunals - it may be an exaggeration - that there are a lot of people in Australia who have actions for damages, whether they are workers compensation, personal injuries or whatever, for whom English is not their first language.  Judges have to assess them, they have to try to work out what it is that they are trying to communicate.  This man was trying to communicate an atmosphere that occurred in the yard and on site when he had been required to use a tool that he was not happy about using.  The trial judge had to deal with a man labouring under those difficulties and a language that was not his own.

GUMMOW J:   Well, what do you say, Mr Barry, about what seems to be the crucial passage in the Court of Appeal at page 20, line 35 and following?

MR BARRY:   Yes, but the Court of Appeal made a finding that the appellant forbade the plaintiff to shorten his hammer.  The trial judge did not make a finding in relation to that.

DAWSON J:   That was not the question.

MR BARRY:   That was not the question that had to be decided, and that gives, in a sense, the second thing, because - I will not burden your Honours with the principles in relation to employer’s liability - but the duty to institute and maintain a safe system of work is an ongoing obligation.  The trial judge recognised that at page 5.  A bit further down from the passage that I have taken your Honours to, he went on to say, at line 45:

No doubt, those involved had become blunted to the risk of injury -

So his Honour, at first instance, directed his mind to the relevant questions that he had to decide.  The Court of Appeal, for reasons that one can only infer involved a failure to recognise what the disadvantage was that they had and what the particular advantages were that the trial judge had, made the error that has been, in our submission, identified by your Honour Justice Gummow.

TOOHEY J:   But can you just identify that a bit more precisely, Mr Barry?  When you speak of the advantages that the trial judge had, you relate that to the finding, do you, on page 5 at line 30, which is a conclusion that the plaintiff was told to use the longer handled hammer.

MR BARRY:   Yes, and his Honour says at line 35:

with a clear threat to his continued employment if he did not do so.

Now, whether something is a threat or whether something is said in a joking fashion of course depends upon two things:  first, the tone with which it is said and, secondly, the words that are used to communicate what it was that was being said.  Those are, quintessentially, trial judge issues.  Whether somebody said “You go ahead and use that tool”, or “Come on, sport, are

we going to go to work or are we going to go home?”, that is fundamentally a trial judge issue, and that is both our first and second point.

DAWSON J:   In effect, what you find, if you find that the employer must succeed, is that the accident that occurred through the employee’s, the worker’s, own negligence.

MR BARRY:   Yes.  That is the second limb of our appeal, but that, of course, is not of itself a special leave point, because this Court has well and truly laid down on many occasions that there is a duty to institute and maintain.  The Court of Appeal got that wrong as well.  But there is not a new question of principle involved in that.  That is simply a difference between the trial judge and the Court of Appeal.  There is a new point in relation to how the Court of Appeal ought to have dealt with the particular difficulties that the case presented when they had to consider an appeal, involving as it did issues of the type that I have identified.    Those, your Honour, are our submissions.

DAWSON J:   Thank you, Mr Barry.  Mr Toomey.

MR TOOMEY:   Your Honours, the point that my learned friend says is raised by the question of perhaps someone who is not comfortable with English would need, in our respectful submission, to be apparently of effect in the trial.  Can I give your Honours an example.  Supposing a witness is asked the crucial question in the case.  He wins if the answer is yes; he loses if the answer is no.  He says no, but he winks at the trial judge when he says it.  Now, if the learned trial judge said “I find the answer to be yes as a finding of fact”, it could not, of course, stand unless he said “I do so because, although the plaintiff said no, he winked at me when he did so in a manner ‑ ‑ ‑

DAWSON J:   Mr Toomey, that is a far cry from this case. This is a case in which the trial judge found that the worker was required to work using a sledge hammer, which was unsuitable for his purposes.

MR TOOMEY:   Well, your Honour, with respect, the finding was more than that.

DAWSON J:   And then the Court of Appeal comes along and says he was not required.

MR TOOMEY:   No, with respect, your Honour, the finding his Honour made was that he was required to work by a threat to his continued employment if he did not do so.  That was the finding his Honour made.  And, in our respectful submission, without the threat to his employment, the finding loses its force.

DAWSON J:   Why?

MR TOOMEY:   Because, you see, the applicant said he never sought to shorten the handle.  That appears in the evidence which is reproduced in the application book at pages 17 to 19.

DAWSON J:   But it is the obligation on the employer to institute and maintain a safe system of work.

MR TOOMEY:   Well, your Honour, of course there are a number of cases in this Court - O’Connor’s Case is one that comes to mind - where it is said that if there is a general system available to an experienced tradesman it is not necessary for the employer to continue to supervise him in doing that.  What the trial judge found was that the applicant did not shorten the hammer because of a threat to his employment, although there was a system, and his Honour in fact found that system to be in place at the top of page 2 of the application book:

the practice was that employees were generally free to shorten the handles, so that the length of the handle was suited to the individual employee.

He makes the finding that that was the system.  And then he makes the finding that in this case, superimposed on that system was a threat to the employee that if he did it he would lose his employment.

DAWSON J:   But that finding exacerbates the employer’s conduct, does it not.

MR TOOMEY:   Your Honour, with respect, it does not exacerbate it.  In our respectful submission, it is the employer’s conduct and if ‑ ‑ ‑

DAWSON J:   But in other words there was a system, but on this occasion the employee was not able to use it because he was required to go on working with an unsuitable implement.  That is the finding of fact.

MR TOOMEY:   Your Honour, with respect, the finding that he was not able to shorten the handle depends on his Honour’s reading of what was said to the applicant as being a threat to his employment.

DAWSON J:   Perhaps it does, but so what?

MR TOOMEY:   Well, your Honour, we say that it cannot bear that.

DAWSON J:   Why not?

MR TOOMEY:   Because the words are simply not apposite, apt, to convey that.

DAWSON J:   They were to the trial judge.

MR TOOMEY:   But your Honour ‑ ‑ ‑

DAWSON J:   And that is the point.

MR TOOMEY:   That is when we get back to my example.

DAWSON J:   No one was winking at anyone here, Mr Toomey, or doing anything which would alter the effect of the words uttered by the people that uttered them.  And that is for the trial judge to assess the meaning of the evidence in those circumstances.

MR TOOMEY:   Your Honour, with great respect, even if the words uttered were uttered with some force, that is “What are you going to do?  Are you going to work or go home?”, in our respectful submission, they could not bear ‑ ‑ ‑

DAWSON J:   Which are the words you say were misinterpreted?

MR TOOMEY:   Those words, your Honour.

DAWSON J:   Where do they appear, at page 2?

MR TOOMEY:   They appear at page 17,  line 25, your Honour.  The evidence is reproduced.

DAWSON J:   Well, it appears in the trial judge’s judgment at page 2:

“What are you going to do?” and then: “Go home or stick with the job”; and the plaintiff replied:  “We stick with the job”

MR TOOMEY:   Yes.

DAWSON J:   If the trial judge interpreted those words, as they were given in evidence before him, as requiring the worker to work, why should he not do so?

MR TOOMEY:   Can I take your Honour to page 17, line 25 where the worker gave them an evidence slightly differently:

“What you going to do, Peter.  Work or go home?”

TOOHEY J:   Where are you taking us to now?  Is this the supplementary ‑ ‑ ‑

MR TOOMEY:   No, this is in the application book, your Honour.  Page 17, line 25.

DAWSON J:   And you go on to the last two questions of that passage:

Q.  Why didn’t you ask Mario if you could cut off the end of the handle with your saw?

A.  No, he does not give me any chance, we go to work, that’s all.

MR TOOMEY:   Your Honour, we would say that this falls within the exception to the Abalos, Jones v Hyde, Brunskill Cases where there is an obvious error.  The system was that you could shorten your own handle.  There is no apparent reason why this man would not have been allowed to shorten his handle.  Mr Nicomede, the elder, and his son, were both called to give evidence and it was put to neither of them on behalf of the applicant that they had threatened the employment of the applicant.  It was not run on that basis.  It is run on that basis here because the finding was made but, in our respectful submission, the finding ought not to have been made.  And that was what the Court of Appeal said. 

Your Honours must remember the rationale of the Court of Appeal which, in our respectful submission, is powerful.  This man had been employed by the respondent for 10 or 11 years.  He started in 1976 and this happened in about October 1986.  He was highly regarded by them, he was an esteemed employee and thought to be particularly capable.

Mr Justice Meagher in giving the judgment of the Court of Appeal said, at the top of page 21:

Why would an employer risk losing a valued employee by prohibiting him from doing what everyone else did with the employer’s approval?

In our respectful submission, you have to read that phrase upon which the applicant relies in the light of the fact that there was this system.  This was a valued employee.  It would be absurd to suggest that they were going to fire this man, that they were threatening him with his employment for not putting their own system into effect.

TOOHEY J:   But say there had been no threat.  I just have difficulty in seeing how - certainly the threat strengthens the plaintiff’s case - but if he raised the question with the foreman, or the man who was supervising him, and he was told, “Look, let’s get on with the job, use that hammer”, is that not enough?

MR TOOMEY:   But, your Honour, it depends upon whether he was being prohibited from shortening the handle.  What one must appreciate is that they are out on the job with a truck and, as the applicant conceded in the evidence which is reproduced in the book, in the back of the truck was a saw which was used for shortening handles.  Now, what the applicant had to do to shorten the handle was to get the saw and cut the handle.  Now, that is a minute or two minutes.

DAWSON J:   But the employer should have directed him to do that.  It is the employer’s obligation to maintain a safe system of work.

MR TOOMEY:   Your Honour, in respect of a skilled tradesman who concedes that this is the system and that he can do this, in our respectful submission, that is not so.

TOOHEY J:   Well, one might equally ask the question along different lines to that asked by Justice Meagher who said “Why would the employer risk losing a valued employee by prohibiting?”  Why would a skilled employee not make use of the saw, and shorten the handle, unless the circumstances were such that he felt that he was being told to get on with the job?

MR TOOMEY:   Your Honour, he may have felt that, but the question is whether he was really being forbidden, you see.  I mean, with great respect, once the system is there - Mr Nicomede said he did not remember it being said.  I know his Honour found that it was said, and that is the end of that.  But why would he need to be asked?  All the evidence called by the applicant, and by the defendant, given by the applicant himself, by his fellow worker Ciacciarelli and by the two Nicomedes who were called by the defendant, was that you could do it.  You did not have to go and ask anyone - it was a system in place.  You got a hammer and then you just used the saw which was in the truck to cut it to the suitable length for yourself.

TOOHEY J:   That is all very well in theory, but you really have to have been there, do you not, to see the circumstances in which the gang was going to carry out work, what was said, the way in which it was said and so on.  These were essentially questions for the trial judge.

MR TOOMEY:   Well, in our respectful submission, his Honour’s findings went further than the language would allow and it is to be remembered, your Honours, with great respect, that what his Honour found was that the applicant was prevented from shortening the handle by a threat to his employment.  I get back to our first point which is that you cannot read - a reasonable reading of the words used by young Mr Nicomede, in our respectful submission, will not bear the meaning that his Honour gave them.  That is a threat to the employing of this old and respected employee.  And that is what his Honour found.

TOOHEY J:   Say his Honour had concluded that sentence on page 5, line 30, simply by saying “I conclude that on the morning of the accident the plaintiff was told to use the longer handled hammer”, full stop.

MR TOOMEY:   Your Honour, it would have to then go on to say “and was forbidden from shortening it according to the usual system”.

TOOHEY J:   Well, not necessarily.

MR TOOMEY:   Because he was told to use the hammer.  He was given the hammer and told, “Here, this is your hammer for the day”.  There is no question about that.  But what the employer says is of course he was given the longer hammer, but he had had a number of hammers in his employment.  My learned friend’s suggestion in his evidence that there was only one is not right.  He said in his evidence that he had used two or three hammers in the time he had been there and of course he must have shortened the handle of each of them.  So the fact that he is given a longer handle and told to use it is not, of itself, of any force.  He must have been forbidden, in our respectful submission, from shortening it, and we say the evidence simply did not come up to that.  May it please your Honours.

DAWSON J:   Thank you, Mr Toomey.  The Court need not trouble you, Mr Barry.

There will be a grant of special leave in this case.

AT 10.41 AM THE MATTER WAS CONCLUDED