Nicol v Allyacht Spars Pty Ltd [1988] HCA 48; (1988) 165 CLR 306 (27 September 1988)

HIGH COURT OF AUSTRALIA

NICOL v. ALLYACHT SPARS PTY. LTD. [1988] HCA 48; (1988) 165 CLR 306

F.C. 88/053

High Court

High Court of Australia

Mason C.J.(1), Brennan(1), Dawson(1), Toohey(1) and Gaudron(1) JJ.

CATCHWORDS

High Court - Practice - Appeal - Interest on judgment - Power to give judgment that ought to have been given in first instance - Appeal allowed against dismissal of action - Damages awarded - Statute providing for interest on award from date of judgment - Effect of High Court judgment - Power of High Court to include sum by way of interest in judgment - Common Law Practice Act 1867 (Q.), ss. 72, 73 - Judiciary Act 1903 (Cth), s. 37.

HEARING

1988, September 27. 27:9:1988

APPLICATION.

DECISION

MASON C.J., TOOHEY AND GAUDRON JJ. The respondent, Allyacht Spars Pty. Ltd., is a small company having as its principal business the manufacture and installation of yacht masts and rigging. It also manufactures flag poles though it does not install them.

2. At the time of the appellant's accident which gave rise to this litigation, it had three directors, each of whom was employed by the respondent. The appellant, Glenn Anthony Nicol, was one of the directors; Mr Berg and Mr Gray were the others. There was a division of labour among the directors. Mr Gray was largely concerned with administration; in his own words, he "ran most of the office operations". Mr Berg was in charge of fabrication in the workshop. The appellant described himself as "just an employee of the company".

3. However, about a month before the accident the respondent undertook the construction of a catamaran for sale. Business was then slack and the work was seen as a form of diversification. This work became the appellant's immediate concern and he was in charge of construction.

4. Some time before the accident the respondent had supplied a flag pole to one of its customers to be used for advertising purposes in front of a house which was a "Mater Prize Home". The respondent had nothing to do with the installation of the flag pole. The organizers of the lottery realized that the advertising banner fixed to the horizontal arm of the flag pole was not hanging correctly so one of its representatives approached the respondent with a request to check the banner and if necessary remove it and replace it with another.

5. The evidence did not enable the learned trial judge to conclude who, on the part of the respondent, agreed to do the work but he thought it likely that it was the representative who had sold the flag pole. In any event the job was of some urgency because the official opening of the home was to take place the coming weekend. From the respondent's point of view, Friday afternoon was the convenient time. It so happened that the appellant and Mr. Berg were the only persons available that afternoon and they agreed they would do the work on their way home at the end of the day.

6. That Friday, 5 November 1982, the appellant left work driving a Datsun utility which belonged to the respondent but which he used for his own purposes as well. Mr Berg rode his motor cycle. The two men stopped at a place that hired trestles and, pursuant to a hiring arrangement made earlier, they took delivery of a trestle. The appellant had not made the arrangement to hire the trestle. The appellant and Mr Berg placed the trestle in the back of the utility and the appellant drove to the Mater Prize Home, with Mr. Berg following on his motor cycle. There was already in the back of the utility an extension ladder belonging to the respondent.

7. When the appellant and Mr Berg arrived at the home, they realized that the banner would have to be removed and replaced with another banner they had brought with them. The flag pole, as described by the trial judge, was thirty feet high, having a horizontal arm six feet six inches in length, fixed to the pole at a point twenty-six feet nine inches from the ground. The banner was five feet wide and hung down about eight feet. (All dimensions were given in imperial measure.) To replace the banner it was necessary to unscrew a section at the end of the horizontal arm, remove the section and the banner, replace the banner and screw back the section. This operation was straightforward and required only a screwdriver. The problem was to provide means by which someone could do the work at the necessary height above ground.

8. Before the appellant and Mr Berg arrived at the scene there had been discussions at the respondent's workshop as to how the job would be done. It will be necessary to look more closely at those discussions and to consider the extent of participation by the appellant, Mr Berg and Mr Gray in them. But first it is convenient to recount what happened at the scene.

9. The ground around the flag pole was sloping. A decision had earlier been made to fix the extension ladder to a trestle, thus providing access to the banner and support for the ladder. However the trestle which it was hoped to use was unavailable and a trestle which was about two feet shorter was used. The result was that the extension ladder fixed to the trestle would not provide sufficient height in the sense that the person changing the banner would have something to lean against. It had earlier been decided to place the trestle on the tray of the utility, thereby obtaining additional elevation together with a footing to be provided by the utility itself. This the appellant and Mr. Berg did. The appellant then climbed the ladder and, at a convenient height, lent forward to begin work at the end of the horizontal arm. As he did so the trestle and ladder moved away from the arm, dislodging the appellant who fell to the ground suffering severe injuries. Mr Berg described what happened in these terms:



" The foot of the trestle furthest from me closed

and then the one closest to me skidded out along

- across the aluminium."

10. The system employed to replace the banner was clearly unsafe. The finding of the trial judge was in these terms:

" By the time Berg and the plaintiff left the

premises to undertake the work the system to be

used was known to and had been devised, adopted

and agreed to by both Berg and the plaintiff. In

making this finding I should add two things:

firstly, I am uncertain if, or to what extent the

plaintiff took part in all of the relevant

informal discussions on the subject at the

premises on that day but I am satisfied that before

leaving the premises to do the work the plaintiff

knew of and had either expressly or impliedly

agreed with the use the system of work proposed

and that he had accepted and/or adopted the

proposed method or system as a proper one for use

in the circumstances; secondly, I am satisfied

that the use of a 'cherry picker' was not

suggested by the plaintiff or, if it was, it was

not advanced as a serious suggestion but was

merely a casual statement made in the course of

any discussion to which he was, or to which he

may have become a party."

His Honour made further findings that, at the scene of the accident, the appellant and Mr Berg "agreed to and adopted the method or system in fact used as a proper one" and that in so doing neither was subordinate to the other.

11. The appellant sued the respondent. The writ was endorsed as a claim "for damages for negligence and/or breach of statutory duty". However the statement of claim was framed only in negligence. No submissions were addressed to the trial judge or to the Full Court on the aspect of breach of statutory duty and the question for this Court must be whether the appellant should have succeeded in his claim for negligence. The statement of claim alleged negligence through failure to install or maintain a safe system of work. Negligence was particularized to some extent by reference to failure to secure the ladder adequately, failure to provide safe means of access, failure to provide proper plant and equipment, failure to give the appellant appropriate instructions or warnings and failure on the part of Mr Berg to hold the ladder and trestle adequately.

12. The trial judge dismissed the appellant's claim and he did so for these reasons. In his Honour's view, the performance of the respondent's business was carried out on a day to day basis by the appellant, Mr Berg and Mr Gray; on the occasion of the accident the performance of that business was directly in the hands of the appellant and Mr. Berg; the system of work which they adopted was their chosen system and in turn the respondent's system; and in those circumstances the appellant could not recover from the respondent damages in respect of his injuries on the ground that the respondent was in breach of its duty to him to provide a safe system of work.

13. The Full Court by a majority (Matthews and Shepherdson JJ., Kelly S.P.J. dissenting) dismissed the appellant's appeal. The basis of Matthews J.'s judgment may be found in the following passage:

" In the instant case the obligation of the

respondent was to be met in accord with the

division (presumably 'decision') of the appellant

jointly with others. The unsafe system of work,

which was adopted, was the appellant's system and

it has been sufficiently established that in

respect of the provision of an unsafe system, a

servant is not to be heard to complain if he is

solely responsible for it."

Shepherdson J. took much the same approach, concluding in respect of the conduct of the appellant and Mr Berg:

" These two men (wearing their directors' hats)

owed themselves (wearing their employees' hats)

the non-delegable duty to which I have referred.

In the discharge of that duty they were

undoubtedly negligent; however their very

negligence was inherent in and flowed from their

own jointly agreed plan. In short the jointly

agreed plan when executed was the sole cause of

the appellant's injury."

14. Those passages must be considered in the light of the evidence. Before the appellant and Mr Berg left the respondent's premises on Friday afternoon, the system by which the banner would be rehung or replaced had been worked out. There was no clear evidence that Mr Gray played any part in the working out. It is apparent that Mr Berg played a significant part and it is probable that he initiated a discussion with employees of the respondent as to the system that might be used. The appellant joined in that discussion but the totality of the evidence suggests that, at least in broad terms, the use of a ladder and trestle had already been canvassed before he did so. Mr. Berg agreed that the suggestion to use a trestle may have been his. In cross-examination he said: "... I am fairly sure that I suggested the idea." He also agreed that it was his idea to mount the trestle in the back of the vehicle.

15. The trial judge did not say why he rejected the appellant's claim to have suggested a cherry picker. Mr. Berg thought it "possible" that the machine had been mentioned though he had no recollection of the matter.

16. With respect, it is not right to describe the system employed as "the appellant's system" or to say that it was his "chosen system". Rather the inference to be drawn from the evidence is that the appellant, along with Mr Berg, implemented a system which had been devised substantially by employees of the respondent other than the appellant.

17. That the respondent was under a duty to provide a safe system of work for its employees is not in doubt. The fact that the appellant was, at the time of his accident, a director of the respondent did not affect his status as an employee: Lee v. Lee's Air Farming Ltd. (1961) AC 12. Nor did it alter the duty of care owed by the respondent to him along with its other employees. Counsel for the appellant placed some stress on the fact that an employer's duty to provide a safe system of work may not be delegated. The non-delegability of the duty is well settled: Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 CLR 672; Stevens v. Brodribb Sawmilling Co. Pty. Ltd. [1986] HCA 1; (1986) 160 CLR 16. But the notion of non-delegability has very little to do with the case in hand. There was no independent contractor involved; all those who participated in the circumstances surrounding the appellant's accident were employees of the respondent, notwithstanding the position of some as directors. The questions now before the Court are not to be resolved by reference to the non-delegable nature of an employer's duty of care.

18. The respondent's obligations were those enunciated by this Court in O'Connor v. Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225, at p 229:

" The defendant as employer was of course under a

duty, by his servants and agents, to take

reasonable care for the safety of the deceased by

providing proper and adequate means of carrying

out his work without unnecessary risk, by warning

him of unusual or unexpected risks, and by

instructing him in the performance of his work

where instructions might reasonably be thought to

be required to secure him from danger of injury."

19. In the present case there was a failure to provide proper and adequate means of carrying out the work of replacing the banner. There is a finding of the trial judge, with which there can be no quarrel, that in the actual erection of the ladder and trestle the appellant's role was no less than that of Mr Berg. But that is no answer to the appellant's claim, though it may go to the issue of contributory negligence. Nor is it a sufficient answer to his claim that he took part in a discussion as to the system to be employed, when it is apparent that the idea of using a ladder and trestle in the back of a vehicle was not his idea but that of another employee, almost certainly Mr. Berg. It must also be remembered that at the time of the accident the appellant was engaged in building a catamaran. It was only his availability and the non-availability of other employees at the time that led to him joining Mr Berg in going to the home site. And when they got to the site, said Mr Berg: "I was on one side of the ladder and Glenn was on the other and I guess, that's fate, he walked up before I did."

20. In those circumstances it cannot be said that any fault

on the part of the appellant was "co-extensive" with that of the respondent through its other employees, to use the language of Pearson J. in Ginty v. Belmont Building Supplies, Ltd. (1959) 1 All ER 414, at p 424.

21. If the appellant's injuries were caused solely by his own fault, he cannot succeed. However if they were caused partly by his own fault and partly by the fault of other employees, the appellant's claim is not defeated but is subject to apportionment: The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act 1952 (Q.).

22. In Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 681 Lord Reid commented:

" To determine what caused an accident from the

point of view of legal liability is a most

difficult task. If there is any valid logical or

scientific theory of causation it is quite

irrelevant in this connection. In a court of law

this question must be decided as a properly

instructed and reasonable jury would decide it.

... The question must be determined by applying

common sense to the facts of each particular

case."

23. The cause of the appellant's injuries was the provision of a means of access to the banner which was simply unsafe. That was not solely the fault of the appellant. It was in part his fault in acquiescing in the use of the system and helping to put it into operation. But it was also very much the fault of those who devised the system. The respondent must be held vicariously responsible for the appellant's injuries.

24. From what has just been said, it is inevitable that there must be an apportionment of responsibility. In determining the degree of apportionment, the prescribed criterion is the appellant's "share in the responsibility for the damage": see s.10 of the Queensland statute. The question here is one of the degree to which the appellant departed from the standard of conduct expected of someone in his position. He was certainly careless of his own safety but what he did posed no risk to the respondent or to anyone else: see Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16; Karamalis v. Commissioner of South Australian Railways (1977) 15 ALR 629, at p 635.

25. The dissenting judge in the Full Court, Kelly S.P.J., said of the appellant's own negligence:

" Whilst it would not appear that the appellant

was experienced in the climbing of ladders to the

height which was required in this case,

nevertheless it must be assumed that he possessed

ordinary common sense and it should have been

apparent to him that it was dangerous to do what

he did since, as the learned Judge found, the

collapse of the trestle/ladder combination was

likely once his weight was positioned at a

certain height."

Kelly S.P.J. considered that a proper apportionment would be to attribute forty per cent of the responsibility to the appellant and sixty per cent to the respondent. This is an apportionment we would adopt, reflecting as it does the failure of the appellant to take reasonable care for his own safety in a situation which cried out for care, while recognizing that the appellant's own negligence was not a source of danger to the respondent.

26. The appeal should be allowed, the order of the Full Court set aside and the judgment of the Supreme Court of Queensland dated 3 April 1986 also set aside. The primary judge assessed the appellant's damages in the sum of $279,349.29. The appellant did not seek a retrial on the question of damages nor did the respondent wish to be heard on this aspect of the matter. It follows that there should be judgment for the appellant against the respondent in the sum of $167,609.57, being sixty per cent of the damages assessed. The appellant should have his costs of the proceedings in the Supreme Court, of the appeal to the Full Court and of this appeal.

BRENNAN J. The facts of this case are recounted by Mason C.J., Toohey and Gaudron JJ. The facts show that the appellant's (plaintiff's) injury was caused by the use of a manifestly dangerous means of reaching the horizontal arm of a flagpole. A duty to provide a safe system of work is part of an employer's duty of care to his employees, and the plaintiff was an employee as well as an executive director of the respondent (the company). An employer's duty of care was stated by this Court in Ferraloro v. Preston Timber Pty. Ltd. (1982) 56 ALJR 872, at p 873; 42 ALR 627, at p 629, in these terms:

" The employer's duty, to whomsoever it falls to

discharge it, is to take reasonable care to avoid

exposing his employee to an unnecessary risk of

injury and the employer is bound to have regard

to a risk that injury may occur because of some

inattention or misjudgment by the employee in

performing his allotted task."

This formulation followed and expanded the well-known formulation of the duty by Dixon C.J. and Kitto J. in Hamilton v. Nuroof (W.A.) Pty. Ltd. [1956] HCA 42; (1956) 96 CLR 18, at p 25. In this case, the company's duty of care to its employees fell to be discharged by its executive directors of whom the plaintiff was one. Can he recover for breach of the employer's duty? There have been cases in which an injured employee has failed to recover for breach of an employer's statutory duty where the employee was himself responsible for performing the duty. These are cases where the employee was solely responsible for the failure to perform the duty and was therefore "the sole author of his own wrong" as Pearson J. said in Ginty v. Belmont Building Supplies, Ltd. (1959) 1 All ER 414, at p 424. In Ross v. Associated Portland Cement Manufacturers Ltd. (1964) 1 WLR 768, at p 777; (1964) 2 All ER 452, at p 455, Lord Reid approved the test which Pearson J. stated in these terms in Ginty:

" In my view, the important and fundamental

question in a case like this is not whether there

was a delegation, but simply the usual question:

Whose fault was it?"

The question, said Lord Reid, really is: whose conduct caused the accident? That approach avoided the difficulty of -

" explaining why an employer, put in breach of a

statute by the disobedience of his servant, can

escape liability to that servant for injuries

caused by the breach ... he can say to the

disobedient servant that his (the employer's)

conduct in no way caused or contributed to that

servant's injuries." (At p.777; pp.455-456.)

But if the employer has failed in some respect to do everything which the employer could reasonably be expected to do to prevent the breach which caused a plaintiff's injury, the employer does not escape liability: Boyle v. Kodak Ltd. (1969) 1 WLR 661, at p 667; (1969) 2 All ER 439, at p 442. As Herron C.J. said in Shedlezki v. Bronte Bakery Pty. Ltd. (1967) 69 SR (NSW) 202 (at p 209), in order that the person under the statutory duty might escape liability -

" It must be established that the breach by the

plaintiff is the sole cause and not merely a

cause of the accident."

The principle was stated by Pearson J. in Ginty (at p.424):

" it is not necessarily conclusive for the employer

to show that it was a wrongful act of the

employee plaintiff which caused the accident.

It might also appear from the evidence that

something was done or omitted by the employer

which caused or contributed to the accident;

there may have been a lack of proper supervision

or lack of proper instructions; the employer

may have employed for this purpose some

insufficiently experienced men, or he may in the

past have acquiesced in some wrong behaviour on

the part of the men. Therefore, if one finds that

the immediate and direct cause of the accident

was some wrongful act of the man, that is not

decisive. One has to inquire whether the fault

of the employer under the statutory regulations

consists of, and is co-extensive with, the

wrongful act of the employee. If there is some

fault on the part of the employer which goes

beyond or is independent of the wrongful act of

the employee, and was a cause of the accident,

the employer has some liability."

Subject to a qualification presently to be mentioned, the approach to the question of an employer's escape from liability for breach of statutory duty may be applied with equal validity to the question of an employer's escape from liability for breach of a common law duty. The approach accords with principle. When a plaintiff's injury is caused in part by his own careless act or omission and in part by the negligence of another, the plaintiff is entitled to recover against the other, the damages being reduced according to the plaintiff's share in the responsibility for the damage. If the plaintiff's employer is vicariously liable for the damage caused by the other's negligence or has, by reason of an act or omission of the other, failed to discharge the employer's own duty to the plaintiff - and it is unnecessary in this case to examine the difference between the two bases of liability - the plaintiff is entitled to recover against the employer, the damages being reduced according to the plaintiff's share in responsibility for the damage. Thus, in Stapley v. Gypsum Mines Ld. [1953] UKHL 4; (1953) AC 663, the widow of a workman recovered against his employer where the workman's death was caused by the disobedience by the workman and a co-workman of an instruction not to work under the "drummy" roof of a stope before fetching the roof down. Having failed fully to fetch the roof down, the deceased went to work under it. Part of the roof fell and killed him. The employer was held liable because, both miners being at fault, the causative negligence was joint and the employer was liable for the negligence of the deceased's co-workman.

2. This is an analogous case. Here the failure of the company to prescribe and enforce a safe system for reaching the horizontal arm of the flagpole was not solely due to the plaintiff's fault. His injury was caused by his failure and by the failure of other executive directors to prescribe a safe system for reaching the horizontal arm. The function of prescribing the system fell to all the executive directors who were involved in the discussion, and the failure of the executive directors other than the plaintiff to prescribe a safe system is a failure for which the company is responsible. It is immaterial whether the company's liability rests on its vicarious liability for their negligence or on its failure by its agents to discharge the duty of care which it owed to the plaintiff. The failure of the plaintiff and the failure of the other executive directors to prescribe a safe system for reaching the horizontal arm of the flagpole together caused the plaintiff's injuries. The plaintiff was entitled to damages reduced according to his share in the responsibility for the injury. I would not depart from the apportionment made by Kelly S.P.J. that the plaintiff's damages should be reduced by 40 per cent.

3. The qualification which may be material to the application of the statutory duty cases to cases of breach of a common law duty of care relates to the defence of volenti: see Imperial Chemical Industries Ltd. v. Shatwell [1964] UKHL 2; (1965) AC 656. It is not appropriate to consider that defence in the present case, however, for it was not raised in the courts below and an attempt to raise it on appeal to this Court came too late.

4. I would therefore allow the appeal, set aside the judgment of the Full Court and in lieu thereof allow the appeal to that Court and give judgment for the plaintiff in an amount being 60 per cent of the damages assessed by the learned trial judge. It may be appropriate to allow interest on that amount up to the date of judgment in this Court (see s.72 of the Common Law Practice Act 1867 (Q.) and L. Shaddock & Associates Pty. Ltd. v. Parramatta City Council (No.2) [1982] HCA 59; (1982) 151 CLR 590) but that question can await further submissions.

DAWSON J. The proposition is to be found in the cases that an employee cannot succeed in an action against his employer for breach of statutory duty where the conduct which is at fault and upon which the action is based is that of the employee notwithstanding that the same conduct puts the employer in breach of his statutory duty. It is said to offend ordinary sensibilities that an employer should be liable to an employee for his own wrongdoing. The application of such a principle is, however, limited to those occasions when the wrongful conduct is that of the employee alone and no fault can otherwise be attributed to the employer. The application of the principle may be seen in cases such as Manwaring v. Billington (1952) 2 All ER 747 and Ginty v. Belmont Building Supplies, Ltd. (1959) 1 All ER 414 where specified working conditions were laid down and the statutory duty to comply with them was imposed upon employer and employee alike. In the former case there was a regulation requiring ladders to be securely fixed and in the latter there was a regulation requiring the use of supporting equipment where work was being done on roofs or ceilings covered with fragile materials. In each case the employee failed to observe the relevant regulation and in each case he failed to recover damages from his employer for his consequent injuries. The conduct of the employee in each case, being in breach of a duty cast upon him - although also in breach of a duty in the same terms cast upon the employer - gave rise to no cause of action against the employer. Had the duty cast upon the employer extended beyond that of the employee or been of an independent kind so that there was fault upon the part of the employer which was not also that of the employee, liability could have been apportioned in accordance with the English statutory scheme providing for apportionment. But the duty of the employee being coextensive, or coterminous, with that of the employer there was, it was held, no room for apportionment. See also Shedlezki v. Bronte Bakery Pty. Ltd. (1970) 72 SR(NSW) 378.

2. The true basis upon which these cases were decided, if it is something more than the unacceptability of any other result, is not easy to discern. In Ginty v. Belmont Building Supplies, Ltd. at pp 424-425 Pearson J. suggested various explanations - that a man should not profit from his own wrong was one and the need to avoid circuity of action was another - but in the end appeared to favour the view that it was a question of causation, that is, it was a question of whose fault it was.

3. That was a view which was later adopted in Ross v. Associated Portland Cement Manufacturers Ltd. (1964) 1 WLR 768; (1964) 2 All ER 452 (see also Boyle v. Kodak Ltd. (1969) 1 WLR 661; (1969) 2 All ER 439) where Lord Reid said at p 777; All ER at pp 455-456 that such an approach explained why it was that an employer might escape liability to an injured employee whose injuries were caused by his own conduct in breach of a statutory duty imposed upon him (notwithstanding that the same conduct was also in breach of a duty in the same terms on the part of the employer) and yet be liable to another employee for injuries received by him as a consequence of the same conduct. In the first instance, so it was said, there was no room for vicarious liability because the employee's own conduct was the sole cause of his injuries whereas in the second instance the injuries to the other employee would have been caused by the wrongdoing of the first employee for which the employer was vicariously responsible. There are, it seems to me, certain difficulties in that explanation, for surely in the second instance any action by the other employee would be based, not upon the vicarious liability of the employer for the first employee's breach of statutory duty, but upon the employer's own breach of statutory duty, at all events where the breach was by way of omission.

4. Rather, it seems to me, the limitation which is imposed upon the liability of the employer in this regard is something which, if not actually a matter of statutory construction, amounts to a restriction of the civil liability for breach of statutory duty which the courts have engrafted upon the statutory obligation. The courts, having created the liability, are able to confine it. It was, I think, a notion such as this which Mason J. had in mind when he said in Buckman (H.C.) & Son Pty. Ltd. v. Flanagan [1974] HCA 30; (1974) 133 CLR 422, at p 442:

"The language in which the principle has been

expressed, notably that of Lord Reid in Boyle's

Case (1969) 1 WLR, at pp 665-666; (1969) 2 All

ER, at p 440, tends perhaps to suggest that it is

a rule invented by the courts as a proposition of

the general law superimposed upon statutory

provisions which impose a duty and create a cause

of action in favour of private individuals. I

would not wish to quarrel with these observations

so long as it is understood that the formulation of

the principle is not unconnected with the

construction of the relevant statutory provisions.

Were it otherwise I should feel some difficulty in

its application in New South Wales in face of

s.2(1) of the Statutory Duties (Contributory

Negligence) Act which provides that contributory

negligence shall not be a defence to an action for

damages for personal injury founded on a breach of

a statutory duty imposed on the defendant for the

benefit of a class of persons of which the

plaintiff was a member (cf. Sherman v. Nymboida

Collieries Pty. Ltd. [1963] HCA 63; (1963) 109 CLR 580, at

p 591)."

Of course, as the latter case cited by Mason J. shows, where an employee's injuries are caused entirely by his own conduct and that conduct does not put the employer in breach of some duty, the problem does not arise. In such a case, ex hypothesi there can be no question of liability on the part of the employer.

5. All of this only goes to show the inapplicability in this case of the principle applied in Manwaring v. Billington and Ginty v. Belmont Building Supplies, Ltd. Here there was no relevant statutory duty. The plaintiff (the appellant) relied upon the breach by his employer, the company, of the common law duty which it owed to him to take reasonable care for his safety by providing adequate equipment and a safe system of work. Even if the above principle can be applied in the absence of any statutory duty which, as can be seen from what I have already said, I doubt, it does not seem to me that the duty of an employer and an employee in such regard can ever be coextensive or coterminous. The duty is that of the employer and even if the employee is entrusted with its performance it remains an independent obligation of the employer of a more comprehensive kind to ensure that reasonable care is taken. The personal or non-delegable nature of the duty was recently discussed by Mason J. in Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 and there is no call for a repetition of the discussion here. It is sufficient to say that in my view it precludes the imposition upon an employee of the same burden as is shouldered by the employer and even if in the failure to take steps to avoid the unnecessary risk of injury the employee is at fault, that fault will arise from the breach of a lesser duty than that of the employer or, perhaps more accurately, a duty of a different kind. Of course, there can be no recovery by an employee who has failed to take reasonable care for his own safety where the employer has discharged his obligation to provide proper equipment and a safe system of work and has taken reasonable steps to ensure that they are used: O'Connor v. Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225. That, however, is a different situation.

6. That is sufficient to dispose of any contention based upon the proposition that the plaintiff was the sole cause of his own injuries. The defendant company (the respondent) could not equate its obligation to the plaintiff as its employee with any duty imposed upon him as an employee to take reasonable care for his own safety.

7. That was not, of course, how the case against the plaintiff was put. It was accepted that the decision to employ the equipment and system used by the plaintiff was made before he embarked upon the work which resulted in his injuries. It was said that it was a decision of the company but one for which the company was not liable because it was made by the plaintiff as a director or employee and the fault, if any, was the fault of the plaintiff himself. In this way it was said that the plaintiff was the cause of his own injuries and so could not recover against the company. One answer to that argument is that the decision to use inadequate equipment and a faulty system of work was, as the majority demonstrate in their reasons, a decision in which the plaintiff played only a minor part. But major or minor, it was a part played, either as a director or an employee, in the control of the activities of the company and the acts or omissions which resulted from the implementation of the decision taken were the acts or omissions of the company. The failure to take reasonable steps to provide adequate equipment and a safe system of work was the failure of the company and it matters not that the plaintiff was instrumental in the making of the decision which led to that failure, for the company was a legal entity distinct from its directors and employees. Any duty owed by the directors or employees of the company to see that the company went about its affairs in accordance with its legal obligations was not a duty owed to themselves or other employees of the company but a duty owed to the company itself. It was a duty of a managerial kind which arose out of their position or employment and was different from the duty owed by the company to its employees. It is for these reasons that it was the fault of the company and not of the plaintiff which was the cause of the plaintiff's injuries, notwithstanding that the plaintiff may have played some part in the decision which gave rise to that fault.

8. Nor in the circumstances am I able to say that the plaintiff was guilty of contributory negligence. The risk of injury to the plaintiff arose from the nature of the equipment provided by the company and the system devised by it. Once it is accepted, as it must be, that it was the company's duty to take reasonable steps to avoid unnecessary risk of injury to the plaintiff, then it must also be accepted that the steps which it took to that end were inadequate and it was that inadequacy which resulted in injury to the plaintiff. That fault was the fault of the company and not of the plaintiff. To reach any other conclusion would be to disregard the existence of the company as a distinct legal entity. What the plaintiff did was to use the equipment provided by the company and to carry out its system. That cannot amount to contributory negligence even if the manner in which the plaintiff was to carry out his task was manifestly dangerous: Davies v. Adelaide Chemical and Fertilizer Co. Ltd. [1946] HCA 47; (1946) 74 CLR 541; General Cleaning Contractors Ltd. v. Christmas (1953) AC 180.

9. I would allow the appeal and award to the plaintiff the damages assessed without reduction for contributory negligence.

ORDER

Appeal allowed with costs.

Order of the Full Court of the Supreme Court of Queensland dated 19 December 1986 set aside and in lieu order:

Appeal allowed with costs.

Judgment of the Supreme Court of Queensland dated 3 April 1986 be set aside in so far as it adjudges that the plaintiff recover nothing against the defendant and that the defendant recover against the plaintiff its costs to be taxed. In lieu thereof enter judgment for the plaintiff against the defendant in the sum of $167,609.57 together with interest and order that the defendant pay the plaintiff's costs of the action.

Reserve liberty to the appellant to apply on 7 days notice for such order in relation to interest as may be appropriate.

DECISION

MASON C.J., BRENNAN, DAWSON, TOOHEY AND GAUDRON JJ.: On 6 November 1987 the Court upheld an appeal from the Full Court of the Supreme Court of Queensland which had rejected an appeal by the present appellant against the dismissal of his claim for damages against the present respondent: see Nicol v. Allyacht Spars Pty. Ltd. [1987] HCA 68; (1987) 61 ALJR 640; 75 ALR 1.

2. The order of this Court was in the following terms:

" Appeal allowed with costs.

Order of the Full Court of the Supreme Court

of Queensland dated 19 December 1986 set aside

and in lieu order:

Appeal allowed with costs.

Judgment of the Supreme Court of Queensland

dated 3 April 1986 be set aside in so far as

it adjudges that the plaintiff recover nothing

against the defendant and that the defendant

recover against the plaintiff its costs to be

taxed. In lieu thereof enter judgment for the

plaintiff against the defendant in the sum of

$167,609.57 together with interest and order

that the defendant pay the plaintiff's costs

of the action.

Reserve liberty to the appellant to apply on

7 days notice for such order in relation to

interest as may be appropriate."

3. While the respondent accepts that the appellant is entitled to some award of interest in respect of the judgment he has obtained, the parties are at odds as to the period for which interest is payable and as to the appropriate rate.

4. Judgment dismissing the appellant's claim was given on 3 April 1986. As already mentioned, the order of this Court was made on 6 November 1987. The respondent paid the damages awarded against it, $167,609.57, on 30 November 1987. The appellant claims to be entitled to interest from 3 April 1986 until 30 November 1987. The appellant puts his case in terms of the Common Law Practice Act 1867 (Q.) ("the Act"). Section 73 of the Act reads:

"(1)Where judgment is given or an order is made

by a court of record for the payment of money

in a cause of action that arose after the

commencement of the Common Law Practice Act

Amendment Act 1972, interest shall, unless

the court otherwise orders, be payable at the

rate prescribed from time to time by Order in

Council and until so prescribed at the rate

of eight per centum per annum from the date

of the judgment or order on so much of the

money as is from time to time unpaid.

(2) Nothwithstanding anything contained in

subsection (1)-

(a) where the court directs the entry of

judgments for damages and the damages are

paid within twenty-one days after the

date of the direction, interest on the

damages shall not be payable unless the

court otherwise orders;

(b) where the court makes an order for the

payment of costs and the costs are paid

within twenty-one days after the

ascertainment thereof by taxation or

otherwise, interest on the costs shall

not be payable unless the court otherwise

orders."

The respondent contends that any liability to pay interest on the judgment by reason of s.73 is confined to the period from 6 November 1987 to 30 November 1987. Nevertheless, the respondent concedes that it would be reasonable to order the payment of some interest pursuant to s.72 of the Act to supplement the allowance for interest made under that section by the trial judge when assessing damages. Section 72 confers a power to include in a judgment a sum by way of interest for the period between the date when the cause of action arose and the date of judgment. The basis of this concession lies in the fact that some eighteen months elapsed between the conclusion of the proceedings in the Supreme Court and the disposal of the appeal by this Court.

5. The appellant takes his stand on s.73, contending that, having regard to s.37 of the Judiciary Act 1903 (Cth), judgment was given for the purposes of s.73 of the Act on 3 April 1986. It is implicit in the appellant's submission that if s.37 of the Judiciary Act does not bring about the result for which he contends, there can be no claim to interest under s.73 of the Act from 3 April 1986.

6. Section 37 of the Judiciary Act reads:

"The High Court in the exercise of its appellate

jurisdiction may affirm reverse or modify the

judgment appealed from, and may give such

judgment as ought to have been given in the first

instance, and if the cause is not pending in the

High Court may in its discretion award execution

from the High Court or remit the cause to the

Court from which the appeal was brought for the

execution of the judgment of the High Court; and

in the latter case it shall be the duty of that

Court to execute the judgment of the High Court

in the same manner as if it were its own

judgment."

7. The appellant, relying particularly upon the words "may give such judgment as ought to have been given in the first instance", submits that the order made by this Court became the judgment of the Supreme Court of Queensland, taking effect from 3 April 1986. The respondent's answer is that until 6 November 1987 there was no judgment requiring it to pay any money to the appellant and that "the date of the judgment" in s.73(1) of the Act can only mean the date of the judgment pursuant to which money is payable.

8. In their written submissions, made pursuant to the liberty to apply provision, the parties made no reference to O.43 r.3 of the High Court Rules nor was any application made under that rule. Order 43 r.3 is in the following terms:

"(1) When a judgment is pronounced by the Court,

the entry of the judgment shall, subject to

the next succeeding sub-rule, be dated as of

the day on which the judgment is pronounced,

unless the Court otherwise orders, and the

judgment shall take effect from that date.

(2) By special leave of the Court, a judgment may

be ante-dated or post-dated."

9. Putting to one side s.37 of the Judiciary Act, there can be no doubt that an order made by this Court on 6 November 1987 would take effect from that date. The consequences for a plaintiff in the position of the present appellant were considered by the House of Lords in Nitrate S.S. Co. v. Short Bros. 1922 All ER 710 and earlier by the Court of Appeal in Borthwick v. Elderslie Steamship Company (No. 2) (1905) 2 KB 516. In the first mentioned case judgment was entered at first instance in favour of the defendants on 2 April 1919. An appeal to the Court of Appeal was dismissed on 30 October 1919. On 1 July 1921 the House of Lords allowed an appeal and entered judgment for the plaintiff in the sum of $50,000, that amount having been assessed by the trial judge in the event that an appeal against the dismissal of the plaintiff's claim should succeed. A question having arisen as to the date on which judgment was entered for the plaintiff, for the purpose of determining when interest should run, Lord Buckmaster, with whom the other members of the House agreed, said, at p.712:

"If at the time when the matter originally came

before your Lordships' House on July 1, 1921, it

had been desired that the order then made should

speak as from a date different from that on which

it was pronounced, it was incumbent upon counsel

to ask that this should be done. In the absence

of any such direction, where judgment is, for the

first time, directed to be entered in favour of

any litigant party by this House, the date which

that judgment will bear must be the date when the

order is made. It is, of course, a totally

different proposition where the effect of an

order in this House is to restore a judgment of

the court of first instance which has been

reversed by an order of the Court of Appeal. In

that case the judgment of the court of first

instance is expressly restored and remains

standing as from the date when it was given.

But, in this case, there was no judgment until

the time when it was directed that that judgment

should be entered and made."

10. In Borthwick v. Elderslie Steamship Company (No. 2) the plaintiff failed at first instance in his claim for damages but succeeded on appeal to the Court of Appeal. Collins M.R. said, at p.519:

"... though ... the Appeal Court has all the

powers of the High Court, including the power to

give any judgment and make any order which ought

to have been made by the Court of first instance,

still the judgment of the Court of Appeal is a

judgment of the date on which it was given, and

it would require the invocation of the powers

given by Order XLI., r.3 a rule in similar terms

to O.43 r.3 of the High Court Rules , if that

judgment is to be antedated. The judgment is not

ipso facto antedated by reason that it is

substituted for the judgment in the Court

below."

Having found no reason to antedate the judgment of the Court of Appeal, the Master of the Rolls continued (at pp.519-520):

"I think, therefore, that no case has been shewn

for antedating the judgment of this Court in

order that the plaintiff may get interest for the

time that elapsed between the trial and that

judgment."

Romer L.J. was of the same opinion.

11. In Nitrate S.S. Co. v. Short Bros., as has been seen, Lord Buckmaster distinguished the position where a judgment at first instance had been reversed by the Court of Appeal and restored by the House of Lords. The distinction is of importance if regard is had to Gould v. Vaggelas [1985] HCA 85; (1985) 157 CLR 215. In that case the trial judge, Connolly J., had awarded the plaintiff damages of $1,427,500. On appeal the Full Court of the Supreme Court of Queensland reduced the award to $700,000; on further appeal the High Court restored the judgment of the trial judge. In dealing with the question as to the interest payable on the judgment, the High Court referred to the order of the Full Court that "there be interest at the rate of twelve (12) per cent on the judgment sum from date of judgment ..." and said, at p.274:

"The order plainly varies the judgment given by

Connolly J. by substituting a different sum for

the figure set out therein. The 'date of

judgment' remains 18 September 1981 the date

when Connolly J. made his order and it is from

this date that the award of interest at the rate

of 12 per cent per annum is to be calculated.

That this must be so is demonstrated by the

problem that would arise if the order of the Full

Court were taken to set a new date of judgment,

arguably leaving the original judgment of

Connolly J. to attract the statutory interest in

accordance with s.73 of the Act until varied at

the later date."

The problem arising in Gould v. Vaggelas does not of corse course arise here.

12. In the case now before the Court the appellant contends that when s.73 of the Act is read with s.37 of the Judiciary Act the consequence is that the Court gave the judgment that ought to have been given in the first instance, with the further consequence that the appellant's entitlement to damages now derives from the judgment of the Supreme Court of Queensland dated 3 April 1986.

13. In our view, the words "may give such judgment as ought to have been given in the first instance" in s.37 of the Judiciary Act do not have the operation for which the appellant contends. Clearly they were not thought to do so in Borthwick v. Elderslie Steamship Company (No. 2) for by its rules of court the Court of Appeal had all the powers of the English High Court, including the power to give any judgment and make any order which ought to have been made by the court of first instance: see Collins M.R. at p.519. Such a provision speaks to the power of the Court and no doubt a rule such as O.43 r.3 of this Court's Rules is a useful corollary to such a provision. But to empower an appellate court, in the exercise of its appellate jurisdiction, to "give such judgment as ought to have been given in the first instance" does not, as Romer L.J. pointed out in Borthwick, at p.521, mean that the judgment of the appellate court "must be regarded for all purposes as if it had been the judgment given by the judge in the Court below".

14. In support of his argument that s.37 of the Judiciary Act made s.73 of the Act applicable, the appellant relied upon the decision of Franki J. in Moller v. Roy (1976) 11 ALR 398. In that case the plaintiff was awarded damages in the Supreme Court of the Northern Territory. On appeal to the High Court, he obtained an order substituting a considerably increased amount of damages for that awarded by the Supreme Court. Franki J. said, at p.400:

" It seems clear that the judgment in the

subject matter took effect from 4 December 1974

and that when the High Court varied that

the variation took effect as from the same date.

This is in accord with the provisions of s.37 of

the Judiciary Act 1903-1969."

His Honour considered this approach to be in accord with views expressed in Keogh v. Dalgety and Co. Ltd. [1917] VicLawRp 47; 1917 VLR 309 and Agricultural Bank of Tas. v. Brown 1958 Tas SR 22. Neither of those cases is, we think, truly in point for in each interest on judgment ran "from the time of trial" so the fact that in the end the plaintiff depended upon a judgment of an appellate court presented no obstacle to a claim for interest from an earlier date.

15. While s.37 of the Judiciary Act does not operate so that an order of this Court made on 6 November 1987 produces a judgment in favour of the appellant dated 3 April 1986, it does have a consequence of which the appellant may avail himself. The power conferred on this Court to give "such judgment as ought to have been given in the first instance" authorizes the inclusion in our order of a sum by way of interest pursuant to s.72 of the Act from 3 April 1986 to 6 November 1987: L. Shaddock & Associates Pty. Ltd. v. Parramatta City Council No. 2 [1982] HCA 59; (1982) 151 CLR 590. The appellant, in whose favour judgment has now been given, was deprived, during that period, of the damages to which he is entitled.

16. In this regard the respondent has made a submission which extracts from the damages assessed by the trial judge an interest component referable to past pain and suffering and past economic loss. Some of that past economic loss was refundable because it had been paid to the appellant as workers' compensation. In the respondent's submission, it would be appropriate to apply an interest factor of 10%, which appears to have been the effective rate used by the trial judge in calculating interest from the date the cause of action arose, and to extend the interest component over the time that elapsed between the dismissal of the appellant's claim and the order of this Court. Allowing for the reduction made to the trial judge's assessment by reason of the appellant's contributory negligence and off-setting the interest component of the assessment, the respondent has arrived at a figure of $2,256.33. This, in our view, is a reasonable approach. The appellant has not argued with the mathematics involved.

17. Although the respondent concedes a liability to pay interest under s.73 of the Act for the period from 6November 1987 to 30 November 1987, that matter cannot be taken into account in fixing the interest payable pursuant to the order of the Court.

18. The interest payable pursuant to the order made on 6 November 1987 should be fixed at $2,256.33.

ORDER

Order that the interest payable pursuant to the order made on 6 November 1987 be fixed at $2,256.33, being interest to the date of judgment.