Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43;

Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; - HCA 1970 case summary — Zoe

[26]

12. The matter before the Full Court was whether or not the primary judge was wrong to so conclude. The majority of the Full Court seemed to think that the right view of the facts established at the trial was that the appellant, knowing or in a position where he ought to have known tht the sheet in question had been fully unnailed and was in a dangerous condition, deliberately stepped upon it in a foolhardy manner. Of course, if that had been the fact it would be right to conclude that he was the author of his own injuries. Cf. Commissioner for Railways v. O'Brien (1958) 100 CLR where the workman was aware of the dangerous condition of the roofing. But, in my opinion, that was not a proper view of the facts. The primary judge believed the appellant. The appellant expressly said that he did not know that all the nails had been taken out of the sheet upon which he put his foot and that the system which he understood to be the proper system to work on such a roof would not have left the sheets in position unsecured. Consequently, in my opinion, it is not proper to conclude that in fact the appellant did a foolhardy thing in placing his foot on the sheet which was in position and apparently undisturbed. It is of course quite true had he been in the position of a person having time to reason the whole situation out he might possibly have inferred from the fact that his fellow workman had progressed so far along the roof as he obviously had that there may be a question as to whether or not the sheets had been wholly unnailed, a question he would resolve by enquiry. But the appellant was not in the position of a person calmly considering what inferences might be drawn from what he said. He was busy at his task and was not, in my opinion, neglectful of his own safety in placing his foot on the sheet which so far as his actual knowledge was concerned was not in a dangerous situation, and in circumstances in which he was entitled to assume that the sheet would not have been left in position in an unsecure state. As I am of opinion that there was material upon which the primary judge could find that the respondent failed to take reasonable care in the circumstances for the safety of his workmen and as I cannot agree that the facts were as the majority of the Full Court seemed to think they were, I am of opinion that the Full Court ought not to have disturbed the decision of the primary judge. As an additional reason for thinking that the appeal should be allowed I may say that in my own personal view the primary judge was right in concluding as he did that the respondent was negligent. (at p199)

[38]

3. An appeal has been described by the Privy Council as "the formal proceeding by which an unsuccessful party seeks to have the formal order of a court set aside or varied in his favour by an appellate court" : Commonwealth of Australia v. Bank of New South Wales (1950) AC 235, at p 294 ; [1949] HCA 47; (1949) 79 CLR 497, at p 625 . Lord Westbury has said in 1864 that "an appeal is the right of entering a superior court, and invoking its aid and interposition to redress the error of the court below" : Attorney-General v. Sillem [1864] EngR 352; (1864) 10 HLC 704, at p 724 [1864] EngR 352; (11 ER 1200, at p 1209) . Appeals are creatures of statute. They were not known to common law as distinct from Chancery procedure : Grierson v. The King [1938] HCA 45; (1938) 60 CLR 431, at p 436 . The common law process to correct a mistake of law made by a judge at nisi prius was writ of error. After attaints had disappeared there was, practically speaking, no process to remedy mistakes of fact by a jury until the advent of new trials in the second half of the seventeenth century. Appeal being a remedy given by statute, it is necessary to observe what powers are conferred upon the appeal court by the relevant statute, for all such courts are not in the same position. And the word "appeal" has itself more than one sense for modern law : e.g. Ex parte Australian Sporting Club Ltd.; Re Dash (1947) 47 SR (NSW) 283 . The origin of this Court's jurisdiction to hear appeals from the Supreme Court of the States is s. 73 of the Constitution. The manner of its exercise is regulated by the Judiciary Act 1903-1959 (Cth), ss. 36 and 37. The latter provides that "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 . . .". That, as I understand it, involves our considering the judgment of the learned trial judge in this case, not so much to determine whether we would have come to the same conclusion on the facts, but rather to determine whether or not the Full Court should have disturbed it. (at p202)

[40]

5. The defendant company is a contractor engaged in the demolition of buildings. The plaintiff was a labourer employed by it. On 28th August 1967 the plaintiff and one Pedri, another servant of the defendant, were removing the corrugated iron roof of an old building at Fremantle which the defendant was demolishing. The plaintiff and Pedri had done work of this kind for the defendant on other occasions. On this day they were simply told by the defendant's foreman, under whose direction they were, to get up on the roof and take off the iron. They were each provided with a pinchbar with which to extract the nails holding the iron sheets to the purlins. At the critical time they were working at a fairly steep gable of the roof, one on each side. They had taken out the top 124 C.L.R.) row of nails on each side. The plaintiff, working from his side, then tried to remove the metal ridge cap. He found it did not come away readily. Assuming that perhaps a nail had not been removed, he sought to pull it harder, and for this purpose to straddle the ridge. He put one foot over from his side to the other side, on to a sheet of iron still in position there. It collapsed under his weight. All the nails holding it, not only the top row, had been taken out of it by Pedri ; and there was thus nothing to hold it in place. The plaintiff fell to the ground. He sustained a fracture of his right elbow resulting in some impairment of function of his right arm. He says that he had assumed that the sheet on which he had sought to stand was firm because it was there. His own practice, when removing a sloping roof, was to throw each sheet to the ground as soon as it was loose, and he supposed that Pedri would probably have done the same thing. Pedri gave evidence that that was not what he usually did. Even when working on a sloping roof, he preferred to loosen all the sheets of a row before removing any of them, his reason being that he might need both hands to send a sheet to the ground, and he did not want to put his pinch-bar out of his hand until he had completed a row of nails. (at p203)

[52]

There are more elaborate statements of the same principle in many cases which are collected and analyzed in the judgment of Dixon C.J. and Kitto J. in Paterson v. Paterson [1953] HCA 74; (1953) 89 CLR 212, at pp 219-224 . When the decision of a judge sitting without a jury is open to appeal on both law and fact, an appellate court must have regard to the evidence, and its effect so far as the written transcript reveals it. Lord Halsbury said in Riekmann v. Thierry (1896) 14 RPC 105, at p 116 - in a passage quoted by Isaacs J. in Dearman v. Dearman [1908] HCA 84; (1908) 7 CLR 549, at p 560 , and more recently by Lord Reid in Benmax v. Austin Motor Co. Ltd. (1955) AC 370, at p 376 - that on an appeal there is no presumption that the judgment in the court below is right. But ambiguity lurks there in the word "presumption". For Lord Esher M.R. had said sixty years before that where a case came before the Court of Appeal on appeal from the decision of a judge without a jury the Court would presume that the judge's decision on the facts was right and would not disturb his judgment unless the appellant satisfactorily made out that it was wrong : Colonial Securities Trust Co. Ltd. v. Massey, (1896) 1 QB 38 . That case is cited in Halsbury's Laws of England, 3rd ed., vol. 30, p. 471, for a statement that "the presumption is that the decision appealed against is right". In the article, now in The Law Quarterly Review, vol. 71, p. 402 - to which Lord Simonds acknowledged his indebtedness in the Benmax Case (1955) AC 370 - Professor Goodhart, expressly preferring the word "presupposition" to "presumption", said that it had become accepted doctrine that "the appellant, in seeking for the reversal of the judgment below, must establish his case, and that there is a presupposition that the trial judge was correct in his conclusion". It has been said many times that the decision of a judge of fact ought not to be set aside on appeal unless the appellate court, duly considering the advantages the judge had had in hearing the evidence, is satisfied that his conclusion was wrong. In Powell v. Streatham Manor Nursing Home (1935) AC 243, at p 250 , Lord Sankey said it must be "plainly wrong". There have been differences in emphasis in judicial affirmations of this doctrine. At one extreme are the statements that the judge of the facts must have been "plainly wrong" or "clearly wrong" before his judgment will be set aside. At the other end is Lord Cave's insistence that it is "the duty of the Court of Appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly" : Mersey Docks and Harbour Board v. Procter (1923) AC 253, at pp 258-259 . Whatever words be used, I think that it must appear convincingly that the judge of fact came to a wrong conclusion before it is reversed. I consider that the statement by the Chief Justice in Whiteley Muir and Zwanenberg Ltd. v. Kerr (1966) 39 ALJR 505 points the approach for this Court to take. (at p208)

[54]

13. I turn now to the position of the Full Court of the Supreme Court of Western Australia on an appeal from a judgment of a judge of that Court sitting without a jury. This, as I understand it, depends upon ss. 58 and 59 of the Supreme Court Act, 1935-1967 (W.A.). The origin and history of these provisions in the form they had in 1957 appears from the judgment in Riebe v. Riebe [1957] HCA 66; (1957) 98 CLR 212, at pp 217-221 . It suffices here to say that, in the form these sections now have, s. 58 (1) (a) confers appellate jurisdiction upon the Full Court in any cause or matter tried or heard by a judge or before a judge and jury : and s. 59 (6) provides that in any cause or matter where there has been a trial by a judge sitting without a jury every application to set aside his verdict, finding or judgment is to be made in accordance with the relevant Rule of Court. The rule referred to appears to be O. 58 r. 1 which provides that all appeals shall be "by way of rehearing". This does not mean that the appeal is a complete rehearing as a new trial is. It means that the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing in the record of the proceedings before him, but applying the law as it is when the appeal is heard not as it was when the trial occurred : see Attorney-General v. Birmingham Tame and Rea District Drainage Board (1912) AC 788, at pp 801-802 , and Attorney-General v. Vernazza, (1960) AC 965 . Order 58 provides too that the Full Court shall have power to draw inferences of fact and to give any judgment and to make any order that ought to have been made. This is more or less standard form. It confers a wide power. But it does not I think curtail the recognition or respect that an appeal court should accord to the decision of a trial judge. That has been recognized in many cases, among them in the judgment of Jordan C.J. in Carberry v. Gardiner (1936) 36 SR (NSW) 559 . Whether the express authority to draw inferences of fact be necessary may be doubted, for it would seem to be necessarily implicit in a power to hear appeals on a question of fact. Nevertheless it is a significant provision for it leads on to the matter discussed by the House of Lords in the Benmax Case (1955) AC 370 . (at p209)

[62]

16. The present case is a striking illustration of the conflicting outlooks that judges may have upon facts not in dispute. Nevile J. held that the defendant was negligent in that it "did not take reasonable care for the plaintiff's safety" but that "the plaintiff also showed some lack of care for his own safety", amounting to contributory negligence. In the Full Court, Hale J., with whom Virtue J. agreed, reached a different conclusion. He thought that it could not be said that the defendant had failed to take reasonable care for the safety of its workmen : he agreed that the plaintiff was careless of his own safety, and placed responsibility for the accident entirely on his "foolish act". Burt J. took a different view again. Speaking of the trial judge's conclusion that the defendant was negligent, he said : "After much consideration I find myself unable to say that he was wrong" ; and he concluded on that aspect : "In my opinion the finding of negligence against the employer was open on the evidence and should not be disturbed." He went on to consider the finding of contributory negligence. As to that, he considered that the trial judge had overlooked "as a critical fact in the situation", his finding that the plaintiff had a natural expectation that the sheet of iron which collapsed under him was secured by nails at least at one end when he stepped on to it, and therefore that when proper weight was given to that fact there was "no basis for the finding of contributory negligence". The result of the proceedings in the Supreme Court thus is that two judges - one of them the trial judge - held that the defendant was negligent. Two other judges of the Court said that it was not negligent ; and, as they sat in the Full Court and formed a majority there, their opinion on that prevailed. On the question whether the plaintiff himself was negligent, one judge says that he was not, but three, including the trial judge, say that he was - two of them saying that because of this he is to be regarded as wholly responsible for the accident, the third, the trial judge, saying that he was but partly responsible. (at p211)

[64]

18. I am sceptical of applying to a finding of negligence the principle that an appeal court is as competent to determine the proper inference from proved facts as is the trial judge. There is, of course, no difficulty in this proposition when the inference of fact is itself of a physical fact or happening, something which could itself have been observed or otherwise perceived, to use Professor Goodhart's word, by the senses of a person actually present at the relevant time. Thus an appeal court can legitimately infer from circumstantial facts that adultery was committed : Mann v. Mann [1957] HCA 68; (1957) 97 CLR 433 . And marks on the road, the position where vehicles came to rest and so on, may enable members of an appeal court to determine, just as well as anyone else could, on which side of the road a motor car accident occurred and other facts of that kind. That is simply to infer an observable fact from observed facts. In the same way a court of appeal may decide whether circumstantial facts justify an inference that a death was caused by suicide : Dominion Trust Co. v. New York Life Insurance Co. (1919) AC 254 . Similarly if the question was whether or not at a particular time there was a fence in a particular position on land : Craine v. Australian Deposit and Mortgage Bank Ltd. [1912] HCA 60; (1912) 15 CLR 389 . The same general principle can, in some cases, be applied to conclusions of mixed fact and law. For example, when the question was whether there was such user of a place by the public as would found an inference of dedication for a public purpose : Montgomerie & Co. Ltd. v. Wallace-James (1904) AC 73 . Or, as in the Benmax Case (1955) AC 370 itself where the issue was whether an alleged invention was really new and an invention which could be the subject of letters patent. Many similar illustrations can be found in the reports. But inferences of fact from proved specific facts seem to me to be logically in a different position from the evaluation or appraisal of the quality of a man's conduct. Was he negligent? (at p213)

[73]

3. Hale J. considered that upon the facts disclosed by the evidence the Court ought not to conclude that the respondent should have foreseen the possibility of an accident, such as that which occurred, and taken steps to prevent it. I agree with that view of the case. I do not think that there was anything in the nature of the work which the appellant and his fellow worker Pedri were told to do which would suggest to an employer acting reasonably that instructions ought to be given as to how they should carry out the work or that steps ought to be taken to ensure that each of them was informed of the manner in which the other intended to do his share of the work. It was not shown that anything had happened before this accident occurred to cause the employer to suppose that there was a risk that the two men, if not instructed, might create a situation of danger by each using without the knowledge of the other a different method of doing the work. After the accident had occurred and after evidence had been given at the trial of this action about the methods which were used, it could then be seen that one view of the matter which might reasonably be taken was that it was because of an assumption which the appellant had made as to the method of work being used by Pedri that the appellant believed it to be safe to move to the other side of the ridge and to put his weight upon the sheet of iron from which in fact all the nails had been removed. But before the accident had happened it could not have been reasonably foreseen, in my opinion, that there was a risk of an accident occurring in that way in the course of the carrying out of a fairly simple task by two men working close to each other. At that time there was nothing to suggest to the employer that one of the workers might put himself in peril by acting upon such an erroneous assumption when the relevant fact, that is whether or not the sheet of iron was still secured by nails, was so easily discoverable either by inspection or by speaking to the other worker. (at p216)

[81]

2. The first question for decision is whether the Full Court of the Supreme Court was entitled to disturb the conclusion of the learned trial judge that an employer properly mindful of his duty to use reasonable care for the safety of his workmen would have directed the workmen as to the manner in which the work should be done or at least would have directed them to agree among themselves on the method to be used. In my opinion the conclusion reached by Nevile J. was correct. Although the demolition of the galvanised iron roof of a single-storey building may be a simple enough operation, it involves certain hazards. In considering what precautions the exercise of reasonable care requires in such a case, the possibility of inadvertance or thoughtlessness on the part of a workman should be taken into account - Smith v. Broken Hill Pty. Co. Ltd. [1957] HCA 34; (1957) 97 CLR 337, at p 343 . To allow unfastened sheets of iron to remain in position on a steeply sloping roof in circumstances in which a man walking on the roof is likely to believe that the sheets are still nailed and thus safe to walk upon, seems to me dangerous. The workmen, who were only unskilled labourers, had some previous experience in demolition work, but they had never been given instructions to follow a procedure that would avoid this danger. The learned judges who constituted the majority in the Full Court of the Supreme Court were of opinion that it was not reasonably foreseeable that the appellant would cross the ridge and entrust his weight to the iron in the manner that he did. With all respect, in my opinion a reasonable employer should have foreseen that a workman in the appellant's position might wish to cross the ridge for a variety of reasons, such as to retrieve a dropped tool, or to remove the ridge capping, and that he might do this impulsively or thoughtlessly and without first ensuring that the iron on the other side was secure. It would have been a simple matter to warn the workmen against the danger that might result if one, without the knowledge of the other, failed to remove a sheet of iron immediately it was unfastened, and to give appropriate insutrctions to avoid this danger. In the circumstances it was, in my opinion, the duty of an employer, acting reasonably to safeguard his employees from danger, to give proper instructions as to the performance of the work. I conclude, therefore, that Nevile J. was right in holding that the respondent failed to take reasonable care for the appellant's safety and that the Full Court of the Supreme Court was in error in reversing his decision. (at p218)

At a glance

Court

Decision date

Source

Judgment (84 paragraphs)

Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192 (10 November 1970)

Parties

Legislation Cited (1)

Cases Cited (18)