ANI Corporation Ltd v Wylie [1999] QCA 281

[1999] QCA 281 COURT OF APPEAL DAVIES JA PINCUS JA THOMAS JA Appeal No 4092 of 1999 THE ANI CORPORATION LIMITED Applicant (Defendant) v THOMAS JOHNSTON WYLIE Respondent (Plaintiff) BRISBANE DATE 22/06/99 JUDGMENT DAVIES JA: The applicant, who was the defendant in an action for damages for personal injury, seeks leave to appeal against the judgment against it and against a refusal to allow amendments to its defence. It seeks to argue three points. The first is whether it was in breach of a duty of care to the respondent in failing to maintain a safe system of work. Its argument depends on the correct characterisation by His Honour of its duty as employer. The applicant says that His Honour ought to have characterised the duty as a duty to warn or to instruct. Once that duty is so characterised, the applicant submits, the respondent should have failed because he adduced no evidence that the failure was causative. -- 1 of 4 -- 2 The learned trial Judge characterised the duty as a failure to establish and maintain a safe system of work. That system, His Honour said, would have included proper training and instruction in the operation of the crane, including a requirement that the load not be moved towards the operator. If that system had been operated His Honour found the accident would not have happened unless the plaintiff had on that occasion chosen to disregard that system. He concluded that once an employee had developed habits of working in that system he would probably have followed them. The applicant says that this should properly be characterised as simply a failure to instruct the respondent not to move the load towards himself. In my view, whichever of those approaches is correct, it does not involve any point of principle but simply which on the facts of this case was the correct way to characterise the breach of duty. In any event, I do not think there is any basis for concluding that His Honour did not characterise the duty correctly. Evidence was given that there was an alternative safe system, the one I have just mentioned, and of course if that was so, the applicant bore the onus of establishing that it would have been unable to enforce compliance with that alternative system. This is not a case where the breach alleged was simply one of failing to warn of an obvious hazard of which the respondent in other cases, such as Hill-Douglas v. Beverley, which was referred to us, was aware. I do not think therefore that that was a basis to justify a grant of leave. The second basis involved the amount of damages. It was submitted on the applicant's behalf that the respondent ceased work with the applicant, not because of the first accident but because of the second, for which the applicant was not liable. It was said therefore that his claim for future economic loss should have been reduced accordingly. However it is plain that the injuries which the respondent suffered in the first -- 2 of 4 -- 3 accident left him with a permanent disability and affected his capacity to earn as a welder. This appears to be the basis upon which damages for economic loss were assessed. Again, in my view, no point of principle arises, nor is there any error demonstrated which would justify a grant of leave. The final point advanced by Mr Morton for the applicant was based on the failure of the learned trial Judge to grant amendment to the defence of the applicant. The applicant sought to make this amendment after the learned trial Judge had published his reasons for judgment but before judgment was delivered. His Honour had indicated that the applicant was liable to the respondent in a contract for the respondent's injuries, which liability could not be reduced by reason of the respondent's contributory negligence. The applicant does not seek to contest this finding, which His Honour thought followed from the decision of the High Court in Astley v. Austrust Ltd [1999] HCA 6, delivered 4 March 1999. However the applicant claimed, pursuant to the principle stated in Lister v. Romford Ice and Cold Storage Co Ltd [1957] AC 555, to be entitled to be indemnified by the respondent against its liability for damages. There are in my view considerable difficulties in the way of success of this argument. However Mr Morton has demonstrated in my satisfaction that whatever those difficulties may be, it is appropriate, having regard particularly to the fact that there are apparently a number of other cases in which this point has been raised to justify a grant of leave. It has certainly involved a question of principle whether or not in the end that question of principle will emerge clearly against Mr Morton's view. In my view at this stage it is not sufficiently clear to refuse him the opportunity to ventilate his arguments fully before this Court. I would therefore grant leave to appeal on that ground only, that is, on the ground with respect to the document headed CLH3 annexed to the affidavit of Ms Helman headed "Proposed -- 3 of 4 -- 4 Amendments" and I would grant that leave subject to an undertaking by the applicant to pay the respondent's costs of this application today and of the appeal in any event. PINCUS JA: With respect to the first two bases upon which Mr Morton puts his application for leave, I agree with the reasons of the learned presiding Judge and with His Honour's conclusions. With respect to the final point, which is the proposed amendment to the defence, I merely wish to say that in my opinion leave should be granted on the basis indicated by the presiding Judge. I do not for myself feel sufficiently confident of the outcome to predict which way the argument will go on appeal, but have simply formed the view that Mr Morton has an arguable question which is one of some importance. THOMAS JA: I also identify the third question as an interesting one, the novelty of which should not dissuade us from fully considering it. I express no view on its prospects of success and agree that leave should be granted in respect of it. DAVIES JA: Can you give that undertaking now, Mr Morton? MR MORTON: I cannot, Your Honour, but I will seek instructions about it. DAVIES JA: Well, appeal is granted subject to that undertaking being given. MR MORTON: Might we file it in writing? DAVIES JA: By all means, yes. Thank you. -- 4 of 4 --