A.D. & S.M. McLean Pty Ltd v Meech & Anor

[2006] HCATrans 270

[2006] HCATrans 270

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M7 of 2006

B e t w e e n -

A.D. & S.M. McLEAN PTY LTD

Applicant

and

SHERILEE MEECH

First Respondent

SAMANTHA CAROLINE McLEAN

Second Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 JUNE 2006, AT 11.11 AM

Copyright in the High Court of Australia

MR J. RUSKIN, QC:   If it please the Court, I appear with my learned friend, MR S.A. O’MEARA, for the applicant.  (instructed by Hall & Wilcox)

MR R.K.J. MELDRUM, QC:   If the Court pleases, I appear with my learned friend, MR D.C. PULLING, on behalf of the first respondent.  (instructed by Slater & Gordon)

MR B.M. GRIFFIN, SC:   If the Court pleases, I appear on behalf of the second respondent with MR D.V. AGHION.  (instructed by Herbert Geer & Rundle)

GLEESON CJ:   Yes, Mr Ruskin.

MR RUSKIN:   Your Honour, this case raises two points of general importance which we say intersect.  The central point is that the occupier was found to owe to the car driver on the highway a non-delegable duty of care, not by resort to established categories, but by resort to what we say is an expansive formula referred to by Justice Nettle in paragraphs 22 and 31 of the judgment.  The formula is this:  is the combined effect of the magnitude of the foreseeable risk of injury and the magnitude of the foreseeable potential injury such that the ordinary person acting with reasonable care would consider it necessary to exercise special precautions ‑ ‑ ‑

GLEESON CJ:   What was said at trial about this question of non‑delegable duty?

MR RUSKIN:   By?

GLEESON CJ:   Counsel for the plaintiff.

MR RUSKIN:    Yes, counsel for the plaintiff came to consider this after an exchange with the judge by counsel for my client.  Counsel for the car driver engaged with the judge about the duty of care and the judge then determined or said that the duty of care was non-delegable.  That gave rise to everyone proceeding on the basis that the duty was non‑delegable, and so counsel for the plaintiff said specifically of my client, the occupier ‑ ‑ ‑

GLEESON CJ:   That was in contest at the trial, was it, whether the duty was non-delegable?  Is this a case where this formula, the duty is non‑delegable, simply means the McLeans or their company were liable for the escape of the horse and the consequences if it was the result of anybody’s negligence and not only if it was a result of their negligence?

MR RUSKIN:    Yes.  In other words, they had to ensure that reasonable care was taken and they could not say, “Well, we had a very well qualified horsewoman looking after the horse, it was her” ‑ ‑ ‑

GLEESON CJ:   They left the property in charge of their daughter and if their daughter let the fences fall down and the horse got out, then, on your case, that does not inculpate, if I can use that expression, the McLeans.

MR RUSKIN:   That is so.

GLEESON CJ:   But what was said about that at trial?  How was the case conducted at trial on that matter?

MR RUSKIN:   At trial, as best one gathers it, it was said of my client that they really did not care at all about the horses, that they were running the vineyard and they left it to the daughter but they should have done more.  So that is how the plaintiff put it, try to put in everyone.  Counsel for the car driver particularly emphasised that his car had nothing to do with it and that my client had what is called a non‑delegable duty of care and the judge will tell you what that means, but that means he cannot wash his hands of it like pilot and say it is up to the daughter to fix things.  That is how he put it.

GLEESON CJ:   Yes.

MR RUSKIN:   Then counsel for my client said she is a very good horsewoman and he was then bound to say, “We rise and fall with her” – that is the sorts of things that he said – because the judge had already determined that it was a non-delegable duty.

GLEESON CJ:   Hang on, rising and falling with her implies non‑delegable duty, does it not?

MR RUSKIN:   Yes, because the judge had said that was what the duty was.  Before the addresses the judge had determined that was the duty.

GLEESON CJ:   Had it been argued to the contrary of that?

MR RUSKIN:   No.  What had happened, what had gone a bit wrong, was that before the addresses the learned judge had said in an exchange with counsel for my client, but the duty of care is non‑delegable because of Gregory’s Case, Gregory’s Properties.  Counsel for my client had said yes at that point, but after the charge, when the judge asked for exceptions, sought to correct the law so that the jury would get the law correct, as we would see it, before the jury considered their verdict.  In other words, counsel for my client said, “Your Honour, can I raise with you the question of the duty?  Can I submit to your Honour that the duty of care is a general duty, not a non-delegable duty?” and the ‑ ‑ ‑

HAYNE J:   Where do we find the exception or a record of the exception?

MR RUSKIN:   We find it best in the reply, if your Honour pleases.  We have the transcript actually but it is uncontested.  May we ask the Court to look at page 99 of the book, line 20:

The learned trial judge then charged the jury . . . The learned trial judge then called for exceptions to the charge (T523.lff).  Counsel for the applicant took several exceptions –

that is counsel for my client –

including the following –

“The final point, your Honour, and I know that your Honour has pre-emptively indicated your Honour’s view on this and charged the jury, but it’s my submission that if a duty exists relating to the boundary fences, it is not a non delegable duty and I make that submission on the basis that we have a lessee occupier running a winery giving some permission to have a competent horsewoman on the property and that’s distinct from a owner/occupier who actually runs livestock on the land, and I say no more than that, your Honour.”

HAYNE J:   What the trial judge had charged the jury is at the added transcript at 484‑485, is it not?

MR RUSKIN:   Yes, that is so, your Honour.

HAYNE J:   Line 27 on 484.  You get a reference to “non‑delegable duty”, a little amplification of it, and then lines 5 to 10, “duty to take reasonable care”.

MR RUSKIN:   Yes, and what the ‑ ‑ ‑

HAYNE J:   But as fought at trial, what was the real issue about care?  The horse had got out, there had been a collision.  What more was known?  What was the issue about reasonable care?

MR RUSKIN:   The factual issue was how did the horse get out?  That was one mystery and so Samantha McLean, the daughter, said that, “The fences were very good; they were electrified; horses jump out of paddocks; that is all I can say”.  But there was, put by the plaintiff, that indeed the fences were not all good.  Some of them were a bit wobbly and you could imagine the horse could have got out that way.  My client ran the case saying, “Look, we run a vineyard and indeed the directors of the company had moved out some years earlier to Moama and they said our daughter-in-law, she is the passionate horsewoman, it is her horse, she feeds it, she turns the fences on and so forth.  I know nothing else.”  And it is important to note that it took a kilometre to get from the paddock to the highway and in the end the jury could not be quite sure how the horse got out, save that the horse got out. 

So we would say it was important for the case to be justly put by my client that the duty of care was a general duty of care.  If it fell to the jury to approve that, they would say either there was no negligence or at least vis‑à‑vis the occupier vineyard owner and the horsewoman, 67 per cent/33 per cent would not have been found in so large a disproportion.  So we say that it was in the emphasis of the non‑delegable duty that particularly gave rise to the disproportion of liability between the defendant daughter who looked after the horse, whose horse it was, who made sure, on her own evidence, that the fences were proper, on the one hand, and the vineyard owner, the absentee, on the other.

HAYNE J:   Did this question of non-delegability intrude into the questions put to the jury?

MR RUSKIN:   I am sure it did not.  I am sure it simply was their negligence.  Perhaps it is also ‑ ‑ ‑

HAYNE J:   But ultimately the complaint has to be a complaint that what is said at 484‑485 in the charge was misdirection.

MR RUSKIN:   Yes, indeed, and we say that because of the submission we make that the duty in respect of non‑delegable is to be defined by established categories and if there is any increment, it is to be very cautious.  We noted in our submission the comments by Justice Gummow, particularly in Scott v Davis – that was a case where the occupier had an aeroplane going round at his party which must have been exciting but there you could not get a more vivid example of the formula, if it is the correct way, namely, magnitude of risk, magnitude of injury.  Justice Gummow said, first of all, it was not a non-delegable case and just as well because it would not have had a chance to get up. 

The second matter that gives rise to interest is the decision by the Court that it is the jury who should find the facts which determine at the end of the case whether the duty is non-delegable.  That is a very expansive and very radical view of the time at which you find what duty you have.  His Honour Justice Nettle says at 51 of the application book, paragraph 32:

It follows, in my opinion, that the judge erred in directing the jury that the appellant’s duty was non-delegable.  His Honour should have left that issue to the jury on the basis that if they were satisfied that the magnitude of the foreseeable risk of an accident and the magnitude of the foreseeable potential injury or damage were such that an ordinary person acting reasonably would consider it necessary to exercise “special care” or to take “special precautions” in relation to it, they should treat the appellant as having been under a non‑delegable duty to take reasonable care to confine Bob to the land, but not otherwise.

So the vice with that is that you do not know until the end of the case whether your duty is delegable or non‑delegable.  You must then plead every occupiers’ liability case in the alternative, non-delegable general.  Indeed, standing here, bearing in mind that Naxakis v Western General Hospital says that if there is more than a scintilla, things go to the jury, it is hard to think of an occupier’s case where you could not get to the jury for their determination is it a non-delegable duty case. 

GLEESON CJ:   Does it mean any more, when you say a duty is non‑delegable, than to say you cannot discharge the duty by showing that you exercise reasonable care in getting somebody else to look after the property, for example?

MR RUSKIN:    Yes, it does mean that, your Honour.  It means, putting it in the words of other cases, you must ensure that reasonable care is taken and you get off the hook if the person to whom you have given the responsibility herself is not negligent, but you cannot take reasonable care in the selection of the person and so forth and expect to get off the hook because you cannot.  Thus, it is what is called a special duty, a stringent duty and one that is restricted, we would submit, or it should be restricted, to those categories that we know of:  hospitals, teachers, employers and so forth.

GLEESON CJ:   If the horse got out because the fences were dilapidated, why was that not the result of personal fault on the part of the owners of the property?

MR RUSKIN:   It may be personal fault, but that would be a question whether the jury thought that in giving to the experienced horsewoman, whose horse it was, whose responsibility it was to look at the fences each day and make sure they were electric – it was perfectly open to the jury to say, “You have done enough”, but it is not going to happen if it is a non‑delegable duty.  That is the first answer. 

The second, your Honour, is in the proportionality of blame.  My client was 67 per cent to blame when it was not his horse, when it was not the company’s horse, the company was interested in wine, and therefore that disproportion bears on the error in respect of the two different duties, especially as it was emphasised by both counsel for the car driver and the learned judge with that particular sting in the tail that said you had to take reasonable care to ensure the fences rather than you should ensure that reasonable care is taken.  The Court of Appeal noted that was perhaps an unfortunate difference, so ‑ ‑ ‑

HAYNE J:   But in the particular facts of this case all we know is or all the evidence revealed was the horse got out, and there is some evidence about where it had been at one point because of manure, but that is all that is known.

MR RUSKIN:   Yes.

HAYNE J:   Not exactly a promising set of facts to look at what is meant by non‑delegable duty in all of these contexts, is it?

MR RUSKIN:   We say it is because if we do not look at it or if the Court does not look at it, you now have a decision, certainly in the State of Victoria, which would apply to all occupiers and a formula which is expansive and where the result, which is the question whether or not there is a non‑delegable duty, comes at the end of the case.  How can you advise your client ‑ ‑ ‑

HAYNE J:   There is some difficulty, is there not, about framing questions for a jury?  If you are going to take a special verdict from the jury, how would you frame the questions to accord with paragraph 32 of what Justice Nettle said?

MR RUSKIN:   You might have to ask a very big question.  You might have say, question four, do you believe that the magnitude of the risk and the magnitude of the risk of the injury is such that – it is going to be a big mouthful.  The injustice that is important in this case bears very much on the proportion between the two defendants.  It could easily be argued in any case in front of a jury that if one client goes in for 67 per cent and the other 33 per cent, you can rationalise or you can seek to rationalise it, but it is a very uncomfortable feeling in terms of the administration of justice, if the Court believes that this formulation of the duty is wrong, that this defendant went in for so much ‑ ‑ ‑

GLEESON CJ:   That is surprising.  I was going to say, consistently with your argument about delegability of duty, your clients had no responsibility at all for this injury.

MR RUSKIN:   Except in this way, it was argued, “Look, you occupy it; it is your vineyard; you know there are horses” and the director says, “Well, I know my daughter loved horses.  I didn’t even know where they were”.  So the jury could have taken the view that as an occupier you should at least keep your eye open, especially if they are encouraged in that way by words such as “non‑delegable” and “duty to ensure”.  But the disproportion was enormous, your Honour, bearing in mind the true facts in the case, we would submit.  We say, therefore, that this is a good vehicle to comment on whether you can have an expansive moving feast of a duty, as our court said, on the one hand, or whether it really was a case where general duty of care was the appropriate one, and then one can work out proportion.

GLEESON CJ:   Your emphasis on apportionment reflects the fact that this was a case where, quite apart from delegability of duty, there was evidence of personal fault on the part of the owners.

MR RUSKIN:   It was arguable, yes, but two‑thirds/one‑third, one cannot get away from the fact that there was the double emphasis on non‑delegability and the statement that you had to take reasonable care to ensure things, which is not, we would submit, the correct formula anyway.  The correct formula is you have to ensure that reasonable care is taken.  Those were all the deflecting matters that affected the jury in this case.  Your Honour, those are our submissions.

GLEESON CJ:   Thank you, Mr Ruskin.  We do not need to hear you, Mr Meldrum or Mr Griffin.

While we would not necessarily agree with everything that was said in the reasoning in the Court of Appeal on the subject matter of non‑delegable duties of care and, in particular, on the question of the way in which issues about that matter are to be resolved at trial, we think that, having regard to the nature of the evidence in this case and the way in which the case was conducted, it does not constitute a suitable vehicle for the resolution of any issue of law appropriate to a grant of special leave.  The application is dismissed with costs.

AT 11.31 AM THE MATTER WAS CONCLUDED