AAMI Limited v Hain

[2008] HCATrans 272

[2008] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S178 of 2008

B e t w e e n -

AAMI LIMITED

Applicant

and

SEAN HAIN

Respondent

Application for special leave to appeal

GUMMOW  J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 AUGUST 2008, AT 11.56 AM

Copyright in the High Court of Australia

MR S.G. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR S.E. McCARTHY, for the applicant.  (instructed by Curwoods Lawyers)

MR I.D.M. ROBERTS, SC:   May it please the Court, I appear with MR A.J. BLACK for the respondent.  (instructed by Creaghe Lisle Solicitors)

GUMMOW J:   Yes, Mr Campbell.

MR CAMPBELL:   Your Honours, the legislation with which we are concerned was extracted in the applicant’s authorities at pages 53 and 54.  It is section 138 of the Motor Accidents Compensation Act.  The germane provision is subsection (2)(b) and, in particular, (ii).  Your Honours will know from the written submissions that it is materially in the same terms as the provision which the Court considered in Joslyn v Berryman (2003) 214 CLR at page 552.

May I take your Honours to a couple of short passages in Joslyn from the authorities. If we could ask your Honours to turn to page 15 of the supplementary book and, in particular, paragraph 37. This is part of a passage from the judgment of Justice McHugh at page 566 of the Commonwealth Law Reports. Could I direct your Honours’ attention to the third sentence:

In cases of contributory negligence outside the field of intoxicated passengers and drivers, the courts take into account as a matter of course those facts and circumstances that the plaintiff could have discovered by the exercise of reasonable care.

Going back to the second sentence:

The relevant facts and circumstances include those which a reasonable person could have known by observation, inquiry or otherwise.

Justice McHugh made those statements in the context of analysing the common law relating to contributory negligence before turning to look specifically at the statutory provision that the Court was there concerned with.  However, may I respectfully submit that in this regard there is no real difference.  Could I ask your Honours to look at page 24 of the supplementary book and, in particular, paragraph 70 from page 575 of the Commonwealth Law Reports.  This is part of the joint judgment of your Honour Justice Gummow and Justice Callinan.  Your Honours will see:

The reference in s 74(2)(b) to the impairment by alcohol of the ability of the driver to drive as something of which the injured person “was aware, or ought to have been aware” reflects the common law requirement that the standard of care expected of the plaintiff be measured against that of a person of ordinary prudence and not merely by reference to subjective attitudes of the particular plaintiff.

Your Honours, that reference to “subjective attitudes of the particular plaintiff” is apposite here, as is the identification of the particular error.  May I say, with respect, one of the particular errors in Joslyn which is highlighted by reference to the idea that the Court of Appeal in that case determined the question of contributory negligence by reference to what was observable by people of the condition of the driver at or about the time of the collision and, of course, in Joslyn it did not make any difference that other people who came upon the scene of the accident soon thereafter, people who were themselves sober and who were independent of the circumstances, thought that the driver, Ms Joslyn, in that case did not exhibit any signs of intoxication.  In our submission, the Court of Appeal fell into an identical error in this case by the ‑ ‑ ‑

GUMMOW J:   You have to read the Court of Appeal reasons in full, have you not?

MR CAMPBELL:   Of course, with respect, your Honour, one does.  There is no doubt that the Court of Appeal, and I say this with respect, purported to direct itself by reference to what are undoubtedly relevant passages from Joslyn, but, in our submission, as we have argued, the difficulty with the Court of Appeal’s decision, in particular the passage which appears at page 59 and subsequently of the application book dealing with paragraphs 44 to 48 of the judgment under the heading “Resolution of the appeal”, is that, having had regard to what was said in Joslyn as to the correct statements of principle, we submit that the court erred in its application of those principles to the facts of this case because, although the court no doubt directed itself in accordance with the objective test, it then turned to decide this case purely by reference to what can only be described as subjective factors.

HEYDON J:   If you go to the list of factors on page 58 in paragraph 41, one has to exclude (h), does one not, because that is too late?

MR CAMPBELL:   Yes.  We acknowledge that in our written submission, your Honour.

HEYDON J:   You have to exclude (a), do you not, because no one could possibly have known that there was actually a blood alcohol concentration of 0.15 grams per 100 millilitres.

MR CAMPBELL:   No one could have known that precise fact, your Honour; but what that fact illustrates, of course, is that Mr Wilson, the driver, had ingested a copious amount of alcohol and that that was an objective fact.

HEYDON J:   Dr Dauncey thought that Mr Wilson had ingested 10 to 18 middies but that too has to be excluded, does it not?  Your argument hinges on the proposition that the drunken man should have been questioned as to how much he had drunk.  You can only do that if you have some material present to your mind which might trigger such a question off and the Court of Appeal analyses the relations between the two people during the night, including the age of the person who was supposed to have asked the question.  I, myself, do not find anything factually wrong with their approach.

MR CAMPBELL:   Could I say, your Honour, with respect, that even if we do exclude (a) and (b) and there are put forward as simply the objective fact of the driver’s severe intoxication, the other facts which are relevant and which we would submit would put a reasonable person in the position of the plaintiff upon inquiry or would have given rise to the idea that the reasonable person should have ascertained additional facts, are the fact that the plaintiff knew that Mr Wilson had been in the hotel for those long hours, from 9.00 pm to about 2.20 am and that that was closing time.

HEYDON J:   If you had had five drinks in that time, you would not have been breaking the law, would you, if you had driven?

MR CAMPBELL:   No, your Honour.  If you adopt the rule of thumb of .02 per drink and one drink being metabolised each hour, then, no; you would not have been intoxicated.  But just as perhaps Mr Hain could not know (a) and (b) as your Honour has tested me about, Mr Wilson was not in his vision or company all night, so he could not know whether it was five or 20.  The fact that he had been at the hotel, the fact that he had been seen to be drinking at the hotel was the type of thing that should have triggered in the ordinary prudent person an inquiry of a simple type which would have elicited an answer.

It may be perhaps accepted that the inquiry, “Are you right to drive, mate?”, if I can put it that way in the vernacular, might have been responded to with some sort of bravado which was designed to fob off the question.  But the other inquiry, “How many have you had to drink, mate?”,  if I can put it that way again, had every reason to elicit a truthful answer or if it elicited an obviously obfuscating answer, would have put the reasonable person in the position of the plaintiff on notice that he was taking a risk in relation to getting into a car with the particular driver.

If the law – and we submit it does – so far as section 138 is concerned and the test of ought to be aware, if it extends as the common law does, to inquiry, if I can adopt that single word of the many that are used, then on the clear facts of this case, not Mr Hain but the reasonable person in his position was put on his inquiry to find out just what the man had to drink to see whether it was safe to get in the car with him.  After all, the reasonable man, of course, is posited as a sober person.  On the evidence, the court accepted in this case Mr Hain was also sober.  He was in a much better position to judge and in a much better position to ask than the cases that involve intoxicated passengers perhaps.  We submit in that way that the Court of Appeal applied a subjective test and failed to apply the objective test laid down by this Court in Joslyn.

Your Honours, could I turn to our second point and could I ask your Honours to go to page 30 of the application book.  At line 30 his Honour correctly states the test he has to apply in terms of the statute, although there is no express reference to the statute point.

GUMMOW J:   This is headed “DRAFT”.  Is there some particular practice about the issue of judicial transcripts in the District Court, do you know?

MR CAMPBELL:   Your Honour, I cannot answer that.  May I say, despite having read it many times, I had not quite noticed that.

GUMMOW J:   We will assume it is the final version.

MR CAMPBELL:   It is the final version, your Honour, yes.  If your Honours would, it has been dealt with that way all along.  The usual practice, as your Honours know, is that there is a certified copy from the associate but, in any event, at line 30 the learned primary judge ‑ ‑ ‑

GUMMOW J:   For which the associates used to be paid in the old days.

MR CAMPBELL:   I beg your Honour’s pardon?

GUMMOW J:   For which the associates used to be paid a special fee.

MR CAMPBELL:   I was unaware of that, your Honour.

GUMMOW J:   Page 30.

MR CAMPBELL:   Page 30, line 30 is where his Honour poses the ultimate question he has to answer and there was no error in the paragraph around line 30.  Where error creeps in, we submit, is in the next paragraph.  His Honour says:

I approach the task in determining that issue by reference to the general approach the Parliament has taken ‑

He then goes on to treat a defence of contributory negligence as though it involved some question of moral culpability on the part of the plaintiff.

GUMMOW J:   What did the Court of Appeal say about this?

MR CAMPBELL:   The Court of Appeal acknowledged, your Honours, that those comments were irrelevant and unnecessary.

GUMMOW J:   Where do they say that?  Can you find it?

MR CAMPBELL:   If your Honours will pardon me for a moment.  My learned friend says it is paragraph 37.  The point that we would make about that, your Honours, as we have made in writing, is, of course, that not only was it irrelevant and unnecessary, but it was also erroneous.  Perhaps no reference to authority is required here, but could I give your Honours again a reference to Joslyn. It is at page 41 of the supplementary materials authorities, paragraph 126 at page 592, a statement from the judgment of Justice Kirby. In the first sentence section 10, which is a reference to the Law Reform (Miscellaneous Provisions) Act 1965, which is the apportionment legislation in New South Wales, “is not concerned, as such, with moral culpability”.

Now, your Honours, bearing in mind what this Court has said about the apportionment exercise being quasi‑discretionary person, to take into account an irrelevant consideration and, we submit, an important kind, is the type of thing which normally engages appellate review.  It does not disengage it or provide a reason not to exercise appellate judicial power.  We submit that the way this affected the trial judge’s decision‑making process, bearing in mind what I have read to your Honours about how he started his critical analysis by approaching it from this standpoint, is that, as we have put it in the written submission, may I repeat it, he set the bar too high in terms of the stringency of the proofs that we had to offer to satisfy the relevant statutory test.

What we say as to why special leave should be granted in this case in relation to both points is that, again as Justice Kirby pointed out, with respect to him, in Joslyn at paragraph 100 on page 584, and it is at page 33 of the supplementary materials, about the middle of the paragraph, judicial

consistency is a hallmark of justice.  We say, your Honours, that this decision is inconsistent with the Court’s decision in Joslyn v Berryman both as to principle and approach.

Secondly we submit that, if your Honours accept the argument for which we have contended, then it is clear that in this area of the law which is applied daily in the courts in New South Wales, of course, concerning section 138 but throughout the Commonwealth otherwise, it is necessary that this Court further elucidate the important principles which underpin this branch of the law.  Finally on that score, may we submit that if our argument were to be accepted, then clearly there has been a substantial miscarriage of justice in that the defendant has been deprived of the defence that it ought to have made good at the trial.  May it please the Court.

GUMMOW J:   Yes, thank you.  We do not need to call on you, Mr Roberts.

If the reasons of the New South Wales Court of Appeal be read in full, there is disclosed no error in the nature of a “subjective test” when applying Joslyn v Berryman (2003) 214 CLR 552. Nor is there any other reason to doubt the correctness of the outcome in the New South Wales Court of Appeal.

Special leave is refused with costs.

The Court will adjourn to Tuesday, 5 August 2008 at 10.15 am in Canberra.

AT 12.14 PM THE MATTER WAS CONCLUDED