ACQ Pty Limited v Cook & Anor; Aircair Moree Pty Limited & Cook

[2009] HCATrans 134

[2009] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S107 of 2009

B e t w e e n -

ACQ PTY LIMITED

Appellant

and

GREGORY MICHAEL COOK

First Respondent

COUNTRY ENERGY (FORMERLY KNOWN AS NORTH POWER)

Second Respondent

Office of the Registry
  Sydney  No S108 of 2009

B e t w e e n -

AIRCAIR MOREE PTY LIMITED

Appellant

and

GREGORY MICHAEL COOK

First Respondent

COUNTRY ENERGY (FORMERLY KNOWN AS NORTH POWER)

Second Respondent

FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 17 JUNE 2009, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR G. CURTIN, for the appellants.  (instructed by Riley Gray‑Spencer)

MR P. MENZIES, QC:   If your Honours please, I appear with my learned friend, MR P. GIAGIOS, for the first respondent in each case.  (instructed by Whitelaw McDonald) 

FRENCH CJ:   There is a submitting appearance for the second respondent in each matter.  Yes, Mr Walker.

MR WALKER:   Your Honours, when my client’s crop‑duster aeroplane hit the high voltage conductor the plaintiff, Mr Cook, was some 21½ kilometres away.  He was at home in Moree.  Because of his skills, training and employment, he was called out to attend to the obviously dangerous and, in a sense, defective state of affairs produced by that impact.  To remind your Honours, though the wire was not severed and the circuit was not interrupted, thus the conductor remained live, it nonetheless was hanging in a position over field 19, the cotton crop, which plainly could not be tolerated for very long.  It was in a dangerous position because it was so low to the ground.

FRENCH CJ:   I suppose, Mr Walker, we are all pretty familiar with the facts.  The core question gets us down to whether his personal injury was caused by something that was a result of the impact.

MR WALKER:   Exactly so, and the purpose of that reference to the facts is to point out that of course it is true that in the circumstances I have just stated the impact of the crop duster on the conductor was a factor, probably the factor, which secured the presence of Mr Cook at the place where and at the time when he was injured.

FRENCH CJ:   There is no doubt it was part of the causal chain that led to his injury.

MR WALKER:   That is right.  The statute governs the causal responsibility which is assumed by section 11.  Could I take you, in our bundle, to section 8.  What do I mean when I say it assumes causation?  You see at the end of section 11, which is the provision which provides for what the parliamentarians responsible described as “strict liability”, is for damages to be recoverable:

as if the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants. 

So by the time you get to section 11, bestowing the statutory right to recover damages, the question of causation is, as it were, assumed or a given.  That is because section 10, which is both a definition and right bestowing provision, describes the situation by reference to causation. 

The right is bestowed by reason of the imposition of an obligation on persons such as my clients by subsection 10(2).  It is bestowed if, as the draftsman puts it, this section applies and so one is finally brought to the provision which is at the heart of this argument, namely, subsection 10(1), which definitionally stipulates when this section applies.  Now, we say the error in Justice Campbell’s reasoning is to be located precisely in paragraphs 136, 140 and 141.  Paragraph 136 is found in volume 2 of the appeal book starting at page 640 and continuing onto page 641.

It contains the error of attributing to the legislative reform producing sections 10 and 11 the purpose of including, apparently without relevant limitations, that is, relevant to this case, indirect or consequential results of an impact.  In one sense that is obvious from paragraph (d) to which I will come.  In another sense, however, it is unsupported by all the extrinsic material.

The second kind of error is committed in paragraphs 140 and 141, which are found on pages 642 and 643.  They follow from the reasoning in paragraph 139 by which his Honour, with great respect, understandably observes that if a word like “cause” is used in a statute regulating Australian litigation – and I stress Australian litigation – then it may be a useful starting point to appreciate the general law in existence at the time that word was chosen.  We, with respect, submit that more caution was needed before importing, as it were, wholesale all the notions lying behind the so‑called common sense approach to “causation” seen in March v Stramare ‑ ‑ ‑

GUMMOW J:   I must say I have never understood that.

MR WALKER:   ‑ ‑ ‑ as is supposed, without explaining how that affects, governs or drives the reading of the critical words in this statute.  So there are two errors we say.  The first is to characterise the legislative project which produce sections 10 and 11 as one which was actually designed – the question for this Court will be whether that was successful, I suppose – to expand the scope in the large manner this case would require.  The second error is, in any event, using the so‑called general law or common law concepts to produce, without articulating precisely the content of those words in the provision, such an indirect or consequential ambit of responsibility under section 11.

I have described it as a large consequence in this case because it is to be recalled that Mr Cook, the plaintiff, approached the wire not because we had dislodged it but because in the course of his professional, highly skilled dealing with that dangerous situation we had created he decided to depart from the obvious prudent arrangement between him and his offsider, Mr Buddee, whereby he would wait until it was no longer live before approaching to a vicinity where it might cause the danger which, in fact, materialised in this case.

That was a voluntary act on his part.  Of course, he did not deliberately decide to court death or terrible injury, but he did decide to walk towards that, which eventually did, nearly kill him.

FRENCH CJ:   Does that mean there is no causal connection between the impact and his injury in ordinary terms?

MR WALKER:   We say, yes.  In statutory terms that is the result, we say.

GUMMOW J:   Was this construction of the statute, with its emphasis upon paragraph (d), in play earlier in the litigation?

MR WALKER:   Yes, yes.  I was not at trial, but from the record it is clear that paragraph (d) at all times was seen as the statutory route to the liability of my clients and certainly in the Court of Appeal it was the sole focus of the statutory argument.  Your Honours, could I now take you in the bundle ‑ ‑ ‑

FRENCH CJ:   That is reflected, I think, at page 540, is it not, in the judgment of the trial judge?

MR WALKER:   Yes.

FRENCH CJ:   Paragraph 32, “In my view”.

MR WALKER:   As one sees in paragraph 32, that was the conclusion of the judge.  Now, if I can take you in a bundle of statutory material to remind you of some of the provisions that we have sought to expound in our written submissions.  On page 4 of the bundle one sees section 3.  The object of the Act, as we put it, is to provide definition or description of injuries, losses, et cetera, for which people responsible for aircraft will be held liable in damages.  We have drawn to attention, as you have read, the use of the epithet “certain” in the expression:

The main object of this Act is to facilitate the recovery of damages for certain injury, loss ‑ ‑ ‑

CRENNAN J:   I think Justice Campbell relied on that “facilitate the recovery of damages” expression as sustaining a wide reading of section 10(1)(d).

MR WALKER:   And, with respect, understandably so.  This is, as we have made clear in writing and as I will repeat, plainly remedial legislation.  However, attention is justified, as a matter of the legislative history, to the way in which the position was understood to require remedy.  This was not the first statute, as your Honours are aware.  There had been another statute which, in terms and by dint of the way it was expressed, simply gave effect to their own Convention to which Australia was a party.

FRENCH CJ:   So far of my reading of the extrinsic material, by which I mean the second reading speech and explanatory memorandum, rather emphasises the need to rectify the different positions that arose or the difference in the positions that arose between Convention countries covered by the Civil Aviation Act, which had a limited liability in non‑Convention countries where the liability was unlimited.

MR WALKER:   Yes.  Now, limits, be it limited or unlimited, was an important aspect of the mischief or the problem and therefore informs an understanding of the text by which they attempted to provide a remedy.  The new scheme is described by its promoters as providing for strict and unlimited liability, without the necessary context supplied by the explanatory memorandum to which I am about to go.  That could be fatal for us because the lack of limitation may well very naturally describe a decided reluctance to leave out of the ambit of responsibility consequences which come at some remove in the narrative from the impact. 

But the limitation in question did not have anything to do with what I will call remoteness of consequence.  It had to do with the money, the money that was provided by way of a limitation in the international treaty to deal with all manner of legal systems whereby a gold value yardstick there was at the time the legislative reform was introduced for example, the total liability limit for a 747 jumbo being about then $A36 million, a figure which struck the legislators as self‑evidently grossly inadequate bearing in mind what a jumbo can do, if it came down, for example ‑ ‑ ‑

FRENCH CJ:   There was an example of Amsterdam, I think, yes.

MR WALKER:   The El Al crash in Amsterdam.  So at page 24 of the bundle that we have put together for your Honours of statutory and other materials, in the explanatory memorandum you see in the outline, the second paragraph, the adherence to the Rome Convention having resulted in, third line, “in inadequate levels of compensation”.  That is because of what they called “limited (although strict) liability”, and improvement in the compensation regime was to be effected, said the new paragraph, by the repealing or replacement of the current Act and by denouncing the Convention accordingly. 

There was to be national uniformity, this is an Australian Act, no longer dealing with a regime which is to be reproduced by other countries.  It is to be nationally uniform by being, as they say, “aligned” closely “with those that have existed in the majority of the Australian States”.  That so‑called alignment will not produce, we think, any arguments one way or the other in this case.  Then you see the reference to subjecting operators to “strict and unlimited liability”, that plainly is by reference to financial ceilings on recovery. 

There are references to retaining concepts in the next paragraph from the Rome Convention regime where they will be of advantage to the plaintiff.  That appears in particular to be by reference to the strict liability, the complete lack of any necessity to prove legal fault.  The problem, I suppose that is a word that stands for mischief, is introduced on the foot of page 24 of the bundle.  There is a reference to different regimes.  Page 25, second paragraph on that page: 

Most significantly, the Rome Convention limits the amount payable . . . to an inadequate level.

There is a reference to the jumbo limitation.  In the middle of the page there is historical explanation for that limitation of liability being mainly due to a “survival of the infant industry argument into the 1950s” which we need not worry about.  Then at the foot of the page one sees national uniformity being imposed on aircraft that come in to our airspace, which includes above relevant waters.  One sees at the foot of page 25:all aircraft coming within its jurisdiction subject to strict and unlimited liability.

That repeated expression “strict and unlimited liability” obviously refers, as I say, to the financial matters.  On page 26 under the subheading “Objectives” one sees that there is a reference to:

adequate compensation where they suffer death or injury or property damage resulting from an air accident –

as they call it.  There are “Options” then canvassed.  The main option is the one which was adopted to denounce the Convention, repeal the Act and to “introduce a new Act to replace it”.  There are other options, including so‑called “non‑regulatory options” but they also include “renegotiating the Rome Convention itself.”  One sees the choice was made – see the foot of the next paragraph – to introduce, “a uniform regime of strict and unlimited liability nationally”.  Page 27, under what was called “Impact Analysis” – that is not aircraft impact, that is the impact of a legislative change – one has a fourth paragraph:

For the great majority of the industry, the option taken is a minor adjustment to the existing legislative regime.

We accept that real caution needs to be given to the use made in argument of expressions like that.  It is for the court to decide whether the adjustments were minor or not depending upon the point of view relevant to any particular argument, but in terms of assessing the nature of the remedial approach taken to the perceived mischief, that may be of some significance.  At page 28 under the heading “Conclusion” one sees, “The option chosen”, in particular, uniform, national uniform, improved levels of compensation, ready access.  There is reference in the third paragraph under that heading again to:

The minor adjustment of the existing legislation, which the Bill represents –

The minor adjustment is to be seen against the background which was explicitly the subject of those comments; see page 49 of the bundle, the Schedule to the Act to be repealed, namely, the Rome Convention.  Article 1 is the provision to which we have drawn attention in our written submissions.  That says emphatically – introduced in the second sentence:

Nevertheless there shall be no right to compensation if the damage is not a direct consequence of the incident giving rise thereto, or if the damage results from the mere fact of passage of the aircraft through the airspace in conformity with existing air traffic regulations.

A matter that needs to be considered is whether ‑ ‑ ‑

GUMMOW J:   This is in 1950, is it not?

MR WALKER:   Yes.

GUMMOW J:   There is an English case called Hollywood Silver Fox Farm v Emmett, remember that?

MR WALKER:   Yes.

GUMMOW J:   There was a complaint that the ferrets ‑ ‑ ‑

MR WALKER:   That the beasts had been put off their useful activities by the aircraft.

GUMMOW J:   Yes, and that failed, in tort.

MR WALKER:   Yes.  We are not suggesting for a moment that the word “direct” or its companion opposite “indirect” do not present difficulties of definition or with borderline cases.  That is not to the point presently.  We do point out that there is no such word in the statute we are construing.  It would be a slender reed for me to rely on the fact that though there is no such word, this is still only a minor adjustment and getting rid of a requirement for direct consequences only would appear to be a major adjustment.  I say that would be a slender reed.

However, in our submission, it is significant that contrary to what might emerge from a reading of Justice Campbell’s paragraph 136 there is nothing in the extrinsic material, the explanatory memorandum or the speeches in the chambers, there is nothing to show that there was any element of mischief or problem to be remedied perceived by those who promoted the Bill in the requirement of the Rome Convention for compensable consequences to be direct.

Now, in our submission, subsection 10(1) of the Act which was introduced to effect this so‑called minor adjustment went about the task of defining the so‑called section 3 certain forms of injury, loss, et cetera for which there would be section 11 liability in damages by a method which was textually quite different from Article 1 of the Rome Convention but which can be seen in fact not greatly to depart from the intended ambit of event, consequence and damages.

There are obvious alterations - we have drawn them to attention, they are not germane to this particular case - in our written submissions.  So can I now come to the text of section 10?  We have drawn to attention by way of emphasis particularly the words, “injury”, et cetera, “caused by” in the chapeau, as it can be called.

GUMMOW J:   Well, there is this notion of impact in 10(1) which is not in the Rome Convention, is it?

MR WALKER:   No, we have pointed out in our written submission that this is a scheme imposed by a text which uses this notion of impact as what I will call the pivotal event or condition.  There must be an impact.  That is why, for example, helicopter downdrafts would not produce compensable loss under this Act, even if it would, for example, under a New South Wales statute, as we have pointed out.  Similarly, the buzzing of people, famously in one case, on horseback:  no impact.

FRENCH CJ:   Of course, the range of things that might be an impact I suppose has to be looked at in conjunction with the definition of the meaning “in flight”.  It is not just when it is, you know ‑ ‑ ‑

MR WALKER:   Now, “in flight” for a powered aircraft starts in the usual case well after everyone has been locked into the aircraft and it is rolling along the tarmac.

FRENCH CJ:  

from the moment when power is applied for the purpose of take‑off ‑ ‑ ‑

MR WALKER:   Yes, “power is applied for the purpose of take‑off.”

FRENCH CJ:   Yes.

MR WALKER:   Of course, that will not apply as you taxi out to the beginning of your run.  So you are not in flight when you are in that interminable – out to Botany Bay, but you are in flight when it turns round, you feel the rush, the noise, and off it goes; you are then in flight, although, notoriously, you may never actually get aloft, and in any event it takes some time.  You do not cease to be in flight until you have finished your landing.

That may be of some significance, because a phrase that we have not made a lot of, except by reference to geographical considerations in our written submissions, does deserve more attention than we gave it.  That is in the first line of subsection (1) “on, in or under land or water”.  It is a curious phrase because literally, bearing mind this is a statute which is, as section 9 says, an Australian statute, not just in its inception but in its intended territorial effect, it is a curious expression because the only other class of person who is not “on, in or under land or water” will of course be those who are aloft.  Those who are aloft are, in a somewhat overlapping fashion, dealt with separately by the civil liability regime imposed by the Civil Aviation (Carriers’ Liability) Act; for example, see section 28 of that statute. 

FRENCH CJ:   That would cover things such as a collision between two aircraft.

MR WALKER:   Yes.  Now, a collision between two aircraft is also dealt with by this statute so as to render all the operators, et cetera, liable for the impacts and injury, loss, et cetera, caused by them.  The “on, in or under land or water” can scarcely be read as meaning, as it were, everybody sublunary or terrestrial except those who are aloft.  That would be a very odd way to have described the matter. 

In our submission, as we have put in our written submissions by way of a geographical description or link required full responsibility and damages under section 11, “on, in or under land or water” as a description applying to a person who has suffered injury, et cetera, by reason of an impact is describing a location relevant to the purposes of compensating for injury, et cetera, caused by one of the stipulated impacts or something which is the result of one of those impacts.  That would mean, to put it in shorthand, that the land or water has to be relevant to the claimed injury or loss.  Obviously the sight of an impact, that is the actual sight of that impact, will be par excellence such land or water, but so will be any vicinity relevant to the suffering of the injury or loss. 

This case provides the possibility, were the facts different, of quite a remote location being relevant because this is a case concerning the potential interruption of an electrical circuit by an aircraft impacting with a conductor and, by definition, an electrical circuit, of course, is such that injury or loss caused by its unintended and sudden interruption might be felt, might manifest itself in distance quite remote from the actual impact with the aircraft.  It is in the nature of an electrical circuit.  It does not apply in this case.  Mr Cook was 21½ kilometres away in Moree, but having no connection literally or figuratively with the electrical circuit in question so far as the causation of his injury, when the impact occurred.

So, we have this qualifying phrase “on, in or under land or water”.  We say that there is a geographical limitation, as we put it in our written submission, which does not obviously include those who are brought to the scene by reason of the impact, not least to rectify or repair the state of affairs brought about by the impact, and who then, without any contribution to their decision or actions by the person who caused the impact whose aircraft ‑ ‑ ‑

GUMMOW J:   The question is at what time does the person have to be in or on the land, is it not?

MR WALKER:   Yes.

GUMMOW J:   You say at the time of the impact.  Is that right?  Is that what you say?

MR WALKER:   I do.  That does not mean that the loss, injury, et cetera, must be instantaneous.  That would be absurd.  That would not be remedial, for a start.  But the location on, in or under land or water, in our submission, means you must be relevantly located for the linking of the impact and the suffering of the injury or loss of life, et cetera, et cetera.

CRENNAN J:   It is just for the suffering of the injury, is it not, that the person has got to be on, in or under the land?

MR WALKER:   But, in our submission, it links the impact and the injury, et cetera.  Otherwise, why would one have “on, in or under land or water”?  That is our natural state.  If land includes, as it must, improvements to land, so this would apply to somebody 65 storeys up in a building hit by an aeroplane, it applies to everyone who is not themselves aloft in some aircraft.

GUMMOW J:   Because if they are in some other aircraft it is governed by other statutes?

MR WALKER:   Yes, if they are in some other aircraft.  Although the schemes are not exactly complementary, they do not dovetail neatly, there is some overlap and there may be some gap, we draw to attention that this clearly leaves out those who are aloft in the sense of being in an aircraft, powered or unpowered.  Otherwise it describes everyone on earth.

FRENCH CJ:   The impacts contemplated by (a), (b) and (c) – if I read your submissions correctly at paragraph 52 – you are not suggesting that that is confined to an impact between the aircraft or part of the aircraft and the person injured?

MR WALKER:   Perish the thought.  No, that would be an absurdly narrow reading.  It would not even be textual because whatever the words “caused by” mean, it must include the injury that is suffered by somebody who is not actually hit by an aircraft but, for example, who suffers deafness from the explosion or whatever.  But it still must answer the description in a statute – not at common law – of an injury, et cetera, caused by an impact.

As you have seen in our written submissions, we accept that if paragraph (d) did not exist it would be an open question and, given remedial legislation, it might well be answered against us as to whether you could possibly read that as reproducing Article 1 of the Rome Convention in its insistence on a direct consequence only.  We accept that.

When one thinks that there are concepts jammed into a very few words at the beginning of subsection (1) – if you have “person or property” and if you have them all suffering “personal injury, loss of life, material loss, damage or destruction” that has to be teased out because some of those consequences are not applicable, obviously, to a person or to property and then you have the words “caused by”, unfortunately, for an argument that says that that is enough to bring within the net anything which can be, as a matter of narrative, traced as a consequence of an impact.  There is then paragraph (d).

Paragraph (d), in our submission, serves immediately the purpose of preventing “caused by” as it applies to (a), (b) and (c), including all those things which are a result of an impact, that is, consequences with multistage narrative description necessary to trace between the impact and the consequence for which damages are claimed.  That must be so because were it otherwise (d) would be completely unnecessary, would be doing no work, would add nothing.  Yet plainly (d), in a list (a), (b), (c) and then (d), is intended to add something.

So that tells us and, in our submission, very strongly so in such a way as to now render quite unhelpful resort to common law concepts.  That tells us that “caused by” was not intended to be broad enough to achieve the effect of paragraph (d), without the addition of paragraph (d).

FRENCH CJ:   You cannot read it as one would read “by” in section 82 of the Trade Practices Act, for example.

MR WALKER:   Quite so.  So then we come to paragraph (d).  Now, not unnaturally our learned friends, bearing in mind that when you come to paragraph (d) you see the words “caused” and “result”, if not in immediate proximity, certainly used in the same expression, not unnaturally they have gone to this Court’s decision in Allianz v GSF 221 CLR 568. Our learned friends have relied, in particular, upon some observations by Justice McHugh and I would simply indicate in particular those at page 581, paragraphs 38 and 39. We, with great respect, submit that there are observations in the plurality reasons of Justices Gummow, Hayne and Heydon, particularly in the passage commencing at page 592 and going over to 596, which, if any assistance is to be gained from this interpretation of a quite different statute, is the better place to go.

It suffices to say, in our submission; paragraphs 93 and 94 on page 596 rather suggest that perceiving differences between result and cause is not a particularly safe way to go.  However, perhaps the most germane observation there is not really a serious argument, but I cannot resist it.  Your Honours there referred to the definition “telescoping” some criteria “into a grammatical contortion.”  The same is plainly true of section 10(1).  You have:

a person or property on, in or under land or water suffers personal injury, loss of life, material loss, damage or destruction –

So a mixture of consequences, some peculiar to persons, some peculiar to property –

caused by:

(d)something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c).

Now, we refer to Allianz v GSF gingerly because, in our ‑ ‑ ‑

GUMMOW J:   What was the issue in that case?

MR WALKER:   The issue in that case was whether the intended limitation – this was one of the iterations of what I will call a not particularly generous state in relation to common law rights, as they have been called politically, to recover damages for personal injuries in relation particularly to motor vehicle accidents.  On page 592 of the report you will see the definition, the critical definition, of “injury” which your Honours were construing in that case.  There was the repetition of words in the following fashion, if I just read the material words set out in paragraph 78, “injury” means injury “caused by the fault of the owner”, et cetera:

in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during –

(i), (ii), (iii), (iv) and (iv) was the one in question in that case –

such use or operation by a defect in the vehicle. 

The syntax is very awkward.  No wonder contortion struck your Honours as an appropriate ‑ ‑ ‑

FRENCH CJ:   This is a different construction, is it not?  This is a subset of causes, designated results, and so it is different from the cumulative.

MR WALKER:   Absolutely.  We refer to it very gingerly only.  Our learned friends drew attention to what Justice McHugh said about result and cause apparently in those paragraphs by reference to what I will call “ordinary English”.  We, with great respect, urge that the preferred approach, if one has to look at ordinary English and if there is any such thing as that being devoid of its context, to the paragraphs 93 and 94 of the plurality reasons.  In our submission, as a matter of ordinary English, without context to indicate it, it is very difficult to see why the words “cause” or “result” would indicate a different kind of relation between one event and another, an impact and an outcome.

HEYDON J:   So is your argument that (d) would mean the same if it said something that is caused by an impact of the kind mentioned?

MR WALKER:   Your Honour, I fear that is so.

HEYDON J:   So result neither narrows nor widens.

MR WALKER:   Exactly.  In our submission, Allianz v GSF cannot seriously be said to be authority for that, but it is an illustration that those words “result” and “cause” do not, unless context makes it clear, drive some difference in terms of the requisite closeness or proximity of nexus between, in this case, impact and outcome.

FRENCH CJ:   Does not this conjunction suggest a causal change?

MR WALKER:   Yes, it does, and what it is saying is it is one remove, more or less, added by (d) but not an unending sequence.

CRENNAN J:   The word “something” is very important when you are cogitating about the difference in meaning between cause or result.

MR WALKER:   It is.

CRENNAN J:   Because there is no debate between the parties here that the impact in (d) on the facts of this case is the impact of the aircraft with the conductor.

MR WALKER:   No question at all.

CRENNAN J:   No question at all about that.  And what the trial judge finds is that the something there is the dislodgement of the conductor.

MR WALKER:   In our submission, that is not a something.  The dislodgement of conductor did not cause Mr Cook to approach too close to it in other than the true but trivial sense that we see parallelled in common law reasoning in the passage quoted from Sir Anthony Mason in March v Stramare by Justice Campbell which, as your Honours appreciate, is itself a quotation by Sir Anthony from Hart and Honoré in a passage which itself is a ‑ ‑ ‑

FRENCH CJ:   But this gets us into the factual situation where there is a break in the causal chain rather than the constructional question, does it not?

MR WALKER:   Yes.  And you ask the question, did the dislodging of the wire cause him to be injured and the answer is no, unless you mean that it was the occasion which by dint of his occupation, training and position brought him in general terms to the scene.

CRENNAN J:   Perhaps the something is not the dislodgement but actually the dislodged conductor.

MR WALKER:   The something has not been, in the Court of Appeal’s reasons, we think identified any more precisely than one finds suggested or implied in paragraph 141 at pages 642 to 643.  Though it is not said plainly beyond any doubt we think a fair reading of paragraph 141 is that his Honour was struck by the obvious danger of the situation that our aircraft’s impact with the conductor had brought about.  But whether our aircraft had brought it about or whether storm or some deterioration of a structure had brought it about, the risk presented by a live conductor to a man whose job it is to deal with that danger, that is ‑ ‑ ‑

CRENNAN J:   The impact dislodged it, did it not?

MR WALKER:   Yes, the impact dislodged it.  What I am saying is being dislodged by an impact makes it no more dangerous than if storm had dislodged it or the deterioration of some pylon had dislodged it.

GUMMOW J:   What is happening there, I think, in line 4 on paragraph 141 is that this notion of impact – the something has been treated as the creation of the risk. 

MR WALKER:   I think so.  It is not said plainly, but I think ‑ ‑ ‑

GUMMOW J:   What is wrong with that?  Why cannot the something be the creation of a risk?

MR WALKER:   Something can be a state of affairs and a state of affairs can be either generally and comprehensively expressed or quite precisely expressed.  In this case, for example, whether it is general or specific, the fact of the conductor being live is the essence of the danger, its being live that is essence of the danger.  We certainly did not bring about it being live but we absolutely clearly brought about the danger of it being live by reason of the dislodgement, that is, its close proximity to a person who either was, or brings himself within the zone of danger from an arc.  The kind of impact that we unquestionably brought about, and the danger resulting from that unquestionably, would plainly make us liable in damages under section 11 because of section 10(1)(d) if, for example, there were workers, as there might have been, in the cotton field who, before they could reasonably locate where the wire was, strayed within the danger zone, without any doubt whatever.

HEYDON J:   This is not an argument for some sort of 100 per cent contributory negligence breaking the chain of causation ‑ ‑ ‑

MR WALKER:   No, contributory negligence is not an issue in any shape or form before this Court for two reasons.  It is not available under the statute and if special leave is granted for the cross‑appeal, and if the cross‑appeal were successful it would still leave the question of contributory negligence which was argued but not decided in the Court of Appeal to be determined.

HEYDON J:   If the workers in the field could recover when a plane knocks the wire and the wire injures them, what does it matter that the plaintiff was 21½ kilometres away at that very point of time?

MR WALKER:   All that we have done by dislodging the wire is to bring about the situation where he is the expert called in to repair or rectify the situation ‑ ‑ ‑

HEYDON J:   What is the difference between an inexpert agricultural worker and an expert ‑ ‑ ‑

MR WALKER:   Yes, there is, there is certainly a difference at ‑ ‑ ‑

HEYDON J:   Is this not a sort of causation chain broken by a risk which the plaintiff should have grappled with better than he did?

MR WALKER:   Not quite, your Honour.  At the danger of straying into the cross‑appeal could I observe first that it is not only with causation but it is also very much with duty, scope or content of duty, and breach that one may distinguish between those who are expert and those who are not.  The common law in negligence cases has done that repeatedly, not least because there are dangerous situations that some plaintiffs make a living out of dealing with; that is their stock‑in‑trade.  Indeed, though he is not an entrepreneur that is what Mr Cook’s job is.  He is a linesman, dealing with such things.

GUMMOW J:   Contributory negligence is a purely statutory idea.

HEYDON J:   Unless it is 100 per cent.

MR WALKER:   Well, I think, with great respect, Justice Heydon was thinking also in terms of - at common law it is ‑ ‑ ‑

GUMMOW J:   But it is 100 per cent, but the modification of the 100 per cent is a statutory creature.

MR WALKER:   Yes, 100 per cent effect.

GUMMOW J:   Yes.  Here the fact that there is no accommodation at all to notions of contributory negligence ‑ ‑ ‑

MR WALKER:   No, there is none.

GUMMOW J:   ‑ ‑ ‑ may favour a fairly close interpretation of this statute.

MR WALKER:   We put such an argument with single lack of success below.  It is at most a background factor.  At the end of the day this is to facilitate recovery, it is remedial legislation, it is strict liability, and no quibbles are necessary about whether it is or not, there is a good description of it, both politically and legally.  We would need to be careful about placing too much weight on the fact that there is no contributory negligence answer available.  Rather, we say, all the more reason to pay close regard to the certain kinds of injury, loss, et cetera, to use section 3’s expression, specified in the definition section, subsection 10(1), to be the subject of strict liability as if caused by negligence, et cetera, as in section 11.

FRENCH CJ:   As if caused also by an intentional tort.

MR WALKER:   Yes, so it is Wilkinson v Downton, Donoghue v Stevenson ‑ ‑ ‑

FRENCH CJ:   It is equated to the measure of, I think, intention – although the heading says “Recovery of damages without proof of intention” it goes further than that, it deems it to be an intentional tort, does it not, in 11?

MR WALKER:   Yes, this is the only case we know on this point, on this provision, but no doubt there are future arguments that might be had that I am neither prepared nor, as it were, willing to go into any more about whether there might be differences of scope of damages, an award of damages, depending upon whether it is, for example, trespass or negligence, for example.  Mercifully, we do not have to go into that.  You see the word “default” is there, used as well.

FRENCH CJ:   It may put to one side notions of contributory negligence.

MR WALKER:   Yes, we accept that contributory negligence as such – and I stress as such – either in its common law form or in some phantom way a statutory form, which can now oddly embrace 100 per cent, we accept that it plays no part in the operation of this scheme.

As Justice Gummow points out, well, that is something to appreciate when, as we put it, the closeness of the nexus required by section 10 is under consideration, particularly for paragraph (d).  Can I go back to something that Justice Crennan raised, another reason why the “something” is important that starts paragraph (d) is this.  It is not a series of things, it is not a narrative of intermediate events.  It is something.

I have already said we accept that can be described as a state of affairs but it rather suggests as a matter of language that you are looking at just one interposed stage of sequential reasoning between the impact and injury, et cetera.  That, in our submission, makes good sense, bearing in mind where we started in construing this as a matter of its internal context.  The internal context already told us that for (d) to be useful and to add something, which it manifestly ought to be read as doing, then “caused by” ought not to include frankly multistage narrative to link the impact with the outcome.

If we are right in that then we submit the word “something” – singular “something” – singular, a result of an impact, rather indicates that we are talking in general or crude terms of a two‑stage rather than one‑stage nexus between the impact and the outcome and that, in our submission, would vindicate those who no doubt on advice described what they were proposing to the Houses as being a minor adjustment of the scheme.

That expression “minor adjustment” was used, as your Honours will recall, by reference to the impact on insurance arrangements not just in the abstract.  That, in turn, rather suggests that correctly it is seen that by this entirely different route the specification of causal connections in (a), (b), (c) or (d) of section 10(1) there has been something approaching a simulacrum of the direct consequence requirement of Article 1 the Rome Convention produced with the all important addition – a very important addition – of paragraph (d).  But is not much of an addition because it simply allows one more stage.

The example given in the speeches that was drawn to attention in our written submission is a very obvious one and it came from the Amsterdam experience and it has come from other aviation accidents in the past.  The fire caused by the impact, the impact ruptures the fuel tanks, the fuel tanks ignite, the ignited fuel and bits of the aircraft burn structures around about them, the plaintiff is killed or injured by her house being burnt down or the plaintiff suffers material loss because her factory is destroyed.

HEYDON J:   Or a fire fighter is killed while fighting the fire?

MR WALKER:   Yes.  That then brings us to what might be called the emergency services question.

GUMMOW J:   Before you get to that, just looking at section 11, the pushing together of various ideas in this Act may have significance, may it, for the measure of damages?

MR WALKER:   It might.

GUMMOW J:   Is the measure of damages in any way connected to the presence of intention or mere negligence?

MR WALKER:   I think they have been pushed together so effectively, or so thoroughly, that, in effect, you can get any damages that you could have got under Wilkinson v Downton or trespass.

GUMMOW J:   The measure could be quite different.

MR WALKER:   It could be.  I think the expression, though, is to ensure that no one gets short changed by being told, “Well, yours is really a negligence case, not an intentional infliction of hurt case”.  I think that is what it means, your Honour, as if the injury, loss, damage or destruction had been caused by, and then you have a list which has “or” in it.

GUMMOW J:   Yes.

MR WALKER:   So even in a case which at worst against the defendant could be said to be unintentional negligence, the damage that may be recovered is that which could be recovered as if it had been an intentional tort, which presumably would be a crime as well.  We think that is why those questions – they certainly do not arise in this case, they may never arise ‑ ‑ ‑

FRENCH CJ:   It does not pull in punitive damages.

MR WALKER:   Your Honour raises something there which is clearly left open, because the word “compensation” does not appear.

GUMMOW J:   That is right.

MR WALKER:   It is damages being recoverable.  So it could well be that some foolish joy flight operator may find themselves having recovered against them damages for exemplary damages.  It may.  I really must seek to address Justice Heydon’s question.  The fireman is somebody who cannot readily be – and absolutely no policy reason can easily be seen at all – excluded from 10(1)(d).  On the other hand, each factual case will nonetheless need to answer the description. 

Not every injury that a fireman incurs as a result of – I should not say “as a result of”, that is a statutory word.  Not every injury that a fireman incurs in the course of fighting a fire, which is plainly something that may result from an impact of an aeroplane with the ground, will necessarily be within (d).  It will depend upon how the injury comes about.  With a fireman fighting the fire one would suppose that it will be relatively straightforward in practically every case to say that the injury has been caused by the fire, that is, the something that is a result of an impact.  The fact that the fireman is literally and legally a volunteer will be no sensible answer to the liability. 

However, we obviously then have to confront the question, well, what is the difference in principle and for the purposes of applying the statutory words between the fireman and the linesman, Mr Cook?  That brings us into an area where my arguments are also relevant in relation to and in answer to the proposed cross‑appeal.  In answering the question for the purposes of our appeal we would put it this way. 

There is the world of difference between a rescuer who is answering the call of either nature or society to save another person and, on some of the authorities, property as well from peril, on the one hand, and on the other hand, a person who comes to a scene of evident danger precisely because the danger is evident and because of their skills, experience and position, occupation, in order to repair or rectify that dangerous position where there is no peril to another person or, for that matter, to property requiring the risks to be undertaken in order to answer the calls of nature or social duty.

FRENCH CJ:   There was an element of keeping members of the public away, was there not, while the isolation occurred?

MR WALKER:   Yes.  And unquestionably, if in the course of doing that – and subject to reasonableness that I would not wish to argue against – if in the course of doing that someone in Mr Cook’s position had, as it were, to imagine, strayed backwards, seen someone coming into the paddock, taken a step back to say, “Hey, you, please get back, this is dangerous”, on this ghastly ground tripped over, fallen back, hand‑cycled through the air, comes within the dangerous distance, we would not be putting these arguments.  But, in our submission, he was not doing anything of the kind.  He was not keeping people out of peril.  He was not trying to preserve property in a situation, for example, where if you do not preserve property other people’s lives may be at risk, such as a fire.

CRENNAN J:   He might have had a concern not to interrupt power unnecessarily when you think of power, for example, in the context of hospitals and so on?

MR WALKER:   Yes.  We do not have anything quite so poignant as hospitals with any great detail in this case, but the example, with great respect, is a good one because it is clear from the facts that the decision not to do it remotely, not to turn it off remotely by a telephone call to Port Macquarie, but rather manually by going back up the road to the link, which takes more time, was in order to limit the number of subscribers whose supply would be interrupted during the repair, yes. 

Now, that, however, is a world away from rescue.  Or to put it another way, no rescue case has ever come anywhere near embracing that kind of expedient cost benefit calculation as being akin to the person undertaking a risk, by impulse or by deliberation, it does not matter, undertaking a risk in order to save another from evident peril; and another may include, as I say, property.

BELL J:   Coming back to the firemen attending the scene of a fire caused by an impact with an aircraft, the scene of the fire being some distance from the fire station, as I understand it, you accept that the firemen nonetheless would come within (1)(d)?

MR WALKER:   So long as the way he was injured ‑ ‑ ‑

BELL J:   Yes, accepting that.  The matter that I am taking up with you is this ‑ ‑ ‑

MR WALKER:   The traffic accident on the way to the fire might present a difficulty.  One would like to think as it were, because of proper sentimental attachment to firemen, one would like to think that in most such cases it would be covered.  But there comes a point when you have got ask, was this injury, using the statutory language, caused by the fire that resulted from the impact?

BELL J:   Yes.  The matter I am taking up with you really is, earlier you had put some emphasis on the significance of the “on, in or under land or water” and that really seems to lose something of its strength, given this concession.

MR WALKER:   Relevantly you will be on, in or under land or water if you are brought to the scene to answer the cause of a fire.  It does not matter how far you come, I guess, is what I am saying.  Say, for example, if an aircraft impact brought about the ignition of the natural gas or oil facility and, as is notorious, people have flown from the other side of the globe to attend, I do not say that on, in or under land or water would have the good Samaritan foreigner sent away with no compensation.  That would be because he or she would relevantly be on, in or under land for the kind of injury suffered.

If one looks at all of these phrases from the point of view of the purpose to be served by this scheme – one notes in section 3 it is to facilitate recovery.  One sees the comprehensiveness of that in section 11.  One sees, if it is worth looking at it, the extrinsic material treats as negligible the case of people on the ground contributing by their own negligence to such injuries.  It is raised and put to one side as of no real moment – then we accept that this phrase “on, in or under land or water” can, indeed, adjust as broadly as the injury in question, given its causation by the impact in question, will require.

That is why, for example, with an electrical circuit it might be 21½ kilometres away that a fireball effect causes injury as a result of the impact and we would not for a moment suggest that there is anything irrelevant then about that location.  And I stress, we thought that we had rather underdone that phrase in our written submissions and in the argument below for which I apologise.  It is a puzzling expression because on one view all it does is leave out those aloft.  It is an odd way to have done that.

GUMMOW J:   Well, what is wrong with that construction?  That is what it is designed to do, because there is another regime for people who are aloft.

MR WALKER:   Except the regimes do not otherwise speak to each other, they do not completely neatly dovetail and there is surely an easier and more ‑ ‑ ‑

GUMMOW J:   The existence of another regime is not discussed in the materials, is it?

MR WALKER:   Yes.  There is surely a more explicit way of dealing with it, namely, by saying other than those in an aircraft in flight.  But I am bound to say, in answer to Justice Gummow, that it is clearly one reading of “on, in or under land or water” is an extremely roundabout crabwise way of saying as long as you are not in an aircraft in flight.  Well, even then the dovetailing does not quite work because in flight is defined in such a way that you probably would be on land before you take off, as a matter of the ordinary English.

FRENCH CJ:   Just to come back for a moment to what Mr Cook was doing.  He remained on site while Mr Buddee went off to do the isolation job seven kilometres down the road and he remained on site to warn off members of the public who might approach and also decided while waiting to track the extent of the dislodgement so he could assess how much repair was going to be necessary and it was in the coarse of that that he breached the safety zone.

MR WALKER:   Yes.  He did more than breach the safety zone, and I do not say this by way of a criticism of him, this is an explanation of the fact.

FRENCH CJ:   Well, he was found to have been contributorily negligent in terms of this.

MR WALKER:   We have drawn to attention the way in which the trial judge referred to the circumstances in volume 2 of the appeal book, page 560, paragraph 58.  The reference that his Honour makes in that passage is to the evidence that you will find at volume 2 of the appeal book, page 483.  If I could take you to 483 ‑ ‑ ‑

FRENCH CJ:   This is Mr Mackay’s statement.

MR WALKER:   Yes, where the other NorthPower worker, Mr Buddee:

saying to the injured person cookie why didn’t you wait you said you going to wait.  He said this a number of times.

Now, that is the evidence that gives rise to what in both courts below is referred to the agreement or arrangement that Mr Cook would not approach, would wait to approach.  There is – and this I think picks up a matter that Justice Crennan raised with me – in fact little or no evidence and certainly no finding of fact that there was anything in the nature of a necessity, reasonable or otherwise, for Mr Cook to have approached, as he did, while it was live. 

That is in contradistinction from what might otherwise have happened with a quite different outcome for our liability if, for example, there were workers that he was trying to martial away from the dangerous scene. 

Your Honours, may I conclude by going first of all back to the passages where I located error in particular, pages 642 and 643 of volume 2 of the appeal book.  In paragraph 139 on page 642, may I simply note that the reference to section 11, the “as if” phrase to which I have taken your Honours, is an inappropriate one, we submit, for Justice Campbell to have called in aid to introduce common law notions of causation.  Rather, in our submission, the “as if” phrase takes as a given causation and does not import the causal requirements of the various causes of action which are listed, causes of action which rather turn into the Macquarie Marshes because there is the word “default” used at all, an insurance word.  Causation is just to be taken as given.  Why is it taken as given, because it has been dealt with comprehensively by a self‑contained code in section 10(1).  In paragraph 140 Justice Campbell, with great respect, recognises the difficulty of a claim where, to quote the second sentence:

It was the impact that created the situation that caused Mr Cook to be there at all.

We say yes, that really is the essence of it and that is not good enough for the reasons that Sir Anthony identifies.  In paragraph 141 I have already referred to certain matters.  On page 643 at about line 10 of that page, our argument does not require Mr Cook to be made the “sole author of his own misfortune”, whatever it means to be “sole author”.  All we need to do is to succeed in saying that there was not a something that his injuries were a result of which was caused by the impact because it does not – the something cannot include his decision to approach too close, contrary to his training and also, most particularly, contrary to the ad hoc arrangement he had with his colleague.  That cannot be said to have been caused by the impact.  It might be quite different if there were the press of emergency exemplified by the real rescue cases, but that is not this case.  This is a repair or rectification case where it was not necessary ever to undertake the risk of doing so live.  The two gentlemen had already decided they could not be doing anything while it was live.  It had to be rendered safe.

At page 668, paragraphs 209, 210, 211, we draw to attention, notwithstanding they are in the course of his Honour’s reasoning, being the reasons of the Court of Appeal, in upholding the appeal by the employer against the judgment in favour of Mr Cook, and I will not read them.  In our submission, the findings which are made particularly in paragraphs 209 and 210, and of course there is no appeal against either that appeal outcome or the reasons for it in this Court, they are findings that you will see relied upon by us in our written submission and they very powerfully make good factually the proposition that what caused his injury, or his injury was the result of, a state of affairs that must embrace his decision notwithstanding his knowledge and training referred to in those paragraphs and the arrangement made with Mr Buddee. 

As soon as the something, being the state of affairs of which his injury was a result, embraces that aspect of the matter, then it can no longer be said to have been caused by the impact.

HEYDON J:   That is 100 per cent contributory negligence treated as causation, is it not?

MR WALKER:   It is.

HEYDON J:   Which is a bit of a change from what you said half an hour ago, I think.

MR WALKER:   No.  Contributory negligence has nothing to do with the statutory question.  I was about say that is because ‑ ‑ ‑

HEYDON J:   I withdraw that.  You are saying that the author of Mr Cook’s injury was Mr Cook and no one else?

MR WALKER:   On the facts of this case, yes, but that is not the way I have put it.  What I have said is, it cannot be said that the impact caused that from which his injuries resulted which is a state of affairs, including his decision.  Now, true it is that that is a description of facts in terms of conclusion which will be very similar, perhaps identical, to that which would be made for a contributory negligence plea, but it is not a contributory negligence plea.

It is not accidental that contributory negligence and causation converge in this fashion because at common law contributory negligence was an answer because it delivered an answer to causation different from what the law required for the plaintiff to succeed.  It defeated the demonstration of causation.

HEYDON J:   This means that apart from the other sentences in paragraphs 140 and 141 that you complain about, you would complain about the top of page 643 of Justice Campbell’s reasons for judgment?

MR WALKER:   Yes.  We do not have to say he is the sole author.  It may be that he is, depending upon – it is a time‑honoured but not very helpful expression.

HEYDON J:   If he is not the sole author, who is the joint author?

MR WALKER:   Your Honour, that raises the question of the relevance of those who brought about necessary conditions.  Now, necessary conditions will include, obviously, us, but they also include, for example, his employer who put the wire up in that place and you can go on and multiply reductio ad absurdum of those.  The sole author is, we submit, an expression used by way of conclusion rather than reasoning to a conclusion.  It is not a very useful expression.  It is, in our submission, still infected by older thinking dominated by contributory negligence or dominated, in particular, by an approach to causation that looked for something to be a sole or predominant cause.

We did not argue – this is a straw man – that he was sole author, although I am happy to embrace the proposition that the arguments we put below and put here could produce that rather unhelpful description by way of conclusion.  It was he who decided to undertake the risk that caused his injury.  Yes, of course, we created the danger which made it a risk.  Of course we did that.  But then the same is true of his employer.  It was a live conductor which was apt to be dislodged whether by storm or aircraft. 

Our submission is that without any need to use the language of contributory negligence, one looks at the statutory language and says, well, you cannot say that was caused by the impact, and so you do not have the “something” referred to in paragraph (d) answering the description the statute requires in order for section 11 strict and unlimited liability to be imposed.

GUMMOW J:   Mr Walker, are there State to statutory regimes still in existence?

MR WALKER:   Yes, there are.  They are, yes.

GUMMOW J:   They survive, despite the wide scope of the new federal Act?

MR WALKER: They do not survive unaffected. I have not done the analysis under section 109.

CRENNAN J:   I think one of them, South Australia, for example, adopts the federal Act.

MR WALKER:   That would be a very welcome action by South Australia to national uniformity, yes, your Honour.  The New South Wales one is different.  I think it is more or less a dead letter as to most of ‑ ‑ ‑

FRENCH CJ:   What protection is there against double recovery, given that they are statutory causes of action?

MR WALKER:   There is none in this statute.

GUMMOW J:   It is assumed that there can be recovery at common law, is it not?

MR WALKER:   By section 11?

GUMMOW J:   The federal Act seems to assume the concurrent common law availability, does it, or is it covering that field as well?

MR WALKER:   It could be.  That has never been investigated.  We have not found any case where people invoked both Commonwealth and State legislation.

GUMMOW J:   But they can invoke the statute and the common law, can they?

MR WALKER:   Unless the statute is to be read so as to exclude common law.  Quite so.  There is no language that excludes common law.  We take no point in the proposed cross-appeal that there is no common law case available to be pleaded against us.

GUMMOW J:   The common law, at least in negligence, would have the apportionment problem.

MR WALKER:   Yes, there is an issue about contributory negligence and there would be a contribution issue had there been another tortfeasor, but there is not.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.  Yes, Mr Menzies.

MR MENZIES:   If your Honours please, once my learned friend concedes the fireman example and concedes the temporal and physical distant connection example then we have to confess, with respect, it is very difficult then to separate out the particular circumstances that are presented by Mr Cook’s case and identify any relevant difference.  My learned friend concedes that if a fireman came along and was injured in the course of fighting a fire caused by something that was a result of an impact then the fireman would be covered and one must ask the question then:  why not Mr Cook who comes along for the purpose of remedying the dangerous circumstances created by the aircraft?

CRENNAN J:   Mr Menzies, what do you say the something is on the facts of this case?

MR MENZIES:   We say the something, as the trial judge found, was the conductor being dislodged from the line and being placed then in a dangerous condition, 1.5 metres at its lowest point above the ground.  If that is so then the application of the statute, in our respectful submission, is perfectly simple – that is, the section applies if a person on land suffers personal injury caused by something that is a result – and that is important, not the result – but a result of an impact with an aircraft that is in flight.  The something that was a result of an impact with an aircraft in flight was the conductor becoming ‑ ‑ ‑

GUMMOW J:   That is not quite what Justice Campbell said, is it?  He spoke in terms of risk at paragraph 141.  I think his Honour is treating the something as the creation of a risk.

MR MENZIES:   Your Honour, for our purposes, if the creation of the risk is something then it makes no difference to the outcome; the result is the same.  We would say that under those circumstances, that being so, the personal injury that Mr Cook suffered was caused by that.  My learned friend emphasises minor change.  Whatever “minor” means, whatever was meant, whatever the statement was intended to mean, when one considers the changes that were effected, they were significantly more than minor.

First, the statute was specific to deal with unlike the Treaty of Rome, circumstances involving an impact.  Secondly, any contributory negligence defence, which was available under the Treaty of Rome, was removed and thirdly, not only was the quantum of damages increased, but the concept was broadened by the operation of section 11.  Difficult as it may be to completely understand what section 11 means, it certainly seems to convey a much broader concept of what the damage could be. 

Of course, we must proceed upon the assumption that when one is construing a statute as Justice Heydon and Justice Gummow said in Allianz at paragraph 97, one refers to the statutory subject scope and purpose, but one does not – repeating what Chief Justice Gleeson said in I and L Securities – one does not adopt some visceral approach.  This is what we seek to do.  When one turns to look for assistance in the explanatory memorandum and the second reading speech to the matters that my learned friend has referred to, we would simply add these and perhaps give a slightly different emphasis.  At 26 under “Objectives” in the explanatory memorandum:

The objectives of the proposal are to ensure that members of the non‑flying public in Australia, as third parties on the ground, have ready and equal access to adequate compensation where they suffer death or injury or property damage resulting from an air accident.

That also informs, of course, what section 10(1) means when it gives what on one view of it may be an unnecessarily extended definition.  It is simply to make sure that what is being dealt with are third parties on the ground or, indeed, under the ground and in water as well.

Importantly, in the second reading speech – and your Honours find that in the green bundle at page 33 – the Minister opened with the comment in the left‑hand column in the second paragraph:

The purpose of this bill is to improve compensation for members of the public –

At page 34 in the right‑hand column in the third paragraph:

It is intended that compensation will also be as comprehensive as practicable, to cover all economic and non‑economic loss possible.  The person using the aircraft at the time of impact and its owner will be jointly and severally liable -.

and then deals with what is a balance and that is, restricts the liability to impacts and the consequences of impacts and aircraft in flight, dealing with observing that for other circumstances, then the common law is still available.

I will just turn back finally in reference to the extrinsic materials to the reference to clause 10 in the explanatory memorandum itself, page 30.  The legislature plainly contemplated that (d) would have a broadening effect with the last sentence, which can only refer to (d):

This will include damage caused, which is the result of the impact (for example, by fire).

Well, if one deleted the word “fire” and inserted in lieu “a dangerous electrical conductor”, then it would seem plainly contemplated by the statute at the time or by the legislature at the time of the passage of the statute.  My learned friend seemed to be saying ‑ ‑ ‑

FRENCH CJ:   If a plane hits a factory and the factory owner suffers economic loss as a result, as well as, of course, the cost of having to rebuild the factory, does the term “material loss” in 10(1) pick that up or is that something that you have to find in (d)?  I am just wondering about the scope of the consequential losses which are picked up in (a), (b) and (c).

MR MENZIES:   On an initial reading one would have thought that (a), (b) and (c) would pick up consequential losses of some kind.  One has to give (d) some work to do, so either one takes the narrow view that my learned friend would take and say that (a), (b) and (c) are extremely limited, has to be direct, no consequential loss, but there is some consequential loss picked up by (d) but he puts that in terms of one more stage.  Alternatively, the answer to that, of course, is well why logically does one stop at one more stage in any event?  Alternatively, (a), (b) and (c) deal with some degree of consequential loss and (d) takes that consequential loss further.  Either way, for the purposes of Mr Cook’s position, in our respectful submission, he is plainly within the statute and therefore entitled.

Could I now turn and seek to deal with the proposed cross‑appeal?  I do not think there are any further matters that I can assist your Honours with respect to the response of the appeal.  We sought in our application for leave to categorise the cross‑appeal as perhaps an extension of Chapman v Hearse but upon reflection and taking into account my learned friend’s response to it, it seems to us that the correct approach is that we would seek to invoke your Honour’s broader visitorial jurisdiction rather than try to press that there is any other particular special leave point that is available.

HEYDON J:   Your proposition is we came here to talk about section 10, that is very important.

MR MENZIES:   Yes.

HEYDON J:   If you lose on section 10, we are here anyway so why do we not talk about some other method of recovering for a bad injury?  The visitorial aspect is simply whether there is any error in the reasoning of Justice Campbell in not finding a duty of care.

MR MENZIES:   That is right, your Honour.

HEYDON J:   There is no great terrible thing he has done wrong, he has just reached an erroneous conclusion about the duty of care.

MR MENZIES:   Well, of course, your Honour, and if we are wrong about section 10, and that is the only reason that the cross‑appeal is agitated, then Mr Cook is left without a remedy.  So it is obviously a matter of some significance to him, but we do not put it any higher than that.

HEYDON J:   The visitorial jurisdiction is where the medieval bishop descends upon the abbey and discovers a lot of things going wrong, distinct from mere technical errors in finding whether or not there is a duty of care.  Your casting is not so much as visitorial as simply that part of the section in the Judiciary Act which does not involve disputes between different courts and that sort of general public importance.

MR MENZIES:   I was loose with my language when I sought to categorise that which I sought to do, your Honour.

FRENCH CJ:   It is picked up by your words in the interests of justice, I suppose.

MR MENZIES:   That was what I was struggling to think of at the time, your Honour, but it slipped my mind as to how I should properly express it, and we simply say the interests of justice demand it, and that proposition can be very simply put.  Justice Campbell acknowledged that Mr Cook was in that class of people whom one might expect would attend in the event of this particular circumstance.  He acknowledged it was foreseeable that Mr Cook could be inadvertent in his conduct, and indeed the finding of the trial judge was that Mr Cook was indeed inadvertent.

The consequences of those findings, in our respectful submission, were simply applying Chapman v Hearse that thereby a duty existed.  What Justice Campbell did, in our submission erroneously, is having found that Mr Cook was in a particular class of persons contemplated by Chapman v Hearse, having found that his conduct could of inadvertence was certainly reasonably foreseeable, then proceeded to deal with issues which really went either to breach all the content of the duty rather than the existence of the duty.  We simply say that his error was to fail to find a duty and that as a consequence of those matters which he acknowledged, then the finding of a duty was inevitable. 

That raises two further matters and they are these.  If that be so, then what we would seek is not that the matter go back for a new trial but that the outcome be determined here and it can be done for two reasons.  First, there was evidence of negligence upon which breach could be found and, second, certainly vis-à-vis the employer there was a finding of contributory negligence which was not disturbed.  If we are correct that his Honour ought to have found the existence of a duty, there is evidence of breach, and that can be found at volume 2 of the appeal book at page 391.  Page 391 is a message sent to the Aviation Authority from the chief pilot and, relevantly, one sees in the text that the chief pilot had spoken to the pilot after the event and this appears:

The pilot, Tod Stubbs was flying a company owned AT 400 and encountered the wire on about the tenth spray run . . . 
Tod had sp[r]ayed the same field some 5 days previously and was familiar with the hazard and was confident that the hazard was acceptable.

He has been counseled by me as to the need to maintain concentration and height when working under wires.

Mr Tod Stubbs was not called and the trial judge at 555, at line 10 finds breach. 

FRENCH CJ:   He does not define a duty of care in his reasons, does he?

MR MENZIES:   No, and plainly that was a finding that was available to him on the state of the evidence, particularly when Mr Stubbs, who may have been able to provide some other explanation, was not called. 

At 560 the trial judge assessed contributory negligence vis-à-vis Mr Cook and his employer and the negligence lay in Mr Cook allowing himself to get within the prohibited distance, which was a metre, and then – although the evidence was not clear about it – probably stumbled and fell, causing then part of his body to come within 60 millimetres which caused then the electricity to arc.

FRENCH CJ:   How did he deal with the contributory negligence in relation to Aircair, the employer – I am sorry, to the pilot?

MR MENZIES:   To the pilot, he did not.  Our submission is that it would be appropriate to apply the same percentage.  With those two pieces of evidence available and those findings available, in our respectful submission, it is open to this Court to make an ultimate decision consonant with that rather than the matter go back for new trial on those issues.  Those are our submissions, if your Honours please.

FRENCH CJ:   Thank you, Mr Menzies.  Yes, Mr Walker.

MR WALKER:   Your Honours, in New South Wales the Damage by Aircraft Act 1952 remains in force. The extent to which it is invalidated under section 109 of the Constitution might be obscure but ‑ ‑ ‑

GUMMOW J:   How would it apply to the facts of this case, that is what I am agitated about?  Did it have Rome Convention language

MR WALKER:   Not as to direct consequence, no, your Honour.

GUMMOW J:   We can be supplied with a copy of that.

MR WALKER:   Yes.

GUMMOW J:   It is not a long statute, I think.

MR WALKER:   It is a very short statute.  In subsection 2.2, I can flag, of the New South Wales statute there is language that quite plainly was borrowed in part by the drafters of section 11 of our statute and the statute we are looking at.

GUMMOW J:   On this question of March v Stramare, there is a further discussion of what it really stands for in the joint judgment in Andar Transport (2004) 217 CLR 424 at 441 to 443 and paragraphs 38 to 40. What Sir Anthony Mason was concerned with, I think, in March v Stramare was to appreciate the reason for the concern in the past with the identification of a sole cause is linked to the fatal consequences of contributory negligence at common law.

MR WALKER:   Yes.  Neither can you divorce it from consideration of sine qua non as a quality to be attached to certain events, putatively causes.  March v Stramare stands, we submit, for the proposition that it is in many cases, probably not all, but in many cases sine qua non will be what is called in that case, a negative criterion, that is, if you do not have it you are in trouble.

GUMMOW J:   Here one has no operation of contributory negligence.

MR WALKER:   That is right, none at all.

GUMMOW J:   What impact does that have on the sort of ebb and flow of the thought in March v Stramare?

MR WALKER:   It certainly suggests, we respectfully suggest, that because this is a strict liability scheme which is designed to replace – I do not mean drive from the field as being unavailable, I simply mean to provide a remedy as if any imaginable cause of action was available because the injury, et cetera, had been caused by the impact or as a result of an impact.  Because of that, in our submission, it is inappropriate to look beyond the words of the statute for what “cause” and “result” may mean, except to observe that it cannot be right to say that something is a cause because it is a necessary condition.  Too many trivially true things are necessary conditions of outcomes in order for that to be acceptable, so there is that common point with common law reasoning, one would even say with common sense reasoning, but that is as far as it can possibly go.

Then you have this detailed concatenation of possibilities, (a), (b), (c) and (d), and they are, in our submission, striking in the apparent attempt, linguistically, to catalogue or list categories in which there will be this strict liability of recovery.  That looks like it is setting parameters rather than releasing the matter so as to permit quite remote consequences to be the subject of this strict liability.

When one bears in mind that in the case of fault liability, I will call it common law, has not been excluded by this statute, then in our submission, there is no great concern caused by the fact that not all remote consequences are recoverable under the strict liability regime.  They may or may not be at common law, depending on the facts.

GUMMOW J:   Now, the other thing I meant to ask you is there has been a lot of effort put into modernising the Rome Convention in recent years.  Has it produced any replacement, do you know?

MR WALKER:   I am sorry, I do not know the answer to that.

GUMMOW J:   I think it has not.  I think it is still a work in progress.

MR WALKER:   Yes.  I am told by those who would know not yet is the answer.  Your Honours, I should in relation to possible relation with State legislation point out that at the time of the passage of the Bill things were said in the explanatory memorandum and in the second reading speech which might indicate a complacency that States’ legislation continue to operate, and even that there be some variation.  National uniformity was being introduced by the federal Act.  There is no talk of any 109 effect.  There is no talk of anything undesirable at State levels.

An inadequacy at State level – my word, not the Minister’s – is noticed in relation to the States where the common law provided the only remedy, and encouragement was given to South Australia and Queensland to enact legislation not identical but generally similar to the federal legislation.  There is a reference to the States, including New South Wales, as having had legislation, indeed, having legislation which had characteristics which the Commonwealth wished to imitate, so there was no driving from the field we think.

I do not want to take up time with that, but you will find those references in the green bundle, in the explanatory memorandum at page 24, the fourth and sixth paragraphs on that page; at page 25, the fifth or sixth paragraph commencing, “This situation contrasts sharply”; on page 27 in the third full paragraph commencing, “The other legislative option”; and on page 34, from Hansard, on the right‑hand column, second last paragraph, last sentence is a reference.  As I say, they are references which add up to a contentment with the situation of there being State legislation.

On the proposed cross‑appeal, yes, we are here.  I do not want to say anything further than what has already been put in our written submission concerning why this is not an appropriate case for a grant of special leave.  My learned friend has, with respect, with disarming frankness, made my job perhaps more difficult.  He does not say there is any question of principle, let alone any novel or incremental change being sought by his argument. 

However, even in address my learned friend invokes Chapman v Hearse and so it is appropriate for us to emphasise by way of supplementing and noting what we have put in writing on this point that for the reasons I tried to put in answer to a couple of Justice Heydon’s questions, this emphatically is not a rescue case.  It lacks the essential element identified in the classical authorities cited in paragraph 10 of our written submissions of a person, query, perhaps also property, in peril.  The rescue cases emphatically have not gone so far as to say that what I will call emergency services are by dint of being emergency services immediately within the ambit of that principle.

Now, it is a principle that is designed to embrace what would otherwise be, in the language of the older cases, the disappointment of the expectations in a rational system of law involved in rejecting a case because somebody impulsively or deliberately dashes in to save another’s life in a situation brought about by the defendant’s negligence.  It is brought about because that would otherwise be, naturally, a novus actus interveniens and, furthermore, talk of duty imposed on the injured actor is one which can lead into grave difficulties, bearing in mind that in most such cases no one could ever complain if he or she did not, certainly at law.  But there are difficulties. 

Once one removes that peril to another as being the reason for the intervention which would otherwise break a chain of causation, not breaking the chain of causation in the rescue cases, there are real difficulties in expanding it to what we have called repair or rectification cases.  Yes, the danger has been produced by the negligent act ex hypothesi of the defendant.  It is precisely because it is dangerous – and in this case we have drawn to attention the statutory regime, which means that NorthPower has powers and duties in relation to its apparatus.  People cannot just come in and deal with these dangerous conductors – and it is precisely because we created the danger that steps were taken, by way of notification and organisation of NorthPower’s workforce and their training, to come out and attend to the position.

One can immediately see that questions would be raised as to is there to be a distinction between people in the public service who perform those dangerous tasks and people who are in private enterprise performing such dangerous tasks, and there are many people in private enterprise – electricians are the obvious one, plumbers as well, dealing with electricity, dealing with inflammable gas, brought in precisely because a householder has negligently ignored the check before you dig, for example, or done handyman tasks which demonstrate the need for a skilled workforce. 

So the householder by negligence brings about a highly dangerous situation as the law in terms of statutory regulation of dealing with those dangerous substance requires, does not set about trying to ameliorate the danger himself or herself, seeks the skilled person whose living comprises deploying their training, and presumably their understanding of risks, in order to deal with such dangers.  Now, if it is the case where the householder then proceeds negligently as it were to conceal or mislead about the nature of the danger well, that is another case altogether. 

But where, as in this case, the nature of the danger is obvious, and that is the word used by Justice Campbell in paragraphs 209 and 210, where the very occupation and training of the plaintiff is to deal with the very kind of situation in question, the danger created whether by nature or by mankind, in our submission, it is very clear this has nothing to do with a rescue case and it lines up rather with the authorities that Justice Campbell discussed, with respect, unimpeachably in the passage of reasons starting at page 619 of volume 2 and ending at page 629. 

Now, the criticisms advanced in writing by our learned friends are, in our submission, all, with respect, anticipated and thus met entirely by the judge himself.  As we have noted in our written submissions, Justice Campbell noted where it was appropriate the authorities dealing either not at all with the existence of a duty of care but rather with content or scope or breach of causation, and dealt with all of those aspects and tried to use, with respect, in unimpeachable fashion, those authorities concerning skilled tradesmen or…..entering into situations of danger which after all, to put it perhaps unkindly, provides the occasion for them to earn their living. 

It is because electricity is dangerous that people get certificates and training which give them something in the nature of a monopoly to ply that trade, and in that circumstance there is, we submit, no duty of care.  There certainly would not be a sufficient content or scope of a duty of care and in appropriate case there would not be a breach or causation imposed upon a person who has in the very fashion contemplated by those who have Grade 6 linesmen on call produced a situation of danger to which the Grade 6 linesman is called. 

The authorities, in particular, that your Honours see referred to on page 619, paragraph 73, the succeeding discussion of the most significant of those decisions and then on page 627, paragraph 98, one sees a recognition, when it comes to the imposition of a duty of care as well as content, scope, breach and causation, a recognition that it is not required by reasonableness to owe a duty of care to the very kind of person who is expert and skilled in dealing with the kind of danger in question, whether it is rectifying the defective caravan that is giving its inmates a tingle, which one of the cases does, or whether it is a tradesman well aware, for example, of the danger of working at heights on unsecured ladders. 

In our submission, for those reasons no error is shown at all in the reasoning of Justice Campbell.  In relation to what ought to happen if your Honours were against me on all of that, the findings are relied upon at trial at page 555, paragraph 28 as to breach, that is, negligence and at page 560, paragraph 59 as to the contributory negligence.  Neither, in our submission, provide a secure foundation for this Court, unusually, to determine those matters not determined in the Court of Appeal.  Our breach was in question in the Court of Appeal.

HEYDON J:   So, your argument is it should go back to the Court of Appeal?

MR WALKER:   Yes, it is.  In page 555, paragraph 28 you will see that the object of our undetermined appeal on negligence is the way his Honour formulates the negligence, “flying in conditions of poor visibility”.  Now, all I can do is flag this in very general terms.  There was simply no evidence that according to any professional or technical view of the matter, crop dusting before dawn, which is chosen as your Honours know for obvious reasons to do with the effectiveness of the crop dusting in the still of pre‑dawn, or, for that matter, flying at night are anything like a sufficient indication of negligence and they are certainly not res ipsa loquitur.

HEYDON J:   Can I ask you just one thing – sorry to interrupt.  In that passage Judge Johnstone mentions flying:

under a live conductor, which at its lowest was 6.2 metres above the ground –

Are there any conditions in which flying under electric wires 6.2 metres above the ground is not negligent?  I just do not know.

MR WALKER:   We do not know because of the evidence.  Our submission is this.  It is, to somebody who does not fly, hair‑raising at a ‑ ‑ ‑

HEYDON J:   Planes are nearly 6.2 metres high, this type of plane.

MR WALKER:   I do not think they are anywhere near 6.2 metres high, your Honour, but I think we are talking about the kind of plane that is hair‑raising to get into flying anywhere frankly but crop dusting is, I think, one of those life uninsurable occupations.  It may be that that makes good the intuitive proposition that as soon as you enter upon any crop dusting activity you are engaged in an inchoate tort of negligence.  All it will require is damage and there is a cause of action, but with respect ‑ ‑ ‑

HEYDON J:   That is one thing, but flying under a wire 6.2 metres high is another.  Crop dusting is dangerous.

MR WALKER:   Yes.

HEYDON J:   Flying under an electric wire 6.2 metres from the ground, that sounds above and beyond the ordinary risks of crop dusting. 

MR WALKER:   But, with respect, that ought not to be done by colloquy between a judge and counsel in the High Court in the absence of evidence.  It really is not a matter within ‑ ‑ ‑

FRENCH CJ:   There was no evidence ‑ ‑ ‑

HEYDON J:   I am just asking whether there is any evidence really. 

MR WALKER:   No, there is not.

FRENCH CJ:   There was evidence of the “counselling”, because that ‑ ‑ ‑

MR WALKER:   Yes, “Be more careful when doing that”.

FRENCH CJ:   “When working with wire”.  One can imagine that it might be that you are going to miss out part of that crop if you have to come in over a wire but there is no evidence on that at all, is there?

MR WALKER:   There is no evidence that suggests, for example, “You cannot fly under them, do not try to fly under them”, any more than there is evidence about how do you go about going and getting over the trees on the side of the paddock.  That is something that – it is to be recalled that the aeroplanes are very close to natural ground level when they release the poisons, extremely close.  The last of the descriptions of the negligence at paragraph 28 on page 555 was:

in so doing failed to avoid colliding with the conductor.

With great respect to his Honour, that is a little neat as a description of the negligence.  It describes the outcome, you hit.  It may be there is res ipsa loquitur reasoning involved but, in our submission, that has not been explained or reasoned and it would not be appropriate.  It is for those reasons that we urge that in the event you are against us on either the grant of special leave or the outcome of the cross‑appeal, that question needs to be remitted to the Court of Appeal.

HEYDON J:   The appeal is not in any position to work out whether flying under a wire 6.2 metres from the ground is negligent if you are right about the condition of the evidence.

MR WALKER:   It may be that there is a deficiency in fact finding at trial that would require the Court of Appeal in terms to direct a limited retrial.  That is what happens when there is a paucity of reasoning for a conclusion, sometimes.  The Court of Appeal, in our submission, should be the first stop on a remitter.  Page 560, paragraphs 58 and 59, I stress, this is what a view of the just and equitable share produces as between plaintiff and employer, employer with both the capacity for remote making safe as well as the training that they succeeded on.  The circumstances which produced the balance driving the figure of 40 per cent, which is quite a high figure, of course, for Mr Cook’s contributory negligence are all circumstances peculiar to the employer.

We think the reason why his Honour did not do the same exercise for the common law cause of action against us is that we had already failed on the statutory cause of action which admitted of no contribution.  Perhaps that is a pity, but that is the situation.  So that was also a live issue in the Court of Appeal, and there is no trial finding.  In our submission, it would be dangerous attempting in order to bring things to a finish, particularly for an injured plaintiff ‑ ‑ ‑

CRENNAN J:   But dangerous to transpose.

MR WALKER:   Dangerous to transpose what is a balance between employer and employee.

FRENCH CJ:   That is right, it is a relativity between those two.

MR WALKER:   Yes, that is right.  Because there is no absolute quality once you get over the threshold of a failure to take reasonable care, then that would be a dangerous position.  In our submission, it would be very unusual – on my research it is not unprecedented, but I was not able to find the case I recalled it having occurred where this Court actually assessed a fresh contributory negligence without adopting one of the adjudications below.  It would be extremely uncommon, in our submission, for this Court to do it, and for reasons which really involve the fact that the focus in this Court ‑ ‑ ‑

GUMMOW J:   I think it has happened, but I think it was banished from the Commonwealth Law Reports.

MR WALKER:   Yes, I think it has happened.  I just could not find it, your Honour.  Certainly, in our submission, that would come about because ordinarily decisions in this Court, certainly of latter years, will have

attracted a grant of special leave and it is quite difficult to contemplate cases where simply the run‑of‑the‑mill assessment on a balance between plaintiff and defendant on contributory negligence would raise a special leave question.  For those reasons that as well, in our submission, should be the subject of a remitter.  May it please the Court.

FRENCH CJ:   Yes, Mr Menzies.

MR MENZIES:   Your Honours, what I am driven by is trying to achieve finality and that is what caused the result in the submissions.  If we get past all the preceding hurdles on that matter and it has to go back, well, so be it.  So far as Chapman v Hearse is concerned, can I just draw your Honours’ attention to two passages upon which we rely and to preface it by saying that Chapman v Hearse, although it is always referred to as a rescue case, actually proceeded on a much narrower outcome.  The first passage is at page 120.  Towards the end of the page, after dealing with rescue cases and dealing also with Dr Cherry, who was the unfortunate victim, the Court goes on to say:

But one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant’s carelessness it is not necessary for the plaintiff to show the precise manner –

et cetera, and then over the page:

it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence.

So we rely upon that passage.  The other passage which really responds to the proposition that Justice Campbell’s reference to the cases that we have already dealt with in our written submissions was appropriate is this.  If one goes to page 125, about five lines from the top:

It is, we think, beyond doubt that once it be established that reasonable foreseeability is the criterion for measuring the extent of liability for damage the test must take into account all foreseeable intervening conduct whether it be wrongful or otherwise.  Perhaps, much the same thing was said in Ferroggiaro v. Bowline when it was observed that “the fact that the intervening act of a third person is a negligent one will not make it a superseding cause of harm to another for an injury which the original actor helped to bring about if the original actor at the time of his negligent conduct should have realized that a third person might so act”.

In our respectful submission, that effectively answers those matters.  Those are our further submissions in reply, if your Honours please.

FRENCH CJ:   Thank you, Mr Menzies.

MR WALKER:   Excuse me, your Honours.  We have copies of the electricity supply legislation to which we have referred in our written submissions in the form it took at the relevant time.  Is it appropriate to hand that up?  It is different in material respects to that which existed at the time.

FRENCH CJ:   Yes.

MR WALKER:   May I simply put on the record the only difference is that section 65A did not then exist.  That makes no difference to the point.

FRENCH CJ:   Thank you.  The Court will reserve its decision and adjourns until 10.00 am tomorrow.

AT 12.22 PM THE MATTER WAS ADJOURNED