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

[2009] HCATrans 86

[2009] HCATrans 086

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S499 of 2008

B e t w e e n -

ACQ PTY LIMITED

Applicant

and

GREGORY MICHAEL COOK

First Respondent

COUNTRY ENERGY (FORMERLY KNOWN AS NORTH POWER)

Second Respondent

Office of the Registry
  Sydney  No S500 of 2008

B e t w e e n -

AIRCAIR MOREE PTY LIMITED

Applicant

and

GREGORY MICHAEL COOK

First Respondent

COUNTRY ENERGY (FORMERLY KNOWN AS NORTH POWER)

Second Respondent

Applications for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 2009, AT 10.28 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 applicant in both cases.  (instructed by Riley Gray‑Spencer Lawyers)

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

MR P.N. KHANDHAR:   If your Honour pleases, I appear for the second respondent in both applications.  (instructed by TurksLegal)

GUMMOW J:   Yes.  Mr Walker.

MR WALKER:   Your Honours may have seen from some affidavits of November that, owing to a misunderstanding, there needs to be an extension of time.  I understand there is no difficulty with that.  We seek orders accordingly.

GUMMOW J:   Is that opposed?

MR MENZIES:   No, your Honour.

GUMMOW J:   Very well, you have that extension.

MR WALKER:   May it please the Court.  Your Honours, may I take you in the supplementary book, the statutory material that has been supplied, to page 4.  Page 4 is the first page of the Damage by Aircraft Act 1999 which is in question in this case. On our researches, these proceedings are the first time the critical provisions have been construed. As you will see from section 2(2) the Act quite explicitly announced the way in which it replaced the former international regime which had been incorporated into municipal law in this country.

The Rome Convention, in particular provided for which I will call strict liability but not liability for anything which was not the direct consequence of the relevant aviation accident. 

GUMMOW J:   Just before you go any further, Mr Walker, the parties for whom you appear, ACQ was the owner, is that right?

MR WALKER:   Yes.

GUMMOW J:   And Aircair was the operator?

MR WALKER:   Yes, and employer of the pilot, hence the operator.

GUMMOW J:   Yes.

MR WALKER:   So, as you have seen, section 2(2) shows that this statute was avowedly replacing the international regime and, as I say, we draw to attention that in the international regime a critical provision prevented recovery for anything other than losses which were the direct consequence, and I need to emphasise that epithet “direct”.  In section 3, the “Object of the Act”, which we accept, of course, will not alter the meaning to be given to the operative provisions to which I am about to come but which has some significance, refers to:

The main object of this Act is to facilitate the recovery of damages for certain injury, loss, damage or destruction caused by aircraft, or by people, animals or things that are dropped, or that fall, from aircraft that are in flight.

The way in which that is then given manifestation is to be found in section 10 on page 7 of the compilation.  Subsection (1) applies the section which in subsection (2) catches both my clients in the following way, reading the material words ‑ ‑ ‑

GUMMOW J:   This is 10(2)?

MR WALKER:   This is 10(1).  The 10(2) is the provision that implicates my clients.  10(1) is the reason why.

GUMMOW J:   Yes, I see.

MR WALKER:   Section 10(1):

This section applies if a person on property on, in or under land or water suffers personal injury, loss of life, material loss, damage or destruction caused by –

Then we have (a), (b), (c) and (d).  We would invite your Honours to see them as two groups, (a), (b) and (c) as one group and (d) as what I will call a consequential group, a separate group:

(a)      an impact with an aircraft that is in flight . . . 

(b)      an impact with part of an aircraft . . . 

(c)      an impact with a person, animal or thing that dropped or fell from an aircraft –

Then, (d).  the critical words are “something” – so just to backtrack, “personal injury”, “caused by” something that is:

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

In this case the aircraft in question clipped the high voltage transmission line, dislodged it so that it hung at a dangerously low level – that is, dangerous for human beings on the land – across the cotton field in question.  So the impact was between the aircraft and the high transmission line.  That did not cause the unfortunate plaintiff to suffer his terrible injuries.  What caused those terrible injuries was as the result of his attending to the very emergency which we had caused.  His job was to deal with just that.

GUMMOW J:   You use the word “caused” as if it is self‑evidently a clear application in any factual situation one encompasses.

MR WALKER:   I use it because the statute uses it.

GUMMOW J:   You use it as the man on the Clapham omnibus really.

MR WALKER:   No, not even a Bondi tram, your Honours.

GUMMOW J:   A lot of our effort is designed to dispel that idea.

MR WALKER:   Yes.  The expression “caused by” in the third line of the chapeau which is obviously related to but not the same as being the “result of”, which is the relevant words in paragraph (d), they are the statutory words we must work with.

GUMMOW J:   Yes.

MR WALKER:   They are enacted by a Parliament obviously cognisant of what the common law was doing both in pure common law cases, plus in cases which involved personal injury in which common law causation was part of the adjudication and, I stress, they were replacing a regime which had drawn the line at those things which are called direct consequences.  There are two groups in 10(1).  There is (a), (b) and (c), caused by an impact and then there is another group, giving some flavour to what “caused” must mean, which extends it, “a result of an impact” caused by “something that is a result of an impact”.

So, we are told within the wording of the provisions one cannot just go Clapham omnibus or a Bondi tram about what “caused” means, you are told that it can be caused by something in the first group, (a), (b) or (c) or caused by something that is a result of such an impact.  There is a two‑stage exercise.  The short question, and a very important question for the exposure of owners and operators, those persons generally covered in subsection (2), to what is likely to be an increasing rather decreasing field of endeavour and risk, bearing in mind that both flying objects in the air, plus persons able to be injured on the ground are likely to increase, in our submission, the short point is this.  Given the two‑stage exercise which the language of subsection (1) clearly bespeaks, is it really true that there is virtually no limit to the way in which one can trace a result from the first stage, causation, for groups (a), (b) and (c) impacts?

GUMMOW J:   There is, if I may say so, very careful judgment by Justice Campbell in the Court of Appeal.

MR WALKER:   Yes.

GUMMOW J:   Where do you point to error in his construction of this question?

MR WALKER:   At page 92 of the application book.  Perhaps I can put some things to one side at the outset.  Your Honours will have seen that we argued below that the effect on what would otherwise be pleas of contributory negligence ought to be taken into account in the interpretation.  We do not put it that way in this Court and, with great respect, that is largely because of the cogency of the way in which that argument was dealt with by Justice Campbell.  But the error which subsists, in our submission, and is worthy of this Court’s attention, a short but important point, is thrown up by the way in which the case is decided at page 92 of the application book in paragraphs 140 and 141.

This is where an understanding of the difference between the causation for the first group (a), (b) and (c) impacts and the result of such impacts, the second group, paragraph (d), is thrown up.  It starts by applying to the facts of this case which need the following salient features to be noted, as your Honours have seen.  The most important feature for our case is that this was not the result of an impact whereby, as it were, the unfortunate plaintiff was already in the cotton field and the arc flew because our aircraft crashed into the wire bringing it within the critical distance.

GUMMOW J:   Does it come to this, Mr Walker?  It does not seem to have been put in the Court of Appeal that this was a paragraph (d) case rather than (a), (b) and (c)?

MR WALKER:   No, it was always a paragraph (d) case.

GUMMOW J:   Well, you then say there is no treatment in the judgment of any distinction between “caused by” and “result of”.

MR WALKER:   Exactly.  We say 140 and 141 really indifferently treat the English word “caused” and the English word “result” as if all that suffices in either case is to trace through, trace through, on a simple but for approach and on a simple but for approach, of course, we would be liable for the plaintiff’s injuries if he had rolled his motor vehicle in his hurry to get to the scene because we had certainly brought – he was a professional whose job it was, whose skill and training equipped him to deal with the danger we had created.  We do not shrink from having created the danger, we obviously had.

GUMMOW J:   What then do you say is the content of the phrase “as a result of” as you would apply it to the facts here?

MR WALKER:   The way in which we try to put it can be shown in application book 159, paragraph 26, and we have been so bold as to go to the language of the former treaty and we have drawn to attention, of course, direct consequence is the wording which was denounced literally as this statute came into operation but we say that what had happened is that ‑ ‑ ‑

GUMMOW J:   Denounced in a diplomatic sense.

MR WALKER:   Denounced in a diplomatic sense, quite.  What we say has happened is this, that by paragraph (d) you have the move away from direct consequences which was the result of the denunciation of the Rome Convention.  Paragraph (d) is the move away, the expansion, but it ought not to be seen as, bearing in mind that ordinary English words “caused” and “result” are being used as they are, it ought not to be seen as confining to what might be called immediate effects for group (a), (b) and (c), and it must be immediate effects otherwise (d) would be otiose.  You have to read (a), (b) and (c) caused as more or less immediate because otherwise (d) is doing no work at all, everything would be caused.

GUMMOW J:   Where do we see the relevant text of the Rome Convention?

MR WALKER:   The relevant text of the Rome Convention you will find at page 26 of the pink folder and you will see it is the second sentence of paragraph 1 of Article 1, about halfway down that page:

Nevertheless there shall be no right to compensation if the damage is not a direct consequence of the incident giving rise thereto –

Our simple point, which we submit is very important, bearing in mind the move to this wholly municipal solution from what had formerly been the incorporated international solution and bearing in mind that second sentence of paragraph 1 of Article 1 ‑ ‑ ‑

GUMMOW J:   Is there anything in the Australian explanatory materials for the 1999 statute explaining reasons for the shift, or was it ‑ ‑ ‑

MR WALKER:   Yes, there is and it is referred to, in fact, by Justice Campbell but not in such a way as to throw light on the point we are making about the need to avoid indefinitely extended consequences, including those which would ordinarily be defeated by novus actus interveniens or contributory negligence, such as occurred in this case.  The mischief appeared to be addressed to matters which did not in terms – but none of the extraneous language that is contained in the judgment or that we have referred to in our respective submissions fastens upon the need either to expand or to define the scope of resultant consequences which, being in the nature of injury, loss or damage, should be compensated under the new statute.

All we do have is the manifest change from direct consequence being the limit to the contrast between (a), (b) and (c) and (d), and (d) clearly goes beyond what I will call direct consequence because it is the result of an impact which itself causes loss.  If we are right, then that gives you the meaning of “caused”.  It must be more or less direct, otherwise (d) would be absurd.  And (d), then, we ask, well, why would one read “result” in (d) as if it had a more extended indefinitely continuing narrative of possibly compensable loss causing events than you would in (a), (b) and (c) which are, after all, the primary concern of the liability which is imposed, regardless of the commission of any wrong?

Now, that regardless of the commission of any wrong, as your Honours are aware, comes from section 11 of the statute which does not, we think, cast any further light, textually, on the problem that we say confronted the Court of Appeal.  This is, I regret to say, a very longwinded way then to conclude by response to Justice Gummow’s comment about Justice Campbell’s reasons.  Yes, we, with great respect, endorse the description.

The question is, ought that to be the last word in this country on this interpretation?  For the reasons I have put, at the point where it came to apply and to explain in the paragraphs I have noted, with regret we submit, no, that ought not to be the last word.  It does not actually help to understand the relationship between the category (a), (b) and (c) on the one hand and the next resultant category, (d), on the other hand.  It starts by obviously dismissing the notion of, well, we brought about the condition which led to the accident, and we clearly did that, but, interestingly, critically, his Honour cites March v Stramare.

This is first and foremost a matter of statutory interpretation and, in our submission, there is insufficient guidance, indeed, no guidance provided by those critical paragraphs which provide the ratio for the case in order to understand just how remote or indirect or multiply staged consequences will bring this strict liability to compensate without, I stress, the necessity to prove any wrong.

GUMMOW J:   At paragraph 26 of your written submissions at page 159, I am not sure you are not departing a bit “It is submitted that “caused by . . . something that is a result of an impact” ‑ ‑ ‑

MR WALKER:   “[W]hich is direct at both stages”.

GUMMOW J:   Yes.  What does this word “direct” mean?  Is that not Rome Convention language?

MR WALKER:   That is why when your Honour asked me earlier I said we are being bold enough to use that word.  That is because it can be seen from the relation between (a), (b) and (c), on the one hand, and (d) that there must be some stop – and the best words would be “direct” or “immediate” – there must be some stop between that which is caused by an impact, (a), (b) and (c), and that which is the result of an impact, otherwise (d) is rendered otiose.  It is totally unnecessary.

If “caused” could be indirect and involve indefinitely narrated stages of consequence, then (d) does no work of any kind.  That is why we get direct for the first stage of what we call both stages.  We agree that we have used “direct” precisely because it is against the context of this move from the Rome Convention.

GUMMOW J:   Are you not using it to indicate not merely consequential?

MR WALKER:   Not merely consequential, quite so.  Yes.  It will not be enough that it is consequential because that will mean that somebody whose injury is truly caused in this case – as one knows, the sad narrative involves this.  His workmate had said, in effect, and he would agree, “Don’t you go near this transmission line until I’ve gone back and turned it off and made it safe.”  Tragically, he does approach.  Even more tragically, he trips, apparently, and it is a horrible ground that he was on, boggy, uneven, obscure sight lines in a cotton field.

We certainly brought the power line into the danger zone.  It being dangerous is why he was there, he is the expert, fully trained to deal with it.  Is it truly a result of the impact that his injury was caused or using, if I may use a provocative phrase, common sense and asking oneself whether the directness of result plainly required by impact under (a), (b) and (c) should not be reflected at all, so by a commensurate directness of result when you go one further stage, consequentially, a result of an impact, why should this accident have been, as I say, without the necessity to prove any wrong on our part – our responsibility?

GUMMOW J:   What is the point of you having joined the second respondent?  I understand why you joined Mr Cook, but what has Country Energy got to do with all these matters?

MR WALKER:   Nothing now.  As a party below I think the Rules require all parties to be joined.  I think experience in the past having proved that far too often not enough were joined.

GUMMOW J:   Yes.

MR WALKER:   I think this is a case where none of the contingencies that would be thrown up, were special leave to be granted, would make it necessary for the employer, who was acquitted on appeal, to be involved.  May it please the Court.

GUMMOW J:   Thank you.  Yes, Mr Menzies.

MR MENZIES:   Your Honours, our simple submission is that Justice Campbell’s decision was correct and to describe it, as your Honour did, as a careful decision, completely accurately describes it.  Your Honour, this is not a case where one can demonstrate any other litigants clamouring for resolution of this issue.  It is not a case where there are any other conflicting decisions and, really, the simple proposition is that what section 10 did indeed do was to create an environment which supported claims which were of this more or less direct nature, indeed, indirect, and that on a simple reading of the statute, it is plain, in our submission, that liability followed.

What my learned friend really is doing is seeking this Court to involve itself in a factual inquiry as to whether in this particular case, on the facts, the circumstances were such that (d) operated.  The problem is that ‑ ‑ ‑

GUMMOW J:   We have to know what (d) means, first, that is the difficulty.

MR MENZIES:   That is so, your Honour.  In our submission, (d) means plainly and simply that a subset of events, that is, those that are a result of a direct event, are caught by the statute.

GUMMOW J:   Paragraph (d) seems to be a subset, does it not?

MR MENZIES:   Yes, your Honour.  The way that my learned friends put their case in the written submissions was, well, one has to be more direct than the circumstances that apply here.  It talks in terms of there being a need for the contacts to be more proximate, more closely related.  That begs the question, of course, because then the question is how.  They invite your Honours then to construe the statute but the construction is not going to provide a response, in our submission, which will be able then to be applied in the general sense.  Now, without that, then no special leave point arises.  Those are our submissions, if your Honours please.

GUMMOW J:   Yes, Mr Walker.

BELL J:   Mr Walker, is the only discussion of 10(1)(d) that which appears at 135 and 136 on 90 and 91 of the application book?

MR WALKER:   Yes.  I make it clear, the whole of the judgment is designed to provide a contextual reading of the matter, so it is not fair to say that is, as it were, an isolated reference, but that is where it culminates, yes.  That is the ratio.

GUMMOW J:   Before you go any further, I suppose, we should ask what Mr Khandhar wants to say.

MR KHANDHAR:   Nothing, your Honours.

GUMMOW J:   I thought so.  Yes, Mr Walker.

MR WALKER:   In 136, particularly at the top of page 91, your Honours will see that, as it were, the first part of the inquiry into meaning is answered, that is, a change is intended from Article 1 of the Rome Convention, so much is obvious, with respect, but what is not supplied is whether that means that there is no limit to be supplied from the text and it is the text that governs.  We do not have a lurking common law in the background.  There is no limit supplied by the text to multistage reasoning, including, as I say, the decision entirely independent of anything we did by flying the aircraft of the plaintiff to approach contrary to the precautionary arrangement between him and his colleague to approach, contrary to training.

GUMMOW J:   It is not insignificant.  The Rome Convention would have applied in all sorts of legal systems.

MR WALKER:   Yes, it would have. 

GUMMOW J:   All I am saying is it does not necessarily pick up all the baggage of common lawyers.

MR WALKER:   No, certainly not.  “Direct consequence” are words that common lawyers use but they are not words which find themselves describing any common law principle or doctrine.  In our submission, bearing in mind that this is to do with liability which is sui generis, that is, it does not involve the identification of any legal wrong at common law and it creates the liability – explicitly regardless of that, see section 11 – then one must with great caution approach any invocation by analogy or otherwise, common law learning about causation.  It does not mean it is irrelevant, but with great caution one would look at it.

At least these are Australian words, that is, “caused” and “result of” but in the statute “caused” clearly does not go beyond what would formally

could have been called “direct or immediate consequences” because that would make a nonsense of having enacted paragraph (d).

GUMMOW J:   I am sure we are allowed to talk about Rylands v Fletcher any more in this country, but if you are going to have any common law analogy, is there not one with the escape of dangerous substances?

MR WALKER:   Unquestionably, that is the overt policy to be seen, first of all in our adherence to the Convention while we did and, second, in this Act.

GUMMOW J:   Therefore a rather – I am not sure strict is quite the right word – but a rather strict position placed upon defendants.

MR WALKER:   Yes, and what might be called a liberal or slanted scope of recovery.  I accept that entirely.  One of the pieces of reasoning as to the contributory negligence matter, which, as I have said, we do not wish to challenge, was where Justice Campbell pointed out, including by reference to ‑ ‑ ‑

GUMMOW J:   We talk about common law, we can just forget ‑ ‑ ‑

MR WALKER:   I was not talking about common law at all.  I was talking about the argument that was raised concerning what would have been contributory negligence.  In the true common law sense, that is breaking causation and that is why it was relevant, because “caused” and “result” were in the statute.  Justice Campbell dealt with that by saying, so Parliament has been over inclusive by noting that most people who are so injured do so through no fault of their own” or “are so injured through no fault of their own”.  In effect, they are walking along and they are hit by something. 

That is the way he disposed of it and that is entirely in accordance with what Justice Gummow has asked me to consider but that does not answer the question, well, what, if any limit is to be seen and if there is one, is it to be drawn so as to include or exclude cases of the present kind where there is a plainly voluntary act which has no causal relation to our aircraft’s impact apart form the fact that he is part of the emergency services that get called in as a result of impact.

Now, one can see policy pulling in both directions.  I freely concede that.  In our submission, what these reasons do not supply is a ratio and an explanation of the ratio, or the approach to the word “result” in paragraph (d), which will make this an appropriate both first and last word on the interpretation of the provision.  May it please the Court.

GUMMOW J:   There will be a grant of special leave in this matter.  Your notice of appeal appears to be limited to this ground, I think, Mr Walker, does it not?

MR WALKER:   Yes, your Honour.

GUMMOW J:   So far as appears at page 153, it seems to be limited.

MR WALKER:   Yes, your Honour.

GUMMOW J:   Do the other parties accept that the second respondent can be excused from attendance on the hearing of the appeal, if the second respondent wishes to be excused?

MR WALKER:   Yes, your Honour.

MR MENZIES:   It may be, your Honour, that we will need to seek leave to appeal against the decision against the second respondent.

GUMMOW J:   The cross‑appeal?

MR MENZIES:   The cross‑appeal.

GUMMOW J:   You may seek special leave to cross‑appeal.  Yes, all right.  There you are, Mr Kandhar.  When you say you may seek special leave to cross‑appeal, when and how are you going to do that?  We do not want to set this case down on the basis that there is a potential cross‑appeal hanging there.

MR MENZIES:   The answer is, your Honour, we will and we will do that within the time that the Rules permit us to.  I think it is 21 days.

GUMMOW J:   Any other counsel want to say anything about that?

MR KHANDHAR:   I will have to wait and see, your Honour.  That is all I can say.

GUMMOW J:   At the moment it will be set down as a one‑day case and the parties should be ready for hearing as early as June.

AT 10.59 AM THE MATTER WAS CONCLUDED