Baguley v Kempsey Shire Council

[2011] HCATrans 345

[2011] HCATrans 345

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S276 of 2010

B e t w e e n -

GLENICE BAGULEY

Applicant

and

KEMPSEY SHIRE COUNCIL

Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 DECEMBER 2011, AT 2.37 PM

Copyright in the High Court of Australia

MR S.G. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR P.R. STOCKLEY for the applicant.  (instructed by Stacks - The Law Firm)

MR R.S. SHELDON, SC:   May it please the Court, I appear for the respondent.  (instructed by DLA Piper Australia)

FRENCH CJ:   Yes, Mr Campbell.

MR CAMPBELL:   Your Honours, this case can be said to give rise to an important question of principle.

FRENCH CJ:   How high the wall should be?

MR CAMPBELL:   That is my important question of fact, your Honour.

FRENCH CJ:   Yes.

MR CAMPBELL:   That was by way of preamble, your Honour the Chief Justice, to say that I am really putting this on the basis that it is a question about the interests of the administration of justice in the circumstances of this particular case that calls for consideration by this Court.  It is for the simple reason, your Honours, that is to say that in determining the case contrary to the findings of the trial judge, with great respect, the Court of Appeal made an error of law which was to say there was no evidence to support the finding as to the – may I put it this way, your Honours, preventability issue. 

Secondly, the Court of Appeal mistook the facts when they found that the risk of injury from falling from the tray of a utility or the risk of injury from manual handling something that was too heavy for you, was a risk of injury which was created by the suggested precaution in this case which was to put up a means of fall protection at the pit, either by way of a wall, as the trial judge found, or alternatively, by putting up some sort of fence or rail which would do the same work. 

Your Honours, could I ask your Honours to look at the bundle of additional matter that we have sent up and ask your Honours to go behind tab 4 and behind tab 4 you will find two photographs, from a bundle of photographs which were exhibit C at the trial.  Your Honour, those are photographs of the pit at the Kempsey tip that is the subject of this case and your Honours will see what was referred to as the “riser” and the fall beyond it and the absence of a rail or a wall ‑ ‑ ‑

FRENCH CJ:   Has the word “caution” being written on since the accident or was it ‑ ‑ ‑

MR CAMPBELL:   No, your Honour – I beg your Honour’s pardon for speaking – prepared to accept it was there at the time, but we did not win on the breach of a duty to warn, your Honour. In fact, that case was specifically rejected. In any event, your Honours, to the extent to which the risk of falling might be obvious, there would be no duty to warn under the provisions of section 5H of the Civil Liability Act (NSW). Even when caution is called for, your Honours, a plaintiff might yet be inadvertent, particularly when one has a multi task at hand of getting ready to unload a utility.

If your Honours look at tab 5, and this partly goes to the no evidence point, your Honours will see that at what is marked with page 145 - it is page 1 of the document - your Honours will see the date of the document 23 March 2007, the second bullet point, your Honours, is:

Safety – How to manage the risk of users falling from height into bins and pits and keep users and waste separate.

The point I would wish to emphasise is the second sentence, your Honours: 

Other safety issues must be considered but this one has the most influence over the final form of this station.

BELL J:   This is the document, is it not, that was referred to by the Court of Appeal at application book 42, paragraph 46?

MR CAMPBELL:   Yes, your Honour.

BELL J:   It is the one that the trial judge did not refer to and that which did refer to risks including full protection barriers resulting in hand and/or lifting injuries.

MR CAMPBELL:   Yes, your Honour.  One says this, your Honour - can I put it this way?  We say the Court of Appeal also drew some comfort, if I can put it that way, from what the plaintiff’s expert, Mr Dohrmann, had conceded in cross‑examination about the manual handling risks and about the idea that you might, even with a rail, fall from a yet greater height if you get in the back of your utility.  But the point is, your Honours, so far as hand injuries are concerned - and your Honours will see them at page 4 of the document, which is 148 of the materials below - your Honours will see there is that reference to:

Fall protection . . . can result in hand and/or lifting injuries -

in two places, your Honours.  These are not matters, your Honours, in respect of which technical evidence was called for.  We respectfully submit that these are matters which the tribunal of fact was well able to assess for itself. 

BELL J:   This is based on the tender of some photographs that showed at some facilities some form of barrier?

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

BELL J:   Notwithstanding Mr Dohrmann’s acknowledgement in cross‑examination and the reference in the report referred to at paragraph 46. 

MR CAMPBELL:   Yes, your Honour, and if you look at the diagram, your Honours, at page 148:

Smaller stations - users unload by hand -

which is the third category of station.  The subject of that page, your Honours will see that it does, in fact, have a wall of the type that the trial judge found ought to be in place in the tip at Crescent Head.  Now, your Honours, the point that we make about this in the written summary is simply this, that it would be the ordinary experience of all of humankind that if you go to the tip to unload your car or your utility of garbage that if you overload the bags or the sacks, you might injure your back or some other part of your body because you have overloaded it.  Ordinary people take care against that particular risk by using reasonable care in compiling their load, as we have said.  So, that to say, as the Court of Appeal said, your Honours, in different ways, that this was a risk that was created by the erection of a barrier or fence was, with great respect, erroneous.

BELL J:   Why, Mr Campbell, using the ordinary commonsense you invited us to do, is there not some sense to the conclusion of the Court of Appeal that if you put a barrier up a person has to overcome the barrier to dump the rubbish and that creates risks?

MR CAMPBELL:   Because the point that we are trying to make, your Honours, and I am sorry if I am repeating myself, is it does not create any additional risk over and above those risks which are inherent in manhandling rubbish at a tip.  You still have to get it out of the car.  You still have to get it into the pit.  You still have to handle it.  To the extent to which you might be tempted to get on the back of the ute and, therefore, increase the height, you might do that whether there is a barrier there or not if you are so minded. 

The point, your Honours, is this is that in the modern law of negligence, informed as it is by the Civil Liability Act, there is a new emphasis upon identifying the particular risk, not too specifically, but with more generality than might have formerly been thought proper, even prospectively, not with hindsight, when you are asking yourself what is the response of the reasonable man or what would the reasonable man do in this position?

We know that the greatest risk, the most influential risk, according to the report from March 2007, was the risk that the person would fall.  How do you guard against that risk?  You put up fall protection if there is a pit.  There are other ways of doing it as the report makes clear by more elaborate designs of the tip but a simple way in respect of a country tip where they have got a pit into which materials must be placed is to put up fall protection.

FRENCH CJ:   In paragraph 50 on page 44 in the Court of Appeal it is said:

The evidence did not permit him -

that is the primary judge:

to conclude that the erection of such a barrier would lessen the risk of injury to customers using the tip -

Now, apart from the rather oblique reference in the report which you mentioned, what evidence did permit his Honour the primary judge to make that finding or do you say that it was just a matter of commonsense by inference from human experience?

MR CAMPBELL:   I say both, your Honour.  I acknowledge the only evidence is that oblique reference that I have taken your Honours to, but I say that he did not require evidence because all he had to do was rely upon ordinary experience.  It was a non‑technical type of area.

FRENCH CJ:   Does it not then become competing characterisations of the sufficiency of the evidence by the – or sufficiency of inferential characterisation processes by the primary judge and the Court of Appeal – the Court of Appeal wins.

MR CAMPBELL:   They win at a certain level, your Honours ‑ ‑ ‑

FRENCH CJ:   I know you want to reverse that here, but I am just wondering where we are finding an important point of principle or public importance ‑ ‑ ‑

MR CAMPBELL:   I thought I acknowledged at the outset, your Honour the Chief Justice ‑ ‑ ‑

FRENCH CJ:   Or it is just a visitation case.

MR CAMPBELL:   Yes, your Honour, it is.  But a visitation case on the basis that we respectfully submit that we have demonstrated an error on the part of the Court of Appeal in relation to the inferential process of reasoning that was adopted.  Just as the Court of Appeal was entitled, as it directed itself according to Warren v Coombes to draw the inferences for itself, this Court, if special leave is granted, is in the same position with regard to that type of matter. 

Your Honours, we submit that inherent in even the Warren v Coombes type appeal, or implicit in it, is the idea that when the Court of Appeal comes to a different decision from the trial judge there has been appealable error made by the trial judge.  We submit, for the reasons that we have rehearsed here today and in writing, that the Court of Appeal, with great respect to them, were mistaken in that regard and that his Honour’s reasoning process was entirely orthodox and he came to a conclusion which was his duty as a trial judge which was open to him by reference to that process.

It is not, with respect, enough in a case like this where perhaps minds may differ, your Honours, that the Court of Appeal forms a different view.  It really ought to clearly demonstrate – or it should be clearly demonstrated, with respect, that the trial judge did in fact make some important error in the reasoning process or himself mistook the facts which, we submit, was not demonstrated.  May it please the Court.

FRENCH CJ:   Thank you, Mr Campbell.  We will not need to trouble you, Mr Sheldon.

The applicant seeks special leave to appeal against the decision of the Court of Appeal of New South Wales which allowed an appeal against a decision of the District Court of New South Wales and directed the entry of judgment for the respondent. 

The applicant suffered injury as a result of a fall into an open pit at the Kempsey waste receival and disposal facility while unloading rubbish from a utility.  The primary judge found the respondent in breach of its duty of care to the applicant in that it had failed to place a wall of a suitable height at the edge of the pit to prevent or reduce the risk of people falling into it. 

The decision of the Court of Appeal adverse to the applicant was essentially evaluative and factual in character.  It raises no question of general principle and does not warrant the grant of special leave.  Special leave should be refused with costs.

AT 2.50 PM THE MATTER WAS CONCLUDED