Berigan Shire Council v Ballerini & Anor

[2005] HCATrans 1047

[2005] HCATrans 1047

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M86 of 2005

B e t w e e n -

BERRIGAN SHIRE COUNCIL

Applicant

and

JASON IAN BALLERINI

First Respondent

FORESTRY COMMISSION OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 DECEMBER 2005, AT 11.41 AM

Copyright in the High Court of Australia

MS C.E. ADAMSON, SC:   May it please the Court, I appear with my learned friend, MS K. MORGAN, on behalf of the applicant.  (instructed by Phillips Fox)

MR F.D. SACCARDO, SC:   If the Court pleases, I appear with my learned friends, MR B.F. QUINN and MR S.L. KEELING, for the first respondent.  (instructed by Maurice Blackburn Cashman)

MR R.P. GORTON, QC:   If the Court pleases, I appear with my learned friend, MR J.P. CONSTABLE, for the Forestry Commission.  (instructed by Victorian Government Solicitor)

HAYNE J:   Yes, Ms Adamson.

MS ADAMSON:   In our respectful submission, special leave should be granted for a number of reasons which are interrelated, and they are these.  The approach by the Court of Appeal is unorthodox in a number of relevant respects.  The second is that it has the consequence that the applicant has suffered a serious injustice, which affects not only this case where its liability has been found to be $5.6 million, no part of which is to be paid by the Forestry Commission, but countless other cases where the land over which councils have control includes a river, a creek, a beach or some other watercourse or where, importantly, there is some other statutory authority with responsibility for management of a river or the land adjoining it.

That latter question, your Honours, has not yet arisen for judicial consideration.  I remind your Honours that in Mulligan the question did not arise because there was a channel which went out to the sea over which the Council had control.  Although it was raised tangentially in Vairy since the injury to Mr Vairy was by hitting himself on the ocean floor, which was agreed to be outside the area over which the Council had management and control, in this case the question arises squarely because, if I might call him the plaintiff, the plaintiff dived from a log which was found to be attached to the Council land which was to the north of an anabranch of the Murray River.

The Forestry Commission responsibility commenced at that bank for the riverbed and then to the land to the south of the anabranch down to the southern bank of the Murray River.

HAYNE J:   It seemed that an important step in the reasoning of the Court of Appeal at least is that taken at page 87 of the application book paragraph 47 in the second sentence commencing, “By design or otherwise”.  Do you have it?

MS ADAMSON:   Yes I have, your Honour.

HAYNE J:   It seemed to be an important element in the Court of Appeal reasoning to say that the Council had, as he put it, “By design or otherwise, but in any event with knowledge” done things with Collie Park which made “the swimming hole and log an attractive recreational feature of Barooga”.

MS ADAMSON:   Yes that is so, your Honours.

HAYNE J:   Now, does that not put this case apart in one respect from, for example, Vairy?

MS ADAMSON:   It does in this sense, your Honours, and if I might ask your Honours to turn to page 48 of the application book, where there appears a photograph of the log from which the plaintiff dived.  The area near the bank of the river was relevantly uncultivated although, true it is as the Court of Appeal found, it was near a park where there was play equipment and fences and lawns were mown, et cetera.

But in this case, this area of the river, due to its proximity to the town centre, was a favourite swimming hole for local children, particularly those under the age of 17 or 18 and therefore who could not drive around to the other swimming holes in the area.  In our respectful submission, the evidence showed that although the proximity to the town meant that many children swam here, there were many other swimming holes along this anabranch of the Murray within the Council area and also on the other side on the land which was subject to the control of the New South Wales Forestry Commission.

Accordingly, there was nothing, in our respectful submission, relevantly to distinguish this swimming hole from the others.  Furthermore, it is a very great distance, in our respectful submission, from the Rottnest Reserve in Nagle’s Case where it was, as it were, a money-making exercise to attract people to swim and waterski, et cetera, in the reserve.

CRENNAN J:   Do you say that the distinction is drawn, which can be seen at page 91, between Vairy and Mulligan and the facts of this case, do you say that there are errors there?

MS ADAMSON:   Yes, we do.

CRENNAN J:   What are they?

MS ADAMSON:   In our respectful submission, what the Court of Appeal in this case did, one of the fundamental errors was to look at the matter retrospectively.  For a court to say, in our submission, when one looks at the photograph, that the exercise of reasonable care required a warning sign, the content of which was never to be found but one assumes that it meant, “Do not dive from the log” or “Be careful before diving from the log” or to cut from the log, in our respectful submission, goes quite contrary to what has been referred to by this Court as the Shirt calculus, which is one must look at all reasonably foreseeable risks.

In our submission, the result of cutting off that log would be that these boys, or young adults, will dive from the bank, which is another foreseeable risk, and then raises the question of what value would warning signs be as arose in Vairy.  There was, it was said by Mr Vairy’s counsel, a special rocky outcrop, but as this Court found there is a whole coastline of rocky outcrops.

Furthermore, in Mulligan where Mr Mulligan dived from standing in the water into the river, in our respectful submission, the injury could equally well have occurred from somebody stepping one or two steps into the water and then diving off and injuring him or herself.  Furthermore, it is quite possible someone could have dived from the log, swam to the other bank under the control of the New South Wales Forestry Commission, dived back and hurt him or herself.

So the prospects of success, in our respectful submission, were special leave to be granted would be that the appeal would be upheld because the reasons of the Court of Appeal go so much against what this Court said in Vairy and Mulligan, taking up the Shirt calculus, but also the point about what other people do and that people had dived there safely, which was regarded as significant for different reasons by, if I may call them thus, the minority and the majority judges in Vairy and Mulligan.

As your Honours will recall in Vairy and Mulligan, the minority judges considered that the fact that people were known to dive there safely may create a false impression but, as the majority found, that matter could only go the reasonableness of the plaintiff’s belief which went to a matter of contributory negligence, not duty or breach.  This was one of the cases where people had been diving for generations apparently in this area, off the bank and off the log without incident.  But because of course it was an alluvial river, one would have to accept that over time one could never imagine that it would always be safe, or simply be that people have watched others play Russian roulette for many years and seen no mishap, and that is really the situation here.

So, in our respectful submission, although this Court had regard to Vairy and Mulligan, had it had true regard to the Court of Appeal decision it would have found elsewhere, but since this Court has subsequently formulated the relevant principles in a different way than occurred in the New South Wales Court of Appeal, in a way which does not touch the question in this case, in our respectful submission, it is a case which warrants special leave.

HAYNE J:   Can I just understand that a little better?  The court said what it said in Vairy and Mulligan.  Its statements of principle, clear or opaque as they may be, are there to be found.  That seems to put this case then as one where you advance it as one in the interests of justice in the particular case that leave should go because the court said what it will say on diving cases in Vairy and Mulligan.  Now, if it is in interests of justice in the particular case application, what do you make of what is said at page 91 in the last three lines where it said:

the Council not only created the park and thus made the swimming hole and log a recreational attraction, but in effect encouraged the use of the log for diving.

Now, that becomes a considerable hurdle for you to cross over, does it not?

MS ADAMSON:   In our respectful submission, no, because – I do not wish to repeat myself, but to remind your Honours of the circumstance, that there was the whole of the bank from which to dive to use the swimming hole.  So it was not as if the log was the only means of access.  So it is unlike Vairy when that particular rocky outcrop was used as a means of access to the water below.

In this instance there is the whole bank of the anabranch into which to enter the water and the log, in our respectful submission, although it gained – and we say this respectfully – undue significance in the Court of Appeal, was only one of many means of access, and there could have been another log the following day.  There was evidence that previously there had been a log across the river.

Furthermore, the Council had a statutory obligation to provide this area for passive recreation.  So, in our respectful submission, it cannot be held to have, as it were, encouraged people to come there merely by allowing access as it was bound by Parliament’s edict to do.

We also say, your Honour, taking up your Honour’s point about “interests of justice”, that the interests of justice point we press but it is not simply that.  The question of law which is of public importance, in our respectful submission, is what is the duty when two putative tortfeasors – true it is one who was found not to owe a duty, erroneously, in our respectful submission, by the Court of Appeal – have contiguous responsibilities for land where the danger on one view is the riverbed itself and the fact that it is an alluvial river and therefore changes its contours day by day, minute by minute, by reason of the movement of water.

HAYNE J:   Where do I find this reflected in either the application or the draft notice?  This seems to be directed to, “We should’ve had contrib from the Forestry Commission”.  Is that right?  Is that the way it is put?

MS ADAMSON:   Yes, partly that, because we owed concurrent duties of care by reason ‑ ‑ ‑

HAYNE J:   Yes.  Now, where do we find these questions about contribution and the like raised in either the application or the notice?

MS ADAMSON:   Your Honour, it is special leave question 2 on page 119 of the application book, can a local authority be found to owe a duty to a member of the public and another statutory authority not to owe a duty?  Just looking at the draft notice of appeal ‑ ‑ ‑

HAYNE J:   It does not leap out at me from the draft notice, I will confess.

MS ADAMSON:   I do apologise to your Honour.  The local authority referred to in paragraph 2 is the Council - be found to owe a duty to a member of the public and another statutory authority, being the New South Wales Forestry Commission – this is on page 119 of the summary of argument – not to owe any such duty.  So that was an attempt, as I understand it, to juxtapose the duty found to be owed by the Council to the plaintiff as opposed to the duty ‑ ‑ ‑

HAYNE J:   I understand that, but I am focusing on the draft notice at pages 116 and 117.  I do not want to delay you unduly about it ‑ ‑ ‑

MS ADAMSON:   Not at all, your Honour.

HAYNE J:    ‑ ‑ ‑ but it just does not seem to me to emerge.

MS ADAMSON:   I apologise for not answering your Honour more directly.  At paragraph 5 on 117, in our respectful submission, the allegation is made that there was an error:

a.        in overturning the primary judge’s holding in relation to the liability of the second respondent –

being the Forestry Commission –

and

b.        not finding that the primary judge erred –

As your Honours will recall, it was 80:20, and then the Court of Appeal found no duty owed by the Forestry Commission.  So the relevant duties owed by these two statutory authorities, both of whose constituent legislation provide that they have an obligation to allow public access for the purposes of public recreation, gives rise to this rather anomalous situation where it appears if the plaintiff dives from a log on our bank and is injured we are liable and we have to pay the plaintiff.

If the plaintiff dives from a bank, presumably we are not liable because the Court of Appeal did not include diving from the bank within the range of foreseeable risks, but rather concentrated on diving from the log.  If the plaintiff were to dive from the other side, presumably the Forestry Commission, on the Court of Appeal’s analysis, would not ‑ ‑ ‑

HAYNE J:   Yes, but I fear that argument, Ms Adamson, is simply an argument that says if things were different things would be different.  I understand that.

MS ADAMSON:   I can see how unproductive that argument would be, your Honour.  So, in our respectful submission, for those reasons the interests of justice are engaged in the result whereby this Court did not apply the Shirt calculus.  Furthermore, it gives rise to an interesting question which, in our respectful submission, has not risen for consideration by this Court, which is the question I outlined at the beginning, which is where statutory authorities or indeed two separate legal people are putative tortfeasors, particularly where the responsibility of the Forestry Commission starts at the bank, at the waterline, and it is the alluvial nature of the river, which in a sense is what creates the danger because it means that the river moves from time to time, and something which had hitherto been safe is now very dangerous – sorry, or was at the time the plaintiff dived into it, very dangerous.

Furthermore, the Court of Appeal appears to have been influenced by notions of fairness and justice in working out whether the Forestry Commission owed a duty of care to the plaintiff.  Having regard to the normal responsibilities and preoccupations of the Forestry Commission ‑ ‑ ‑

HAYNE J:   I am more used to hearing arguments that the court was not influenced by notions of fairness and justice, rather than an argument that begins, “This court was influenced by such notions”, but there we are.

MS ADAMSON:   Perhaps I should say “This court purported to be influenced by notions of fairness and justice” and, in our respectful submission, the principles of law required the Court of Appeal, and indeed

the trial judge, to consider by reference to each putative tortfeasor whether there was a duty and what was the content of that duty.  It is not for the Court of Appeal, or indeed any court, to say, “Well, there’s this other tortfeasor who seems to us to have more of an obligation to the plaintiff than the Forestry Commission does.  Therefore the Forestry Commission does not even owe a duty.”

In our respectful submission, that is a question of law of public importance which involves a consideration of the respective statutes and is a matter which warrants this Court’s attention.  May it please the Court.

HAYNE J:   Thank you, Ms Adamson.  We need not trouble you, Mr Saccardo, or you, Mr Gorton.

We are not persuaded that it is in the interests of justice, either in the particular case or more generally, to grant special leave to appeal in this matter.  It follows that special leave to appeal is refused and refused with costs.

The Court will adjourn to reconstitute.

AT 12.01 PM THE MATTER WAS CONCLUDED