Bishop v The Council of the City of Sydney

[2019] HCATrans 247

[2019] HCATrans 247

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S234 of 2019

B e t w e e n -

KAREN BISHOP

Applicant

and

THE COUNCIL OF THE CITY OF SYDNEY ABN 22636550790

Respondent

Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON FRIDAY, 13 DECEMBER 2019, AT 10.22 AM

Copyright in the High Court of Australia

MR D.R. CAMPBELL, SC:   If the Court pleases, I appear with my learned friend, MR J.R. WILSON, for the applicant.  (instructed by RMB Lawyers)

MR D.A. PRIESTLEY, SC:   May it please the Court, I appear with my learned friend, MR D. KELLY, for the respondent.  (instructed by McCulloch & Buggy Lawyers)

GAGELER J:   Mr Campbell.

MR CAMPBELL:   Yes, thank you, your Honour.  Your Honours, the central question which is raised by the circumstances of this matter is the consideration of an application of the division of the Civil Liability Act (NSW) headed, “Assumption of Risk”, Part 1A, Division 4 ‑ ‑ ‑

GAGELER J:   Yes.

MR CAMPBELL:   ‑ ‑ ‑ which, of course, is mirrored in other jurisdictions throughout the country.  There are some small variations in the differing legislations but nothing relevant to the issues under consideration in this application.  Of particular import is the application of matters referred to in the definitional section of the Act, namely section 5F, which have incorporated into subsection (1) when speaking of the question of an obvious risk to a person who suffers harm, being a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person, so the two central matters of relevance to the application of the division, the circumstances of the person harmed and the position of that person.

The criticism that we have made in our written submissions of the majority – essentially, in this respect, the judgment of his Honour Justice Macfarlan – is that nowhere can we discern a consideration of the particular circumstances that were prevailing and the particular position that the applicant found herself in at the time she sustained her harm.

GAGELER J:   So, this the time of day, is it?

MR CAMPBELL:   It is a night time and it is the ‑ ‑ ‑

GAGELER J:   And being distracted in some way?

MR CAMPBELL:   Yes, she had no intention of leaving this walkway.  As your Honours may recall, it is originally a road that has been converted to a pedestrian thoroughfare which has abutted to it restaurants and bars, and so there is a curving on each side.  Pedestrians can walk along the roadway without there being any vehicular traffic.  As she approached this area where there were people enjoying themselves drinking and socialising on the pathway obstructing her continued route, she took a step to her right and came into contact with a kerb – which was a variable change in height from a high level eventually coming down to where it was flush with the walkway – the course of travel occupying about eight metres.

GAGELER J:   Your case is that if there had been a ‑ ‑ ‑

MR CAMPBELL:   Reflective yellow.

GAGELER J:   ‑ ‑ ‑ reflective yellow strip, it is more likely than not ‑ ‑ ‑

MR CAMPBELL:   That the car would have been averted.

GAGELER J:   ‑ ‑ ‑ she would have seen it, I suppose.  Is that right?

MR CAMPBELL:   Yes.  She had been in this area on many occasions previously, so she had a past awareness of the layout, as it were ‑ ‑ ‑

GORDON J:   Which she had walked hundreds of times before, I thought the finding was.

MR CAMPBELL:   Yes, yes.  So that one of the questions of course that arises is whether or not, when we look at the issue of the circumstances of the hypothetical reasonable person in the position of this person, is the nature and extent of their knowledge of the surrounding features, giving rise to the occurrence.

The evidence which was accepted by the primary judge, and similarly adopted by Justice Brereton in dissent, was that at the particular time of this occurrence the plaintiff was not aware of the kerb, and that she came into contact with it, and that that lack of awareness did not arise from any failure on her part to exercise reasonable care for her own safety.

GORDON J:   There is no appeal against the contributory negligence?

MR CAMPBELL:   No, there is not.  And there was no factual challenge, as Justice Brereton identifies in the Court of Appeal, to those matters.  Now, I am focusing, of course, on this obvious risk question, because inextricably interwoven into it is the matter of breach which, from memory, Justice Macfarlan disposed of in one paragraph of his reasons only.

GORDON J:   Justice Basten found there was no duty.

MR CAMPBELL:   That was not pleaded, and I just simply rely on what Justice Brereton said about what Justice Basten’s finding on it was.

GAGELER J:   So your point of principle that you are seeking to agitate really concerns the specificity with which a court ought be looking at the circumstances?

MR CAMPBELL:   Yes, and, of course, the position.

GAGELER J:   And the position. 

MR CAMPBELL:   That is, as far as I am aware, this judge has not considered this division of the Act.  There are considerations throughout the various States of these matters, but we can see obviously a disparate approach between the majority and the minority in this case because, as I said, I cannot see any consideration of these particular circumstances in the judgment of his Honour Justice Macfarlan.

GAGELER J:   It is, for the moment, difficult to see that disparity of approach as being anything other than as to the application of the principle involved.

MR CAMPBELL:   Yes, that is an arguable proposition.

GORDON J:   Can I ask you about paragraph 29, then, in response to both the question that Justice Gageler just asked you and your earlier submission that there was no assessment of this question?  One reads paragraphs 28 and 29 on application book 34 and 35 of Justice Macfarlan’s judgment, is that not, in a sense, what he is addressing?

MR CAMPBELL:   Paragraph 28, of course, is his Honour’s central conclusions as to section 5H, but the problem with those two paragraphs, we would submit, your Honour, is when you have regard to what he said at paragraph 27 in (ii), where he says that:

the primary judge did not have any significant advantage over this Court –

because:

the respondent readily admitted in her evidence that she was well aware of the existence of the kerb –

GORDON J:   As she was, given that she ‑ ‑ ‑

MR CAMPBELL:   But she was not at the time of the occurrence; that is the point.  It is, what is the relevant awareness?  Is it an antecedent awareness of the existence of a static set of circumstances, or is it that something is brought to your attention in the particular circumstances in which you find yourself, which is the focus of…..we simply endorsed what Justice Brereton had to say in what we would respectfully submit was a very careful and considered judgment.

But the fact of – we rhetorically put it this way:  how can a risk be obvious if a person exercising reasonable care for their own safety does not see it because the whole focus of this division, we would respectfully submit ‑ which is why I began with the proposition that the Act is concerned with a statutory form of the old volenti‑type defence – it is an assumption of risk issue.  So what we are focusing on is the conduct of the injured person, in circumstances where a defendant has created a hazard.

But there is nothing in this lady’s conduct in the way in which she was exercising her right to walk down this roadway on the night that she sustained this injury.  She was exercising ordinary, reasonable care for her own safety.  Yet, she came to grief, we say, because that which may have been obvious to her on other occasions in other circumstances was not at the particular time when she found herself and came to grief.

Central to the way in which the majority disposed of the matter, we say, is the impermissible intrusion into the fact‑finding processes of the primary judge by saying, in effect, that this woman readily admitted that she was aware of the existence of the kerb at the time of her injuries, when plainly she was not and the judge – I just simply identify for your Honours’ consideration what Justice Brereton says in his concluding remarks at paragraphs 99 to 101 where he emphasises how the primary judge:

saw and believed the plaintiff, who when asked the question directly, in‑chief and in re‑examination, twice said that she did not notice the ledge before she tripped on it and fell. 

GORDON J:   So, would the yellow strip make any difference?

MR CAMPBELL:   Yes, because the purpose of the yellow strip is that you have this straight stretch of roadway before you reach these people but she was walking very close to the edge which then draws the visual cue into your line of sight and that is the very finding that the trial judge accepted and that Justice Brereton agrees that there was no reason to interfere with that assessment given the advantage that he had. 

GORDON J:   That seems contrary to paragraph 80 of Justice Brereton’s judgment:

The trial judge did not find, and it was not submitted before us, that when . . . diverted from her course along the walkway to avoid the crowd by turning right and stepping onto the footpath she would at that time and place have observed, and reacted to, a yellow reflective strip.

MR CAMPBELL:   At that time, but what he says is – he goes on to say that:

she was so close to the kerb that when she stepped to the right it would not have been in, but beneath, her field of vision.

GORDON J:   Would not have been in ‑ ‑ ‑

MR CAMPBELL:   But in 81 he goes on to say:

A yellow reflective strip along the top of the kerb up to the point where there ceased to be a kerb would have been on her immediate right, and projecting to her front, for about eight metres from her entry into Llankelly Place until the point where the kerb petered out and the walkway became flush with the footpath.  Such a line, to her immediate right, would have emphasised the existence of the danger –

and then a little further down, she:

could not have avoided seeing it, and would have been reminded of the existence of the kerb extending beyond the point where she attempted to cross to the footpath.

So, we would respectfully submit that those are critical findings in relation to the probabilities of the occurrence of the risk under the section 5D sense.  As his Honour then said at 82, he:

would not disturb the finding of causation –

which he then comes back to when he considers the evidence on the matter, concluding with that issue emphasising the advantages that the trial judge had which Justice Macfarlan seems to suggest he did not have, that the Court of Appeal was in as good a position as the trial judge and can interfere with those findings.  We would respectfully submit that he has stepped over the mark in that respect.

Your Honours, otherwise, of course, we rely on the matters that we have in our written submissions and I just, in conclusion, would emphasise that Justice Macfarlan in his reasons nowhere grapples with the matters that were found ‑ if I could just give your Honours these paragraphs in the reasons of the primary judge ‑ at paragraphs 5, 43, 47 and 53.

At paragraph 4, his Honour points to the fact that it was night, that the lane was dimly lit.  At paragraph 5 he points to the fact that the:

vision was directed forward when she found the path obstructed –

and that she was not looking down, that the change in height was 50 to 60 millimetres.  Then at paragraph 43, the primary judge pointed out in clear terms:

The true position, that she did not see that kerb before stepping to the right, emerged clearly in re‑examination

In 47:

her eye was not at her feet but at the group of young people in front of her.

At paragraph 53, he again says – this is in disposing of the matter of contributory negligence:

the plaintiff did not demonstrate a want of care in taking her eyes off the cluster of people in her path in order to look at the ground.  Their presence created other risks.  Because of the defendant’s failure to alert her to the difference in level she reasonably believed . . . there was no obstacle in her path.  I am not persuaded . . . that Ms Bishop failed to take sufficient care for her own safety.

So we come back to what we say is, as we put it in our submissions in reply, this conundrum:  in circumstances where she can be taken to be a reasonable hypothetical person and she is exercising reasonable care for her own safety, how can the materialisation of the risk be said to be an obvious one?  That, we say, is an important question which warrants consideration by this Court.

GAGELER J:   Very well.  Thank you, Mr Campbell.  Mr Priestley, what do you say to that rhetorical question? 

MR PRIESTLEY:   Your Honours, the interpretation of section 5F and necessarily 5H has to be conducted by reference first and last to the text and that exercise cannot be undermined by applying principles of contributory negligence, which is how we would see that rhetorical question.  If your Honours like, in this matter there were three grounds, three separate bases upon which the respondent sought to overturn the primary judge’s finding in the Court of Appeal.

That was, of course, that there was no effective duty of care to warn because it was an obvious risk by statutory definition; that there was in any event no breach of that duty because there was no need to take, as a reasonable precaution, any change or direct any change to the highlighting of the area; and that, in any event, causation was not established. 

The respondent succeeded in the majority judgment on all three of those grounds and it is in that context that this Court would have to look carefully at what are said to be the two arguable special leave points because, on any appeal, the appellant would have to persuade the Full Court of this Court that all three should be reversed back in her favour, and yet we maintain that all three were correctly decided by the majority judgment.

Looking at those two questions, the first is, of course, whether the knowledge and experience of the plaintiff is relevant to whether the risk is obvious for the purposes of the section.  There are lines of authority, in New South Wales at least, that discuss that.  We would not say that that position is necessarily settled, but it cannot matter in this case because, even in the judgment of Justice Meagher in Moor’s Case that Justice Brereton in this case relied on to conclude that it would be irrelevant to consider, in interpreting the section, the subjective knowledge and experience of a plaintiff ‑ even if that approach is correct, Justice Meagher also went on to say it would only be relevant as assessing how that plaintiff came to apply that knowledge.

So, in this case, that means that on any view of the law, what should be taken into account is the fact that this plaintiff had crossed over that area hundreds of times.  And so it was, on any view, the interpretation of that section, an obvious risk to her, and it is divorced from reality with respect even to Justice Brereton to suggest that that should be completely excluded.

Not only that she knew, before she got there, that there was this step, and exactly how it configured, how it tapered, how it was highlighted, but the fact that a reasonable person in her position, under the section, had been over it many times, one must assume they must have been over it hundreds of times, they knew exactly how it was configured and how it looked, day or night.  And so that must have been taken into account on any view.

In any event, your Honours, the majority judgment barely referred to it, or relied on it.  Their Honours were satisfied that this was an obvious risk under the section regardless of her subjective knowledge, and so that finding would need to be overturned, when we know that there was highlighting and definition, there was expert evidence in the respondent’s case, to the effect that it was an obvious risk, for what that was worth.

The second special leave point has its own difficulties, your Honours.  It is said to be, in effect, a failure to respect the advantage enjoyed by the primary judge in assessing the respondent’s evidence as to whether she was cognisant, or advertent, to the presence of the step as she moved across the laneway, but in our respectful submission, it is difficult to see exactly what Justice Brereton thought the particular advantage of the primary judge was.  Certainly, Judge Curtis said, having seen the plaintiff, I note these things about her and I accept her as a credible and reliable witness, and Justice Brereton seemed to think that that constituted some advantage, but there was no credit issue.

More importantly, that did not weigh heavily with the majority in the Court of Appeal because, as Justice Macfarlan said, she said many times, unequivocally, clearly, on the transcript, that she was stepping up.  It was put to her many times, she was given many opportunities to say otherwise, and she said repeatedly, yes, I was stepping up, I was trying to cross over it, I knew it was there, and some more equivocal answers that were given in re‑examination cannot change that.  That is not, in our respectful submission, an advantage that the trial judge had, and it is not evidence that can be put aside when it is clearly on the transcript so many times.  There is no genuine ambiguity in any of that, in our submission.

Again, it was not, in any event, clearly determinative of causation in the majority judgment.  Justice Macfarlan referred to other reasons why causation was not established.  That is, perhaps, not difficult to see.  This was already a step over area that was delineated by change of colour and the plaintiff’s own evidence did not suggest, in any way, that if it had been highlighted in yellow up to a certain point, she would, more probably than not, then not have made that mistake.

It just was not clear at all from her evidence and that is what Justice Macfarlan said – that she had not established causation, in any event.  Again, it could hardly have been, with respect, ignored, the fact that she was so familiar with it.  More presumably, she made the mistake because she misjudged how far along the laneway she was, which was directly relevant to the height of the tapering step.  We do not know, but she did not establish otherwise by her evidence.

Your Honours, to the extent that that approach of the majority was different, or differed, from Justice Brereton’s, we would submit that that is not a point of law of general importance at all to the extent that any question of principle, in that differing approach, arises.  It was comprehensively covered in Fox v Percy.  And, there is nothing about this case that would suggest that those principles need to be revisited or revised in any way.

Returning to the three areas that would need to be – or the three issues that would need to be reversed in this appeal – even if those special leave points had any interest – one cannot ignore the separate point in our submission of breach.  Was it necessarily something that the Council should have – even accepting that there was some duty of care – have directed another party to do in light of what we would accept, or rather adopt, from Justice Macfarlan’s reasons as a small risk – a low risk.  Did something need to be done?  In our submission, not.  May it please the Court.

GAGELER J:   Thank you, Mr Priestley.  Mr Campbell, do you have a reply?

MR CAMPBELL:   Your Honours, what my learned friend appears to be proposing is that implicit in the interfering with the conclusions of fact made by the primary judge, is a proposition that this Court ought not involve itself in the hearing of an appeal since issues of that character have been settled in prior authorities such as Fox v Percy and, more recently, Lee’s decision this year.

But, all of the cases dealing with that type of argument have, as an underpinning matter, that notion of injustice and if there is an unwarranted interference in the factual‑finding processes of a primary judge, it is, with respect, visiting an injustice on a litigant and this Court has done and, in appropriate cases, ought intrude and address that issue in order to overcome that injustice.  That is especially so in a case when, parallel to that issue, there are legal questions, which my learned friend in his submissions seems to accept do arise, in terms of the consideration of the scope of this division.

Although your Honour invited my learned friend to address the apparent tension between a person exercising reasonable care for their own safety and this concept of obvious risk, I do not understand my learned friend to have put anything that addresses the issue and we would respectfully submit that that is a tension that needs to be considered.

The general purpose of this division in the Act is to address conduct of persons whereby they are seen, as a result of that conduct, to be assuming a risk going beyond the ordinary, namely that which is obvious to the hypothetical reasonable person.  Generally speaking, a pedestrian minding their own business, exercising reasonable care for her own safety, would not be such a person.  Those would be our submissions in reply, your Honours.

GAGELER J:   Thank you, Mr Campbell.

Notwithstanding the careful argument of Mr Campbell on behalf of the applicant, we are not persuaded that the decision of the majority of the

Court of Appeal is arguably affected by any error of legal principle.  Special leave to appeal is refused.  Do you seek costs, Mr Priestley?

MR PRIESTLEY:  We do, your Honour.

GAGELER J:   Do you say anything?

MR CAMPBELL:   I have nothing to say.

GAGELER J:   Special leave to appeal is refused with costs.

MR PRIESTLEY:   Thank you.

GAGELER J:   The Court will now adjourn briefly to allow a video link to be established to Melbourne.

AT 10.47 AM THE MATTER WAS CONCLUDED