Blackmore & Anor v Beames

[1993] HCATrans 250

..

4

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al0 of 1993

B e t w e e n -

JAMES GUY PATTERSON BLACKMORE

and GEOFFREY DAVID BLACKMORE

Applicants

and

STEPHEN BEAMES and JULIE

MARGARET BEAMES

Respondents

Application for special leave
to appeal

DAWSON J TOOHEY J McHUGH J

Blackmore 1 26/8/93

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 26 AUGUST 1993, AT 11.26 AM

Copyright in the High Court of Australia

MR T.A. WORTHINGTON, OC:  May it please the Court, I appear

with my learned friend, MR O.W. DOWNS, for the

applicant. (instructed by Lawson Downs)

MR D.A. TRIM:  May it please the Court, I appear for the

respondent. (instructed by Ross & McCarthy)

MR WORTHINGTON:  If the Court pleases, it is not disputed

that there was a relationship of proximity between

the applicants and the respondents, and it is
acknowledged that the applicants owed a duty of
care to the respondents.

However, in our respectful submission, the

issue which arises in this application is the
content of the standard of care owed in the
category of case where the substance of the

controlling relationship between the parties is

that of persons who, by way of a favour, assist a

friend in a task that he wants performed, and that

person knows that that helper or helpers do not
possess any relevant skill or knowledge as far as

that task is concerned.

DAWSON J:	How does that raise any question of principle?
MR WORTHINGTON:	In that this Court has said, in our

respectful submission, in Cook v Cook and a number

of other cases that, although the standard is

objective, it must be adjusted according to the

exigencies of the relationship between the parties.

DAWSON J: That was accepted in both the court below and in

the Full Court, was it not?

MR WORTHINGTON:  With respect, not by the majority. In our

submission, the learned Chief Justice did. He

found, or held, that the content of the standard to
be applied, and if I can take the Court briefly to

the reasons at page 50 of the appeal book,

His Honour said there, at the top of the page,

having dealt with the law, that the relationship he

described in the way that I have, the knowledge of
the plaintiff, and in those circumstances he

considered that the degree of skill and care

required was that actually possessed, and then over

onto page 51 he concluded at line 8:

In my opinion, however, having accepted the

help of friends without pretensions to

relevant skill or knowledge, the plaintiffs

cannot complain that -

that is all they demonstrated. With respect, in

the judgment delivered for the majority by

Blackmore 2 26/8/93

Justice Matheson at page 60 of the appeal book,

line 25, His Honour says:

I also agree with His Honour -

That is the trial judge:

that the requirement of a relationship of

proximity was satisfied. It is true that he

did not define precisely what standard of care

and skill was reasonably to be expected ..... in

the situation of the appellants, but I do not

think he was required to do so.

His Honour then goes on to deal with some matters,

including lack of expertise. He refers to the

standard in the sense that it was materially

affected the relationship. At the top of page 61

His Honour says how they were not to be judged, but

with respect, His Honour never says how they were

to be judged - - -

DAWSON J: Well, it is implicit, is it not, in what is said,

that His Honour thought that anyone would realize that removing screws below the water line carried

with it a risk.

MR WORTHINGTON: That is accepted but, with respect, the

point in issue was, as found by His Honour

Justice Matheson, that the level of care and skill,

without. distinguishing between the two, fell short

of that required of them. In our respectful

submission that begs the question as to what level

of skill is required and the replacing of the

screws - this is, I confess, now diverting into

some fact - was dealt with by the Chief Justice

uncritically and indeed, the learned trial judge,

although he found the applicants guilty of
negligence, did not make any finding about the

level of skill required. His Honour finds that

there was a duty and then finds them negligent. It

must be inferred that His Honour accepted the

arguments presented on behalf of the

plaintiffs - - -

DAWSON J: But it is clear from what Justice Matheson says

that neither he nor the trial judge thought it was

necessary to do so because anyone, any ordinary
reasonable man, would have realized that to remove

the screws which were below waterline carried with

it a risk.

MR WORTHINGTON: That is accepted, but with respect - - -

DAWSON J: And in that event, even accepting Cook v Cook,

you do not have to define precisely what the

standard of care was.

Blackmore 3 26/8/93

MR WORTHINGTON: But, in our submission, if the

Chief Justice is correct in holding that the level
of knowledge and skill was only that which they

actually possessed, if it is accepted that on the
facts, admittedly, the applicants did not have

cause to know that water was entering, or likely to

enter, for the reasons put forward by the

Chief Justice, and by the trial judge, in that circumstance, with respect, it does not necessarily follow such a finding would be open if the level of

skill and knowledge required was less than that

which they actually possessed.

And, in our submission, it is for that reason

that the judgment of the majority, by not answering
that question, and by not defining the content of

the standard - and it is a standard which would

arise frequently, in our respectful submission, in

society - in other words, can someone, in that

situation, having sought the help of the friends,

knowing they did not have any particular skill,

then later complain if the level of skill, as

distinct from the reasonable care required given

that skill, is not up to some other standard.

TOOHEY J: But there is another standard, is there not?

There is the standard that anyone not being a

professional boat builder, or not being skilled in

the operation of boats, might be expected to have,

which is something not quite the same as the degree

of skill which the applicants had. There may be

some things that are so obvious, and apparently

this was the way Justice Matheson approached it,

that if you remove screws from below the transom,

and you do not replace them, well you are asking

for trouble.

MR WORTHINGTON: But, with respect, that hinges, in

His Honour's reasons, on what he says at page 61,

line 8, that he found:

appellants could reasonably think that the

it extremely difficult to accept that the

actual thickness -

that is of the transom:

of one-and-a-quarter inches was as much as 4".

With respect, the finding that the screws should

have been replaced is based upon the premise as to

the knowledge, or the reasonableness, of the

understanding of the thickness of the transom, and

the question of whether they could reasonably think

that, as distinct from whether they did think that,

in our respectful submission, raises the point in

Blackmore 4 26/8/93

the way that it was decided by the Chief Justice,

who was in the minority.

TOOHEY J: But your proposition, Mr Worthington, seems to

imply that no matter how careless or misguided

someone might be, in this situation, they cannot be

held responsible.

MR WORTHINGTON:  No, with respect, Your Honour, we would

respectfully adopt what the Chief Justice said,

that one takes the level of skill and knowledge

actually possessed and with that skill and

knowledge then to take reasonable care. In our

submission, the effect of the findings by the
majority, or the result of the majority, is to

require of the applicants a higher standard of

skill and knowledge than that which they actually

possessed.

McHUGH J: But, there is something circular about what the

Chief Justice says, is there not? He says:

the plaintiffs could expect of the defendants the exercise of only such degree of skill and knowledge in relation to the task as they

actually possessed, together with the degree

of care which a reasonable person would

exercise in such circumstances.

Well, if they have got no skill or knowledge then

apparently a reasonable person would have no skill
or knowledge, in such circumstances. It
substitutes a purely subjective test for the

reasonable test of negligence.

MR WORTHINGTON: With respect, in our submission, it would

not lead to that conclusion. In our submission, it

would be no different to the situation in
Cook v Cook, where this Court held that although

the standard was objective, it was adjusted - in that case the example given of the inexperienced

driver and the difference between the relationship

that exists between that inexperienced driver and

other motorists, and that inexperienced driver and

the tutor - and this Court said, and it applies here, that the absence of skill was at the very heart of the relationship and, in those

circumstances, account must be taken of that.

McHUGH J: Well, I appreciate that, but that is what

Justice Matheson did at page 61. He said:

They are not to be judged as though they were

boat builders acting for reward.

Nevertheless, it should have been obvious to

the appellants -

Blackmore 5 26/8/93

Now, it was not obvious to the appellants

apparently, but he says a reasonable person in

their position would have realized that leaving

the:

screw holes below the water line unfilled was

fraught with risk.

MR WORTHINGTON:  With respect, because they ought to have

given different consideration to the thickness of

the transom.

MCHUGH J: Yes.

MR WORTHINGTON:  There is nowhere a direct adverse finding

about that. By inference the learned trial judge

must have been dissatisfied about that, but it is

not expressly said so and, indeed, the

Chief Justice felt quite free to not criticize for

failure to know more about the thickness of the

transom.

TOOHEY J: That is the problem, is it not? Views might

differ about this, about the outcome. This Court

would not simply embark upon its own review of the

facts. It has to be persuaded that there is some

apparent error on the part of the court below, or some other consideration that warrants a grant of

special leave and, in effect, really you are asking

us to look at the facts and bring our own judgment

to bear upon those facts.

MR WORTHINGTON:  That would be involved to some extent,

obviously, in the appeal, but the issue itself is,

in this type of relationship - and it is a category

- the category that was dealt with and the

variations that applied to that, such as the driver

and the passenger, were dealt with in Cook v Cook,

but this is not a one-off situation, it is a

category of relationship. With respect, if the

Chief Justice is correct in holding that the person

who seeks the voluntary assistance is limited in

what that person can expect from the helper when he

knows that that person does not have any particular

skills, in our submission, it is worthy of

consideration as to whether that is a correct

statement of the content of the standard of care

that is to be applied.

It, with respect, is not a subjective test

that the Chief Justice is applying because he is

doing no more than was done in Cook v Cook in

establishing the standard, and then saying, "Did
that person exercise reasonable care in all those

circumstances?", that is, with that degree of

knowledge and skill, and not criticize the person

for failing to have a higher degree of knowledge

Blackmore 6 26/8/93

and skill which would have, undoubtedly, been more

useful. And that the majority, with respect - it

is a sky hook to say - leaving the screws out - is

to be criticized, that presupposes the knowledge

about the construction of the boat and the

thickness of the hull.

McHUGH J:  Can you give me an illustration, following the

Chief Justice's line of reasoning through, where

you could, nevertheless, find somebody negligent?

MR WORTHINGTON:  Yes. I do not come prepared with such an

illustration but endeavouring to think of one.

Say, somebody wanted some electrical work done at

home, some assistance in that regard, and the

person who is the helper is known to have no

particular knowledge, but everyone knows that if

you put a screwdriver into a live point and earth

it, you could cause some damage, either to yourself

of to some product.

McHUGH J: But is it not the problem with the

Chief Justice's approach, that apparently in such

an illustration as you have just given, you would

take into account that that person did not have
that particular knowledge, that if you put a

screwdriver in, it will have certain consequences?

MR WORTHINGTON: That, with respect, would be a matter of

such common knowledge that I do not think it would

apply, just as it might be said here, that if you

leave a hole below the water line, it is common

knowledge, or common sense tells you that water is

likely to enter. But, if there are other matters
that come into that, in other words, that hangs on

something else, namely knowledge of the structure

and so on, and if in the circumstances there was no

indication that that had happened, in our

submission, that then gets more to the question of

the skill rather than the consequences which might

be more properly dealt with as to whether the

standard has been properly exercised but does not

go to the content of the standard.

McHUGH J: But Justice Matheson relied on more than that

they could reasonably think that the actual

thickness was as much as four inches. He said that

their examination was cursory and, in the

circumstances, inadequate, even for a person with

their skill.

MR WORTHINGTON: With respect, there is no finding by the learned trial judge that the transom examination was cursory. If it is inadequate, in our

respectful submission, that, again, begs the question, "What sort of examination would be

BlacJanore 7 26/8/93

required of someone with this level of skill and

knowledge?".

So, in our submission, the findings that

Justice Matheson made may well be open if the

Chief Justice's test is wrong. But if His Honour

the Chief Justice has correctly defined or

circumscribed the test then, in our submission,

those findings would not be open. I concede that

it would obviously be a matter of fact as to

whether they were, at the end of the day, correct

or. not. But there is that preliminary question

which, in our submission, is the point on which

special leave is sought. Unless there are any

other matters, they are our submissions.

DAWSON J:  Thank you, Mr Worthington. We need not trouble

you, Mr Trim.

This application raises no question of law which would attract special leave to appeal. The

decisions of the courts below turn upon the facts
of the case and, accordingly, it would be
inappropriate to grant special leave. Special

leave to appeal is refused.

MR TRIM:  I make an application for costs, if the Court

pleases.

DAWSON J:	Mr Worthington?
MR WORTHINGTON:	I cannot oppose that, if the Court pleases.

DAWSON J: Refused with costs.

AT 11.42 AM THE MATTER WAS ADJOURNED SINE DIE

Blackmore 26/8/93