Bomford v Comm Main Roads

[2001] HCATrans 323

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P65 of 2000

B e t w e e n -

DARREN RICHARD BOMFORD

Applicant

and

COMMISSIONER OF MAIN ROADS

First Respondent

G B HILL & PARTNERS PTY LTD

Second Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 SEPTEMBER 2001, AT 11.24 AM

Copyright in the High Court of Australia

MR N.J. MULLANY:   If it please your Honours, I appear for the appellant.  (instructed by Messrs Bradford & Co)

MR G.R. HANCY:   May it please the Court, I appear for the first respondent.  (instructed by Trevor Darge Barrister & Solicitor)

McHUGH J:   Before you commence, I hold a certificate from the Deputy Registrar certifying that he holds a letter from the solicitors for the second respondent that the second respondent does not wish to participate in this application and will submit to the order of this Court, save as to costs. 

Yes, Mr Mullany.

MR MULLANY:   An erroneous view has emerged in certain judicial quarters, your Honours, that the observations made by your Honour Justice Kirby in Romeo 192 CLR at page 478 concerning obviousness of risk are determinative of the breach of duty inquiry and in all negligence actions. Buoyed by those observations, defendant authorities now routinely resist claims for injury caused on the materialisation of risk, asserting that the obviousness of that risk operates in itself to discharge the duty of care owed by them. In a troublesome trend, the case law endorsing that misnomer is mounting. The observations of your Honour Justice Kirby have been taken entirely out of context and a position attributed to your Honour which it is respectfully submitted was never intended. Your Honour’s statement has been adopted wrongly as representing the law in Australia. The majority of the Full Court committed that error. We agree with the respondent that your Honour just ‑ ‑ ‑

McHUGH J:   Now, where do you say the Full Court committed that error?  The reference is really a throw-away line, is it not?

MR MULLANY:   Not in our respectful submission, your Honours.  Your Honours will find at paragraph 52 of the decision, and that appears on the last page of the judgment at application book 39 - this was a split decision.  Their Honours Justices Murray and Pidgeon dismissing the appeal in relation to this respondent; his Honour Justice Wallwork dissenting.  Your Honours, the contention that this important question of principle does not arise on this case, we say, is unacceptable.

Having devoted just five paragraphs to the claim in relation to this respondent beginning over the page at page 38 from paragraph 48, the majority concluded by characterising the claim as falling “squarely within the observation made by” your Honour Justice Kirby at that page.  That the majority considered that to be fatal to the claim advanced could not be clearer, in our respectful submission.  What comes before that final statement does not detract from it or its force and effect.  It is that final statement of the foundation for the majority decision which identifies why Mr Bomford lost.  That is what his Honour Justice Murray meant when he said at paragraph 42 in application book page 36 that this case turned on its facts.

At paragraph 52 he found as a fact that the ““risk is obvious””.  Applying what he considered to be established principle, it followed that the applicant could not succeed because there was no obligation on the respondent to warn him of that “obvious” risk.  It was not reasonable and it was not  “just”, his Honour said.  Why?  Because your Honour Justice Kirby said so in Romeo.  As we say in footnote 9 of our outline on page 53, the conclusion of the majority that the risk was “obvious” in this case has opened a very serious question.  The relevant danger was not driving ignorant of what lay ahead:  it was the “dangerous” combination of the sharp turn in the road following the hill which the curve cannot be seen until the driver is at the crest and who is liable to be blinded by the sun at that point.  Once there is a bend just beyond the crest, a potential hazard arises.  When that is coupled with temporary blindness by the sun, a hidden trap lies waiting to ensnare the unwary driver.

As his Honour Justice Wallwork rightly observed at paragraph 34 on page 34:

This was a different situation to that of a driver proceeding into a curve with the sun in his eyes and he knowing he was on a curve. 

Mr Bomford did not expect to be confronted with the curve and he had no way of knowing what was looming just where he was blinded by the sun.  As his Honour put it at paragraph 38 on page 36 the applicant “was trapped” by this situation.  There was a peculiar and particular risk in this case which commanded attention.  At trial it was accepted by the respondent:

that if there was an unexpected hazard which could not be perceived by a driver, there was a requirement –

on it to place a sign which reflected that situation.  Your Honours will find that recorded at paragraph 15 on 31.

Here there was an unusual danger waiting for the motorist driving into the setting sun.  Even if, contrary to our submissions, the majority assessment is preferred and the risk involved here is properly to be described as obvious, we say that is not the end of the matter, not the end of the breach for the scope of duty inquiry.  This “failure to warn” case, we say, is a perfect vehicle to examine the special leave question identified.  Why?  The facts are simple, the necessary foundations have been made.  One, it was common ground at trial that the collision could have been at least partly caused by the fact the applicant had been blinded due to the sun just prior to the collision.  As recorded at paragraph 31 on application book page 34, the learned trial judge reasoned “that the sun contributed to the accident”, he accepted that explanation.  Two, due in part at least to the blindness, the applicant failed to negotiate the curve.  He drove his car through, rather than around, the left-hand bend until he collided with a vehicle travelling in the opposite direction while on the incorrect side of the road.  It does not matter whether the respondent was found to have been aware of the risk in issue, that is not the relevant inquiry.  The tortfeasor’s ignorance of danger cannot be determinative of its discharge of its common law obligations.  That said, as I told your Honours earlier, there is a finding putting it at its lowest by implication that the risk here was obvious.  The pertinent question is whether the defendant knew or ought to have known of the risk.  As his Honour Justice Wallwork found, at paragraph 33 on page 34, it should have been found that the respondent:

should have known or found out that at certain times on many days the sun would be in a driver’s eyes as the driver came up to the crest or as the driver reached the crest.  Having ascertained that fact –

his Honour continued, the respondent:

should have placed a sign some distance back from the crest warning of the road’s curve to the left at the top of the crest.

This result turned purely on the application of what is properly to be regarded as controversial principle.  That is clear when one compares the decision of his Honour Justice Wallwork in dissent with that of the majority. 

The two decisions, we say, reflect the alternative approaches now emerging in the authorities.  On the one hand, there is what we contend is the preferred approach, namely, an evaluation of the overall reasonableness of the defendant’s conduct in response to risk and the apportionment of liability.  On the other, there is the automatic dismissal of “failure to warn” claims on the conclusion that a risk was “obvious”, a step purportedly authorised by your Honour Justice Kirby’s reasoning in Romeo.  In truth, there has been no such authorisation. 

As your Honour emphasised in the application for special leave to appeal in Woods, your observation in Romeo was made in the context of a duty of an entrant upon a public space in circumstances where the case advanced was that there was an obligation to warn entrants of risks via signs, although the entrant injured was intoxicated.  Judicial observations must be read in the context in which they are made.  That guideline ‑ ‑ ‑

KIRBY J:   You do not have tell us that, Mr Mullany.  I mean, I would be astonished if anybody would elevate my remarks at the paragraph you refer to, to some universal disqualifying principle.  It is just not the way they were used in that context.  So the real question is whether or not that is the error which the Full Court made in this case.  So I do not think you need to convince us that there is no new fundamental principle that has to be read into Donoghue v Stevenson about obviousness because, as you point out, that would run into a whole series of problems, not least with the principles of contributory negligence, but it is a question of whether you have established that that is an error which the majority in the Full Court made.

MR MULLANY:   I accept all of that, your Honour, and I have addressed you as to why we say that is the position.  Can I tell your Honours that the submission that I have just advanced to you was accepted by your Honours Justices Kirby, McHugh and Hayne when your Honours granted, on 27 October last, special leave to entertain this question in the matter of Woods.  That appeal, I can tell your Honours, is listed to be heard on 22 October in Perth.  It is precisely the same question.

KIRBY J:   Which one is Woods?  Is that the “eggshell skull” case?

McHUGH J:   No, no, that is the cricket player, is it not?

KIRBY J:   Oh, yes.

MR MULLANY:   The cricket player who had an exposure to a particular and peculiar risk.  There was an indoor cricket ball which hit this gentleman in the ‑ ‑ ‑

KIRBY J:   Yes, I remember, we sat on the special leave application.

McHUGH J:   Yes.

MR MULLANY:   Yes, you did, with Justice Hayne and you granted leave to give an opportunity to ventilate this point.  Now, that appeal will be heard on 22 October in the Perth sittings on the Monday.  I can tell your Honours that there is a third matter in which I am involved which raises this question which will be the subject of a special leave application in that week also.  It is the matter of Prast v Town of Cottesloe.  One option available to your Honours, should your Honours consider that this application has merit, would be to consolidate the two appeals – for the reasons your Honour Justice Kirby mentioned earlier morning – or to adjourn it pending the appeal and decision in Woods. 

The latter course, of course, is not desirable for Mr Bomford.  But aside from the fact that only one half day has been set aside to hear the matter in Woods, there would be some difficulties, I would imagine, in preparing the necessary paperwork to hear the appeal in Woods and Bomford together by 22 October, although I am sure that can be dealt with if need be.

KIRBY J:   You are seductively elevating this matter into the Perth list, but there is still a question of whether you get there and you do not get there unless you can show that there is some error on the part of the Full Court which warrants bringing this matter into the Perth list.  That is where I have a difficulty.

MR MULLANY:   Well, your Honour, I have addressed your Honours on that.  The error is found in 52, the last paragraph.  It is not to be read as a throw-away line as your Honour Justice McHugh postulated at the outset.

McHUGH J:   It is a strange place to find a governing principle, right at the very end of the judgment.

MR MULLANY:   It is the death knell, your Honour.  What he says is this “case fell squarely within the observation made by Kirby J”:

Where a risk is obvious –

it must follow he considers it to be so in this case –

to a person exercising reasonable care for his or her own safety, the notion that the [defendant] must warn the [plaintiff] about that risk –

that was the allegation we advanced certainly in the main on appeal –

is neither reasonable nor just.

End of story.  That is not what your Honour Justice Kirby meant and your Honour has said that.

KIRBY J:   No, but the end of story had really come before paragraph 52, as Justice McHugh points out.  The end of story had come much earlier than that and this was simply the denouement, it was adding a little, “and PS as one factor in the case, there is an issue of whether the risk was obvious or not, it is only a factor”.

MR MULLANY:   That is how your Honour Justice Kirby, we say, intended the matter to be dealt with when articulating those views in Romeo.  We put your Honour, with respect, in the Justice Hayne camp.  But that is not, unfortunately, what has been happening in this jurisdiction and in some others and your Honours can see that when you compare the approach taken by Justice Wallwork with that of the majority and you can see that when you compare those cases referred to in footnote 25 of the application with those which appear in footnote 11.  There are cases in the eastern States where plaintiffs have succeeded, notwithstanding the risks involved have been patently obvious.  They cannot sit with judgments like this.

KIRBY J:   Of course, you have given a number of instances, cigarette smoking and so on, where it must not and does not foreclose the legal issue and I just cannot understand how anyone could read what I said as indicating to the contrary and I do not believe that so experienced a judge as Justice Murray would have mistaken what I have said.  He has just taken it, as it seems to me, correctly, obviousness is a factor, and hence, its postscriptum function in his reasons.

MR MULLANY:   Your Honours, that is not the position, with respect.  It was not the position in woods where your Honours were persuaded that that is precisely what occurred in the Full Court in that case, your Honour’s judgment having been taken out of the context.  Your Honour put that to the counsel who appeared for the applicant within the first half minute.  It is not what occurred in Prast v Town of Cottesloe, it is not what occurred here and it is not what occurred in the case of Curley referred to in footnote 25.  It is a real problem, with respect, your Honour, and it needs to be clarified.

The upshot of that interpretation has had two effects:  the first is there is now an internal inconsistency within the courts in this jurisdiction. Your Honours will find those references in the footnote I have given you.  Secondly, there is an inconsistency in approach between superior courts across the country.  There is now a significant body of authority both pre‑ and post Romeo which stands in stark contrast to the approach preferred by the majority of the Full Court as well as the other courts.

There is an added difficult, your Honours.  The reasoning in Romeo itself demonstrates that this is a question which divides this Court.  The appropriate analysis of the differing reasonings we set out in paragraph 17 of our summary.  Her Honour Justices Gaudron and your Honour Justice McHugh are certain ‑ ‑ ‑

KIRBY J:   I think we have read this.  This is your new theory that every you time you get a new appointee to this Court, you have to then have a new look at every principle.  This is the “Mullany theory of the High Court of Australia”.

MR MULLANY:   That is not my submission at all, your Honour.  My primary submission is this, that your Honours Justices McHugh and Gaudron certainly are not devotees of the view that your Honour expressed or certainly the view your Honour expressed as interpreted by the majority below.  Your Honour Justice McHugh is particularly hostile to that view, reiterating in Romeo your earlier opinions from your Court of Appeal days in New South Wales. Your Honours find similar disenchantment in the reasoning of Justice Gaudron at page 459, where her Honour considered those factors to be “irrelevant” in circumstances where the duty of care had been imposed.

If contrary to our submission, the law is accepted, we say, by the Full Court below, then it should be reviewed.  The obviousness of risk should not be determinative of that critical question.  As your Honour Justice McHugh put in argument in Romeo, recorded at 434 of that Commonwealth report, the obviousness of risk may well be the very reason why particular care is required and the fact that a risk is obvious ‑ ‑ ‑

KIRBY J:   This was in your written submissions, but do you suggest that obviousness is never a factual matter that can be taken into account?

MR MULLANY:   Not at all, your Honour, we consider it is a factor which goes in the mix and we suggest respectfully that is what your Honour meant and your Honour’s judgment sits as close to ‑ ‑ ‑

KIRBY J:   I must not have been as clear as I usually am?  Do not answer that question.

MR MULLANY:   The fault may lay elsewhere, your Honour.  Of course, it is a factor.  It is a factor which goes in the mix, but what has been happening is it has been elevated to assume a status all determinative of the pertinent inquiry.  The reasons we say it should not operate that way are canvassed in paragraphs 4 to 15.

Your Honours, this is a simple case which raises squarely, we say, and in a convenient manner, the role and operation of a fundamentally important issue of principle of uncertain status.  The question of law identified is of the highest public importance, a fact which your Honours have already accepted in the case of Woods.  One of those two options would be appropriate in this case, in my respectful submission.  The determination of this question would have most widespread impact.  Those are the submissions of the applicant.

McHUGH J:   Thank you, Mr Mullany.

KIRBY J:   Mr Hancy, it is said that this some peculiar flaw in Western Australian jurisprudence that has come out of a few lines when I am dealing with factual questions and that that is going to be a matter on which special leave is being granted for the Perth sittings and you will remember that when Mr Mullany saw the way the wind was blowing, very cleverly, he suggested that we should stand this matter over so that if anything came out of the decision in the Sporting Case, that that could be considered in the light of this case.  Now, what is your answer to that proposition?  Are you familiar with the Indoor Cricket Case?

MR HANCY:   Coincidentally, your Honours, I was in Court, yes, I was present when your Honours granted special leave.  But, no, we do not see that there is any need to adjourn because your Honours have correctly identified the point that you have to be persuaded on this morning and that is whether there was an error in the Full Court’s reasons and, if so, where it was.  The difficulty with the submissions that you have heard is that they assume that the case turned on a question of risk and whether it was obvious, but that is not so.  If your Honours turn to page 38 of the application book, you will find paragraph 49 which, in our submissions, is the critical paragraph of the reasons of Justice Murray. 

KIRBY J:   Yes.

MR HANCY:   You will see that he referred to the trial judge dismissing the claim “as it was pleaded” and that is important because the claim as pleaded below is not the claim stated to your Honours.  Then he went on to talk about the “nature of the curve”.  It was:

gradual, there was no impediment to visibility and there was ample evidence to sustain the conclusion that a speed limit of 80 kph was not too fast to be able to negotiate the curve with safety.

Now, that is really the nub of the reasons of the majority.

KIRBY J:   This bears out Justice McHugh’s comments that one would not normally expect to find a critical principle of universal legal application appearing in the last paragraph of the reasons.  That is not where one normally states one’s principle.  One might refer to a supporting issue of law or a supporting issue of fact, but it is the structure of Justice Murray’s reasons that you say deny the contention that his Honour in this case has accepted as a universal principle, the principle of risk disqualifying a plaintiff from success, because that would be an error. 

MR HANCY:   Yes.

KIRBY J:   The obviousness of the risk is a factor but it is not a universal disqualifier.

MR HANCY:   No, the paragraph that I referred your Honours to is at the end of Justice Murray’s discussion of the argument that the curve was a hazard.  The important point I wanted to make is that the finding that has been made against the applicant and which the applicant has not challenged, the finding of the trial judge and accepted by the majority on the appeal, was that the curve was not a hazard.  Justice Murray, after paragraph 49 that I took your Honours to, then went on to talk about another important factual problem for the applicant which leads into the question of causation and that is that the problem that none of the witnesses really knew how or why this accident happened.  So it was therefore difficult for anybody to argue that, in some way, the sign that allegedly should have been placed in some way caused the accident.  They dealt with hazard ‑ ‑ ‑

KIRBY J:   I do not think the trial judge referred to Romeo at all, did he or did she?  No, merely Heymann and Chapel v Hart, in relation to causation.

MR HANCY:   That is right.

KIRBY J:   It is rather sparse reasoning, but the primary judge does not fall into any alleged error of adopting a universal principle of obviousness of risk as a total disqualification.

MR HANCY:   No, and it is important to remember, your Honours, and you will find this in the trial judge’s reasons in the application book that he started by considering the pleaded case.  There were two important allegations that were made in the pleaded case and they were, first, that there was a sharp, left-hand curve on a crest that was not visible to the drivers travelling west; secondly, that there was poor co-ordination of horizontal and vertical curves and that posed a foreseeable risk of danger.  That is where he started, that is the trial judge.  After he considered the evidence about hazard – much of it was expert evidence from engineers – he concluded that it was not a sharp, left-hand curve on the crest that was not visible to those travelling west, and it was not poor co-ordination of those curves with a foreseeable risk of danger.  So, in other words, he decided that there was no hazard and it is that conclusion that is taken up by Justice Murray in paragraph 49.

McHUGH J:   Yes, I think we have heard enough from you Mr Hancy.  Yes, Mr Mullany, anything in reply to those remarks?

MR MULLANY:   One or two quick points, your Honours.  It is not just a question of the curve being hazardous.  We say this, as his Honour

Justice Wallwork put it, was a particular and peculiar risk.  It was the combination of the curve and the dipping over the crest ‑ ‑ ‑

KIRBY J:   And the western sun, that is what you say.

MR MULLANY:    ‑ ‑ ‑ and the sun.  You have an unwary driver driving into a setting sun, blinded at the critical minute and we prefer, ask your Honours to accept, the interpretation his Honour Justice Wallwork made, namely, that this particular applicant was trapped, he was ensnared in a situation he could not possible have foreseen.  That is the only point I wish to make in reply.

McHUGH J:   Yes, thank you.

This case turned upon its own facts and involves no question of legal principle calling for the grant of special leave to appeal.

It will be necessary to dismiss the application but before doing so, we would remark that it would be wrong to elevate the observations of Kirby J in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 478 to a point of universal legal principle. There his Honour said:

Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.

What his Honour said is no more than a relevant consideration of fact in some cases in considering whether a duty of care exists and, if so, the scope of the duty in the particular case and whether it has been breached.

We do not read the majority judgment in the Full Court as making the error of elevating the alleged obviousness of the hazard as a per se reason for dismissing the present applicant’s claim. 

Accordingly, there is no foundation for the grant of special leave and it is refused with costs.

AT 11.51 AM THE MATTER WAS CONCLUDED