Byrnes v Burwood Council

[2003] HCATrans 462

[2003] HCATrans 462

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S444 of 2002

B e t w e e n -

LORRAINE BYRNES

Applicant

and

BURWOOD COUNCIL

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2003, AT 10.18 AM

Copyright in the High Court of Australia

MR S.G. CAMPBELL, SC:   May it please the Court, I appear with my learned friend, MR M.A.J. PERRY, for the applicant.  (instructed by Voros Lawyers)

MR M.J. JOSEPH, SC:   May it please the Court, I appear with my learned friend, MR R.G. GAMBI for the respondent.  (instructed by Phillips Fox)

McHUGH J:   Yes, Mr Campbell.

MR CAMPBELL:   Thank you, your Honour.  Your Honours, this case follows a long line of cases that have been looked at in the New South Wales Court of Appeal following your Honour’s decision in the matter of Ghantous, in particular.

McHUGH J:   You mean the Court’s decision.

MR CAMPBELL:   I do beg your Honours pardon; I mean the Court’s decision.

KIRBY J:   That is how I understood you; I do not know why his Honour is so picky about it.

MR CAMPBELL:   Thank you, your Honour.  In particular, your Honours, we say two things.  The first is that the statement of the duty laid down by this Court was, with respect, rather overstated by the Court of Appeal at paragraph 33 of the judgment at application book page 33 and, secondly, your Honours, we say that to formulate the duty in that way has the unintended effect of shutting out the scope for the application of the apportionment legislation in relation to contributory negligence.

KIRBY J:   But is your contention that in formulating the duty of care, you do not take any regard to the consideration that that duty has to operate in an environment where the alleged tortfeasor can make certain assumptions about the care that people will take for their own safety?

MR CAMPBELL:   Yes, your Honour, but only because we say that the proper place for that analysis to take place is at the breach question, not at the duty question.

McHUGH J:   But why do you say it interferes with apportionment legislation?  Do you recollect the rule in Indermaur v Dames?Justice Willis’s famous formulation was couched in terms of the invitee taking care for his own safety.  No one ever suggested that that formulation could not stand with the apportionment legislation.

MR CAMPBELL:   Your Honours, that formulation, of course, was given at a time when contributory negligence was a complete defence to ‑ ‑ ‑

McHUGH J:   Well, I appreciate that, but in New South Wales it ceased to be a complete defence from 1965 onwards, and in England much earlier.

MR CAMPBELL:   Yes, your Honour.  We say, however, as we say this Court pointed out in the analysis in McLean v Tedman, which was dealt with at application book 50, that in looking at some of the older cases one has to take care with the formulations because of the idea that variable formulas of that type were used because contributory negligence was a complete defence.  I am sorry, it is part of the long paragraph 46, starting at line 20 and going to line 33, your Honours.

The second answer we would respectfully pose to your Honour’s question is this, that, although one can see the idea that using a formulation of the type that the Court of Appeal used in this case, one could say if the defect or the foreseeable hazard posed a risk to someone taking reasonable care, it does not matter that someone not taking reasonable care for their own safety was injured, that person is still entitled to recover.  Even if one approaches the matter in that way, it still leaves little room, we say, for effectively apportioning responsibility between the tortfeasor and the plaintiff because ‑ ‑ ‑

McHUGH J:   But the two can work together, both the duty and the apportionment.  In other words, the duty does not begin until a point is reached where the plaintiff has taken reasonable care for his or her safety in respect of certain defects and then the duty arises.  Once that duty is engaged, then questions of contributory negligence come in.

MR CAMPBELL:   Your Honour, if one, with respect, puts it in terms of the plaintiff taking reasonable care, then at a factual level there could not be a finding of contributory negligence, we respectfully submit, because ‑ ‑ ‑

McHUGH J:   Yes, there could be.  You can get into a situation where the plaintiff has taken reasonable care in respect of certain defects and then the Council’s duty comes in and within that area the plaintiff has not taken reasonable care as well.

MR CAMPBELL:   Your Honour, the effect of that, we say with respect, your Honour, is that if you require the plaintiff in the given case - and it may be that the formulation does not quite go that far to take reasonable care, for instance, that there could never be a case of negligence in a case of a visible defect on the footpath and, with respect, we submit clearly that could not be the effect of the decision in Ghantous.

McHUGH J:   But the reasonable care that is required is in respect of obvious hazards such as uneven paving stones, roots and holes, and there is no duty on the Council in respect of those matters.  Once you get beyond that, the Council has a duty to take reasonable care and so does the plaintiff.

MR CAMPBELL:   Your Honours, paragraph [163] of the decision of Ghantous is set out at page 32 of the application book, paragraph 30 of the judgment below.  The language used by the Court there, your Honours, is, in our submission, more apt to suggest that those kind of evaluations ought to be made when one is applying, as it were, the Shirt formula to the question of breach.  Your Honours will see, for instance, in the second sentence in the quote there, that:

In general such persons –

and at the top of page 33, your Honours, the language is:

persons ordinarily will be expected to exercise sufficient care –

but the middle of the paragraph, of course:

some allowance must be made for inadvertence.

All of those things, we respectfully submit, your Honours, are questions which are reminiscent of the sort of language used in Shirt, particularly in terms of evaluating at a factual level the response of the reasonable man to a foreseeable risk of injury and that considerations such as the obviousness of the hazard are better taken into account at that stage of the inquiry rather than at the outset of the inquiry in determining whether a duty exists and what the scope of it ‑ ‑ ‑

KIRBY J:   But the problem is that we cannot get too far away from notions of reasonableness.  Courts have to conceive of duty in a social context.  The social context is one of reasonable conduct on the part of putative tortfeasors and people who are injured and therefore, when you are looking at what is reasonable to expect of the duty, you cannot ignore at that stage the fact that the duty is owed in a social context in which people are being reasonably careful for their own safety.  To divorce it and snip it up and scissor it around and say you can only think of that at the end when you are dealing with breach or when you are dealing with contributory negligence I think is a very unrealistic way to instruct judges and I do not think the Court of Appeal erred here.

MR CAMPBELL:   Your Honours, I do not want to give the impression that we are submitting that there are separate compartments.  We acknowledge that the questions, and the various questions, which, if I can put it this way, the answers to which will resolve the analysis of a tort, are unnecessarily interrelated, and reasonableness must always be the touchstone of the inquiry at each point of the analysis.

KIRBY J:   The Court’s analysis of this seems to be getting back to Donoghue v Stevenson really, and saying that maybe the courts have overanalysed these things.  That is what Justice Priestley said in a case and it seems to be what the courts are coming back to now.

MR CAMPBELL:   I think that was Avenhouse, your Honour.

KIRBY J:   Yes, exactly.

MR CAMPBELL:   Accepting all of that, your Honour, what we say is that if you at the very start of the analysis formulate the legal duty by reference to concepts of ordinary care taken by the person to whom the duty might be owed, you shut out, with respect, the rest of the inquiry and that there is no ‑ ‑ ‑

KIRBY J:   Not really, no; it is in a sense that you have to pass a threshold, that duty is owed in a social context.  The social context is one in which people are acting reasonably, those who owe duties, those who are injured.

MR CAMPBELL:   It may be said, your Honours, however, that although some of the statements in this Court, and in other courts of course dealing with these cases, take the point of view that if there is, say, a hole in the footpath in broad daylight, then someone should be expected to see it and avoid it.  As a general statement, with respect, nothing can be said about that, but of course the reality of life is sometimes quite different and that people are not always watching where their feet go, they are looking ahead.  Now, what we say, if I can put it this way, the trouble with the formulation in this case is that it sets the bar at a point where a plaintiff can almost never – we would say never – come to court and say there was a defect in the paving ‑ ‑ ‑

KIRBY J:   I do not agree with that because you can meet, on the duty issue insofar as reasonable conduct is relevant, that contention by saying that people do not go around with a magnifying glass looking at the footpath; they have to act reasonably.  If it is a great big hole – I once fell down a hole overseas in a street and it gave me a terrible shock and I know you can do that if there is a hole unguarded.  So that can happen and you are not expected to be looking down all the time, so that it is at that stage you can meet that contention by saying that is a very unrealistic expectation of the reasonable conduct of ordinary people.  Then you pass that threshold, then later you get to breach and to the question of contributory negligence.

MR CAMPBELL:   Could we say then, your Honours, if the formulation is intact, there is still the point that your Honour is making, with respect, that the formulation of the duty still involves an idea of evaluation of competing factors.  That is the sort of exercise, with respect, that the learned trial judge carried out in this case and came to a certain decision, carrying out that type of exercise that favoured the plaintiff.

KIRBY J:   In the general jurisprudence on contributory negligence, what is the best case that supports your proposition that you snip it up and only come to it at the end of the road?

MR CAMPBELL:   Well, your Honour, there are two cases perhaps and we would say ‑ ‑ ‑

KIRBY J:   Apart from the passage in Ghantous that you construe in the way you do.

MR CAMPBELL:   Your Honour, we would say it is March v Stramare where it ‑ ‑ ‑

McHUGH J:   This is a causation case, is it not, Mr Campbell?

MR CAMPBELL:   Yes, your Honour.

McHUGH J:   The problem that you face is that in Ghantous and its sister case the Court has laid down a rather specialised duty.  It is not just a general duty to take reasonable care for the safety of those who use the road.  The Court has dropped from the abstract to a more concrete situation and it has eliminated from the duty certain types of hazards, and that is the difficulty that you have.  There is no duty of care in respect of certain types of hazards and it is only when you get past that that any question of the plaintiff’s obligation to take reasonable care comes in.

MR CAMPBELL:   Other than to observe, if I may, with respect your Honour, that formulating a special duty in that way is a little out of step with the trend of this Court’s decision in other areas over the last 20 years.

KIRBY J:   We had to cure an old fiction, which probably should never have been imported into our law from England.

MR CAMPBELL:   Yes, your Honour.  May I say, with respect, in curing the old fiction, a pedestrian may be worse off than they were when they were able to establish negligence if the Council was the active agent in the creation of the hazard.

McHUGH J:   Well, that may be.

KIRBY J:   We are not going back to those – I mean, I sat there in the Court of Appeal and here and all those silly cases trying to move around misfeasance and nonfeasance and the Court swept all that away.

MR CAMPBELL:   Yes, your Honour.  There is nothing further I can say, your Honours.  May it please the Court.

McHUGH J:   Thank you, Mr Campbell.  Yes, we need not hear you, Mr Joseph. 

This is a case concerning a highway authority’s duty to take care for the safety of those using the highway and its adjoining footpaths.  The applicant seeks to exclude entirely from consideration of the existence of the duty of care owed by the highway authority the postulate of a plaintiff’s obligation to take reasonable care for his or her own safety.  The applicant contends that the latter obligation only arises in considering breach and any question of contributory negligence. 

We do not agree with this contention.  We see no error in the reasoning of the Court of Appeal.  There is no issue in the case warranting the grant of special leave to appeal.  Special leave must be refused with costs.

The Court will adjourn to reconstitute.

AT 10.33 AM THE MATTER WAS CONCLUDED