Cheesman v Bathurst City Council

[2005] HCATrans 298

[2005] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S390 of 2004

B e t w e e n -

NOELENE JANICE CHEESMAN

Applicant

and

BATHURST CITY COUNCIL

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 APRIL 2005, AT 10.52 AM

Copyright in the High Court of Australia

MR. B.W. WALKER, SC:   May it please your Honours, I appear with my learned friends, MR H.N. KELLY, SC and MR M.J. WRIGHT, for the applicant.  (instructed by Kenny Spring)

MS C.E. ADAMSON, SC:   May it please your Honours, I appear with my learned friend, MR G.J. HICKEY, for the respondent.  (instructed by Phillips Fox)

GLEESON CJ:   Yes, Mr Walker. 

MR WALKER:   Your Honours could be forgiven, from the recitation of case law in a case where the central matter was one obviously of fact, contained on pages 37 to 40 of the application book in the reasons of Justice Ipp, for thinking that the determination of this case on appeal, in overturning a carefully expressed and thoroughly considered decision at trial, that the basis of the decision was that there was no real distinction to be observed between a swimming pool and a public road, in relation in particular to what would be a footpath next to a public road and what is the surrounding paving upon which one exercises parental or, in this case, grandparental responsibilities for children swimming, as they are intended to, in a swimming pool.

Furthermore, your Honours could be forgiven, again, from the same recitation of case law, which, not insignificantly, everyone refers to “the local Council” for seeing that the Court of Appeal regarded it as an indistinguishable circumstance between the Council providing footpaths for kilometres and kilometres of a shire or municipality, open to the public by definition, and, on the other hand, the position which obtained in this case of the Council undertaking a commercial exercise for reward, limiting people to enter what were premises which could not otherwise be entered except by the permission which was normally given by payment of a fee.

In our submission, your Honours could be forgiven for thinking as well that in the Court of Appeal none of the circumstances that were carefully considered by the trial judge, which distinguished the use of a footpath or a highway by an ordinary member of the public pedestrian from the position of a grandmother looking after young boys at a swimming pool, provided precisely for the occasion of young boys disporting themselves in the water, being looked after by their carer, such as their grandmother.

Now, your Honours, in our submission, simply on the individual merits of this case, in the interests of justice, that was an approach taken in the Court of Appeal which lacked any justification whatever in the undoubtedly wide remit given in a statutory appeal by way of rehearing where the facts are available to be revisited.  That there is a characterisation of circumstances by way of homogenisation, quite falsely, between what I will call highway cases on the one hand and entry by fee to specialised premises in which it is to be expected that adults will have their eyes on something other than these traps of a kind that, for my client, this unevenness of an intended even surface presented.

If I could take your Honours to page 36 of the application book in particular, your Honours will see in paragraph 6 that Mr Kelly, who appeared below, put to the Court of Appeal that this was after all not a case which falls within this apparently new category of “obvious danger”, that “the difference in height” was not an obvious one.  In paragraph 7 that appears in a sense to have been taken up; that is, accepted by the reasons of the court, namely, that it was not particularly remarkable in the regard of those who use the footpath.  However, that was then used in a way which simply did not address the way in which the trial judge, charged with the assessment of the facts, taking into account the nature of the plaintiff as he had been able to assess her, and one sees there is simply that sentence in paragraph 7:

It was the type of everyday minor hazard that visitors to the pool area could be expected to avoid ‑

to which the short riposte appropriately to be gathered by implication from the trial judge approach is, “If she could be expected to have seen it”, as opposed to those who were required, by the contractual as well as tortious standard of care, to apply reasonable care and skill to keeping the premises safe.

Now, in our submission, the reasoning that is then teased out from paragraph 6, over to paragraph 11 on page 36 of the application book, simply failed to pay due regard to the careful reasoning of the trial judge, and for those reasons, in our submission, taken on its own as a matter of the individual justice of the case, in what turned out to be a considerable injury, as your Honours will have seen from the material, to my client, this Court’s intervention would be justified in a case where the facts are not found differently in the Court of Appeal from the way the primary facts are found at trial.

At page 37 paragraph 15 there is, perhaps, the intrusion into what, of course, we accept is ultimately and always a finding of fact of an error of a kind which this Court ought to take the opportunity to expose and expel because, in our submission, this Court does have a function from time to time in providing by example an approach to facts, albeit in applying well‑established principle, of a kind that then can guide the determination efficiently and, just once, of cases raising a similar requirement in trial courts. 

In paragraph 15 there emerges this false homogenisation, this failure to take account of particular circumstances, which is the hallmark of the central finding of fact necessary in a negligence case or a contractual duty of care case, because here there is, at a relatively high level of abstraction, namely, at the level of the care owed, there is a simple assertion of similitude, false on the basis of the facts that your Honours will have seen from the trial judgment and false as a matter of commonsense between the curtilage of a swimming pool and a footpath along a public road. 

It is for those reasons, in our submission, that this is a case which, perhaps unusually, certainly unusually in relation to the essentially factual nub of the matter, does deserve a grant of special leave from this Court.  May it please the Court.

GLEESON CJ:   We do not need to hear you, Ms Adamson.

The decision of the Court of Appeal in this matter turned on the application of well‑established principles to the facts and circumstances of the particular case and we are not persuaded that the interests of justice require a grant of special leave.  The application is refused with costs.

AT 10.59 AM THE MATTER WAS CONCLUDED