Coombe v Shire of Gingin

[2009] HCATrans 276

[2009] HCATrans 276

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P20 of 2009

B e t w e e n -

BRADLEY MILTON COOMBE

Applicant

and

SHIRE OF GINGIN

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 14 OCTOBER 2009, AT 12.42 PM

Copyright in the High Court of Australia

MR A.S. MORRISON, QC:   May it please the Court, I appear with my learned friend, MR T.H. OFFER, for the applicant.  (instructed by Friedman Lurie Singh)

MR J. ELLER:   May it please the Court, I appear for the respondent.  (instructed by John Eller)

HAYNE J:   Yes, Dr Morrison.

MR MORRISON:   Your Honours, on any view the danger which eventuated in catastrophic injury to the applicant was not an obvious risk.  There was no challenge to the findings of the trial judge on appeal that this was a 10 to 15 metre cliff at an angle of about 80 degrees and that the applicant was inexperienced, riding for the first time on sand, using a farm bike on what appeared to be gently rolling dunes.  So that when the Chief Justice characterised this as “an inherently dangerous recreational activity”, which he does in the application book at page 42, we say he wrongly categorises the danger which eventuated.  When he says:

the scope and content of the . . . duty is not to be fashioned by reference to those who . . . failed to take reasonable care to avoid an obvious risk –

which he says at 67 at about line 40, this is wholly at odds with the trial judge’s finding which was not challenged and which the Chief Justice had earlier accepted at application book 63 at about line 40, that:

In the absence of the sign erected by the Shire, it would not have been obvious to persons who had not previously –

been to the off‑road vehicle area.  This was not a case like Vairy where the danger was obvious to the applicant.  Not merely did the respondent know of the danger, know that it was concealed, know that it was not obvious, but invited some 70,000 people a year to use this area, including the activity undertaken by the applicant for which this area was being promoted.  It knew of a large number of previous injuries.  It failed to comply with recommendations made to it for improved signage, and the respondent’s CEO had said, and it is in the trial judge’s findings, not challenged, at 15 at about line 3, that he accepted that “the signage needed improvement”.  He also accepted that the cost of signage was insignificant and was regarded by the Shire as inconsequential.

So when the Chief Justice placed his emphasis on the obviousness of the risk he did so in a context where the respondent invited the applicant onto its land for a significant hazardous activity knowing of a concealed danger, knowing that a person in the applicant’s position may well not know of the danger, and in those circumstances we say that the only question for determination was the adequacy of the response, not a debate about the content of the duty, which is the way in which the Chief Justice dealt with the matter.

HAYNE J:   Now if, as you say, the question is one of breach, and only one of breach, that is a question of fact, is it not?

MR MORRISON:   It is, and we have to face that head‑on, but it is in a context where the Chief Justice did not approach it in that way.  He approached it differently, and he did so by saying, off‑road riding is an inherently hazardous activity.  That does not deal with the fact that this particular aspect of the activity was a concealed danger, and a concealed danger of very much greater moment than the other potential dangers merely of riding a motorcycle on sand on what appeared to be gently rolling sand dunes.

HAYNE J:   A duty which was to be met by a warning sign?

MR MORRISON:   May I come back to that?

HAYNE J:   Of course.

MR MORRISON:   I want to take your Honour to the photographs in a moment.  Just to complete the submission before coming to deal with your Honour’s question, the trial judge had had the benefit of evidence from the respondent’s CEO that no further signage was erected after a meeting, following multiple accidents in 2001.  The CEO accepted that the signage was inadequate, accepted that it was important to let people know of the risk in the dunes, and accepted that you would have to stop to read the sign and it would have been better in the car park, all matters upon which the Chief Justice reached a different conclusion from the trial judge, despite the fact that the evidence from the respondent’s CEO supported the trial judge’s conclusions.

Now if I may, your Honour has the benefit of photographs by way of a separate document.  These were photographs subsequently taken by the respondent’s CEO and tendered by the respondent at hearing.  When one looks at those photographs, the respondent’s photographs, it is very hard to see the warning which the majority in the Court of Appeal made so much of.  If one has a look at the last of those photographs, the dark writing on a blue background hardly stands out at all, and in particular to a passing motor vehicle, because there is nothing which encourages you to stop and pull over and have a look at it.  It does not convey anything like the warning which was required to meet the duty of care which arose in this case from the respondent’s invitation.  It was in that context that the trial judge found that the signage was inadequate, both in its positioning, and in its content.

BELL J:   The trial judge did not formulate what it was that the warning sign should have stated, nor – he said, I think, that it should have been in the car park, is that right?

MR MORRISON:   Well, he said it should have been in the car park where it would have been more obvious, and he did deal with its content by suggesting – he did not give a final version as to what it ought to have been, but he suggested, for example, reference to a cliff or a razorback would have been ways of dealing with it.  Justice McLure in the Court of Appeal in the dissenting judgment offered:

sudden sheer drops to a hard rocky surface (with an admonition to check the route first) –

as being what she thought the signage required in the circumstances.  So, for the majority in the Court of Appeal, in the light of what your Honours can see in those photographs, to find that, in effect, that signage was an adequate discharge of the duties simply flew in the face of the evidence.

It should not be forgotten that the trial judge had the benefit of evidence from lay witnesses, in particular from a police officer and from a person, a lay person, who was attending to another injury immediately preceding the applicant’s, that neither of them had read or knew what the content of the sign was.  This was the local police officer did not know about the warning, nor did the person who was attending to the injured person immediately before.

So when the Chief Justice made his comments, those comments really amount to saying that if a person fails to take adequate care for their own safety to avoid a risk, then there is no breach of duty.  Well, that seems to be bringing back old notions of contributory negligence defeating claims which one had thought had been dealt with by statute more than 50 years ago throughout Australia.  The duty does not end by assuming that everyone is free of error.

In addition to that the Chief Justice was minded to interfere with the trial judge’s findings on causation.  The trial judge found that from his observation of the applicant he was a person who was likely to have responded favourably to an appropriate warning, and that is the very sort of finding which this Court in Fox v Percy has said is not readily to be interfered with on appeal.

Similarly, the Chief Justice’s interpretation that more should have been made of the waving from those at the site of the immediately preceding injury, which was in fact a fatality, flies in the face of the advantage the trial judge had in respect of seeing and hearing the witnesses, and those were circumstances which should have weighed with the Court of Appeal.

Your Honours, it is said against us that the issue which arises does not give rise to any question appropriate to the grant of special leave.  We say it is not merely a question of individual justice in the particular case, but it is the general interpretation of what is meant by obvious risk, whether you are talking about the generality of the activity or the specific risk, and that is the area in which we say error has arisen and which calls for appellate intervention to correct, we say, an erroneous approach in an intermediate Court of Appeal.

In addition to that it said that there is no point of general public importance.  Well, we say that the lives of 70,000 people a year using this off‑road area with inadequate warning, in circumstances where there has been a large number of casualties previously, is a matter of general public importance.  It is our submission that the correct approach was that taken by Justice McLure in the Court of Appeal below dissenting, and that her views are to be preferred and should have been the approach taken on appeal.  In the circumstances we submit that this is a matter where this Court ought to deal with a significant error of approach in an intermediate appellate court.

HAYNE J:   Thank you, Dr Morrison.  We will not trouble you, Mr Eller.

The principles to be applied in determining the factual question of whether there has been a breach of duty are well established.  It is not in the interests of justice generally that special leave to appeal to this Court should be granted to permit agitation for a third time of that question of fact in this case, nor are we persuaded that it is in the interests of justice in the particular case that there should be a grant of special leave to appeal.

Special leave to appeal is accordingly refused.

MR ELLER:   If it please the Court, I would seek appropriate costs for the respondent.

HAYNE J:   Do you resist that, Dr Morrison?

MR MORRISON:   No, your Honour.

HAYNE J:   With costs.

AT 12.55 PM THE MATTER WAS CONCLUDED