Council of the City of Blacktown v Hadland

[1997] HCATrans 379

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S67 of 1997

B e t w e e n -

COUNCIL OF THE CITY OF BLACKTOWN

Applicant

and

STEPHEN JAMES HADLAND

Respondent

Application for special leave to appeal

TOOHEY J
GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 1997, AT 10.20 AM

Copyright in the High Court of Australia

MR W.H. NICHOLAS, QC:   If the Court pleases, I appear with my learned friend, MR M.T. McCULLOCH, for the applicant.  (instructed by Phillips Fox)

MR G.R. PETTY:   If the Court pleases, I appear for the respondent. (instructed by Burston Adams Roberts & Cole)

TOOHEY J:   Mr Nicholas.

MR NICHOLAS:   If the Court pleases.  Your Honours, our submission is that this application does raise a number of matters of general importance, that it requires a consideration as to the test to be applied in deciding whether or not acceptance of risk in a given situation was voluntary and that it requires consideration as to the nature of the inquiry to be undertaken by a court in order to determine what a defendant must establish in order to prove whether or not acceptance was voluntary.

GAUDRON J:   But it has got to be put in context, has it not?  In a context it would seem of “scheduled competition matches”.

MR NICHOLAS:   Your Honour, if one is looking for a relationship which, perhaps, gives some explanation as to why the decision was made ‑ ‑ ‑

GAUDRON J:   Not necessarily.  I mean, one knows, for example, that local government bodies provide any number of sports fields for profit.  They charge for their use and that they are used on a regular basis, summer and winter, for scheduled competition sports of an amateur kind or of a school kind, regular, every weekend of the year.

MR NICHOLAS:   Yes, your Honour.

GAUDRON J:   Yes, and that is the context in which you want to raise volenti?

MR NICHOLAS:   Yes, it is indeed.  Now, your Honour, as your Honour appreciates, of course, we are not challenging the finding against us, that we were negligent in the patching of the pitch but what we do say the matter raises, which makes it difficult to reconcile with the approaches taken in the past in determining questions of this kind, is, as I say, the nature of the inquiry that the Court will undertake.  For example, in the cases as we understand them, in this Court and elsewhere, it has been an objective approach, for example, in the sporting cases.  It has been recognised that where one participates in a sport one can be taken to assent to the risks ‑ ‑ ‑

GAUDRON J:   To the risks involved in the sport.

MR NICHOLAS:    ‑ ‑ ‑inherent in that.  Yes, your Honour.

GAUDRON J:   Is one taken to assent to the risks involved in the negligent provision of facilities for reward?  The reward aspect, it seems to me, is not unimportant in this.  I mean, I know it is not in evidence but that is the way things are done.

MR NICHOLAS:   Your Honour, in this case, what the focus was on was the voluntariness, the willingness of the acceptance of the risk, of the case at trial, and so it was found by the trial judge, the plaintiff accepted the risk.  There were two matters before the Court of Appeal.  One was whether or not the evidence established that.  In our submission - and I will deal with it now with a view to putting it to one side - the court was wrong in its interference with the trial judge’s conclusion on that matter because we say that it is quite plain on any proper analysis of what the trial judge did.  He addressed that question and he found the fact in a way in which it was not open to the Court of Appeal to interfere with it.

But if I can move away from that to deal with the issue which really brings us here, was the focus on the matter which in the Court of Appeal’s view rendered the acceptance of the risk, the readiness to play, not voluntary.

GAUDRON J:   That is right.  It is a form of duress.

MR NICHOLAS:   Well, your Honour, that is the point we ‑ ‑ ‑

GAUDRON J:   Well, it is, is it not?

MR NICHOLAS:   No, your Honour, with respect, it is a question of how one ‑ ‑ ‑

GAUDRON J:   Take another set of facts.  Take the school kids’ match - under 8s, we will say, on the same ground.  It could happen, it happens all the time.

HAYNE J:   That is real duress, Mr Nicholas, that is real duress.

GAUDRON J:   That is right.

MR NICHOLAS:   Your Honour, that, with the greatest respect, is the point because where does one draw the line?  On one way of putting it, your Honour  ‑ ‑ ‑

TOOHEY J:   Once you say that you do not advance a very attractive argument for a grant of special leave because there is no way this Court or any court can draw a line.  It can say on which side of the line the situation might fall.

MR NICHOLAS:   Your Honour, we would say that is really not - it does not take away from the necessity and the desirability of making it plain to people involved in not only the provision of sports grounds and facilities whereby people engage in team activities, but also trial judges some guidance as to how to find the line.  What we do draw a distinction about, your Honour, and we submit it is a substantial one, is the distinction between some concept of coercion or duress and really, what is the explanation or motivation for the person doing what he does.

In other words, conduct can nevertheless be willing if it is done to carry out a particular purpose, for example, to play a game of cricket because one does not want to let down one’s team or alternatively, because one wants to complete the season or whatever the forces are which causes an individual to act in a particular way.  What we say, with respect, your Honour, that when one introduces concepts of moral pressure which, by definition, must be subjective matters, then one gets into an area which really is incapable of measurement.

TOOHEY J:   I am not sure what you mean by “moral pressure” in that situation.  Most of these cases arise in the context of employees injured at work.

MR NICHOLAS:   Indeed.

TOOHEY J:   Moral pressure, economic pressure, perhaps, in those cases.  Is that the sort of distinction you are drawing?

MR NICHOLAS:   No, your Honour.  This is our problem, with the greatest respect.  Moral pressure is introduced into this field through this case, and what we wanted to take a moment or two was to demonstrate that the case that the Court of Appeal seized upon to elevate the concept of moral pressure into some coercive force was Nowak v Waverley Council.  When one looks at Nowak it is quite apparent - and I will take the Court to it and perhaps I should do it now - that Nowak was not dealing with volens and it was not dealing with a pressure, the effect of which could be regarded as coercive so as to deprive a person of some choice to negate his willingness in doing something.

Nowak, your Honour, is the first of the cases in our bundle.  Perhaps I should indicate to your Honour what the claim was about.  It was a claim by the - it is best summed up, your Honours, at page 67,804 the top left‑hand corner, the opening paragraph of Mr Justice Mahoney’s judgment:

The plaintiff was injured whilst playing football.  He brought proceedings against Waverley Municipal Council.....the occupier of the ground, and against a number of individuals comprising (as it has been agreed) the executive committee of the Eastern Suburbs District Junior Rugby Football League (“the League”) and the Eastern Suburbs.....Club.....At the trial of the proceedings in the District Court, Pile D.C.J., found for the defendants.

Now what his Honour did - and perhaps it is convenient to go to Mr Justice Mahoney’s judgment first - was, looking at the claim as against those three defendants, and the trial judge took the view that because the various players who were engaged to play for the Club under the auspices of the League which conducted the competition on the field of the Council, there was no breach of duty because these team players had inspected the field, were aware of a watering device which was just below the surface of the field and the probable cause of danger that it was.

Now his Honour, on the relevant question, dealt with it at page 67,807 - I am just moving straight to this concept of pressure, your Honours - and the argument was put at the foot of 67,807, the foot of the left hand paragraph:

Mr. Hulme argued that he plaintiff did not do what he did “without coercion” and that therefore the learned Judge’s findings of fact should not stand.  It should, in my opinion, be accepted that the fact that an invitee enters the invitor’s premises as the result of what I shall call pressure may, in some circumstances, be relevant.  In general, an invitee enters such premises voluntarily: insofar as he is an invitee, his position is to be considered upon the basis that he does not enter as the result of a duty owed by him to the invitor or to the public generally.  But that does not exclude the possibility that, in accepting the invitation, he does so because of pressure from a third party.  Thus, he may have contracted with a third party to enter the premises or he may be morally obliged to do so.  This fact may, in some circumstances, be relevant in determining what the invitor must do in order to discharge the duty which he owes to the invitee.  The invitor’s obligation is to take reasonable care to prevent damage to the invitee from the relevant dangers.  In such circumstances, that duty may be discharged if the invitee has foreknowledge of the dangers involved either as the result of a warning from the invitor or otherwise - - -

TOOHEY J:   Can I just interrupt you, Mr Nicholas, to ask how this line of reasoning is applicable here?  That is speaking of the duty owed by the occupier of premises, someone who comes upon the premises.

MR NICHOLAS:   Yes, your Honour.

TOOHEY J:   The duty that may involve questions of knowledge on the part of the person who comes upon a premises.  But here we have a finding not sought to be disturbed of negligence on the part of the respondent.

MR NICHOLAS:   Yes.

TOOHEY J:   Now the applicant comes to this Court asking for a grant of special leave in order to argue a question of volenti.

MR NICHOLAS:   Your Honour, that is, with respect, the point.  Nowak was dealing with an entirely different situation, we say, but it was on Nowak that the Court of Appeal relied for inspiration, for want of a better term, as to the concept of moral pressure which could be regarded as some coercive force.  The point about Nowak was that - if I can just complete it by taking you straight to the foot of 67,807, your Honour - the second last paragraph on the page:

Mr. Hulme submitted that such considerations are relevant in the present case.  The Council’s submission that knowledge and appreciation of the risks was enough rests substantially upon the assumption that no sensible person taking reasonable care for his own safety would play football on the ground.  If, for example, the plaintiff had been forced to play and the Council knew that he would be, that would be relevant in determining whether the plaintiff’s knowledge and appreciation were sufficient to discharge the Council’s obligation.

But, in this case, I do not think that the plaintiff was under any such pressure as should result in the Council being liable.  His argument was that there was coercion because, if the plaintiff and his team did not play, the team would forfeit the match and that (if the plaintiff was one who voted against the decision to play, of which there is no support in evidence) he was coerced into playing by the pressure of his team mates.  Whatever be the relevance of pressure in this regard, I do not think that the plaintiff was under such coercion.

Your Honours, what his Honour went on to deal with was that it ought to go back for a retrial to have a look at the situation re duty as opposed to volens as far as the League and the Club were concerned because the League and the Club were responsible ‑ ‑ ‑

GAUDRON J:   Does it make any difference that there is a contract here as well?  There is a contract as well as - in legal principle, does it make any difference?

MR NICHOLAS:   Your Honour, we say there certainly does because ‑ ‑ ‑

GAUDRON J:   I presume there was a contract between the Council and the Club, say?

MR NICHOLAS:   In this case, your Honour?

GAUDRON J:   Yes, to provide a safe sports ground.

MR NICHOLAS:   Yes, that is so.  You mean in Nowak, your Honour?

GAUDRON J:   No, I mean in this case.

MR NICHOLAS:   Yes, that is so and we did not quarrel with that.

GAUDRON J:   Is that a contract between the Council and the individual members of the Club?

MR NICHOLAS:   No, that was not established.  I think the court proceeded on the basis that the plaintiff could be regarded as a gratuitous player.

GAUDRON J:   Well I wonder if that is right, though.  I am just wondering whether the basis of this case is not somewhat larger than that on which it comes forward and whether, therefore, it is not an appropriate vehicle really for the elucidation of any point of principle in this area.

MR NICHOLAS:   Your Honour, really what it gets down to is this, with the greatest respect.  If, as in the past, courts have addressed the conduct of the participant as the outward manifestation of whether or not what he or she engaged in was voluntarily done and that is what this issue is about.  How one ascertains ‑ ‑ ‑

GAUDRON J:   But that would not be at all relevant, would it, for breach of contract?

MR NICHOLAS:   Your Honour, yes, it would, with the greatest respect. 

TOOHEY J:   But it is not even an accurate way of putting the present situation, is it, to say that it is a question of whether it was voluntarily done?  I mean, of course, it was voluntarily done in the sense that the plaintiff, in these cases, knows what he or she is doing but it is the awareness and acceptance of the risk.

MR NICHOLAS:   That is so, your Honour, and the court took the approach that by reason of this so‑called pressure he could not be said to have been voluntarily, willingly, going out onto the pitch to play.

TOOHEY J:   Well that might be right in a particular factual situation but how could this Court, if it granted special leave in this case, lay down rules or guidance that would dispose of the various situations in which this is likely to arise?

MR NICHOLAS:   Your Honour, what it could say, with respect, and what we invite it to do is to make plain that for a determination as to what manifests voluntary conduct, a voluntary consent to undertake the act which results in the injury, one looks at, objectively, the conduct itself and, from that, as has always been the case up until now ‑ ‑ ‑

GAUDRON J:   And the context.

MR NICHOLAS:   Certainly, your Honour, no argument about that.  But one looks at the context and the man goes out to play and, obviously enough, takes on the risks inherent with the activity that he is willingly engaged in.  Now, your Honour, that is not an exercise as to inquiring into his mental processes to determine what his motive or purpose may have been because that would be an impossible exercise, with respect.

GAUDRON J:   So your argument would go so far as to say that a player who is contracted to play to his club ought to breach his contract.

MR NICHOLAS:   No, your Honour, that is a very different situation.

GAUDRON J:   Well I am not too sure that it is.

MR NICHOLAS:   Your Honour, the situation that your Honour posits is the straight employer/employee.

GAUDRON J:   No, not at all.  Let us assume that this plaintiff is contracted to his Club by the rules of the Club to play whenever requested or whenever his team says that he should.  It is a contract of a different kind from a commercial contract, but it is nonetheless a contract.  Now are you suggesting that being aware of the risks requires that person in that situation to break his contract.

MR NICHOLAS:   No, your Honour.

GAUDRON J:   To break the rules of his Club membership.

MR NICHOLAS:   Your Honour, this case throws up a situation which affects a great many people, namely, those who are going out to play on a completely gratuitous, voluntary, social situation.  Our whole application has made it plain that one is looking at the circumstances where people are engaged for recreation or social purposes and we are ‑ ‑ ‑

GAUDRON J:   That is not inconsistent with the contract.

MR NICHOLAS:   It is not inconsistent with it, your Honour, but the contractual relationship would provide, obviously, an objective set of circumstances akin to the employer/employee relationship.

GAUDRON J:   So that at the end of the day, ultimately, whether or not a council is liable in negligence or in breach of contract depends entirely on the particular situation of the individual player.  It sounds a very strange situation for the law to come to.

MR NICHOLAS:   Well, your Honour, if one comes back to this case - because that is how this case has left it, with the greatest respect - one comes down to a situation where, on the one hand, you have the player who has some sense of obligation to his team and he goes out and plays.  On the other, you might have an individual plaintiff who has never addressed his mind to that and does not care very much anyway.

Now should he fail because he cannot establish some sort of moral pressure, as it is described, as some force which drives him out there when we would say, quite properly, your Honour, it ought to be understood as motive, a motive which is a substantially different thing, we would say, to some force, some coercive force, the effect of which, in the eyes of the law, will be recognised as sufficient to negate his consent.  That is why we say, with the greatest respect, it poses a matter which is left unsettled, it is left in a confusing situation and it does warrant this Court’s assistance.

TOOHEY J:   Yes, thank you, Mr Nicholas.  We need not trouble you, Mr Petty.

The Court is not persuaded that there was any error of principle on the part of the Court of Appeal.  Special leave to appeal should be refused.

MR PETTY:   I seek an order for costs.

TOOHEY J:   Anything to say on that, Mr Nicholas?

MR NICHOLAS:   No, I have nothing to say, your Honour.

TOOHEY J:   Refused with costs.

AT 10.42 AM THE MATTER WAS CONCLUDED