Country Energy v Sheather

[2008] HCATrans 82

[2008] HCATrans 082

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S408 of 2007

B e t w e e n -

COUNTRY ENERGY

Applicant

and

LOUIS SHEATHER

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 FEBRUARY 2008, AT 10.26 AM

Copyright in the High Court of Australia

MR P.R. GARLING, SC:   May it please the Court, I appear with my learned friend, MS K.C. MORGAN, for the applicant.  (instructed by DLA Phillips Fox)

MR R.S. McILWAINE, SC:   May it please the Court, I appear for the respondent with my learned friend, MR C.P. McKEOWN.  (instructed by Baker Deane & Nutt)

GLEESON CJ:   Yes, Mr Garling.

MR GARLING:   If your Honours please, I seek first an extension of time for the filing of the application by two days.

GLEESON CJ:   Is this opposed, Mr McIlwaine?

MR McILWAINE:   No, your Honour.

GLEESON CJ:   Yes, you have that.

MR GARLING:   Thank you, your Honours.  Your Honours, this application arises from a set of facts which are uncontroversial and simple.  Country Energy is a State‑owned corporation, which by statute supplies electricity to about 85 per cent of the geographical area of New South Wales.  In the course of that it has hundreds of thousands of kilometres of overhead line.

In this case, the overhead line was erected across a gap in a range of hills, called Chinaman’s Gap, so that it was about 100 feet above the ground.  The Civil Aviation Regulations prohibited flying at this location by any helicopter at lower than 500 feet above the ground unless certain specific factual matters applied, which they did not.  Whilst engaged in a flight, the helicopter at 100 feet flew into the overhead line, crashed, and was destroyed.

The respondent, the owner of the helicopter, sought damages for the value of the helicopter and certain associated costs.  The trial judge held that taking into account the manner of flying of the helicopter by the pilot, Country Energy was not in breach of any duty which it owed.

GUMMOW J:   Now, where do you say Justice Hodgson went wrong?

MR GARLING:   Justice Hodgson went wrong in this way, your Honours.  He says at page 41, paragraph 33, that this Court’s decision in Brodie:

does not establish that if a plaintiff is otherwise within a class of persons to whom a duty is owed and breached, negligence of the particular plaintiff takes the plaintiff out of that class.

Then he goes on to say with respect to Brodie that the way in which persons exercising reasonable care is taken into account is in answering the question on breach rather than in defining the duty.  That question, your Honours, is something upon which the New South Wales Court of Appeal and at least the Victorian Court of Appeal have expressed different views in different cases.

We submit that the proper approach is that in a circumstance such as this, a duty ought be defined so as to include a component that would mean that, as this Court held in Brodie, a duty was only owed where persons might reasonably be expected to exercise reasonable care for their safety.

GUMMOW J:   Well, just a minute, Mr Garling.  Justice Hodgson fixed on various matters at paragraph 29, did he not, on page 40?

MR GARLING:   Yes, your Honour.

GUMMOW J:   Then he picked them up again at paragraph 43 on page 45?

MR GARLING:   Yes, your Honour.

GUMMOW J:   It does not look like a dramatic case on the law.

MR GARLING:   Well, I can understand, with respect, what has fallen for your Honour, but maybe put it this way, that if one paused for a moment and used this analogy, if a car driver was to drive for some distance, a kilometre or two or three, on the wrong side of the road, across double white lines, and there to encounter an accident ‑ ‑ ‑

GUMMOW J:   Who is Mr Doake?

MR GARLING:   Mr Doake was a pilot in the area with some familiarity of the area.  He gave evidence, your Honour, summarised at page 10 of the application book.  He was an experienced pilot.  The warning which he gave Country Energy, the applicant, is at page 10, line 41, in paragraph 26 in the trial judge’s description.  It can properly be said to be a discussion at a relatively low level of warning and points to matters which would be within the ordinary purview of the knowledge of pilots and people flying aircraft.

I need also, your Honours, just to complete the analogy, with respect, if the car driver was driving for a very long way on the wrong side of the road, in other words, a clearly and obviously very dangerous path, the Court’s decision – this Court’s decision in Brodie would exclude the obligation to owe a duty.  That becomes important because this case is brought not by the pilot or the pilot’s relative or the like, but rather by the owner, and the question of whether in this case the pilot’s conduct becomes relevant must go, we submit, to duty rather than breach.  In that circumstance, we submit that his Honour Justice Hodgson was in error.

Justice Ipp, your Honours, of course, differed from Justice Hodgson in his reasoning.  He defined the duty at paragraph 72 on page 52 in this way:

that Country Energy owed all pilots of low flying aircraft in the vicinity of Chinaman’s Gap a duty to take reasonable care to avoid injury to them.

That definition is circular because it necessarily means that even though a pilot may behave in a way which we would submit was not mere inadvertence, but was rather a deliberate course of conduct contrary to the relevant standards and regulations, we would nevertheless owe them a duty. 

Justice Tobias at paragraph 78, page 53 concluded that it would not matter which approach you followed and made reference to an earlier decision of his in the case of Liverpool City Council v Millett.  That decision, we have not given it to your Honours, simply says this.  This sort of resolution will always come out the same way.  He does not point to any particular fact in this case.

We submit, your Honours, that there are really three reasons why leave ought be granted.  Firstly, the question of obviousness of risk and matters of that kind as to whether it goes to duty or breach is a matter of fundamental disagreement in the Court of Appeal in any area outside the application of the law to road authorities.

GLEESON CJ:   But it was not a disagreement that was material to their decision, was it?

MR GARLING:   Yes, we do submit that, your Honour, with respect, because if one considered whether it went to duty, the applicant would be in the position of not having to make any response at all.

GLEESON CJ:   Their final decision was unanimous, was it not?

MR GARLING:   Yes, in the result, yes, your Honour.

GLEESON CJ:   Yes.

MR GARLING:   But we submit that is in part because the way in which Justice Ipp takes it into account on duty is a circular reasoning in which he defines the duty so narrowly that it must have led to liability, there is no question of reasonableness in the application the way he defined it.

Your Honours, we submit there is disagreement in the court below.  The Victorian court has taken the view, the Victorian Court of Appeal, that the issue is one that goes to the duty, more broadly than the road authorities.  Secondly, this is a case which we submit is not resolved by the recent decision of this Court in Dederer.  In fact, we submit that the way in which this Court, the majority of this Court, resolved Dederer would mean that its application to this case would resolve in a decision in favour of my client, and we submit that having regard to the identity of my client and the geographical area and length of overhead lines, not to mention other power authorities throughout Australia, this is a case the precedence of which would merit a grant of special leave, and because we recognise that your Honours will see that we offer to pay the relevant costs.  May it please the Court.

GLEESON CJ:   As appears from paragraph 15 of the reasons of Justice Hodgson, the basis on which the Court of Appeal differed from the trial judge concerned the weight to be given to a certain factual consideration.  Although there were differences of approach within the Court of Appeal those differences did not affect the outcome of their final decision, which was unanimous, and we would not grant special leave in order to consider a difference that was not material to the outcome of the case.

We think that the case does not raise an issue suitable to a grant of special leave to appeal and we not persuaded that the interests of justice require it.  The application is dismissed with costs.

AT 10.37 AM THE MATTER WAS CONCLUDED