Delautour v Estate of the Late Joseph James Virgona

[2008] HCATrans 240

[2008] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S543 of 2007

B e t w e e n -

RACHEL MAY DELAUTOUR

Applicant

and

ESTATE OF THE LATE JOSEPH VIRGONA BY ITS EXECUTORS ROSEMARY MARIE VIRGONA AND KATHLEEN CONSTANCE QUINLIVAN

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 JUNE 2008, AT 12.09 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 A.D. CAMPBELL, for the applicant.  (instructed by Gerard Malouf & Partners)

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MS T. BERBERIAN, for the respondent.  (instructed by HWL Ebsworth)

KIRBY J:   Yes, Mr Morrison.

MR MORRISON:   Your Honours, this case, we would say, is about two things; first of all, the extent of the ability of an intermediate appellate court to overturn findings of fact made by a trial judge and in that regard it attracts a supervisory role of this Court in respect to appellate proceedings.  It is also about the difficulty faced by intermediate appellate courts in applying the various ratios in Jones v Bartlett in this Court in respect of landlord’s liability. 

Your Honours, the facts are very simple but it might be simply if your Honours have recourse to photographs which we chose from the appeal books and if I hand up two copies, I will simply tell your Honours what they are.  These are from the appeal books prepared for the New South Wales Court of Appeal.  Your Honours, there were vertical doors from the attic space being used a television room into the roof space.  There were two identical doors.  Photographs 65, 66, and 67 shows the one which caused the accident.  Photographs 68 and 69 show the identical door on the other side.  There is one thing that your Honours should simply note and that is that at the time of the accident the trial judge found, and the Court of Appeal did not interfere with the finding, that the door which the applicant plaintiff tried to use in order to store something in there was readily accessible and that the settee was not obstructing passage in any way. 

Your Honours, Justice Ipp, with whose judgment Justice Hodgson and Young agreed, overturned a series of findings of facts by the trial judge and I should simply recite these fairly briefly.  First of all, there was a finding that the doors were there to give access to storage.  Justice Ipp overturned that finding at 63 line 20 when he said that he disagreed with Judge Boulton’s conclusion that the only rational explanation would seem to have been to give access to storage.  Justice Ipp said at 63:

The doors were there simply to allow access to the roof areas, in the same way as manhole covers or trapdoors are ordinarily used for this purpose.

Yet, there was evidence that the tenants had been using the area for storage.  The trial judge had the benefit of a view, the Court of Appeal did not.

KIRBY J:   But the Court of Appeal had the benefit of the photographs you have helpfully brought to our notice and clearly the room to which the door opens is a room with a sloping roof and is not really a habitable room.  It is a room which is obviously in the nature of that which one finds behind manholes.

MR MORRISON:   But the question is, was the trial judge in error in finding that it was a reasonable inference that those doors led to a storage space?  Was it open to an appellate court to say that was not open to the trial judge, we should interfere and impose our own finding that it was the equivalent of a manhole or trapdoor?

KIRBY J:   You know as well as I do that section 75A gives Courts of Appeal fact‑finding responsibilities.  You probably know as well as I do that more injustices have been caused to parties by erroneous fact finding than by erroneous legal determinations by judges, so it is a beneficial provision and we have to respect the rights of Courts of Appeal to exercise that power.  Unless you show error of principle or process ‑ ‑ ‑

MR MORRISON:   May I then progress to try to show error?  Your Honours, the next finding that was overturned was at page 63, line 40.  That was the finding “that the roof area had in fact been used for storage” and there was a long‑standing “practice” in this regard and he suggested that the evidence of Ms Kilby did not support the trial judge’s finding.  That is at 64, line 10.  His Honour was clearly disadvantaged by his lack of a view.  That is Justice Ipp.  There were two identical doors leading on either side to the roof area.  Ms Kilby said that tenants were storing items in one of those door areas and, indeed, there was evidence, which his Honour, Justice Ipp did not refer to, that in the other identical area there were floor boards down to aid access.

When his Honour said that Ms Kilby did not know whether the area through the particular door had been used for storage or not, that ignored the evidence as to the practice of storage in the identical area through an identical door on the other side.  The applicant plaintiff was new to the house and could not possibly have known the distinction.  The distinction Justice Ipp drew between the two areas were therefore artificial and unfair. 

The fact that floorboards had been put down to make the other area safe so as to be able to step in and store items there, simply illustrates that and his Honour makes no mention whatever in the Court of Appeal of that fact which was a subject of an express finding below.  Nor of the fact that there was evidence supporting the trial judge’s finding of long‑standing storage though in the particular side where the applicant fell through, it is true, there is no evidence as to how long the relatively few items there had been stored.  But the evidence was much stronger in respect to the other side. 

The next finding we say that his Honour should not have interfered with was a finding at 64, line 40 where Justice Ipp said, “there was nothing unusual about the make‑up of the roof area” in having full‑length doors giving access into it and he expressed his reason for overturning the finding of fact at first instance as being a matter of “general knowledge”.  This was a house 100 years old with a relatively unusual structure.  Full‑length vertical doors from an attic into a roof simply cannot be normal or common in normal houses.  It seems highly unlikely that most people would have experience of them.  His Honour’s suggestion, indeed, his finding that it was:

typical of many roof areas in residences throughout the country (save for the fact that the roof area in question was not above the top floor of the residence, but adjacent to it) –

is just simply wrong.  There was no evidence at first instance.  There was no evidence at the Court of Appeal to justify his imposing an opinion – and we say an incorrect opinion, a manifestly incorrect opinion – on a finding of fact which was well justified on the part of the trial judge.

KIRBY J:   But you do agree that it was manifestly a roof area?  I mean, you can see the roof panels and the wooden supporters.  It is very clearly a roof area.  It is not an ordinary room.

MR MORRISON:   That is so, but having full‑length doors into a roof area, to say that that is “typical of many roof areas in residences throughout the country”, we just say is wrong.  In finding that there was nothing relevantly unusual about the roof area rendering the premises unfit for the purposes for which they were let, namely, habitation as a domestic residence ‑ ‑ ‑

KIRBY J:   This does not sound like a High Court point to have us sitting there considering what a roof area is.

MR MORRISON:   One High Court point we say is, where was the basis for imposing a series of opinions on the facts – and these are not questions of inferences arising from the evidence, these are questions of simply saying, well, it is a matter of general knowledge, to use his Honour’s words, that this is a normal state of affairs.  That is simply wrong.  The trial judge went and saw it.  The trial judge had the benefit of a large number of witnesses and of detailed evidence including expert evidence.  There was no basis for appellate interference shown in that process.

If, in fact, there was a practice of using the roof area for storage and on one side the area access through the door presented a hazard through lack of support, then that made the area reveal a concealed hazard and that is what we say was demonstrated when the trial judge said in the application book at page 7 at line 20:

The earlier evidence of the Plaintiff under cross‑examination that she had been unable to determine the thickness of what she thought was a timber beam ‑ which seemed improbable at the time ‑ turned out to be quite accurate.

It was that that constituted the trap or the hidden danger and so when Justice Ipp said at page 62 at line 10 that:

The judge did not find the appearance . . . constituted a trap of which the landlord should have been aware –

that is only true in its most literal sense.  He did not use the word “trap”.  He did, however, refer to its deceptive nature and the difficulty of perceiving the width of what turned out to be a batten but which appeared to be a beam and as to the state of knowledge of the landlord, if the practice was of long standing, as the trial judge found, and the presence of the two doors constituted an invitation to do what the tenants were in fact doing, then it was open to the trial judge to find that that was a matter of which the landlord ought to have had knowledge

Justice Ipp then went on to say he was critical of a finding that the “flooring could have been installed”.  He does not mention the fact that flooring had been installed in one side but not in the other; totally makes no reference to that at all.  He also criticised the finding that the door “could have been locked easily and cheaply.  Justice Ipp said there were two reasons for rejecting that finding that a $2.50 padlock would have protected the tenants.  He said, first of all, “there was no investigation as to whether locking the door . . . would comply with safety requirements”.  Never an issue, not raised, not a single witness called, not a question asked at the trial below.  That seems to have come simply as an afterthought from Justice Ipp in writing his Honour’s judgment and we simply say that that speculation was not open to his Honour. 

His other reason which appears at 66 at line 34 was that, “the tenants may have objected to the areas being locked”.  Again, that was not raised below.  The tenants who gave evidence were not asked.  It was impermissible, we would say, for his Honour to turn his speculation into a finding on that issue.  Indeed, logically, the only reason the tenants would have for objecting to the area being locked was because on one side, and to a lesser extent on the other, they were using the area for storage. 

Our final point and the one which then flows into the Jones v Bartlett issue is this.  His Honour seems to have elevated a finding of contributory negligence in taking inadequate care and going to the roof space into a finding that the danger was so obvious that the plaintiff could not succeed.  When the trial judge used the word “obvious”, he did so in the context of contributory negligence.  He did not suggest that it was so obvious that the plaintiff was wholly at fault or that such a danger could not be readily overlooked and his apportionment of 20 per cent contributory negligence reflected that. 

In one sense, the Court of Appeal’s approach in this case would be a reversion to a view of volens which meant that any plaintiff guilty of contributory negligence in respect of a degree of risk which was obvious would fail.  What the Court of Appeal had to ask was, what was obvious and what was the plaintiff’s appreciation of it?  The trial judge correctly said that what was obvious was that going into a dimly lit roof space had a degree of danger.  His Honour seems to have conflated that with what was not obvious, namely, the risk that what appeared in the dim light to be a supporting beam was in fact no such thing. 

What his Honour has done seems to be contrary to the approach his Honour took himself in the Court of Appeal in Brock v Hillsdale Bowling and Recreation Club.  That was the former president of the club, an elderly lady, walking down the ramp.  The ramp had a defect in it.  She had walked down it dozens and perhaps hundreds of times.  She overlooked the defect of which she was aware.  His Honour did not have a difficulty with that appellant succeeding in the Court of Appeal.

KIRBY J:   As you know, Dr Morrison, it is very hard to argue from one factual situation to another.  You have to look at all the facts of the particular case.

MR MORRISON:   Indeed.  Your Honours, there is a real difficulty and it arises from the way in which Jones v Bartlett is expressed.  Can I hand up copies of a decision of the Court of Appeal in a case called Timberland Property Holdings v Bundy.  It is a 2005 case and I will just tell your Honours that was a case of a car park, slipping on oil or grease and the issue that was raised on appeal, there was a finding that the danger was obvious, how can a plaintiff succeed under those circumstances?  The answer in the Court of Appeal appears in the judgment of Justice Basten with whom Justices Handley and Hunt agreed at paragraph 24:

Almost any injury that happens is an injury in respect of which there can be said to have been a foreseeable risk.  In that sense, there was a foreseeable risk of injury here.  But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety . . . 

Just as it may be possible to describe most injuries which occur as being foreseeable, it may also be easy to describe the hazard which caused them in a general sense as “obvious”.

Then the whole of paragraph 29 is the conclusion of the Court of Appeal on that issue:

Taking these and the other surrounding circumstances described above into account, there is no reason to suppose that in finding both that the patch of grease or oil was “obvious” and that the Appellants owed a duty of care, the trial judge was acting inconsistently with legal principle.  Rather, I take his Honour to have been saying that the patch would indeed be apparent to a person looking down as they walked around the pylon, but not that a person taking reasonable care for their safety, whilst walking across the car park, need necessarily look at the ground in those circumstances.  Accordingly, there was, in my view, evidence to support the finding of a duty of care, properly understood in accordance with Brodie and Standing, and such a conclusion is not contradicted by the factual finding that the oil or grease patch was “obvious”.

We say, your Honours, a different bench of the Court of Appeal has, on that very issue and in a way which is to some extent understandable as a result of disparate judgements of this Court in Jones v Bartlett, come to a quite contradictory decision on the question of the significance of “obvious”.  Obvious to whom, obvious in respect of what?  They were fundamental questions which the Court of Appeal needed to address and which ‑ ‑ ‑

KIRBY J:   On the crucial matters, though, Jones v Bartlett was a unanimous decision moving from the old common law of the special decision of landlords to subsuming it within the law of negligence.  So really you just back into the general pool.

MR MORRISON:   But this case of Delautor is a pre‑civil liability case so it is straight Jones v Bartlett and that case, Timberland, suffered from the additional disadvantage that there was no liability for obvious risk because that was a civil liability case, which outlines in even more extreme terms the oddness of this result in relation to the question of how you approach what is meant by “obvious”.  We would say, on a literal reading of what Justice Ipp would say, if there is an obvious danger, though it not be the

danger which the plaintiff perceived, then the plaintiff fails wholly, notwithstanding that there was fault on the part of the landlord.  We say that is not the way in which Jones v Bartlett should be read, but if it is the way Jones v Bartlett is being interpreted, then guidance form this Court is called for, but manifestly the result we say in this case bespeaks interference by an intermediate appellate court in a way which simply was not called for on the facts as found by very careful judgment of the trial judge.

KIRBY J:   The applicant’s fall happened at 1 o’clock in the afternoon, is that correct?

MR MORRISON:   Yes.

KIRBY J:   Was the lighting similar to that which appears in the photograph on page 65 of the appeal book?

MR MORRISON:   The evidence about lighting was that the lighting was dim.  I am told by my learned junior it was similar to the photographs.

KIRBY J:   Yes, well, I would have expected the photographs would endeavour to re‑create the situation.

MR MORRISON:   Again, my learned junior and the trial judge have the advantage of a view which I have not had but ‑ ‑ ‑

KIRBY J:   You have made that point three times.

MR MORRISON:   Certainly, your Honour.

KIRBY J:   Thank you, Dr Morrison.  Yes, Mr Toomey?

MR TOOMEY:   May it please your Honours.  Your Honours, the difficulty for my learned friend who has submitted ‑ ‑ ‑

KIRBY J:   Could I just interrupt you for a moment, Mr Toomey.  For the guidance of counsel in the succeeding matters, they will not be taken before 2.00 pm.  Yes, Mr Toomey.

MR TOOMEY:   The difficulty for my learned friend in this case is that the Court of Appeal divined, we say accurately, that there was no fault on the part of the respondent.  The respondent did not direct the applicant to use this space that she did.  The Court of Appeal was satisfied that there was no evidence which would justify a finding that it had been used for storage and, indeed, the learned trial judge relied on supposed evidence of Ms Kilby, a fellow tenant, who he said had supported the fact that there was such a practice.  Ms Kilby gave no such evidence.  So his finding on that basis was infected by error.

KIRBY J:   Well, that may be so, but what is your answer to the point that there is no basis on which Justice Ipp could have said that the door into the roof area was equivalent to a manhole in an ordinary domestic Australian home?

MR TOOMEY:   He said that, your Honour, because the room was one with, in effect, an A‑frame and it had no ceiling and the reason that the entry into the roof space was on the side was because that was the only place you could put it.  You could not have a manhole into an attic.

KIRBY J:   No, that is true, but the point is, it is not like the ordinary domestic house where you have to get on a ladder to get up into the ceiling area.  This is an area where there is a door and there is debris and things inside.  I can understand a trial judge saying that with such a door in such an area with such objects inside that a tenant might think that you could walk there with safety.

MR TOOMEY:   But, your Honour, she recognised what it was.  As appears from paragraph 30 on page 59 of the book, the applicant recognised she was entering a roof space.  She could see and recognise the roof joist and she put her foot on the ceiling material which was seven inches below the top of the joist. 

KIRBY J:   There was something that led her into thinking that she was still on firm territory.

MR TOOMEY:   She claimed that she thought that the top of the batten which covered the junction of the cement sheeting was the top of a rafter, but that was an impossible claim because for that to be the case, there would have had to be rafters down from the cement sheeting into the rooms below.  She had one of the rooms below and of course the cement sheeting was simply smooth.  There was no such thing.  She must also have known that, because she recognised it was a roof space, what was attached to the bottom of the rafter was the ceiling of the floor below.  She recognised that she did not know what type of floor material it was and she accepted that she stood on the batten because she recognised the floor material might not support her.

Now, if one deals with it on the basis that it was reasonable for the applicant in any event to enter the roof space, but the fact is that my learned friend’s claim that it was identical to another storage space there is wrong.  The other storage space had a door handle on it.  This one the door handle had been removed.  The other storage space had floor boards.  What my learned friend’s argument amounts to is that because a landlord provides a storage space with ordinary access by turning a door handle and opening it, with floor boards and takes the trouble and expense of fitting floor boards, that he is negligent if there is another area to which he has not provided access, from which the door handle has been removed ‑ ‑ ‑

KIRBY J:   The suggestion is that as in the old language, this is a hidden trap, that there is a safe storage space but in a virtually identical situation it is a rather dangerous place for anybody to enter.

MR TOOMEY:   But she knew it was a roof space, your Honour.  She is an adult woman who knows it is a roof space.  She has no reason to believe it is a storage space because she has not been told it is.  It is not a storage space.  On the finding of the Court of Appeal, which we say was a correct finding, there was no basis on which it could be found that it had been used as a storage space.  The only anecdotal evidence from the people in the house was that it was not used as a storage space.  There was no invitation.  There was no reason on looking into the space to believe that it was a storage space.  She recognised the danger.  She knew it was a risk.

KIRBY J:   There were no objects in it that looked as thought they were just storage?

MR TOOMEY:   There was said to be one box which looked like a file box.  There was no evidence how long it had been there or who had put it there.

KIRBY J:   The tenant would not know that, especially a new tenant like the applicant.

MR TOOMEY:   But, your Honour, it could be the same if she walked into any room and there were any danger.  The simple fact is that this claim goes far beyond anything which has been recognised by the common law of Australia and certainly far beyond what was laid down by this Court as the law in Jones v Bartlett.  The respondent had no knowledge of any intention of the tenant to use it.  It had no door handle, which is pretty fair indication to any one that they are not intended to go in there, and there was no reason why she could not have opened the door on the cupboard which was a storage space, opened that, seen the floor boards and used that.

KIRBY J:   Yes, we do not need any more assistance from you, Mr Toomey.

MR TOOMEY:   May it please your Honours.

KIRBY J:   Anything else, Dr Morrison?

MR MORRISON:   Just a couple of matters, your Honour.  First of all, these two doors are mirror images, identical, nothing to distinguish between them.  The trial judge found ‑ ‑ ‑

KIRBY J:   The suggestion is that when you look at one it has floor boards, when you look at the other it does not and you have to step down and it has joists and it is just not really able to bear human weight.

MR MORRISON:   Well, the unfortunate applicant plaintiff, of course, had never looked in the other one to make that comparison.  She did not know that in one side – and they are identical – there is ‑ ‑ ‑

KIRBY J:   Dr Morrison, if you were persuading me at trial, I might well be absolutely convinced by what you are saying, but that is not where we are.  We are in the High Court of Australia.  You have to get up here.

MR MORRISON:   Well, can I just deal with the matters that my learned friend raised very briefly?

KIRBY J:   Yes.

MR MORRISON:   First of all, there was a clear finding by the trial judge not disturbed by the Court of Appeal that there was easy access to this door.  So the comment about the door latch missing is neither here nor there.  There was nothing obstructing the front of it, there was nothing to stop her opening it easily.  In terms of knowing that the other side was safe and knowing that this side was not, how would she know?  The question is, and the trial judge had seen it, the Court of Appeal had not, was there anything to tell her that this side was hazardous and the other side was safe?  And the answer is, not on the trial judge’s findings and not on a proper examination of the appellate findings, because the Court of Appeal never addressed that issue in the way it ought to have been addressed.  

So, when it said it was an impossible claim accepted by the trial judge in respect of the deceptiveness of the batten, his Honour said “as a result of my view, I change my mind on that issue.”.  Now, how can that be overturned by an appellate decision?  It is the very matter which this Court in Pledge criticised, indeed, Justice Ipp for doing it in that case in respect of a trial judge who had had the advantage of a view.  We say it is the same error of principle in respect of a intermediate appellate court.

KIRBY J:   The applicant was injured when she fell through a ceiling in what she thought was a storeroom in premises where she was a tenant.  She sued the landlord and recovered damages at trial in the District Court of New South Wales before Acting District Court Judge Boulton. 

The Court of Appeal of New South Wales found error in the primary judge’s approach applying the principles established by this Court in Wyong Shire Council v Shirt (1980) 146 CLR 40. Specifically the Court of Appeal found that the primary judge had not analysed the cost of the suggested reasonable foreseeability and necessity of strengthening the flooring of the room in question in the demised premises.

The basic principles concerning the liability of landlords to tenants in Australia was clarified by the decision of this Court in Jones v Bartlett (2000) 205 CLR 166. The application of those principles to particular fact situations is ordinarily left to courts of trial and intermediate courts of appeal. Although the applicant’s counsel made some arguable criticisms of the Court of Appeal reasons, we are not ultimately convinced that the Court of Appeal erred in the conclusion that it reached or that there are such doubts about its reasoning as would warrant the grant of special leave to appeal to this Court.

For these reasons the application must be dismissed.  The applicant must pay the respondent’s costs.

The Court returns the appeal books to you, Dr Morrison.  The Court will now adjourn to reconvene at 2 o’clock.

AT 12.41 PM THE MATTER WAS CONCLUDED