Dobell v Uniting Church of Australia Property Trust

[1996] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B1 of 1996

B e t w e e n -

PATRICIA MARY DOBELL

Applicant

and

THE UNITING CHURCH OF AUSTRALIA PROPERTY TRUST

Respondent

Application for special leave to appeal

BRENNAN CJ
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 20 JUNE 1996, AT 3.05 PM

Copyright in the High Court of Australia

MR L. BOCCABELLA:   Your Honours, I appear for the applicant.  (instructed by Baker Johnson)

MR S.C. WILLIAMS, QC:   If it please the Court, I appear with my learned friend, MS C. JOB, for the respondent.  (instructed by Gadens Ridgeway.

BRENNAN CJ:   Thank you.  Mr Boccabella. 

MR BOCCABELLA:   Your Honours, I have three special leave points.  The first is based on the notion that expert evidence is required in matters such as this to allow a trial judge to determine whether the configuration of racks in a store creates a situation which negligently causes injuries to others. 

The second special leave point, your Honours, relates to the particular justice of the applicant in this case, namely that if it be the case, or if the Court considers that it is possible that the Chief Justice in the Court of Appeal was correct, as was the trial Justice, then, of course, her personal injuries will not be recompensed in terms of damages.  So, if your Honours were to be of the view that the Chief Justice ‑ at least, there was some prospect of the Chief Justice of the Queensland Supreme Court being correct ‑ then it raises the second limb in section 35A. 

Your Honours, the third special leave point is the notion that the standard of duty of care is less in relation to charitable organisations that operate commercial activities.  So, your Honours may I develop those three points?  Your Honours will see from my submissions that ‑ ‑ ‑

GUMMOW J:   Is the third point actually manifested in direct terms?

MR BOCCABELLA:   I consider it is, your Honour.

GUMMOW J:   In the reasons?

MR BOCCABELLA:   If one goes to page 41 of the record.  Their Honours were suggesting that if a different and, impliedly, wider aisle space was actually provided, then it would obviously lead to, perhaps, fewer racks being provided and then conclude:

Indeed the solution might very well be one which would make it impossible for the charitable indigent person‑oriented and low‑cost objectives of these stores to be maintained.

Now, your Honours, it would be my submission on this point that once one ‑ ‑ ‑

KIRBY J:   It really is a slightly hair‑splitting argument, is it not?  Speaking for myself, I do not think there is much in that, or in the second point.  The first point was the one that was concerning me; that all their Honours were saying there was, “You have got to test what you are doing by consequences, and one consequence of this might be to make it difficult for this type of store to operate”.

MR BOCCABELLA:   Well, that would be the case if one were looking at these types of commercial activities generally, for example, the selling of second‑hand clothes or second‑hand goods, but the mere fact that one is charitable and another might be commercial, even though they are selling one type of good, would not, in my submission, lead to a different test, otherwise the mere fact that one is engaging in charity would be some sort of licence to be negligent which, I submit, ought not follow; really that the two Justices in the majority have adopted an irrelevant consideration which has infected their thinking as to what the solution ought to be.

Your Honours, the first point that you will see is articulated, and it obviously involves some examination of the facts.  I will be as brief as I can, but if your Honours could go to the diagram, which is found on page 43.  Now, this did not purport to represent every single rack on the floor; it really was meant to concentrate on the area where the accident actually took place.  Your Honour, you will see that the external walls really create natural passageways; whether they were designed that way or not is another matter, but they do create natural passageways where, if people want to move from one part of the store to another, they will use those passageways.  It may not be as clear on your document if it is affected by the binding, but obviously there is a space between the word “menswear” and the actual store, and that is the space that the trial judge was obviously identifying.

So, they are natural pathways.  They are pathways which people are drawn to for the purpose of moving from one stall to another.  The other areas where they could move would require them to move in and out of racks whereas somebody, ordinarily a customer, would tend to avoid that, unless they were specifically looking at that particular rack.  So one has a situation, I submit, of risk minimisation, which is really ultimately what the trial judge had to do; was to assess the risk and assess whether the risk ought to be minimised, and, your Honour, what the Justices in the majority in the Court of Appeal alluded to was that one needed expert evidence really to come to that conclusion as to whether having a set of racks ‑ ‑ ‑

KIRBY J:   Now, where did they say most clearly that that is a general rule?

MR BOCCABELLA:   At page 39, your Honours, at about point 7, and this is where they talk about the domino effect.  They say:

Indeed there is inevitably something of a domino effect once rearrangements of this kind are suggested.  The overall store layout from a safety viewpoint is by no means a simple problem to which a layperson can suggest an obvious solution.  The court did not have the benefit of any expert evidence.  Whether there exists any overall solution with any significant improvement in safety is not known.

My submission is, one does not need an expert evidence to simply say, if one goes to the drawing ‑ ‑ ‑

KIRBY J:   It is the fact that the court did not have in this particular case expert evidence.  I do not take their Honours to say that that is an imperative necessity in every case.  They just said in passing that in this case you did not.

MR BOCCABELLA:   Except that it is implicit that, in the absence of expert evidence, one could not raise the argument that was raised obviously by the plaintiff, found to be correct by the trial judge and found to be correct by the Chief Justice; namely, that a lay person could look at the layout of this store, identify that there are major traffic areas, whichever way you describe them, and that those major traffic areas ought to have the racks designed in such a way that people are not looking at them while people are walking past.  Preferably they should be placed at 90 degrees so that less people will obviously be walking in and out of these racks, rather than as if they were placed side on to the walls, and my submission is that one does not need expert evidence to come to that conclusion.  A lay person can do that and, indeed, your Honours, it could be establishing a principle that, in every personal injuries case where the facts are quite simple, one needs to engage all sorts of experts to come to conclusions about safety.

KIRBY J:   That would worry me if that was the principle laid down by the Court of Appeal, because I do not accept that principle, but I do not read what their Honours say there.  They just say, “Well, whatever strength might have been given to your case by calling an expert witness, was not given in this particular case”.  I do not take them to be saying in every case of simple negligence you have got to bring forward an expert.

MR BOCCABELLA:   I am not suggesting that the Court of Appeal has said that directly.

KIRBY J:   But the problem is that is your special leave point.  If it is simply a comment on the way you presented the case, then it is not a special leave issue.

MR BOCCABELLA:   It is a special leave point because they are suggesting that, in cases like this, without expert evidence, you will not succeed.

KIRBY J:   No.  They are saying, “In this particular case, you can’t succeed and, by the way, you didn’t call an expert that might have given you the evidence that would have led to your succeeding”.

MR BOCCABELLA:   The common law is obviously built on individual cases, which are based on individual factual circumstances.  The risk is, I submit, that the factual matrix of this case, with that conclusion in it, would lead cautious plaintiffs and their advisers to go and look for experts in quite simple cases.  So, a Court of Appeal would not, in a case like this, or indeed any case, lay down a general principle like that, but because the common law is made up of the building blocks of individual cases like this, now that is the essential risk, that plaintiffs, looking at cases like this, will come to the conclusion that they need expert evidence on fairly simple factual situations. 

I submit this, the trial judge simply found that if the store has a natural area which attracts the main passing traffic, then the racks ought to be designed in such a way as to keep lookers ‑ for want of a better word - of clothing away from the main traffic area.  Their Honours came to the conclusion that the case lacked expert evidence.  There is a risk that plaintiffs, on the strength of cases like this, would consider that they had to get expert evidence on fairly simple matters and, I submit, that is something that ought to be corrected by this Court. 

Your Honours, I have made the point about the particular justice of this case.  A person has been injured in circumstances where they ought to, where, if two out of the four judges that have considered the matter have considered that the plaintiff is entitled to compensation, and two out of the four judges come to that conclusion, and your Honours consider there is

some prospect of the Chief Justice being correct, then I submit the administration of justice in this particular case would require the intervention of this Court.  Your Honours, unless I can answer any particular questions your Honours may have, those are the submissions I make.

BRENNAN CJ:   Yes, thank you, Mr Boccabella.  We need not trouble you, Mr Williams. 

Although evidence that purports to be expert evidence may not be admissible, much less necessary, to establish negligence in occupier liability cases arising from the layout of store premises, the prospects of success of an appeal are not sufficient to warrant a grant of special leave.  Accordingly, special leave is refused.

MR WILLIAMS:   I ask for costs, may it please your Honour.

BRENNAN CJ:   You have nothing to say about that, Mr Boccabella.

MR BOCCABELLA:   No, your Honour.

BRENNAN CJ:   Refused with costs.

AT 3.17 PM THE MATTER WAS CONCLUDED