Fabre v Arenales

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, a 19-year-old woman, had been involved in an incident on 4 July 1979 at a party in Crows Nest, Sydney, which resulted in her injury. The dispute concerned the legal relationship between the applicant and the defendant, particularly in light of the applicant's circumstances and capacity at the time of the incident.

The primary legal issue before the court was whether the trial judge erred in concluding that the only possible relationship between the plaintiff and the defendant was one of "two young criminals," thereby precluding any further examination of the circumstances. The applicant argued that the trial judge failed to consider the whole of the circumstances and the entirety of the relationship between the parties, as required by the principles established in *Gala v Preston*. Specifically, the applicant contended that differences in knowledge and capacity between the parties, and the applicant's own state at the time, warranted a broader examination than that undertaken by the trial judge.

The applicant's counsel submitted that the trial judge's approach, which focused solely on a contest of fact between the plaintiff and a non-party witness, overlooked the need to assess the relationship in its entirety. The applicant's observed state at the time – described as substantially affected, wobbling, with wide and staring eyes, and exhibiting bizarre behaviour – was presented as evidence that the court should have considered in determining the nature of the relationship, rather than simply concluding it was one of criminal participants. The applicant argued that this was not merely an application of principle but raised a question of fundamental principle regarding the assessment of relationships in such circumstances.