Fullard v Cruise Group Pty Ltd

[2005] HCATrans 963

[2005] HCATrans 963

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S325 of 2005

B e t w e e n -

NORMA FAYE FULLARD

Applicant

and

CRUISE GROUP PTY LIMITED

Respondent

Application for special leave to appeal

GLEESON CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 2005, AT 11.05 AM

Copyright in the High Court of Australia

MR B.W.WALKER, SC:   May it please the Court, I appear with my learned friends, MR E.G. ROMANIUK and MR D.R.J. TOOMEY, for the applicant.  (instructed by Russell McLelland Brown)

MR B.W. RAYMENT, QC:   May it please your Honours, I appear with my learned friend, MR R.I. GOODRIDGE, for the respondent.  (instructed by Maurice May & Co)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours, at page 89 of the application book the second judge of the majority, Justice McClellan, acknowledges what, in our submission is, to use a loaded word, an obvious proposition where in paragraph 58 his Honour says that:

To my mind, the presence of a coaming on a public ferry or cruise boat could in appropriate circumstances, provide a danger against which the owner might reasonably be obliged to warn passengers.

In particular, in relation to the kind of tourist vessel where people’s eyes are sought as part of the business enterprise to be directed otherwise than to the floor of the vessel and rather to the sights which provide the stock‑in‑trade of the trader, that must be so.  However, at page 91 of the application book the same judge, paragraph 62, having made a proposition with which it might be difficult to quarrel in the abstract in paragraph 61, concluded that the matter was an inevitable conclusion, that because a fall had not been reported to the responsible corporate officer “no more was required to be done by the appellant to discharge its duty of care to passengers”.

Now, in our submission, both the learned trial judge and with what are, with great respect, the very careful reasons of the dissenting judge, Justice Basten, in this case, provide the answer to that wrong approach which, combined with the notion of an, so‑called, obvious danger threatens, in our submission, to place the duty of care, the reasonable response to it and the detection of breach of the relevant standard of care in a rather peculiar position for the following reasons.

The coaming after all was not a feature of nature.  It was not one of those things said to be obvious because we all live next to the sea, above cliffs, et cetera.  The coaming was created, relevantly, by the defendant who chose to ply the tourist trade in question in a vessel so constructed.  That is not itself a criticism of course, but places very squarely the responsibility in considering the dangers thus created of a kind that Justice McClellan clearly appreciated in paragraph 58 on the defendant’s side of the ledger rather than the plaintiff’s side of the ledger.  That is the first point.

The second point is that the statistical approach which one could be forgiven for thinking really means that a defendant lucky enough to have escaped other’s misfortune being reported to them somehow lowers the reasonable response, that is a position which casts a mysterious light on what happens when the danger is first created.  When this vessel was first put into service what was the position at common law, applying the so‑called Shirt calculus at the proper stage of the analysis, what was the position of this defendant?  It could not call in aid the fact that over the next 10 years there would be no reports of trips or falls over that coaming, which are received by the corporate officers, rather all it would have had was the coaming in its state without a statistical or fortunate history yet to occur presenting the kind of possibility of tripping by people who are looking elsewhere.

That was precisely the state of the coaming so far as the plaintiff was concerned.  For her this was the first time she had encountered this particular deck and so the peculiar position arises from the majority in the Court of Appeal that if the defendant has become habituated by lack of any report to the fact that a danger exists but no response is necessary, that will inure to the detriment of any plaintiff for whom first time, only time round, the structure in question presented exactly as it must have to the defendant before the defendant ever had these statistics to call in aid in a court case.

It is for those reasons, in our submission, that though of course this is but a decision on its facts applying the most elementary propositions of the law of negligence, it represents as an authority with all the cautions that have to be expressed about the use of authority in this area, it represents a striking of the balance by way of interference with an orthodox piece of reasoning at trial by the majority in the Court of Appeal that both on the individual justice of the case and in order to expel the false notion of looking ahead to what may turn out to be a fortunate history ought to attract a grant of special leave by this Court.

There will not be, there would not be, findings of fact which would present any difficulty in this case as a suitable vehicle bearing in mind that the only further issue involved is one upon which we, in any event, derive support from, namely the question of contributory negligence referred to briefly by Justice Basten. 

Now, we draw upon that conceptually, though of course insisting there was no contributory negligence as found by the trial judge, because, in our submission, the approach taken by the majority is one which really leaves no room for the apportionment legislation to operate in cases such as the present.  They have, as it were, restored, by reference to what the

plaintiff should have done, the position pre those apportionment legislations where contributory negligence was a complete defence.

It is also true that this case ultimately comes down to whether or not the nil response of the defendant was reasonable.  We accept of course that is an elementary proposition of negligence law and there is nothing in the argument we would wish to present which could possibly qualify that jury question:  was it reasonable?  What we do, however, submit respectfully to this Court is that it is within this Court’s purview by way of a grant of special leave from time to time to correct factual reasoning, which itself does not have direct precedential value in any other case, but which provides an example of judicial method which ought to be disapproved from time to time lest it have an effect upon the running of trials where, as is well known, Court of Appeal approaches to somewhat similar cases are called in aid and not improperly.

It is for those reasons, both a corrective general opportunity plus the interests of justice in the particular case that presents this otherwise ordinary trip case as one appropriate for a grant of special leave by this Court.  May it please the Court.

GLEESON CJ:   We do not need to hear you, Mr Rayment.

The outcome of this case turned upon the application of settled principles to the particular facts and circumstances and we are not persuaded that the interests of justice require a grant of special leave to appeal.  The application is dismissed with costs.

AT 11.14 AM THE MATTER WAS CONCLUDED