Gunter v State Transit Authority NSW

[2005] HCATrans 555

[2005] HCATrans 555

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S409 of 2004

B e t w e e n -

LORRAINE GUNTER

Applicant

and

STATE TRANSIT AUTHORITY OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 11.33 AM

Copyright in the High Court of Australia

MR G.P. SEGAL:   May it please the Court, I appear on behalf of the applicant.  (instructed by D’Elia Law)

MR G.M. WATSON, SC:   May it please the Court, I appear with MR J.C. SHELLER for the respondent.  (instructed by TressCox Lawyers)

GLEESON CJ:   Yes.  Mr Segal.

MR SEGAL:   If it please the Court.  Since the application was lodged in this matter your Honours will be aware there was a decision of this Court in Allianz v GSF which of course puts yet a different complexion to the application and to the appeal that is contemplated.

The application now is really put on two bases.  The first is that the decision of this Court in Allianz really resolves the question to a point in our favour, such that it would be inappropriate not to grant leave because as your Honour the Chief Justice remarked recently, it would be in another case…..where your Honour said there would be some tension between the decision in the court below in that case as, indeed, there would be in this case, on the one hand, and Allianz on the other.  In other words, it would be inappropriate for a court for a decision to stand which has been the subject of an undermining attack, may I call it.

GLEESON CJ:   Mr Segal, ultimately, what is at issue is the construction of section 3 in the definition of “motor accident”.

MR SEGAL:   That is correct.

GLEESON CJ:   Do you submit that section 3 in defining “motor accident” should be read as meaning motor accident means an accident or incident caused solely by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes death or injury.

MR SEGAL:   I put it on two bases.  That is one and the alternative I put it on the basis of predominantly.

GLEESON CJ:   This is a case of a single tortfeasor.

MR SEGAL:   And my submission is that would create a situation, if that would be the basis of my losing, that would be quite unsatisfactory because if there were two tortfeasors then you would have a rather strange situation.

GLEESON CJ:   I can understand the argument that you would want to put if this sign had been erected by the local council, but here what happened was that the State Transit Authority, on the findings, we assume, negligently put up a sign near the footpath and then a driver employed by the State Transit Authority negligently collided with the sign and a member of the public was injured.

MR SEGAL:   Correct.

GLEESON CJ:   So this was a classic case, was it not, of concurrent acts of negligence by a single tortfeasor resulting in the single damage?

MR SEGAL:   Yes, but may I say to your Honours this, that in Allianz, which your Honour has pointed out, was one has to undertake an examination of the impact of the two different acts that may happen.  In other words, it was notions of predominance that were discussed in Allianz.  That notion has not been explored here at all and that is why, aside from the basis that has been undermined by Allianz, there is still an extant problem that has to be resolved.

GLEESON CJ:   Unless you read the word “solely” into section 3, this was undoubtedly an accident caused by the fault of the driver of the motor vehicle, was it not?

MR SEGAL:   With respect, not necessarily, because if your Honour was to adopt what was said in Allianz you have to examine not just whether it was solely but whether it was predominant because that is the phrasing that was used in the joint judgment in that case to determine whether there was really a cause that mattered for the purpose of the section.  It is not a matter of none or solely at all.  It is a matter of which, given the impact of all of the factors that brought about the event, it was that which had the most predominant effect.  I know I have said it more than once but they are the words that were used in Allianz.  Now, it is that type of examination of the facts that did not occur in this case.

GLEESON CJ:   Just take me to the part of Allianz in question.

MR SEGAL:   If your Honour pleases.  May I firstly take you to paragraph 61 in the judgment of Justice McHugh to begin with where he points out, as indeed was the situation here, that the notion of close physical connection between the defect and the injury - now, in this case, of course, there was no connection between the bus and my client at all.

GLEESON CJ:   There was a connection between the negligent driving and your client.

MR SEGAL:   That is certainly true, but you have to look at the whole of the circumstances and one of them is the lack of physical contact which his Honour in fact drew attention to there.

GLEESON CJ:   In Allianz they were dealing with the question of some defective system of work or defective vehicle.

MR SEGAL:   They were.  What had happened was ‑ ‑ ‑

GLEESON CJ:   Here you are dealing with a case in which a bus driver negligently collides with an object and injures a pedestrian, so there is absolutely no doubt about the cause of the connection between the negligent driving and the injury is there?

MR SEGAL:   There is no doubt that there is a connection, but to answer your Honour’s question, at paragraph 102 of the judgment of their Honours Justices Gummow, Hayne and Heydon, there is a reference to the fact that unless there is some form of predominance and immediacy ‑ ‑ ‑

GLEESON CJ:   You are not suggesting, are you, that Allianz is authority for the proposition that in this case the courts below should have set out to work out whether the negligent driving of the bus driver who ran into the sign or the negligence of the person who located the sign on the edge of the footpath was predominant?

MR SEGAL:   I am suggesting that it is exactly what they ought to do.

GLEESON CJ:   So you have to work out which of the two employees of the State Transit Authority was more at fault?

MR SEGAL:   To some extent, yes, because as was pointed ‑ ‑ ‑

GLEESON CJ:   And it is only if you say 51 per cent on the part of the driver that you get within this definition of “motor accident”.

MR SEGAL:   I do not know that one would have to go to the point of putting it in that degree of percentage.  What you would have to do is to be satisfied without trying to get unreal percentages into the picture which have an unreality about it.  You would have to be satisfied that the predominant and real cause was one or the other.

GLEESON CJ:   We could end up having an Allianz list in this Court.

MR SEGAL:   One way of - the point had not escaped me, to be quite blunt with your Honour, because this needs to be worked out.  We have a whole body of jurisprudence in the State courts which is built upon the law as it was understood prior to Allianz, and, unless and until this Court opines, as it sets forth its views as to the way in which one deals with a situation where you have the one tortfeasor yet two totally different breaches of duty – not breaches of duty relating to the one thing – I mean, in the loading and unloading cases, for example, what you have ‑ ‑ ‑

GLEESON CJ:   We can very quickly resolve that question here today.

MR SEGAL:   If your Honours did it without the full argument it would go – an appeal, in my respectful submission would not be the way to approach it because there are a great many issues one has to consider but there has to be a determination.  Can I just approach the matter another way for a moment and put this to your Honours.  Let us suppose, as I put at first instance, that you did have a different bus company, as one sees in western Sydney, for example, where the State Transit Authority has the bus stops and different bus companies use them.  Now, it would be, in my respectful submission, a strange result that if for any reason one, for example, could say you cannot sue the State Transit Authority of, say, Westbus, to pick an example – one of their buses knocked the bus stop over.

Indeed, there are the views expressed by Justice Bryson in Ryan v Pledge, I think was the name in which it came to this Court at another time, would be something that is not contemplated by any of the versions of the legislation.  So that really what you would not have is a situation where you could say you cannot sue the State Transit Authority for putting up the wrong bus stop because another bus company came and knocked it over.  That would not be a result that would be acceptable.

So you must ask the question, if that is so why should the plaintiff be out of court because it was one tortfeasor?  It is the events you have to look at, not the parties.  The event is the putting up of the bus stop.  That is the event, not who it is.  It would produce a very odd result, in my respectful submission.  After all, why should insurers who contemplate their position be concerned to contemplate events that have come about other than for the use of the motor vehicle because at the end of the day this defendant, as it was there, was sued not for anything to do with driving the motor vehicle, for a totally different duty and a totally different breach of duty and yet the Act, which is now the subject of discussion, is set up to provide a fund – a limited fund though it is, and in limited circumstances though it may be – to deal with the manner of driving the vehicle.

But, this defendant is not sued for that act.  It is a totally different act, whereas in the unloading cases, for example, they were acts relating to the use of the vehicle.  This is not that at all.  This is a totally divorced set of circumstances, the placing of the bus stop.  Yet, somehow or another, if my friends were right, the result would be that insurers would be looking at a situation of insuring under this legislation for an event that has nothing to do with their insured’s vehicle being driven and in terms of why they are being held liable and in terms of the duty that they breached.

That is not what this Act was all about, but that aside, this is a strange case in the sense that I am standing here seeking to attack a decision which this Court has explicitly attacked in any event.  The reasoning in the Court of Appeal which drove it to the decision that it did has been well and truly put aside by the views of this Court and, therefore, it would be inappropriate, even on that ground, to sustain the decision.

Even if your Honours were of the view that my argument drove – where the logic of a situation is pointing to a sole cause – then I would submit to your Honour that the answer may be, in a particular case, that that is right, a sole cause may be necessary, but certainly one would have regard to the case that is brought.  I know in Emad it is suggested that one should not just look at the situation by the way it is pleaded and one accepts that, to a point, but it is more than just a characterisation that we are talking about here.

What is alleged is a different duty outside of the use of a motor vehicle.  A lot of the duties where one would look at it from the Emad point of view would be cases where it is the same set of circumstances but different duties are imposed about those sets of circumstances.  That is not that type of case at all we are discussing here.  Ultimately, my submission is that there is nothing in the legislation that requires a construction where even if there be a minute involvement of the driving of the bus that the circumstances of the party should be determined by that legislation.

GLEESON CJ:   If this accident falls within the definition of “motor accident” you cannot succeed?

MR SEGAL:   I would agree with that.

GLEESON CJ:   “Motor accident” is defined to mean:

an accident . . . caused by the fault of the . . . driver of a motor vehicle . . . which causes . . . injury to a person.

MR SEGAL:   Correct.

GLEESON CJ:   Your client was injured by an accident that involved a negligently driven bus colliding with a sign falling over and causing injury to a member of the public.  Why is not that an accident caused by the fault of the driver of a motor vehicle?

MR SEGAL:   For the very reason that was expounded in Allianz, because to decide that question you have to ask the question of causation.  You have to find out from an examination of the facts whether or not within the meaning of the legislation, and not using common law concepts of causation which this Court said is inappropriate, whether that was the cause.

GLEESON CJ:   Do you mean the sole cause?

MR SEGAL:   Firstly, you have to ask, was it the cause?  The cause, as it was defined in this Court means predominant cause.  The Court of Appeal said predominant has nothing to do with it, in effect – not that they used that word – because I put to the Court of Appeal the absurdity that would result if one could be satisfied the Act applied, even if it was a minute cause, to which Mr Justice Young replied, in effect, in his judgment, “Well, that’s just the way it turns out.  That’s just one of the realities we have to accept.”

This Court has said that is not right.  You have to look at the multiplicity of causes and if the multiplicity of causes demonstrates that the predominant cause is an event not giving rise to the use of a motor vehicle ‑ ‑ ‑

GLEESON CJ:   If an employee of the State Transit Authority negligently locates a sign in a particular position and then another employee of the State Transit Authority negligently runs into the sign and it is knocked over, what does it actually mean to inquire into which is the predominant cause?  How do you go about that inquiry?

MR SEGAL:   The first thing is that there must – if I may say at the beginning, there has to be that inquiry, and if there is that inquiry then what one does is to say somebody has gone and put this sign here, bus drivers would be entitled to expect that amongst all of the hazards that they face on the road one would not be their own employer putting this sign – a bus stop – which side vision mirrors would knock into.

One would say, “But that is a type of event that was destined to happen”.  It was destined to happen the minute somebody wrongly put the sign where they put it because bus drivers are forever estimating the difference between their mirror and objects but one thing they would always assume is that their own employer would not be putting the sign where their side vision mirrors would knock into it.

So, one would say the real cause here, the circumstance that made this an accident waiting to happen was the ultimate cause, the significant cause was the creation of a danger, which danger was inevitably going to come home and that was the predominant cause of this event.  But, may I say to your Honours, the problem here is that that inquiry was never undertaken and it is clear from Allianz that it should have been undertaken.  It is clear that the notion that any cause, however small, as was asserted in the court below is just an inappropriate way of dealing with the matter and it is a misconstruction of the Act.  It was to invoke, contrary to what was submitted to the Court of Appeal, common law concepts of causation into the statutory context.  This Court said that is wrong, you have to assess.

I have put in my final submissions that if this Court granted leave and if the court ultimately found in my favour at the hearing of the appeal it would examine that question.  Perhaps another and more appropriate course is if this Court granted leave and there was a hearing and we succeeded at the hearing that it go back to the trial judge to determine it.

The trial judge had precious little evidence about the situation of the bus driver other than he did not notice the sign and he hit it.  That is all she had.  That was because the court at first instance was unaware of the obligation that this Court recognises to be the law of assessing that relative importance.  If the Court pleases, those are my submissions.

GLEESON CJ:   Yes.  Mr Watson.

MR WATSON:   Your Honours, the criticism of the portion of the Court of Appeal judgment in Gunter which was disapproved of in Allianz only applies if the central proposition in Gunter is taken to be extrapolated as a broad statement of the general application of the Motor Accidents Act.  The statement of that disapproval in that case is sufficient to protect any further heresy.  None of that undermines the fact that this was the single tortfeasor case – if I might refer back to those facts, an unusual set of facts - and the Court of Appeal was right in that limited respect.

The reference by my learned friend to this Court in Allianz referring to a predominant cause comes in the context of the issue there which was whether or not that was an injury within the Motor Accidents Compensation Act.  The definition of “injury” invokes or invites questions about causation.  It says that it is only an injury:

if, and only if, the injury is a result of and is caused –

by, et cetera, and one of the things is driving.  That was not the question here.  That was a point of concession.  For my learned friend to succeed your Honour the Chief Justice is right, the word “solely” or, perhaps alternatively “predominantly” must be read into the definition where it does not appear.

GLEESON CJ:   Thank you, Mr Watson.  Yes, Mr Segal.

MR SEGAL:   This debate we are having is a debate that this Court needs to resolve and that is why leave ought to be granted.  The courts below are still at sea.

GLEESON CJ:   Thank you, Mr Segal.

Whilst we would not necessarily accept the whole of the reasoning of the Court of Appeal in this matter, we think that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is dismissed with costs.

AT 11.54 AM THE MATTER WAS CONCLUDED