Halsey v Weydling

[1991] HCATrans 82

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A35 of 1990

B e t w e e n -

GARRY JOHN HALSEY

Applicant

and

EBERHARD FRANZ ALFONS WEYDLING

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J TOOHEY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1991, AT 9.40 AM

Copyright in the High Court of Australia

Halsey 1 15/3/91

MR T.A. GRAY, QC:  May it please the Court, I appear with my

learned friend, MR R.A. CAMERON, for the applicant.

(instructed by Poveys)

MR D.A. TRIM: If the Court pleases, I appear with my

learned friend, MR G. MITCHELL, for the respondent.

(instructed by Ross & McCarthy)

MASON CJ: Yes, Mr Gray.

MR GRAY: This is an application for special leave to appeal

decision of Justice Duggan arising out of a road

from a decision of the Full Court of the Supreme

traffic matter. The circumstances of the incident

involved a collision between a motor car and a

pedestrian in the centre of the city in Adelaide.

Justice Duggan found both negligence and

contribution made out and apportioned 60 per cent

of the blame against the motorist.

The Full Court altered that and found 60 per cent of the blame lay with the pedestrian.	On the
question of damages, Justice Duggan assessed

damages at approximately one and a half million

dollars and they were reduced to about one million

dollars on appeal. Application for special leave

is sought both in regard to aspects of liability

and damages.

Could I turn first to the special leave point

in regard to liability? The Court will find the

point articulated in the affidavit at page 89 of
the application book. Perhaps it is best to start
reading at the foot of page 88 where there is a

quotation from the reasons of the Acting

Chief Justice. He there said:

"In the present case much as one may

sympathise with the plaintiff, it is clear

that in -

his manoeuvres -

he acted with quite reckless disregard for his

own safety -

And Justice Mulligan with whom Justice Prior agreed

spoke of the respondent pedestrian's conduct as

extraordinary:

as fool hardy or hazardous in the extreme.

The Full Court, when it came to consider the

plaintiff's injuries, faced a debate as to whether

the plaintiff had suffered mental retardation

before the injury but exacerbated by the injury.

Halsey 2 15/3/91

Justice Duggan had found that the plaintiff's

mental disabilities had essentially all flowed from

the accident itself. The Full Court took a

different view on the evidence and found that the

plaintiff had suffered severe perinatal brain

damage.

It is the applicant's case that having found

there was a pre-accident mental intellectual

retardation, that that should have been brought to

account when contribution was considered.

TOOHEY J:  Mr Gray, as the matter was argued before the Full

Court, was that aspect thought to bear upon the question of liability?

MR GRAY:  If the Court pleases, the plaintiff argued before

the Full Court that the mental retardation followed

as a result of the accident. So, on the

applicant's primary case, the point would not

arise. I am instructed that during the course of

argument the Acting Chief Justice Justice Jacobs

inquired of counsel then appearing about the
appropriate standard in regard to contribution, to

which counsel then replied that the only authority

counsel was aware of was the High Court authority,

McHale v Watson. McHale v Watson, by way of dicta

and differing dicta does address the issue.

On our researches the dicta that appears in

McHale v Watson is the only comment by the

High Court on the issue. So we say that the point

was not part of the primary case of the applicant

before the Full Court. When Justice Jacobs

inquired in that regard, that was the answer he was

given.

MASON CJ: But that is the real problem, is it not, Mr Gray.

If we assume for the moment that this is a

substantial question and one worthy of the

attention of this Court in an appropriate case,

here we do not have the benefit of any

consideration of the point by the Full Court of the

Supreme Court or for that matter by the trial

judge.

MR GRAY:  No, well, the trial judge on his findings had no

need to consider the point. The trial judge found

that the mental impairment all flowed from the accident and so the point did not arise at the

trial. It only arose on the appeal on the ultimate

finding of the Full Court. That, of course, was not known at the time of argument, but the point

was in no way abandoned by the applicant and, in

fact, the only relevant authority was referred to

the Court. I can identify to the Court in McHale v

Watson the relevant dicta and the dif·ference in

Halsey 3 15/3/91

that dicta between Justice Kitto and
Justice Menzies.

If the Court pleases, it is, of course, of grave consequence to the plaintiff because it has a

very material effect on the ultimate result as far

as he is concerned. But the point of law that we

would identify as being of importance, is set out

in paragraph 7(a) of the affidavit, and we would

pose it this way:

"Does a court when considering the question of

contributory negligence take into account

mental impairment of the party in question".

An alternative way to pose the point of law would

be: to what extent do the exceptions to the

objective standard to be applied include mental

impairment of the party whose conduct is being

examined.

MASON CJ: Is it not opposed to the general principle that

you take no account of variations in personality

and temperament in deciding whether or not there is

a breach of a duty of care in deciding whether or

not there is contributory negligence on the part of

a plaintiff; that you look at parties according to

a general standard that is set?

MR GRAY:  Yes. If the Court pleases, that is the

traditional approach and the position of infants

has been considered as an exception to that.

DAWSON J:  Yes. They are not really an exception because

age is an aspect of normality.

MR GRAY:  Yes. If the Court pleases, it has been put in two

ways. Certain arguments have been that there is a

subjective standard on contribution and one must
take into account infancy or old age or mental

impairment or, for example, the man has one leg and

therefore cannot act as a two-legged man, to use

one of the examples. That is one way it has been

put. The other way it has been put is that the

general rule is an objective standard to which
there are exceptions and infancy has been put as

one exception and the textbook writers have spoken

about old age and other infirmities as other

exceptions.

But, in this particular case, what has

happened is that the Full Court have found against

a party they view as being mentally retarded at the

time culpable comment, foolish disregard for his

safety, and our simple submission is that those two

concepts cannot stand together. One cannot say of

the plaintiff, as the Full Court found him, that he

Halsey 15/3/91

was culpable in the way he acted, that he was

reckless in the sense that he appreciated the risk

and chose to run it and that on the face of the

judgment there is a clear conflict and that it has

come about because Their Honours, when considering

liability, have approached the matter applying an

objective standard.

So, if the Court pleases, we say, in a sense,

there is a law of public importance that arose;
the relevant authority was referred to the court
below; there was no full debate about the matter

and that, on the face of the judgment, there

appears to be an imbalance and that there has been,

what we would describe, as a double counting

against the plaintiff. His, as found by the Full

Court, pre-existing mental retardation has been the

principal reason for the reduction of damages and

the ignoring of it has, we would suggest, led to a

much higher degree of apportionment of blame than

would otherwise be the case. So, there has been a

doubling up effect as far as this very seriously

disabled plaintiff is concerned.

The gravity of his injuries are perhaps best

set out in Justice Duggan's reasons at page 13 of

the book. I will not go to those - it is

quadriplegia, cannot walk, loss of vision in one

eye, general problems following from a severe head

injury. He is severely disabled. But I wish to

lead that point when I come to deal with the

administration of justice and the interests of

justice. The point of law that we identify is that

contained in paragraph 7(a) of the affidavit.

If the Court pleases, if I might just turn

quickly to McHale v Watson, 115 CLR 199. That was

a case that concerned the question of primary

negligence on the part of a child. In the course

of the case there is dicta that deals with the

question of contribution. Justice Menzies deals

with the matter at page 223 point 5 by saying: Where the question concerns the

plaintiff's contributory negligence, the law

permits a subjective test, and this is so not

only in the case of children. Any person

under a disability is only required to take

such reasonable care for his own safety as his

capabilities permit. A one-legged man

crossing a road is not expected, in the face

of danger, to display the agility of a

two-legged man.

And then approving Chief Justice Jordan in Cotton's

case. That, if that be the state of the law would,

Halsey 15/3/91

of course, we would say demonstrate that the Full

Court in the case at bar has fallen into error.

To the contrary, Justice Kitto at page 214,

took a different view. At point 5 in the middle of

the second paragraph Justice Kitto said:

The standard is objective in contributory

negligence no less than in negligence, in the

sense that an ordinary capacity for care is

postulated, and is notionally applied to the

circumstances of the case -

et cetera. And His Honour goes on to, in fact,

disapprove of the remarks of Chief Justice Jordan

in Cotton's case.

Justice Owen suggested at page 234, without

perhaps expressing a clear view, that the test was

not wholly objective. On our researches that is

the only occasion when the High Court has had

occasion to consider the matter and there is

conflicting dicta.

If one goes to the United Kingdom, and looks

at the text there, again, the matter has been left

open. In the reference we have provided from

Halsbury, simply to identify the uncertainty about

the point, in the extract provided, at

paragraph 71, about point 8 of the page:

A plaintiff must take into account the

possibility of others being careless. As with

negligence, the standard of care is objective

in that the pl~intiff is assumed to be of

normal intelligence and skill in the

circumstances. To this rule there is one

clear exception, that is children, who are

required only to show that degree of care

reasonable in a child of their age. It may be

that physical disabilities such as defective

hearing or eyesight of an old person may also

be taken into account.

A fortiori mental retardation.

And Clerk and Lindsell, at paragraph 11-84,

identified again the state of indecision on the
point. At the second sentence, 11-84, point 8 of

the page:

It is a different question, however, whether,

assuming there is a breach of duty, the
plaintiff's physical or mental defects can be

taken into account in deciding whether there

has been contributory negligence on his part.

On principle it would seem that when it has to

Halsey 6 15/3/91

be decided whether a person has taken

reasonable care for his own safety,

"reasonable" must have reference to his

individual circumstances and infirmities.

If that be right, the Full Court's judgment in this

case will not do justice to the plaintiff.

MASON CJ:  Mr Gray, I suppose it may be said that there are

some instances of departure from objective

standard. Take, for example, the learner driver

who is not licensed in Cook v Cook. But, of

course, that does not involve characteristics of

the person.

MR GRAY:  That is so, if the Court pleases. We would point

up what we say is the need for this Court to look

at the matter by comparing a finding of mental
retardation and its incongruity with findings of

culpable conduct and reckless disregard to safety.

The two cannot stand together, we say, with

respect, and that points up why this case is such a

good vehicle for the point of law to be decided.

The only other comment that we have found that

touches the matter in the Supreme Court of South

Australia is a reference we have not provided but it is just one sentence, if I might read it to the

Court. The judgment is of Justice Bright in a case

of Beasley v Marshall, 17 SASR 456. His Honour

then said, when he was dealing with a plaintiff;	a
young child as a plaintiff:

A young child is judged by standards

applicable to children of his age and

experience (McHale v Watson). Probably the

standard is objective, although I should be

sorry to think that, if so, there are no

exceptions to the rule. What of an

intellectually retarded child, for example?

So we say, if the Court pleases, that whether one

goes to the United Kingdom, whether one goes to the

practice in the State courts, or whether one goes

to the dicta in the High Court, there is a serious

point of law to be explored.

DAWSON J:  Do you draw any distinction between negligence

and contributory negligence in this regard?

MR GRAY:  Yes, if the Court pleases, there may well be a

difference in that the question being posed in
contribution is care for one's own safety, so the

question does involve a state of mind or an

awareness and if one is contemplating what care one

would take for one's own safety, it necessarily

Halsey 15/3/91

involves an ability to make some assessment as to

what that is.

DAWSON J:  And the purpose of contributory negligence is to

reduce the liability of another person.

MR GRAY:  Yes, but in circumstances where the conduct is to

be tested against, for example, that person's

ability to take care for themselves. For example,

the blind man, it cannot be said against a blind man that his conduct is to be tested against the

standard of the normal community of those who can

see.

DAWSON J:  What I had in mind though, is it not of relevance

that the person who is negligent must really be

able to appreciate the disability which is said to

reduce contributory negligence.

MR GRAY:  Yes, well that we would concede is an argument to

be raised, but would not be, we say, definitive of

the end result.

TOOHEY J:  The proposition could lead to some curious

results, I suppose. You have a defendant who is

unquestionably negligent; a plaintiff who, under

ordinary circumstances would be grossly negligent,

careless of his or her own safety; but in the sort

of situation for which you content, the

apportionment would be heavily in favour of the

plaintiff, although objectively the standards of

conduct of each party might produce the opposite

result.

MR GRAY:  Yes, that is so. If the Court pleases, we say

that there has been much change in community

attitudes towards the intellectually disabled in

the past two decades. We are now in a situation

where de-institutionalization is very much

advocated and that disabled persons in wheelchairs

or on foot are much more about the community in the

of policy, perhaps, a change needs to be made to general community than every before and as a matter account for this. The community now, in its

dealings with the intellectually handicapped is
quite different than it was 20 years ago, the way

the community deals and integrates with such

people.

But if the Court pleases, leaving all that to

aside, in this case it cannot be said in applying
the test, that one can speak of somebody who is

mentally retarded as having been culpably foolish

and reckless in regard to their safety. That

simply, we would say, does not work. One cannot

use those concepts in regard to the mentally

retarded. Now if the Court pleases, that is the

Halsey 8 15/3/91

point that we wish to argue on appeal. I can do no more to identify the point in its public importance

than to put those submissions. I can identify to

the Court through the application book, if the Court wishes, the material that identifies the extent of the mental retardation as found in that.

MASON CJ: There is no occasion to do that.

MR GRAY: If the Court pleases. Could I then, if it is

convenient to the Court, move on to the other two

aspects of the matter that we wish to raise? Our

submission is that Justice Duggan both -

MASON CJ:  What are these other points, Mr Gray?

MR GRAY:  The points are two. The first is that the

Full Court failed to follow the principles laid

down by this Court in Griffiths v Kerkemeyer

overruling Justice Duggan who did follow those

principles. We say that although that does not

raise an important point of law, it is an important

matter in the administration of justice in this

case. We say Justice Duggan painstakingly followed

this Court's ruling in Griffiths v Kerkemeyer and
the Full Court said he was wrong and the Full Court

demonstrably departed from Griffiths v Kerkemeyer.

That is a point that I would like to simply

indicate to the Court how it is made by some

references. It is a short point and the Court

would either see it or not.

The second aspect of the matter is this, that Justice Duggan, both on liability and damages,

carefully weighed conflicting evidence on damages.

He had two lines of medical expertise assisting him

and he plainly preferred one to the other. Without

being able to demonstrate any error at all and

without the advantage of seeing the witnesses or

their demeanour the Full Court have simply taken a

different view and preferred another line of

evidence that Justice Duggan - - -

MASON CJ: That does not sound like a special leave point.

MR GRAY:  No, it is not a special leave point in point of

law. It would be only a point on the

administration of justice in this particular case.

MASON CJ: Yes.

MR GRAY:  Yes, but the primary point is the Griffiths v

Kerkemeyer point on damages. Could I identify that

to the Court?

MASON CJ: Yes.

Halsey 9 15/3/91

MR GRAY: If the Court pleases, I start with

Justice Duggan's judgment at page 26 of the

application book, at point 5 on the page, dealing

with past care. Justice Duggan said:

Quite clearly a substantial award is called

for in accordance with the principles for

awarding damages for gratuitous services
voluntarily rendered discussed in cases such

as Griffiths v Kerkemeyer.

Now, Justice Duggan found, and the Full Court

agreed, that by reason of the injuries sustained

the boy required virtually full-time supervision.

The Full Court expression is best found in

Justice Mullighan's decision at page 75 of the application book at point 2 in the sentence:

Furthermore, I do not think it is appropriate

to make an award on the basis of the need in

the past -

referring to the period from accident to judgment -

to provide some type of supervision for him at

all times, even though it appears that nearly

full-time supervision was desirable, perhaps

necessary. That type of supervision by

parents does not sound in damages.

So the simple point is this, that by reason of the

negligence of the defendant and the injuries

sustained, the plaintiff required virtually

full-time supervision. The reasonable cost of

meeting that need is the measure of damages.

Justice Duggan so found and made an appropriate

allowance in regard to the past. It appears that he selected about $400 a week as the cost of that

supervision.

The Full Court took the view that despite the

fact that there was that need, in so far as the

parents provided that type of supervision it was not to be compensable and the Full Court allowed

something of the order of $200 a week 20 hours at

$10 an hour for supervision.

MASON CJ:  Is the Full Court decision wholly explicable on

the footing that you have put to us or was it also explicable on the footing that the Full Court took the view that part of the need for supervision was

attributable to the inherent condition of the

plaintiff?

MR GRAY:  We would respectfully contend that when that

paragraph is viewed in its context it is dealing

with the supervision required by reason of the

Halsey 10 15/3/91

injury sustained in the accident. Justice Duggan's

finding that the Full Court do not disturb in that

regard - I have just lost that reference.

Justice Duggan has made a specific finding that by

reason of his injuries he requires all but full-

time supervision. There was clear evidence before
that he was able to get by with support but not the supervision that was required post-accident. There

was independent evidence from a psychologist in

that regard.

At page 14 of the application book,

Justice Duggan put finding his his way, at point 2:

I am quite satisfied having regard to the

medical evidence that the plaintiff will

always require either the protective care of

his parents or the level of assistance

provided in a group home for disabled people.

I accept Dr Flett's view that he has no

prospects for independent living and working

in the community. It would seem on the

evidence that it would be unwise to leave him

alone for longer than a few hours at a time.

That is his post-accident state.	The evidence of
his pre-accident state was to the contrary.	But in

that passage, if the Court pleases, that we have

read from in Justice Mullighan we say that when it

is read in its entirety it is plainly referring to

an accepting of that finding and referring to the

period from accident to judgment and

Justice Mullighan with whom Justice Prior agreed

taking the view that part of that need was not

compensable because .of the way in which it was met, and we say that offends the principles laid down by

this court in Griffiths v Kerkemeyer.

That same error follows through to the

allowance for future care and although it is not

expressed in the judgment we say it is implicit

from page 81, because the ultimate method of

assessment by the Full Court was to treat the boy

being cared for by his parents for 15 years and

then institutionalised for the balance of his life

and that is dealt with at point 5 on that page.

So, to follow through the logic he has the need for

constant supervision for the next 15 years of his

life following judgment and Justice Mullighan and

the others in the Full Court took the view that

part of that need would be met voluntarily by the
parents without any allowance at all for

compensation.

We say that first there was no ground at all

for disturbing Justice Duggan's findings and

conclusions. They were, with the greatest respect,

Halsey 11 15/3/91

correct in principle and fact, certainly in

principle, and that the Full Court have moved away

from that - have identified a departure from

principle and do not appear to have analysed

Griffiths v Kerkemeyer at all. Now we say, if the

Court pleases, that that does not raise any special

point of law, but it is relevant to the

administration of justice in this case.	So that is
the point we make in that regard.	If the Court

pleases, they are the submissions we put in regard

to special leave.

MASON CJ: Yes, thank you, Mr Gray. Yes, Mr Trim.

MR TRIM: If the Court pleases, the special leave point that

is sought to be agitated raises an issue that was

that the issue was specifically

never raised at any point in the trial or for the notwithstanding

raised and debated at length in the course of my

With the greatest respect to my learned friend	argument for the defendant before the Full Court. Appeal, the debate that ensued during the course of my argument on the special leave point did involve all three members of the Full Court and did involve
a specific consideration of the issue now sought to
be raised as a special leave point in the context of a plea of contributory negligence.

Reference was made to McHale's case, as has

been put by Mr Gray. Also, reference was made in

that debate to the decision of Hayley v London

Electricity Board and one of the texts, Professor

Fleming's work. Yet, although it was raised in a debate that took five pages of the notes of the

submissions - or encompassed five pages of the

notes of the submissions, counsel for the plaintiff

never sought to take up the point during his

argument and, in my respectful submission, the

appellant or the plaintiff cannot now seek to raise

the point on the appeal.

MASON CJ: Well, between whom was this exchange that took

place, or took up five pages of the transcript?

MR TRIM:  Between myself - during the course of my argument

on liability, obviously - the point was initially

raised by the Acting Chief Justice and taken up by

both Justice Prior, who raised specifically the

decision of Hayley, to which I have referred - that

was the case of the blind man walking along a

footpath and he tripped over an obstruction near a
trench or a hole that had been made in the

footpath, and His Honour Justice Prior referred to,

as I said a moment ago, Fleming, and

Justice Mullighan, towards the end of the exchange,

Halsey 12 15/3/91

also took part in it and raised the concept that

has been raised in argument this morning, that

might it not be the case that the defendant would

have had to have been alerted to the disability of

the plaintiff before one would take into account
the plaintiff's disabilities on the issue of

contributory negligence against the defendant.

TOOHEY J:  I am not sure how far all this helps you though,

Mr Trim. Unless you are suggesting that the plaintiff abandoned the point, what you are saying

indicates that the matter was fairly before the

Full Court, but the Full Court has dealt with it in

a way that the applicant suggests shows some error

of principle.

MR TRIM:  In that sense yes, Your Honour, but my point is

that this applicant is in the same position as the

plaintiff in the decision which is on the

respondent's list of authorities, Water Board v

Moustakas, where that plaintiff elected to run his

case on a particular allegation - - -

DAWSON J: It is not quite like that, is it, because it

would be very difficult for the plaintiff to raise

the point in this caie. He was maintaining that

any abnormality was post-accident, was he not?

MR TRIM: That was his case, but my point with respect,

Your Honour, and it was perfectly open for the

plaintiff to run his case in the alternative -

DAWSON J: True.

MR TRIM: There was a mass of information of a documentary

nature that would have permitted counsel for the

plaintiff to say, "Well, if in effect you, the

court, are against me as to whether or not I was

suffering from retardation before the accident, and

you find such retardation on the material in

evidence before you, then my case and liability in

the alternative is", and that was never done.

DAWSON J: Yes.
MR TRIM:	And my point which leads me to the second ground

of response to the appellant's argument is that

because the plaintiff has sought to run his case in

this one-sided way, this meant that no evidence was

adduced at the trial which would enable the court on appeal to properly consider how, if at all, it

should vary the apportionment of liability.

MASON CJ: That is what I was going to ask you. Are there

appropriate findings made by the trial judge or

even the Full Court which would enable this Court

to consider the degree of responsibility or

Halsey 13 15/3/91

blameworthiness on the part of the plaintiff for

what ensued?

MR TRIM:  No, if Your Honour pleases, because the way in

which the plaintiff's case was presented meant that

no one inquired as to the capacity of this lad to

look after himself as a pedestrian, his capacity to

foresee danger to himself as a pedestrian.

The finding that was made as to slight

retardation by Justice Mullighan falls a long way

short, in my respectful submission, of enabling the

court to then proceed to consider in what way, if at

all, it should vary the apportionment, because in

particular the way in which the plaintiff elected to
present his case precluded the defendant from

inquiring in cross-examination of witness as to the

lad's training and understanding of the road rules.

It precluded a proper inquiry of the appropriate

medical witnesses of the lad's capacity, not in the

sense of his employment.

The finding of slight retardation made was

clearly sufficient to enable the court to proceed

to address the issues of damages and make

appropriate reductions in light of the findings

made because of the slight retardation found. But

as I said a moment ago that falls a long way short

of the relevant inquiry in a factual sense, and

perhaps more importantly inquiry of those medical

specialists who gave evidence, that would enable a

court on appeal to vary the apportionment.

That is all to say that although the issue

raised by the special leave point may be open and

may fall for determination by the Court at some

time, this is not the appropriate vehicle for that

determination for those reasons.

MASON CJ: Thank you, Mr Trim.

MR TRIM: If the Court pleases.
MASON CJ:	Mr Gray.

MR GRAY: If the Court pleases.

MASON CJ:	What do you say about the absence of appropriate findings as to the plaintiff's capacity or
incapacity to handle himself according to
reasonable standards in the situation in which he
found himself?
MR GRAY:	If the Court pleases, we say there are adequate

findings contained within the judgment of

Justice Mullighan to enable the matter to proceed

and in so far as there may be any inadequacy it is

Halsey 14 15/3/91

because of a failure of the defendant to elicit

that material in which they had an onus at trial.

It is not a matter that the plaintiff would have

led. It is a matter that the defendant carry the

onus and it would lead the material but the

findings are fairly, with respect, clear.

Can I take the Court to, first, page 58

point 9. At point 9 of that page Justice Mullighan

identifies the appellant's case as:

brain damage, probably at birth, which

manifested itself in intellectual retardation,

left-sided hemi-paresis and the consequence of the accident was to further damage the brain -

Then, at 60 point 5, a reciting from Dr Pearson's

evidence, as senior registrar in neurology at

Adelaide Children's Hospital of an examination pre-

accident and a history including:

features indicative of intellectual and
physical impairment consistent with perinatal
brain damage -

A determination at point 8 of that page that he was five years approximately behind on his reading age.

At page 62, the opinion of Dr Pearson supported by an EEG that Justice Mullighan has come to adopt,

that:

he would have been epileptic and

intellectually retarded to a significant

degree - - -

MASON CJ: But all this does is to recount what the medical

evidence is. It does not seem to result in any

precise finding as to the plaintiff's capacity to

handle himself.

MR GRAY:  As far as that finding goes, if the Court pleases,

it is at page 66 point 4, having again, after a

long passage: 

It was established that the respondent was

intellectually retarded to some degree and had

some minor physical disability, mainly

evidenced by his left arm, whether due to

brain damage or otherwise.	He was epileptic.
He had experienced -

difficulties, et cetera.

Now, if the Court pleases, we say that there

is an adequate base to proceed to deal with the

matter on the basis that he did not have the

capacity to, in the relevant sense, act in reckless

Halsey 15 15/3/91

disregard of his own safety or to be foolhardy in

the extreme or to be culpable, as the Full Court

has found.

TOOHEY J: But, ordinarily, Mr Gray, you would expect some

evidence as to the plaintiff's road sense, for
instance, understanding of what was involved in

crossing roads, the presence of traffic on the

roads and that sort of thing. Is there any of that

evidence at all?

MR GRAY:  No, because the plaintiff's case before the trial

judge and as found by the trial judge was that this

mental retardation followed the accident.

TOOHEY J: Yes, I understand that.

MR GRAY:  It was not, with respect, possible at that point

of time for the plaintiff to sensibly address that.

If the Court pleases, if that was to be agitated,

we say that is where the defendant has the onus but

if the Court pleases, there would be no reason why

if, in principle, the matter was decided in favour

of the plaintiff applicant that that could not be

then properly assessed by Justice Duggan in

accordance with the court's direction. There is a

lot of material at the evidentiary level that can

be used to address that quite succinctly. So, if

the Court pleases, if that caused an impediment to
this Court in finally resolving all matters in this

case, it could be sent back to be disposed of

according to the Court's direction.

We would say, if the Court pleases, that

realistically, for this plaintiff before this judge

who found mental retardation followed the accident,

it would be very hard to say that he should have

all led evidence on a contingent case at that

point, if the Court pleases, particularly where the

Full Court's reversal of the trial judge is not a

question of his gone wrong in principle at all.

The Full Court said that he was wrong in preferring

one line of witnesses to another. That is, with
respect, a fairly unusual matter at the best of

times and we say, if the Court pleases, that it

would be hard on this plaintiff to refuse special

leave because of some perceived deficiency in

evidence on that point when it could be

accommodated on some form of limited rehearing.

May it please the Court.

MASON CJ: Thank you. Special leave is primarily sought in

this case so that this Court can determine the

question, "Does a court, when considering the

question of contributory negligence, take into

account mental impairment of the plaintiff?" If we

assume that this question would, in an appropriate

Halsey 16 15/3/91

case, attract the grant of special leave,

notwithstanding that the general principle

favouring the objective standard might seem to

indicate that it should be answered in the

negative, the question was not debated in or

expressly determined by the Full Court of the

Supreme Court nor did the trial judge make adequate

findings as to the plaintiff's capacity or

incapacity to conduct himself according to

reasonable standards in the situation in which he

found himself. In these circumstances the case is

not a suitable vehicle for the determination of the

principal point which the applicant seeks to raise.

In other respects, we are not persuaded that

the case is an appropriate case for the grant of

special leave.	The application is therefore
refused.

MR TRIM: If the Court pleases, I seek an order as to costs.

MASON CJ: Yes. Mr Gray. you do not oppose an order for

costs?

MR GRAY:  No, there is nothing we can put, if the Court

pleases.

MASON CJ:  No. The application is refused, with costs.

AT 10.25 AM THE MATTER WAS ADJOURNED SINE DIE

Halsey 17 15/3/91