Harper v Sec Dept Natural Resources & Energy

[2001] HCATrans 255

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M36 of 2000

B e t w e e n -

MEGAN ELIZABETH HARPER

Applicant

and

THE SECRETARY TO THE DEPARTMENT OF NATURAL RESOURCES AND ENERGY

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 AUGUST 2001, AT 10.48 AM

Copyright in the High Court of Australia

MR J.P. KEENAN, QC:   May it please the Court, I appear with my learned friend, MR G. J. BURNS, for the applicant.  (instructed by Grice & Grice)

MR S.W. KAYE, QC:   If the Court pleases, I appear with my learned friend, MR M.J. CAMPBELL, for the respondent.  (instructed by Maddock Lonie & Chisholm)

GAUDRON J:   Yes, Mr Keenan.

MR KEENAN:   If the Court pleases, we submit that the special leave questions should attract a special leave successful application.  First of all, the risk management program which is to be found in the application book at pages 10 and 11 of his Honour the trial judge’s judgment, identifies that, in our submission, that this was an operational or managerial decision to cull the trees at Tooronga Falls which ‑ ‑ ‑

KIRBY J:   Is that the question on which this case would ultimately turn?  I understand your argument on that point, but does not this case really turn on the point raised by Justice Batt, and that is causation, that even if you had had a sign, it is very unlikely, on the facts the case, that it would have prevented this accident happening with the chances of high gusts of winds in a natural reserve?  Is not that the critical point as far as your prospects of success are concerned?

MR KEENAN:   It certainly was, your Honour.

KIRBY J:   I did not want to take you off your track, but it seems to me that that is the fatal flaw in your client’s argument.

MR KEENAN:   Yes, and we meet that argument, your Honour, by the self‑serving nature.  I failed to ask that question of the applicant, and that was my ‑ ‑ ‑

KIRBY J:   Well, that is very disarming, but it is a crucial matter.  Causation cannot be wished away, and the problem is how otherwise do you establish that you get the link, because it has got to be caused by a breach of duty.

MR KEENAN:   We approach that task, your Honour, in this way.  In a similar way in Nagle, the plaintiff was found to be a cautious swimmer who would have observed the warning sign if it had been placed in position.  In the same way here, the trial judge found that this plaintiff was a woman who impressed him as a person who had a heightened sense of self‑preservation, she was aware of her surroundings, she had noticed the sick looking bunch of trees on the eastern side of the river and, on the probabilities, his Honour the trial judge, from his scrutiny of the witness, was able to come to the finding that she would have reacted to that warning if had it been in place.  It is significant, we say, that the finding of the trial judge ‑ ‑ ‑

GAUDRON J:   But I must say I do not understand that.  We are assuming a sign where?

MR KEENAN:   A sign, at page 20 I think, your Honour ‑ ‑ ‑

GAUDRON J:   Yes, but where in relation to the park?

MR KEENAN:   I think page 20 is where his Honour the trial judge identifies where that sign should be, that is page 20 of the - his Honour, having determined that there should have been an inspection of these trees on the eastern side of the river as such, found:

Nevertheless, the matters that I have just considered are relevant to a consideration of whether, in the circumstances, it was reasonable to have required the defendant to have erected a sign or sign which would have alerted the public to the dangers of falling trees in that area of the Reserve.

GAUDRON J:   Yes, but where was the sign to be?

MR KEENAN:   In the area of the grassy knoll, or the favoured camping spot ‑ ‑ ‑

GAUDRON J:   So, you would have to go there to see the sign?

MR KEENAN:   You would have to go there ‑ ‑ ‑

GAUDRON J:   It seems to me that your mere presence in the area invites the risk on a gusty day, so I have some great difficulty in the notion that the test of causation could have been satisfied by the erection of a sign at the grassy knoll, because you would have to be there to see it.  You would, therefore, in high gusts, be at risk?

MR KEENAN:   That is an operational problem which was, in our submission, on the evidence, not faced by the respondent.  That is, no evidence was called except that of Mr Bye, the ranger, who agreed that the warning sign ‑ ‑ ‑

GAUDRON J:   No, we are talking about the issue of causation, an issue which Mr Justice Batt addressed in some detail, which was raised with you by Justice Kirby, and I am putting to you the problems of causation are not simply solved by the trial judge’s assessment of the personality and character of the plaintiff.

MR KEENAN:   Well that of course, your Honour is, in our submission, a very helpful finding for us.  The course of human experience which, in our submission, on appeal Justice Batt’s argument, the warning signs would have no effect.  In other words, it is a nihilistic argument, and we would submit that the warning signs which are part of the risk minimisation program for the Tooronga Falls at that walking track, ought to have attracted at least some evidence to explain why it was that, in order to overcome that foreseeable risk of injury, a warning sign could not have been placed.

KIRBY J:   Let me just understand your argument.  Your argument is that a warning sign ought to have been put up with proper management of the park at the grassy knoll, and on your theory what does your client do when that sign is seen?  Does she say “I must leave this because there might be a tree that will fall on me?”  It is very unlikely, is it not?

MR KEENAN:   The wording of our sign, your Honour, purported to capture the problem that your Honour puts to me, and that is that “in times of heavy wind and rain, that you must beware of” - the exact wording of the sign is part of the evidence, your Honour, at page 53 of the application book.  But that, in our submission, recognised - - -

KIRBY J:   Does this mean that everywhere in Australia where are there are native and natural reserves, that your theory is that every organisation that is in charge of such reserves, have to put signs up saying that “in high winds, beware of falling trees”?

MR KEENAN:   No, only in the circumstances of this particular case.

KIRBY J:   Yes, but we have to test it against what follows from adopting this principle, you see, and the question is, if it was required in your client’s case in this particular reserve, then it has implications for all the reserves around Australia.  There will be signs everywhere.

MR KEENAN:   That is why, in our submission, your Honour, it is confined to this area because of the “Mexican wave” effect of that particular morning, some 10 to 12 times a year severe gusts of wind, on the evidence, afflict this particular area.  For the unsuspecting camper and user of the reserve, the warning sign clearly – and, in fact, the risk minimisation program itself recognises not just the hazardous trees but to erect warning signs which, in our submission, ought to have encompassed a warning similar to the one that we placed in evidence before his Honour the trial judge.

KIRBY J:   Remind me, had any other person been injured in a similar way?

MR KEENAN:   No, your Honour, but the person beside the plaintiff was killed, and trees had fallen before this.

KIRBY J:   Yes, but that is in the one incident.  This is a huge tree on the other side of the water that came crashing down.

MR KEENAN:   Yes.  There were two sets of trees, your Honour.

KIRBY J:   Well, we are talking about negligence and we are talking about causation.  It is a little difficult to say that this ought to have been foreseen and that a sign would have, somehow, required your client to take care that would have resulted in her avoiding being injured.

MR KEENAN:   These, of course, are all ‑ ‑ ‑

GAUDRON J:   That raises what I attempted to raise with you before, Mr Keenan.  On a day such as the day in question, the only safe course was not to be in the area at all, not to be in the area of the grassy knoll at all.  That does not mean going to the grassy knoll to find a sign.

MR KEENAN:   Your Honour, with respect though ‑ ‑ ‑

KIRBY J:   You say there was a peculiarity about this ‑ ‑ ‑

MR KEENAN:   Sub-alpine conditions.

KIRBY J:    ‑ ‑ ‑ particular area because of the funnel effect of the - - -

MR KEENAN:    Certainly.

KIRBY J:   And that was known to those who were in charge of the reserve and not known to visitors who might not be familiar with it.

MR KEENAN:   Precisely.

KIRBY J:   And that this was a peculiar matter that ought to have been drawn to attention.  The problem I have is:  put the sign there, draw it yourself, make it as strong as possible, it just seems very unlikely in the real world that that would have stopped your client from continuing her ‑ she is already there, as Justice Gaudron is pointing out, in the reserve, from continuing and saying “I must leave this because occasionally, in the course of a year, there is this Mexican wave and a tree might come down and it might just be one near me, and it might just fall on me”.  It is all very remote.

MR KEENAN:   Your Honour, it was raised in evidence and, indeed, in the judgment of Callaway JA, that at the entrance to this recreation reserve there should have been a warning sign; a warning sign in that area, as his Honour found, where the trees from the eastern side of the river could reach across when they fell, and it was also put in evidence that, and it was adverted to in Batt JA’s judgment that the area of the toilets was another possible area for a sign to be placed.

KIRBY J:   We are, for the moment, assuming a sign?  We are assuming that there ought to have been a sign?

MR KEENAN:   Yes.

KIRBY J:   What you are being asked about is, assuming there was the best sign possible, in the real world with a person who sufficiently sensitive to nature, and desirous of going there, has gone there, and is in the reserve, that suddenly she sees the sign and says “I must leave this, there might be an occasional tree that will fall on me”.  It is very unrealistic.  It is not the way human beings act.

MR KEENAN:   Your Honour, Mr Nagle, of course, so found that if he had been given a warning sign, a cautious swimmer such as he would not have dived where he did to encounter the converged rocks.

KIRBY J:   Yes, well there you have the self-serving evidence that seems to be characteristic in Australia.  I mentioned that in a case of Ellis v Wallsend Hospital, this is a very – but you did not ask that question, and the judge did not therefore accept the answer to the question, and that is sometimes a thing that gives a plaintiff a leg up.  It was not asked here and, therefore, we do not have that finding.  We have got to look at the realities, the likelihood for ourselves.

MR KEENAN:   Your Honour, I am comforted by your Honour’s words in Romeo’s case, that this is essentially a self-serving question of ‑ ‑ ‑

KIRBY J:   Yes, I have not got a lot of confidence in those questions and answers, but where a question is asked, an answer is given, and a primary judge says “I accept the answer”, appellate courts are in a very difficult position to override it.  You do not have that leg up in this case.

MR KEENAN:   No, your Honour, but we are something similar to Percival’s case, the medical negligence consent to risk case, recently ‑ ‑ ‑

KIRBY J:   Yes, we know the case.

MR KEENAN:   We can, in our submission, invoke that as a basis for the finding of the trial judge.

KIRBY J:   That was a case where the patient said, in the most explicit terms, that she would have not had the operation, but the primary judge disbelieved her and this Court said that it could not disturb the finding of the primary judge.  That is not what happened here.  In Judge Anderson’s very careful judgment, and I pay tribute to his Honour, it is a very careful judgment, I think Justice Batt honed in on what is the logical weakness in it, and that is what we have been putting to you.

Assume there is a duty, assume it is not an operational exemption, assume there is a sign, assume you have got the best and strongest sign, would a person seeing it say, “Goodness, I must leave this reserve.  There is an occasional tree might fall down on me”.

MR KEENAN:   With respect, my answer to your Honour about that is - that I go back to what I said, that that is, in our respectful submission, a nihilistic argument.  In other words, the question is, the first question, was there a warning sign and should there have been a warning sign there?

KIRBY J:   We are assuming that point in your favour, for the present purposes, and asking if there had been a sign, would it have deterred your client from going further and, in a sense, required her to get out of the path of this tree which then fell down?

MR KEENAN:   As his Honour Batt JA adverted to, the question of keeping a sharper look out, or a look out for this very problem of a falling tree, was a matter which he adverted to and which we say also would have been a consequence of a sign, such as we put in evidence.  What happens to someone if there is a warning sign?  Without a warning sign they are not - as this trial judge found, she was not a person familiar with these recreation reserves, she was the first time there, and as Callaway JA had to say, “In an increasingly urban population, the dangers of forests are not readily” ‑ I do not acridly reproduce what he had to say, but he adverted to that.

In those circumstances, we submit that - we start with the fact that there ought to have been a warning, there ought to have been a warning in the risk minimisation program.  Twice the mandate to erect warning signs figured in the risk minimisation proposals.  No explanation was forthcoming as to why no warning was placed there and we submit that his Honour the trial judge therefore was able to come to the conclusion that he did and he had the advantage of first hand seeing of the plaintiff in the witness box.  I apologise for my poor expression.

GAUDRON J:   There is nothing for which you need apologise.

MR KEENAN:   Thank you, your Honour.

MR KEENAN:   In our submission, the Court should, if I might use the expression “take on board” this matter, because the question of Nagle and the dissenting judgement of Chief Justice Brennan in Romeo, in which his Honour made it apparent that he would overrule Nagle, leaves, in our submission, particularly here where the endemic nature of the forest which forms so much part of Tadgell’s JA and some considerable part of Batt’s JA judgment, has a familiar ring when one looks at page 447 of the judgment of Chief Justice Brennan in Romeo.

It has been said, judicially that Nagle can effectively place a public authority “in the position of an insurer” and create “a surprising result”.  If Nagle stands, public authorities will be required to erect structures in reserves, parks and other areas of natural beauty to the detriment of the environment and the enjoyment thereof by the general public in order to safeguard or to attempt to safeguard the few careless visitors against the consequences of their own carelessness.  In my respectful opinion, the practical operation of Nagle follows and illustrates the error of principle that informs the reasons for judgment.  No vested right would be affected by overruling Nagle.  I would accede to the respondent’s request that it be overruled.

His Honour then went on to apply the test in Aiken’s case.  So that, your Honours, we contend that this plaintiff is in the same category as Nagle, and we would invite the Court to, for those reasons, give leave to appeal.  We also take into account - we contend that the definition of “hazardous trees” adopted by Batt JA is one which, in our submission, is unnecessarily restrictive.  That is, that trees that are immediately likely to fall.  Your Honours will recollect how that was so expressed. 

In our submission, the risk minimisation program was directed towards trees after they were culled by way of an erection of warning to warn the public in this particular area of the dangers of the falling limbs.  It is not as if it is going to be created throughout Victoria because your Honours will see that the two risk minimisation programs, two of the areas where the erection of warning signs was removed on the second occasion.  There were six identified areas for a start, and the Jones v Dunkel

principle, in our submission, should apply that there was here a failure to meet the plaintiff’s case.

KIRBY J:   Judge Anderson said he would draw the inferences because of the failure of the respondent to call such evidence.

MR KEENAN:   Yes.

KIRBY J:   That is not the matter on which, in my mind, the application turns.  I think you have said everything that can be said in respect of that matter.

MR KEENAN:   Thank you.

GAUDRON J:   Thank you, Mr Keenan.  We need not trouble you, Mr Kaye.

The Court is of the view that the application for special leave must fail because, even if there was a duty of care and there ought to have been a warning sign, the Court of Appeal was correct to hold that the applicant at trial failed to establish that had such a sign been erected it would have prevented her injury.  On that footing, the application is dismissed with costs.

MR KAYE:    Your Honours, I am instructed to ask for solicitor/client costs.  I do on the basis of a letter sent on 8 August.  It is Calderbank letter.  I must concede, your Honour, that the letter was sent after I was briefed.  It was sent, therefore, after the costs of my brief and my junior’s brief fee was incurred and it was also sent by my client’s instructor after I had done the work to prepare for this trial.  I have been instructed to bring this matter to the attention of the Court but I cannot really put anything apart from the existence of the letter in favour of the application I have been instructed to make.

GAUDRON J:   No, it is dismissed with costs, as is the normal rule in this Court.

MR KAYE:   If the Court pleases.

AT 11.09 AM THE MATTER WAS CONCLUDED