Hocking v Blacktown City Council & Anor

[2008] HCATrans 387

[2008] HCATrans 387

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S339 of 2008

B e t w e e n -

SHERRIE HOCKING

Applicant

and

BLACKTOWN CITY COUNCIL

First Respondent

TELSTRA CORPORATION LIMITED

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2008, AT 2.17 PM

Copyright in the High Court of Australia

MS S. NORTON, SC:   If the Court pleases, I appear for the applicant with my learned friend, MS E.E.J. WELSH.  (instructed by Brydens Law Office)

MR P.R. GARLING, SC:   If the Court pleases, I appear for the first respondent Council together with MS K.C. MORGAN and MR G.E.S. NG.  (instructed by McCabe Terrill Lawyers)

MR J.E. MACONACHIE, QC:   I appear for Telstra Corporation Limited, the second respondent, with MR N.J. POLIN.  (instructed by Henry Davis York Lawyers)

GUMMOW J:   Yes, Ms Norton.

MS NORTON:   Thank you, your Honour. Briefly, we say there are, with respect to the first respondent, two questions that are thrown up which are relevant to this application for special leave. The first one is whether the interpretation of section 45 of the Civil Liability Act (NSW) is a matter of sufficient public import to warrant a grant of special leave in this matter. The second one that would follow that would be: is this particular case an appropriate vehicle for the issue to be looked at?

With respect to the second respondent, it is somewhat narrower still.  It is simply a question that this Court has not looked at whether there is a duty on behalf of large corporations like Telstra to inspect their installations from time to time for some time and it is a question of whether the Court thinks it is a matter that would be of some interest to the public given that there are rather a large number of these installations and a large number of accidents flowing from them.

So if I return to the first point, we say that section 45 is a point which is of some public importance, not just in New South Wales, but in the other States, most of which have similar provisions in the Acts that were passed about the same time and were passed in response to this Court’s decision in the matters of Ghantous and Brodie. We say that a large number of cases will be affected by the decision of how section 45 is to be interpreted and that will flow through to other jurisdictions.

With respect to this case, it appears from the decisions in the Court of Appeal that but for the existence of section 45 of the Civil Liability Act, the applicant would have been successful on the old common law of negligence. It is a little difficult to pick out what is the actual result of the decision of the Court of Appeal, but it is the decision of the Chief Justice, Justice Spigelman, that bar for section 45, the plaintiff, who was the applicant, would have succeeded on the common law of negligence. That is at page 47 of the application book at paragraph 19:

Although, in my opinion, a finding of negligent inspection was open, the appeal should be determined on the basis of the Council’s reliance on s 45(1) of the Civil Liability Act 2002.

With that decision Justice Beazley agreed. Justice Tobias made similar findings that negligence was shown and went further to say that section 45 did not prevent ‑ ‑ ‑

GUMMOW J:   You did not succeed against Telstra, did you?

MS NORTON:   In either court, no, your Honour.  As you can see in my submissions, it is but a very brief reference to Telstra.  When going through the cases relied on by Telstra, they seem to be very old cases.  They all predated Brodie and Ghantous.  It was thought that this might be an opportunity, if the Court wished, to revisit that – or to visit, in fact, that area.  There seems to have grown up something close to a rule of law that a corporation such as Telstra does not have any duty to impose any system of inspection and maintenance of its facilities.  That seems to be what has happened as a result of these decisions.  It was following that line of authority that the trial judge found against the plaintiff with respect to Telstra, and the Court of Appeal as well.

HEYDON J:   What is your submission as to what “actual knowledge” means?

MS NORTON:   Actual knowledge, as in section 45 of the Civil Liability Act – the section is set out at the beginning of our submissions at page 128 of the application books.  We say that actual knowledge is a difficult concept ‑ ‑ ‑

HEYDON J:   In paragraph 18, you say there was actual knowledge:

because a properly conducted inspection would have bought them knowledge of the defect.

That is really constructive notice of some kind.

MS NORTON:   No.  “Should have” would be constructive notice.  “Would have” is imputed notice.  So we are relying on the case that best draws the distinction with a finer line than I can perhaps draw it – is the case referred to there of Leichhardt Council v Serratore.

HEYDON J:   That is inferring from circumstances actual knowledge, is it not?

MS NORTON:   Yes, inferring from circumstances actual knowledge.

HEYDON J:   It would be common ground, I suppose, if that is actual knowledge, but you want to push the expression further?  You want to give the expression a wider meaning?

MS NORTON:   No.  We say that because in this particular case there were admissions, or it was not contested, that there was an inspection when the work was first completed and that thereafter there were periodic inspections and there were findings that the defects with this particular pit and this particular footpath were findings that on any inspection would have been seen that given that the first respondent did not call the man who made at least most of those inspections, a Mr Shackleton; that there was an inference available that the inspection had picked up the defects, and given that he was not called, the trial judge found she could more confident about that finding.  So it is imputed from the fact that there was an inspection and he was not called to say he did not see the defects.  So it is imputed.

HEYDON J:   Normally, at least in other spheres, imputed knowledge means reasoning from an agent’s knowledge to a principal’s.  You impute the agent’s knowledge to the principal.  You say that you can conclude that Mr…..had actual knowledge, do you?

MS NORTON:   Yes. Your Honour, the situation is the onus is on the plaintiff under section 45. Section 45 requires proof of actual knowledge. This could only be done by calling someone who did an inspection. If it had to be done without imputation, it could only be done by calling someone who was obviously an employee of someone else to say, “I did see this and I did or did not do anything about it”. That cannot be what Parliament intended. Two, it could be done by producing documents, should they be required by subpoena and produced if there was a document that showed someone had marked this as a danger, then that could be proved by those documents. But in a case like this, where there are no documents produced, which is often the case, no witnesses called by the defendant, then the only way that the plaintiff could possibly prove any actual knowledge would have to be by imputation.

HEYDON J:   But Chief Justice Spigelman, for example, on page 48 at paragraph 21 set out part of Mr Shackleton’s statement and said:

That is, of itself, indicative of the fact that he did not have actual knowledge of the risk.

So what is wrong with that?

MS NORTON:   His Honour reasoned from the basis that because he had inspected and this had not been fixed, that would be some evidence that it had not been seen.  That line of reasoning, we say, is not appropriate given that there could be many other reasons why it had not been fixed. 

HEYDON J:   Yes.

MS NORTON:   I sense another question coming, your Honour.  I could be wrong.

HEYDON J:   This material attributed to Mr Shackleton – that was not testimony, I gather.

MS NORTON:   No.  It was a statement.  Only parts of it went into evidence.  Privilege was claimed on the rest of it.  He was not called.

HEYDON J:   Was he cross‑examined?

MS NORTON:   No, he was not.  The statement was tendered by Telstra and he was not called and he was not cross‑examined.

HEYDON J:   That is the end of Jones v Dunkel reasoning, is it not?  If a witness is available to be questioned, no Jones v Dunkel inference can be employed in relation to that witness, surely, because ‑ ‑ ‑

MS NORTON:   The only evidence that was admitted from his statement were the admissions that he had made.  So, in those circumstances, it would be odd for a plaintiff to call someone to ask them a question of that nature. 

HEYDON J:   At the moment, you are putting your case then purely as a sort of factual case, that Chief Justice Spigelman, for example, was wrong in his factual analysis and, by inference, the trial judge is to be preferred. It does not throw up any question as to the meaning of section 45.

MS NORTON:   We say it does because his Honour Justice Spigelman actually made a finding that the trial judge – it goes around in a circle – made a finding that the trial judge did not make a finding – or made a finding that there was no actual knowledge.  For the reasons set out in Justice Tobias’ decision, we say that is not what her Honour did and that was a factual error made by the Court of Appeal in that particular case. 

To put this into some kind of context, your Honour, we have here a pit that was put in when there was no footpath, in about 1975.  In 1975, the lid of the pit would have rested on a lip which is internal to the pit.  The footpath comes through in 1995.  It is common ground that when it did, or at least by the time of the appeal – that when it came through, the level of the pit lid had to be raised to sit flush with the footpath.  It was common ground on appeal that a pit lid that is only supported, or not supported on all four sides, is not stable and will fail.  It was common ground that there were roll kerbs in the area of this pit lid.  Roll kerbs, if your Honours are not familiar with them, is rather than the kerb going up at 90 degrees, it goes up at about 45 degrees so cars can drive onto them. 

So at the time the Council did its first inspection, there were roll kerbs there, there was a pit lid which had been raised up to be level with the cement concrete of the footpath that was not supported on the grass side by a similar amount of cement.  There were roll kerbs which encouraged cars to drive across it to get to driveways and to park there.  These are all very obvious problems which will lead, it was agreed, to the pit failing.  These pits are not meant to be driven on.

The evidence was if the footpath is meant to be driven on, they make it thicker.  If these particular pits are meant to be driven on, they construct them in a different way.  So it was the wrong pit in the wrong place with the wrong footpath with the wrong roll kerb.  All of these things were obvious to someone with expertise in the area.

My recollection is correct.  It was simply that Mr Shackleton’s evidence was admitted after a voir dire and only the admissions within it were admitted, if that is of any assistance.

HEYDON J:   So they were tendered as admissions, not – it was not as if a statement was read but he was not called ‑ ‑ ‑

MS NORTON:   Some interrogatories were tendered as well and the admissions contained within a statement of his were tendered.  So it was not as if his statement had been served under the Evidence Act and was relied on as evidence‑in‑chief.  So it would seem that at the moment there is no real guidance coming from this decision of Hocking or from the previous one of Roman about what is actual knowledge for the purposes of section 45 and whether it can be proved by imputation or even whether constructive actual knowledge would be enough.

HEYDON J:   Is section 45 based on any recommendation in the Ipp Report?

MS NORTON:   The Ipp Report recommended that after the decision of this Court in Ghantous and Brodie, there should be some limited form of protection brought in for public authorities. It did not recommend this section 45. It recommended section 42, which was the resources argument – the Ipp Report saying that they had received many submissions on the point and decided that this Court had, in effect, good reasons for

saying what it said in Ghantous and Brodie. So no, section 45 does not come directly out of the Ipp Report.

It might seem, at first blush, that the facts of this particular case make it a somewhat difficult vehicle – from reading the decisions of the Court of Appeal, it seems to be quite a complicated case, but by reason of the facts I outlined just a moment ago, it really was in many ways a simple case about this was a pit lid that was not in the right place, was not constructed properly if vehicles were to drive on it and the like is fairly simple.  The other question which arises just on the side is what use can be made of photographs.  This Court has dealt with that recently so it may not be as important as it once appeared. 

But we say this case does raise the same issues as the matter of Roman.  In Roman, to prove actual knowledge, the trial judge, who was the same trial judge as here, had relied on the fact that street sweepers swept the area, I think it was twice a week, where there were potholes and therefore must have seen the potholes and therefore had actual knowledge. The minority decision of Justice McColl said that would be knowledge for the purpose of section 45 because they were part of the maintenance system.

Here we would say Mr Shackleton is part of the maintenance system, and if you can impute that he had knowledge because he admitted he has inspected it and the defects were obvious to inspection, then it is a similar line of reasoning that was followed in the matter of Roman which threw up the question of who in the Council did you have to prove actual knowledge in. So there are two difficulties with section 45: what is meant by actual knowledge, how can it be proved, given that the person with the onus is not the person who is going to have access to either the documents or the witnesses; and secondly who in the Council’s offices does the knowledge have to be imputed to? These are difficulties with the current section.

I had my librarian do a search yesterday. There seems to have been only one other case come up in New South Wales dealing peripherally with this point about section 45, but in that case there had been no inspection and they said therefore there could not be any knowledge without any evidence of any inspection. Our case is that if you have evidence of inspection, then you can flow from that the knowledge that is needed for section 45. That leaves Telstra and there is nothing else I wish to say about the Telstra matter.

GUMMOW J:   Thank you.  We do not need to call on you, Mr Garling or Mr Maconachie.

MR GARLING:   If the Court pleases.

MR MACONACHIE:   If the Court pleases.

GUMMOW J:   Having regard to the state of evidence at trial, we are not satisfied that any issue of the construction of section 45 of the Civil Liability Act 2002 (NSW) properly arises for consideration of this Court. The other grounds on which special leave to appeal is sought have insufficient prospects for success to merit a grant. Accordingly, special leave is refused with costs.

AT 2.36 PM THE MATTER WAS CONCLUDED