Hornberg v Horrobin and Ors

[1999] HCATrans 196

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B37 of 1998

B e t w e e n -

TANYA ANNE HORNBERG

Applicant

and

BRIAN CHARLES HORROBIN and SHERRY JOSEPHINE HORROBIN

First Respondents

COUNCIL OF THE SHIRE OF WARROO

Second Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 1999, AT 9.59 AM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC:   If the Court pleases, I appear with MR P.N. SACRE for the applicant.  (instructed by Anderssen & Company)

MR J.J. CLIFFORD, QC:   May it please the Court, I appear with my learned friend, MR A.M. DAUBNEY, for the first respondent.  (instructed by Quinlan Miller & Treston)

MR J.A. GRIFFIN, QC:   May it please the Court, I appear with my learned friend, MR R.B. DICKSON, for the second respondent.  (instructed by Standish Partners)

GLEESON CJ:   Yes, Mr Fleming.

MR FLEMING:   Thank you, your Honours.  We must acknowledge at the outset that in respect of two matters we are asking the Court to review questions of fact.  We come with some confidence in respect of that as a result of SRA v Earthline Constructions.  However, we also acknowledge that we face concurrent findings of fact from both the primary judge and their Honours in the Court of Appeal.

We also acknowledge at the outset that all four of their Honours found against continuous supervision in respect of an incident such as this, but we also say that Mr Justice Demack found that there ought to have been some warning in relation to the matters about which we will now complain.

Your Honours, the applicant was a 17‑year‑old young woman who had only ever been into a public swimming pool, before coming to Surat, a half a dozen times, and it was just before Christmas.  The Surat pool was a pool with diving blocks at the shallow end, which we say were an invitation to somebody to actually dive into the shallow end.

The issue which was fought principally at trial, and we must say our precise instructions are that it is still the primary issue, is that the plaintiff dived off the starting blocks.  Their Honours have universally found against that.  We say that this Court is in as good a position as anybody else to make a determination on that because the findings that the primary judge found were inferences from the facts, and the Court of Appeal found nothing further as a primary fact.  So, all of the findings are inferences in respect of the facts.

The respondents here called evidence that this young woman dived across the corner of a pool in the shallow end in the course of playing a game.  His Honour found contrary to that, and found also that there was insufficient evidence for him to reach any conclusion about the way in which the incident occurred.  So he then had regard to the inferences that he could draw.

The medical evidence, we would submit, is very clear as to how such an incident could occur.  It is a compression fracture of the spine which requires, in a dry test, some 600lbs per square inch to achieve.  The medical evidence from both Dr Yeo and Dr Hill is such that that sort of damage can only occur when the full weight of the body is behind such an impact.

GLEESON CJ:   None of the four judges who have decided this case have been prepared to make a finding that the accident occurred in the way you allege.

MR FLEMING:   That is so, your Honour.  But, we can only ask this Court to review the evidence on the basis of inferences from facts, and on the basis of what we say is the medical evidence.

The primary judge found credibility problems with the plaintiff and her witnesses, and we cannot upset that; we acknowledge our position in respect of that.  She said, in the course of her evidence, that she came off the blocks; her sister said she came off the blocks, but his Honour disregarded that.  So we are then cast back upon the medical evidence, and that evidence is that the sort of injury that she had required her to have hit the bottom with some force.  There are some questions ‑ ‑ ‑

GLEESON CJ:   I thought it was the case, was it not, that the doctors called on behalf of the plaintiff began by assuming that the incident occurred in the way in which your client said, and went on from there.

MR FLEMING:   Dr Hill certainly did that.

GLEESON CJ:   Yes.  It was not that the evidence that she was diving from the starting blocks was disregarded, it was disbelieved, was it not?

MR FLEMING:   That evidence was disbelieved coming from the plaintiffs.  In respect of the medical evidence, their Honours, particularly his Honour at first instance, analysed that away, we say, in a manner that was unacceptable.  It was not touched in cross‑examination.  There were a couple of questions suggesting that it really did not matter whether or not she was diving across the pool or dived into the pool and hit the bottom.  Those questions and answers we say are equivocal, but the thrust of our case still is that we ask the Court to review on the basis of the medical evidence.

Can I take your Honours very briefly to that, and we apologise for the size of this record, because we are raising facts.  We certainly would not have put the material in if we were not doing that.             Dr Davies’ principal report is at page 78.  This is an analysis, not so much of what she told him, but rather his conclusions, and they principally start at the bottom of the page 78 and over to 79.  Dr Yeo, he gave evidence by telephone, and at page 6 of the application book, and at line 7 or 8 - well, starting really at the top of the page:

To injure three levels, as in this lady’s case –

and then the balance of that paragraph.  The momentum required was a very significant one, and also the angle at which a person would hit the object is a very important one, and the compression injury is such that she had to be almost at right angle and perhaps slightly off when she hit the object.

GLEESON CJ:   Dr Yeo describes this as a somewhat unusual injury.

MR FLEMING:   Yes.

GLEESON CJ:   I imagine there would not be anything terribly unusual about the kind of injury that a person would suffer simply by diving into a shallow pool.

MR FLEMING:   He described it as an unusual injury in this sense:  that there are not that many of them but a sufficient number to be concerned about that occur every year in Australia.  But, also, there is very little to indicate where the impact occurred from soft tissue damage.  For example, if you looked at the scalp – and this was an issue in it as well – you would not see any great bruising in such an injury.  Dr Yeo went on to say that he has, especially since the advent of cameras and diving in the Olympic Games and so on, watched very carefully the mechanisms of diving, and it still remains a mystery to him as to why there is, in fact, no soft tissue injury in cases such as this.  So, in that sense, they are unusual injuries.  But still, there are enough of them.

McHUGH J:   But is not your difficulty, Mr Fleming, that in passages which are set out at page 245 of the book, each of the doctors made concessions which were consistent of the injury having occurred by the applicant having dived across and into a solid wall?

MR FLEMING:   Your Honour, we say that they are not concessions to the extent that would destroy their primary evidence.  What they are really saying is, “Look, of course it is possible”, but their primary evidence was still that it had to be an injury caused by considerable force, and that was either striking the bottom or striking something else.

McHUGH J:   But your argument as a question of fact would no doubt be powerful if the medical injuries suggested that the accident could not have occurred in the way that the learned trial judge found.  But, this evidence, upon its proper analysis, is not inconsistent with that theory, and indeed, is consistent with it.  So, does it not really come down to the judge’s view of the facts of the case?

MR FLEMING:   We acknowledge that that is our difficulty.

McHUGH J:   Yes.

MR FLEMING:   If we cannot get over the hurdle in respect of having a review of the medical evidence, then we cannot succeed, obviously, in this application.  But if we take, for example, that passage at 245, Dr Hill said:

“If she dived into a creek and there had been a rock or something like that that she dived horizontally into, I consider that would certainly possibly cause similar damage, but in this situation I think it’s fairly clear what happened, and we have a very good history, and it seems to me entirely consistent with the history, the injury that she sustained.

I have to pause there and say that the very good history disintegrated because that was a history obtained from the plaintiff, herself.  However, nevertheless, his conclusion was that that is the way it happened.  Then, in the next paragraph:

if it had been a horizontal dive and she had gone straight into the side it would have to be an almost sort of Kamikaze type thing.  I can understand people diving into the shallow end of swimming pools.  I find it very hard to believe that they would dive straight across into a solid wall, but conceivably it could have caused that.”

The concession was there:  “conceivably it could have”.

GLEESON CJ:   That which he found hard to believe was, in fact, established by the evidence, was it not?  This game that people played involved precisely that:  a dive in that direction.

MR FLEMING:   No, your Honour, the game that they were playing involved a dive across the corner of the pool.

GLEESON CJ:   Quite.

MR FLEMING:   At a 45 degree angle or a 60 degree angle, or something like that.  We come back to the point that the injury that she suffered – and this was the point that was made by Dr Davies – required a more direct hit, and Dr Hill is saying here, he could understand it if she dived straight into the side of the wall, and the term there is, “had gone straight into the side”.  However, the injury that she suffered was not one consistent with diving across the corner and then somehow or another straightening up to be able to perform the impact which had to occur.

The other evidence that we had – I should say that there was much other evidence as well.  The matter went for 20 days.  We called an expert in diving who was an Australian Olympic coach amongst other things, a Mr Hall, and some of his evidence is at page 56 of the record and following.  The effect of his evidence is that diving is not a natural occupation of human beings.  We have to actually be properly trained, or we are going to cause some difficulty.  He says there are two problems:  either we under‑rotate or over‑rotate.  We under‑rotate – we do what is called a bellyflop.  If we over‑rotate we get the body into the position where it might well go down vertically or if you over‑rotate too much the body will roll over and perhaps the back will hit the water.  The higher the position from which you dive, the greater the force, and the greater capacity that you have to get into a vertical position.  We say his evidence was very significant, to get the body high, and to get an untrained person - and he said it is very hard to get into a position where you can dive vertically, but if you have the elevation and you over‑rotate then the chances are you can go straight to the bottom – and it was a shallow pool.  We cannot take that aspect of it any further.

The second element, and this does not depend upon findings of fact, is the Nagel v Rottnest Island Authority position.  We could dress this up in all sorts of ways, but at the end of the day our complaint about this is that our Court of Appeal has set the bar too high for plaintiffs.  They have a concern, and that appears in some of the material that we have before your Honours, for example, in Jaenke.  Mr Justice Pincus, who formed part of the majority who agreed with Mr Justice Chesterman, said that he was of the view in Jaenke that Nagel and Shirt were basically wrongly decided.  Jaenke is quoted ‑ ‑ ‑

GLEESON CJ:   You are taking a comment that he made in a different case and, as it were, saying that is his form and we should assume that he brought that view to bear in this case?

MR FLEMING:   Yes, and I have some confidence in saying that because Mr Justice Chesterman actually cites Jaenke, and Mr Justice Pincus agrees with Mr Justice Chesterman.  So, we say, if we may be so bold as to call it a heresy has crept in ‑ ‑ ‑

GLEESON CJ:   And Mr Justice Ambrose subscribed to that view?

MR FLEMING:   Mr Justice Ambrose mentioned neither Nagel nor Shirt in the whole of his judgment.  I might stand corrected in that.  His Honour mentioned a series of Canadian cases, and his Honour mentioned Pennington.  Of course, Inverell Council v Pennington was a similar sort of matter.

GLEESON CJ:   But we approach this argument, do we not, on the assumption that the findings of fact made by Mr Justice Ambrose were correct?

MR FLEMING:   Yes, but we are asking you to review – I am sorry, your Honour, this aspect of it.

GLEESON CJ:   You approach this part of the case on the assumption that his findings of fact are correct?

MR FLEMING:   Yes, we do.

GLEESON CJ:   Well, if his findings of fact are correct, what was wrong with his conclusion about the absence of any breach of duty by the respondents?

MR FLEMING:   Simply put, your Honour, he said that there was no requirement for somebody to be supervising continuously to prevent this sort of activity which was happening.  We say that that is a misstatement when you apply it to someone like Tanya Hornberg.  So, taking the circumstances of the case, and we quite frankly have to confess we come back to that.

GLEESON CJ:   You mean that there has to be somebody at a swimming pool like this constantly supervising every form of activity by every child or young person who is playing in the pool?

MR FLEMING:   It is not quite as simple as that in the end, your Honour, because the particular person had a kiosk, and if he was in a position to be able to see from the kiosk it would have made a significant difference, because he would have had the pool in sight at all times.

GLEESON CJ:   Where does this leave the owners of private swimming pools, who permit, or invite children to come and play in their backyard pools?

MR FLEMING:   With a duty to at least take care.

GLEESON CJ:   And constantly supervise their games?

MR FLEMING:   That might be the case, your Honour, but at least, we say, to erect signs and so on to warn against the dangers of diving into the shallow end.

GLEESON CJ:   Or warning against every possible danger.  Why would you only warn against that particular danger?

MR FLEMING:   We do not object if your Honour takes it that far, but we want to be warned at least in respect of that possible danger, of diving into the shallow end of the swimming pool.

GLEESON CJ:   There was not any evidence from your client as to whether she would have taken any notice of such a warning, was there?

MR FLEMING:   Yes, there was.

GLEESON CJ:   Was there?

MR FLEMING:   His Honour Mr Justice Demack deals with that, but says we have to be careful because of the findings of credibility in respect of that.  If I can find a reference to that very quickly.  I acknowledge the sign.  He said at the bottom of page 229:

Tanya was asked

“Now, we will go right back to when you were 17, attending the swimming pool.  If somebody had said to you, “Don’t dive into the shallow end because you could do yourself an injury.”, what would you have done?—I would have heeded their advice.

If you saw a sign saying, in effect, “Don’t dive into the shallow end because you could do yourself an injury.”, what would you have done?—I wouldn’t have dived.”

What Mr Justice Chesterman was saying was that our case was principally run upon the basis that she – and I have to say it still is – dived off the diving blocks.  He said that there was very little evidence in respect of what would be the situation if she had dived across the corner of the pool.  Your Honours, the final issue is quantum.

GLEESON CJ:   How would that arise?  How does the issue about quantum arise unless you can make good your argument on one of the first two points ‑ ‑ ‑

MR FLEMING:   We accept that it does not, your Honour.  If your Honours are against us on that then I will not take any more of the Court’s time, but there are some serious issues here.

GLEESON CJ:   I am sorry; against you on what?

MR FLEMING:   In respect of the liability question; in reviewing the whole of the case.

GLEESON CJ:   You say what you want to say about damages, but it is on the basis that it does not arise unless you have made good one of your first two arguments.

MR FLEMING:   Yes, we accept that, your Honour.

GLEESON CJ:   Just state very briefly what your damages point is.

MR FLEMING:   We say that the damages awarded allow enough for this lady to be basically kept alive.  His Honour awarded one carer for 24 hours a day, and then 10 hours of what we will call social intervention per week.  If I may demonstrate ‑ ‑ ‑

GLEESON CJ:   I just want you to state the points you want to raise about damages.

MR FLEMING:   It is that, your Honour.  There is an inadequacy in respect of that for somebody who is a quadriplegic.

GLEESON CJ:   Thank you very much.

MR FLEMING:   Thank you, your Honours.

GLEESON CJ:   We do not need to hear you, Mr Clifford or Mr Griffin.

This case turned upon the application to the facts and circumstances of the case of well‑established principles.  The applicant is confronted by concurrent findings of fact at first instance and in the majority on appeal, and the Court is of the view that the approach taken to the facts by the trial judge and by the appellate court was such that no issue appropriate to the grant of special leave to appeal is raised.  The application for special leave is refused. 

Can you resist an order for costs?

MR FLEMING:   No, your Honour.

GLEESON CJ:   The applicant must pay the respondents’ costs of the application.

AT 10.21 AM THE MATTER WAS CONCLUDED