Hoyts Pty Ltd v Burns

[2003] HCATrans 687

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S450 of 2002

B e t w e e n -

HOYTS PTY LTD

Appellant

and

DIANE BURNS

Respondent

McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 MAY 2003, AT 10.08 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR A.J. McINERNEY, for the appellant.  (instructed by Herbert Geer & Rundle)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P.A. REGATTIERI, for the respondent.  (instructed by R.J. Rimes)

McHUGH J:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, this is a case where the basic facts are summarised in our written submissions in paragraphs 5 to 14.  May I mention the essential aspects of them very briefly.  They are that the respondent did not know that the cinema seats retracted automatically.  The disabled child, for whom she was caring – I think they were in the front row of seats – became agitated, he was taken from his wheelchair and put on the floor.  He took off, as it were.  He was a little boy who was able to move, although disabled, very quickly along the floor.  He took off.  She went after him and retrieved him.  If I could refer particularly to paragraph 23 of our written submissions – he was screaming, struggling and kicking.

She was holding him in front of her with her right arm.  She was negotiating a wheelchair to her left and the child’s beanbag to her right and your Honours will see that she got back to her seat, with her left hand, after feeling where the seat was ‑ because it was still dark, although the picture was showing.  She touched the top of the retracted seat.  She felt the material.  She knew the seats were made of material and sat down but, of course, she missed the seat altogether and she hit a part of the seat which was underneath it.  It was the piece of metal, part of the structure holding the seat.  She missed the seat.  She angled back.  She struck her coccyx on the metal support.  The metal support, if one looks at the plane of the thing, was some 5 centimetres in from the vertical plane of the upturned seat.

KIRBY J:   Is there a photograph or plan of the ‑ ‑ ‑

MR JACKSON:   Volume 2, your Honour, at page 236.  It does not appear terribly clearly but one can see it there.  You will see the upturned seat.  You will see a tape being held to indicate, in effect, the vertical plane and the ‑ ‑ ‑

KIRBY J:   It looks a very dark cinema.

MR JACKSON:   They tend to be, your Honour.

KIRBY J:   But where is this – I do not quite see how this metal – is that the aisle on 236?

MR JACKSON:   Your Honour, it was in the front seat of the cinema.  You will see there ‑ ‑ ‑

CALLINAN J:   I think she must have chosen the front seat because of the wheelchair, Mr Jackson.

MR JACKSON:   Of course, your Honour.  Yes, they did.

CALLINAN J:   Yes.

MR JACKSON:   They took the children down the aisle.  It was a sponsored occasion.  They took the children the aisle and she was seated there, he was in the wheelchair, the film had been going on for about an hour, he became agitated, some children were on beanbags and then someone suggested to take him out of the chair and put him on the floor, he was on the floor – off – and then she was bringing him back and ‑ ‑ ‑

CALLINAN J:   He could crawl “like a rocket”.

MR JACKSON:   Like a rocket, your Honour, yes.

KIRBY J:   I am still not entirely clear where this – is the metal protrusion ‑ ‑ ‑

MR JACKSON:   Can I perhaps hold it up to your Honour.  Your Honour will see at the point where the measuring tape is, the seat is upturned.  The seat is in the up position.

KIRBY J:   Are we looking along the ‑ ‑ ‑

MR JACKSON:   Along the row.

KIRBY J:   Along the row.  And is this metal, so‑called pedestal, is that at the side of each seat or is it ‑ ‑ ‑

MR JACKSON:   Underneath.

KIRBY J:   Underneath the retractable seat?

MR JACKSON:   Yes.  Your Honour, if I could start at the top.  You see the back of the seat in the top right hand corner.  You see the arms of the seat adjacent to the hand that appears in the photograph?

KIRBY J:   Yes.

MR JACKSON:   You will see then the measuring tape coming down, and immediately to the right of it there are two metal supports which are underneath the retractable seat.

KIRBY J:   Why are they sticking up in the middle of the seat?  That does seem to be an imperfect design because ‑ ‑ ‑

MR JACKSON:   I am sorry, your Honour.  Why are they sticking up in the middle of the seat?  Well, they are underneath the seat.

KIRBY J:   Yes, there was the expert’s evidence but apparently this is not the basis on which the Court of Appeal dealt with the matter, the defect in the design.

MR JACKSON:   No, that is so, your Honour.  You will see when the seat is retracted, the things that move it up, which are the metal things, can be seen and they do not project beyond the seat.  The 50 millimetres that is referred to at the bottom of the page is the distance between the plane coming from the top of the seat where the measuring device shows and the front‑most edge of the metal support.

KIRBY J:   There is no notice of contention in the case?

MR JACKSON:   No.

KIRBY J:   So the case is a warning case or nothing?

MR JACKSON:   Indeed.

KIRBY J:   So we do not have to worry about any suggested imperfect design of the seat?

MR JACKSON:   No.

CALLINAN J:   Mr Jackson, can you just help me with one thing.  I think the expert who was called on your side referred ‑ ‑ ‑

MR JACKSON:   I was going to qualify that by saying neither expert gave oral evidence.

CALLINAN J:   A report of whom was tendered by your side.  He referred to one previous incident in 10 years but I could not find any reference to that anywhere else.  It was either one or nothing, as I thought, but there is a reference to one.  It is not clear from the report which has some marks on it what was or was not excluded.

MR JACKSON:   Your Honour, I will have that checked.  I thought the situation was that there was none.

CALLINAN J:   I will see if I can find it quickly.  Yes, 4.34 at page 228:

the incidence of injury over this 10 year period would be greater than 1.

MR JACKSON:   That is this case, the one.

CALLINAN J:   Right.  So there was no previous incident at all?

MR JACKSON:   No.

CALLINAN J:   And that is the evidence?

MR JACKSON:   Yes.  Your Honours, as she sat down ‑ ‑ ‑

GUMMOW J:   Presumably the light were on.  When they first went into the cinema, presumably the lights were on.

MR JACKSON:   Yes.  As she sat down she missed the seat completely but she sat down in a way ‑ the angle at which she was sitting down – and, as I said, she struck the coccyx on the metal support.  Your Honours, the Court of Appeal, if I can take your Honours to volume 3 at page 665, in paragraph 22 of its reasons held that there should have been a warning sign in the foyer saying words to the effect:

“Take care.  Seats retract automatically.  Ensure your seat is down before you sit”.

KIRBY J:   Did it have to be in the foyer?  Could it not have been on one of those tedious pre‑film snaps that you get when you go into the cinema, telling you to buy all sorts of products ‑ ‑ ‑

MR JACKSON:   From the Canadian Film Corporation, normally. 

KIRBY J:   ‑ ‑ ‑ including, I think, cigarettes. 

MR JACKSON:   I would not be able to tell your Honour about that, not for some years, anyway, but, your Honours, I suppose the sign could be anywhere, really. 

McHUGH J:   Well, it may not be effective if you have it on the screen.  There are plenty of people who do not get to the cinema until about 15 or 20 minutes after the advertised starting time, so they do not have to sit through trailers and advertisements. 

KIRBY J:   But then you might miss out on a seat. 

MR JACKSON:   All those things are possibilities, your Honours.  All I was saying, really, was that what the Court of Appeal said your Honours will see in paragraph 22 ‑ ‑ ‑

KIRBY J:   It is a very simple form that Justice Sheller has devised, something like the one Justice McHugh did in Woods. 

MR JACKSON:   Well, your Honour, what the Court of Appeal did in this case was as your Honour will see in paragraph 22.  This was a case where, as, indeed, had occurred in Rosenberg v Percival, the respondent’s counsel at the trial was given leave to reopen her case to adduce evidence of what she would have done if there had been such signs.  Your Honours will see that evidence referred to in volume 1.  She was recalled at page 206 about line 32, and her evidence, perhaps predictably enough – your Honours will see it, for example, at page 207 about line 17 – was that she would: 

have made sure that the seat was completely down –

before she attempted to sit down, if there had been signs to warn her. 

KIRBY J:   Which line is that? 

MR JACKSON:   Page 207, commencing about line 17.  There was then cross‑examination about that, which went on for a couple of pages.  Your Honours, could I say that the trial judge specifically did not accept her evidence to that effect.  May I take your Honours to the references in that regard in volume 3.  There are two references that I wanted to give.  The first, page 639 about line 47.  Her Honour said there: 

I have no evidence as to what effect any such warning would have had in the particular circumstances in which Ms Burns found herself, other than certain limited testimony that I do not accept, as is discussed below.

It is obvious enough that she is referring to that evidence that was given.  Then one has page 641, at about line 14 when she is discussing this question.  She says:

I do not accept Ms Burns’ belated evidence as . . . being of any weight, or credibility.

Your Honours will see the comma.  Now, it is plain enough, your Honours, that her Honour in expressing that view was not just using weight or credibility as, in a sense, a compendious phrase but what she was doing was looking at both aspects of it.  Could I turn first to the question of credibility in a sense.  In our written submissions, as we submit in paragraph 20, her Honour’s view on that issue must be based, in our submission, at least in part on the impression made on her by the way in which the respondent gave her evidence in the witness box.

GUMMOW J:   She says so at 641.

MR JACKSON:   Indeed, your Honour, and I was going to say that one sees that she had already expressed an adverse view on that question rather more generally.  There are two references in that regard.  One is at page 628 at about line 34 where she said:

In my view, Ms Burns is a very unreliable witness whose perceptions have been distorted by hindsight, passage of time, pre‑occupation with this claim and (perhaps inevitably) this case.

She went on to discuss that through the remainder of the paragraph.

KIRBY J:   She goes on to say she did not:

view her testimony as deliberately dishonest or . . . conscious fabrication ‑ ‑ ‑

MR JACKSON:   Quite, your Honour.  I will come back in just a moment, but what I will be saying in relation to that is that this is not a case where the judge decided it without taking into account what your Honour has just mentioned – I will come back to that – so the judge did consider the various aspects of it.

The other reference I was going to give your Honours in relation to credibility, more generally, is on the preceding page, page 627, at about line 41 and your Honours will see a reference there.  Now, could I go back then to page 641 and your Honours will see at about line 16 that her Honour said that she accepted:

that a warning would have ensured that Ms Burns –

I suppose a person in the position of the respondent – 

knew that the seats retracted automatically.

I mention that because that was, in a sense, the added piece of knowledge that the Court of Appeal said the warning would have given her.  Your Honours will see the reference in the Court of Appeal’s reasons at page 665, paragraph 23, particularly the fourth line of that paragraph. 

The point which I seek to make about it is that it is not as if the trial judge disregarded the fact that if there had been a warning there would have been that added knowledge.  In fact, she did assume that the respondent would have it, but then, your Honours – and we refer to this in our written submissions in paragraph 22(b) – she did not accept that that knowledge “would have changed her course or conduct”.  Your Honours will see that at about line 17 on page 641.  Your Honours will see that she said at line 16:

I accept that a warning would have ensured . . . But it does not follow that this would have changed her course or conduct.

Your Honours, she did that after considering the evidence of what was taking place.  Your Honours will see the next paragraph on page 641 where she spoke of the situation she was in, and also at line 42 your Honours will see, on the same page:

Putting to one side the relevant testimony that I find of no weight, am I to infer that if Ms Burns had been warned (in whatever form) that the seat would retract when she arose, then in the particular circumstances of this accident she would not have done as she did, and seek to seat herself guided by touch rather than looking?

Now, she took into account, in arriving at her ultimate conclusion, at the top of page 642, the matter that your Honour Justice Kirby adverted to earlier.  She said:

Ms Burns is an intelligent and capable woman, and she honestly concedes that she would have seen the risk had she looked.

In the end, her Honour, at page 642 lines 14 to 20, arrives at the relevant conclusion saying – I will not read it out.  Your Honours will see the conclusion at which she arrived.  Now, your Honours, that is a factual finding.  It is a factual finding, in our submission, arrived at in a way that was entirely orthodox. 

Could I in that regard refer your Honours to some observations made by members of the Court in relation to a somewhat analogous situation in Rosenberg v Percival (2001) 205 CLR 434. Your Honours, the passages commence at page 441 in the Chief Justice’s reasons at paragraphs 16 and 17. Could I refer particularly to paragraph 17 where his Honour said:

The trial judge’s findings . . . did not depend solely upon the adverse opinion he formed as to the respondent’s credibility, although that was important.  He also took into account –

a number of matters, as did the trial judge in this case, namely, the situation in which she found herself.  Your Honour Justice McHugh in paragraphs 24 to 27, commencing at page 443, dealt with a similar question.  Could I refer particularly to about two‑thirds of the way through paragraph 24:

If the tribunal of fact . . . accepts the evidence of the patient as to what he or she would have done, then, subject to appellate review as to the correctness of that finding, that is the end of the matter.

Could I refer also to paragraph 27 where your Honour speaks of the circumstance:

When the tribunal of fact has rejected the patient’s evidence that he or she would not have proceeded with the surgery, however, the ordinary restrictions on appellate review of fact finding apply.

I would refer also to the last two sentences of that paragraph particularly.  May I refer also to paragraph 45 of your Honour the presiding Judge’s reasons at page 449, in particular again to the last two sentences of that paragraph.  Your Honour Justice Gummow at paragraphs 91 to 92, commencing at page 463, referred to the fact that “objective” was appropriate, as the judge had done, to look at “objective considerations” and so on, as well as other matters.  Then at paragraph 92 your Honour agreed with Justice McHugh on the question of whether the Full Court was entitled to reject that finding.

Could I mention in passing the observation by your Honour in paragraph 103, the last sentence, and two further references:  your Honour Justice Kirby at page 486, paragraphs 158 and 159, and in particular the last sentence in paragraph 159; and finally your Honour Justice Callinan at page 505, in particular paragraph 223.  I do not suggest that there is an exact similarity of course, but what we do say is that this was a decision made by the judge having seen and heard the witness and expressed views about her credibility but also having looked at the likelihood, in the circumstances in which she found herself, of adopting the course in question.

KIRBY J:   Is there a point of distinction that in Rosenberg the question was what the patient had been told, and here the question was what this particular cinemagoer would have done in the sense that it was just a matter of assessing what the particular person would have done, and in a way her judgment on that was just one factor in the determination of what the probabilities were.

MR JACKSON:   Your Honour, there are differences of course, but in the end the issue is similar.  The issue is what, if we can assume a situation, would the person have done.

HAYNE J:   And that in turn depends in part, though not wholly, on whether what was done or would be done would be calculated or impulsive.

MR JACKSON:   Yes, your Honour.

HAYNE J:   This trial judge, as I read her Honour’s findings, found the conduct at least towards the end of the impulsive scale rather than closer to a calculated decision.

MR JACKSON:   Yes, your Honour, that does seem to be the case.  As your Honour puts it, there is a scale and one had a situation where if one assumes that there is to be a warning, what effect would it have had in the particular circumstances.  Now, your Honour, that is a type of issue that, as we have said in a footnote to our written submissions, arises in a number of contexts.  If one took the ordinary case of fraud or reliance, in the ordinary course of events one tends to assume that people will act on things that are said to them and that kind of thing, but it is in the end a question of fact and so it is in this case.  Your Honours, our submission, to put it very shortly on this point, is simply that it was a finding that the trial judge arrived at in a perfectly normal way and the Court of Appeal should not have set it aside.

The second issue to which we advert in paragraphs 26 to 29 to our written submissions is a very short point.  The proposition is simply this, that the respondent thought the seat was down and that she was sitting in it but she missed because she was distracted by the boy and his activities.  The question is:  would the situation have been different if she had known that the seat had retracted?  The findings suggest otherwise and I will give your Honours two references:  page 632, about line 29 in a passage which goes through to about line 36, and page 637 commencing at about line 13.

KIRBY J:   Could I just get clear this is the proposition, that if the respondent had known by a warning or by previous experience, which she said she did not have, that the seat was retractable, she would still not have felt down and pulled the seat down before sitting down?

MR JACKSON:   No, your Honour, it is slightly different.  The proposition is simply this.  She thought the seat was down.  She missed where she thought the seat was.  The evidence that if she had known it was

retractable that anything different would have happened in terms of actually sitting on the seat in the circumstances in which she found it was, in our submission, something that did not arise above speculation.

Your Honour will see, for example – the second reference was page 637 commencing at about line 13 and I wanted to refer finally to what the judge said at page 641, about line 22:

What she would have done differently is matter of pure speculation.

Your Honours, those are our submissions.

McHUGH J:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  Your Honours, in our submission, a critical distinction between the way in which this case was properly disposed of by the Court of Appeal and the way in which a case such as Rosenberg v Percival can be seen to have proceeded is that in Rosenberg v Percival it was the second of the possibilities that the Court has considered in principle which applied, namely, the trial judge had made a positive finding concerning what I think Honore has called the question of whether one non‑event would have been caused by another non‑event.  In other words, on the hypothetical which is essential to the question of causation, in Rosenberg v Percival the case suffered, depending upon one’s view of the matter, from the fact that there was a positive finding, including a finding supported by, as it had to be, rejection of testimony on grounds which were both explicitly and implicitly clearly based upon an assessment of the way in which the witness gave her evidence as well as that somewhat different and more extended exercise, namely, an assessment of the relevant aspects of the so‑called character of the plaintiff from the somewhat artificial exercise of seeing her in the witness box.

Now, this case has only superficial resemblance to those aspects of Rosenberg v Percival.  The first task we set ourselves is to persuade your Honours that in fact in light of the forensic course followed and the way in which her Honour has expressed reasons, two things are true of this case which were not true of Rosenberg v Percival. 

The first is that the undoubted strictures uttered about my client’s credibility or credit on a number of issues and in somewhat general terms, to which I shall come, do not when one sees the actual findings of fact which her Honour was prepared to make and did make and repeated, do not amount to anything like a credibility based finding on the events which actually happened from which one might infer the events which would have happened.  That is the first point, that the credibility criticisms cannot, when the findings are properly understood, extend to this critical area of what did happen being closest to the question what might have happened.

GUMMOW J:   You seem to be deftly side‑stepping paragraphs 22 and 23 of the Court of Appeal reasons.

MR WALKER:   I hope that it is deft, your Honour.  I do intend to grapple with them in this fashion.  They present no difficulty.  Ultimately, my second proposition ‑ ‑ ‑

HAYNE J:   But do you support them?

MR WALKER:   Yes, quite.  My second proposition is that in reality the credibility exercise which forms the thrust of the attack on us here really ultimately had nothing to do with the point as her Honour held and proceeded.

HAYNE J:   The base question is, what was the ground on which the Court of Appeal could legitimately interfere in the findings made below?  What do you say it was, Mr Walker?

MR WALKER:   This was, we say, the plainest, simplest Warren v Coombes exercise, bearing in mind that what was said by her Honour and what was held by her Honour did not apply any badge of impregnable credibility finding to the matters that my learned friend has gone to as the conclusions which were adverse to my client on causation at trial.  In other words, it is clear, both from the forensic course during the trial and from the way in which conclusions were drawn and expressed by her Honour on the only crucial matters in question, that these were not findings that had anything to do with an adverse finding in relation to credibility on those points.

HAYNE J:   I would like to have in my mind then, Mr Walker, what you say was the basis on which the Court of Appeal could legitimately interfere with the findings made at trial.

MR WALKER:   Because, as Warren v Coombes and, much more to the point, putting case law aside, section 75A permitted and required, they were drawing inferences from uncontested facts, including, as it happened, critical facts depending on the uncorroborated testimony of my client, explicitly accepted by the trial judge. Now, that is the reverse of the position that the appellant depends upon in this Court, and if I can just repeat it for the emphasis. We say that what the Court of Appeal did was to draw inferences from facts, the most important of which depended on the uncorroborated testimony of the plaintiff.

The significance of my pointing out the uncorroborated testimony point is that at other parts of her reasons to do with my client’s complaints of symptoms and disabilities and expenditures, there is indeed swingeing criticism of my client’s unreliability as a witness, leading her Honour in various passages – some of which my friend has gone to, sparing us the full rigour of them – leading her Honour to have said, “I would not accept testimony from a plaintiff contradicted by contemporaneous documents” - well, that has nothing to do with the present issue – “nor”, she went further, “would I accept, where there is no such contradiction, uncorroborated testimony without great caution”.  Neither of those in fact amount to strictures upon the relevant facts upon which the Court of Appeal proceeded. 

CALLINAN J:   But, Mr Walker, even if you accept that, how can you possibly say, with all due respect, that it was an overwhelming experience, that a person who did not know from observation or experience that the seats retracted automatically, but who read on a warning notice that they did, would have included that added piece of knowledge in the thinking before she sat?  How can you possibly say that is an “overwhelming inference”, as Justice Sheller did? 

MR WALKER:   First of all, with respect, your Honour has identified the point upon which I need to succeed.  Unless it is an inference which the Court of Appeal was (a) able to draw; and (b) so far as this Court’s scrutiny is concerned should have drawn ‑ ‑ ‑

KIRBY J:   But do you need as a matter of law an overwhelming ‑ ‑ ‑

MR WALKER:   That is what I am coming to.  No.  What is necessary ‑ ‑ ‑

CALLINAN J:   No, you do not, and the fact that you do not need it might suggest – well, it does not enhance its strength in any way at all, I would have thought.  In fact, it might weaken it. 

MR WALKER:   It makes my case a fortiori.  For the reasons that your Honour Justice Callinan has, with great respect, elaborated in Fox v Percy, section 75A does not call for glosses such as “overwhelming” in front of “inference”.

CALLINAN J:   But I am entirely on my own in that, Mr Walker. 

KIRBY J:   Not entirely.  You are one point on the spectrum. 

MR WALKER:   I think, with great respect, that all members of this Court have emphasised that the scope of appellate review as a matter of law results from a proper understanding of a statutory text. Now, it may be that artificially one breaks that into two components: what did Parliament say; and what does this Court say Parliament has said? But that is quite artificial; there are not two separate questions there at all, because you cannot answer the first without supplying the second. So it is one question: what is the meaning of what section 75A has said?

McHUGH J:   But there is nothing in any of the judgments in Fox v Percy that is against you in this particular case because this is a question of drawing inferences. 

MR WALKER:   In our submission, to the contrary, one could – and I do not mean to be exhaustive here, but simply to illustrate the justice of what your Honour Justice McHugh has just said concerning Fox v Percy and our case – one could simply have supplied, for example, a reference to paragraph 21 of the Fox v Percy reasons to paragraph 7 of our submissions in this Court, or to paragraphs 25 and 27 of those reasons as a citation to paragraph 16 of our written submissions, which were, alas, signed a day before Fox v Percy was delivered. 

McHUGH J:   Can I tell you the difficulty I have with paragraph 23 of the Court of Appeal judgment.  The second sentence sets up a universal hypothesis, that is to say: 

there is an overwhelming inference that a person –

who knew of it –

would have included that added piece of knowledge in the thinking processes in play when returning to the seat –

The real question is what this particular plaintiff would have done with that piece of knowledge in the context of this case, and the only ‑ ‑ ‑

MR WALKER:   It is the only question I would accept, your Honour; the only question. 

McHUGH J:   Yes, but the only reference in the Court of Appeal to that problem is the bald statement which follows the citation to Romeo: 

This is not a case in which the impetuous nature of the plaintiff’s conduct was such that it was unlikely that a mere sign would have deflected her –

MR WALKER:   Not quite, your Honour.

McHUGH J:   Now, the judgment in the Court of Appeal does not really deal with the facts that the trial judge has set out at page 641 about point 3 on that page:

She was holding a struggling four year‑old child, manoeuvring –

et cetera.  That is what you have to face up to.

MR WALKER:   Yes, I do.  There are two propositions, both of which can be contested.  The second one your Honour put, namely that the Court of Appeal did not deal with those facts, needs this qualification.  They did recite, that is they accepted, adopted, explicitly repeated those findings.  That is the first thing.

McHUGH J:   Well, at an earlier stage, but when they came to this critical aspect one would have thought that the court would have asked itself whether the plaintiff, with knowledge of the warning:

holding a struggling four year‑old, manoeuvring between Joshua’s wheel chair and the other child seated in the bean bag to her left ‑ ‑ ‑

MR WALKER:   But, your Honour, all of that is captured, if I may say so, at the end of paragraph 23, 3 appeal book 665, about line 40 and following and in paragraph 24 by the following references which must be references back to the findings which, in extenso and verbatim, have been quoted by Justice Sheller from Judge Gibb.  Firstly, he says, pointing back to the greater pieces of finding reproduced by his Honour:

As Judge Gibb pointed out, the plaintiff was an intelligent and capable woman.

Now, to use the dichotomous phrase that has been used in the area, that was a subjective matter which descended from, as it were, every man or every woman in the cinema to this plaintiff’s position, the first one.  The second one in paragraph 24 about line 47 or 48 or so.  The entirety of what has already been set out verbatim by way of perfectly acceptable appellate recitation and acceptance of findings of primary fact by the trial judge is captured by the phrase “would not have attempted to sit down with a small child in her arms”.

That can only be understood as referring to the particular, highly subjective plight or task that this plaintiff was carrying out and, in our submission, it is not correct to see Justice Sheller’s approach as one which divorced the reasoning leading to the so‑called overwhelming inference from the particular position of the plaintiff.  To the contrary, it is an inference drawn by his Honour, joined in by his Honour’s brothers, Heydon and Ipp, on the basis of this plaintiff’s particular position, well captured by compendious reference in the two passages I have drawn attention to which in turn capture entirely and appropriately his Honour’s respectful verbatim adoption of the trial judge’s findings on primary fact.

That is why I answered the earlier questions by saying that this was a plain and simple application of the duty, not merely the power, under section 75A as explained, for example, in the classic passage in Warren v Coombes.

McHUGH J:   Yes, but part of the problem with the Court of Appeal’s judgment is that it has never asked itself the ultimate question in the case.  The fact that there is a reasonably practicable method of avoiding a risk of injury is only the first step in the inquiry.  The second and final and most important step is whether, given the likelihood of the risk eventuating and the warning, does reasonable care require the defendant to implement the warning so as to eliminate the risk.  Now, that is an issue that is never addressed by the Court of Appeal.

MR WALKER:   But, your Honour, with respect, it is clear – and there is no complaint about this in this Court – it appears to have been fought in the Court of Appeal on causation.  There is no appeal here.  Special leave was not sought on a ground that the Court of Appeal erred by finding duty and breach and, with great respect, everything your Honour says is right in the abstract and, with great respect, that is one starts with the question of duty, one moves to the question of breach and then one comes to the question which did occupy the Court of Appeal hearing and determination, namely causation or, to put it another way, would the harm have been averted by performing that which the failure to perform constituted the held breach.

Now, they must have been live issues, because we find more than traces of them.  Indeed, we find holdings about them in the trial judge’s reasons, but we do not find that matter being ventilated by way of notice of contention by the present appellant as respondent in the Court of Appeal, and more significantly, for today, we do not find it the subject of any aspect of the application for special leave to appeal in this Court. 

KIRBY J:   If you look at the way this matter developed, your client was recalled.  She gave additional and specific evidence that if she had had the warning she would have looked and pulled the seat down and therefore not have been injured.  Now, in Ellis, Justice Samuels and I both expressed a degree of scepticism about this line of questioning because of the self‑interest of a plaintiff to answer it in a particular way, and I think I said in Ellis – I am not sure whether it was Ellis or Chappel v Hart or some other case - that we could trust sensible trial judges and juries to view such matters with a grain of salt and to determine the matter for themselves.  Now, the problem here is that the trial judge, who had certain advantages, did view that statement with a grain of salt and came down against your client and you somehow have to overcome that, do not you, because it is not left to pure inference.  It is now left to the statement by your client which was not accepted by the trial judge.

MR WALKER:   It does seem to have come down to a matter of inference, although her Honour did not draw an inference.  Now, I say that by precise distinction from the other possibility, which is that she drew an inference against my client.

Can I come to the forensic course in order to make good our attempt to persuade your Honours of what Justice Kirby has identified, which we of course accept is our task.  In volume 1 at page 180, the matter which led to what is practically always the fruitless recalling of a plaintiff on such a matter was first given rise to.  At 170 line 23 her Honour said:

Unless Mr McLoughlin can take me to something I have a spectacular lack of evidence as to what she would have done if she was warned.

Could I point out that there are two matters there which are matters of ultimate factual finding from primary facts.  The first is what she would have done nonetheless factual, notwithstanding being hypothetical.

KIRBY J:   It is interesting that Mr McLoughlin said no one could say that, and I think Justice Samuels in Ellis said something to a similar line, that it really is not admissible.

MR WALKER:   Yes.  If your Honours will forgive me, for advocates at trial it is a damned if you do, damned if you do not.  If you call the evidence, whether at first in‑chief or on one of these ghastly reopening applications, you are of course subject to the criticism:  well, what does it matter what she says?  Of course she is going to say that.  She has brought suit, for heaven’s sake.  That is a commonsense thing.

KIRBY J:   But once the judge raises it, it is not easy for the advocate not to seek to call the witness.

MR WALKER:   If you do not ask the question, other judges, as exampled by this judge, will say, “But you, as it were, studiously avoided asking the question that mattered”.  Now, it means really that it will always be a matter of weight, which in this area is a euphemism for the weight is not going to be very great at all, because the judge is going to look, as this Court has suggested the judge must look, at the things apart from what I will call ipse dixit or say‑so in the witness box, look at the things which tell one way or the other about the hypothetical.

KIRBY J:   In fairness to her Honour, whether it strictly ought not to be admitted, it has become a very common practice in Australian courts to admit it.

MR WALKER:   Your Honour, if one was advising beginning barristers now as to how they should draw their advices on evidence and how they should run the enfilade of a trial judge’s objections – if I can call them that – when such material comes up in affidavits or witness statements in commercial cases or in evidence‑in‑chief in a witness action for personal injuries, the fact of the matter is one could only talk about two opposing schools of thought but their common ground would be that on any view of it the weight to be given to such evidence is highly problematical and dubious and you had better have other aspects of the matter to rely upon, whether you are plaintiff or defendant.

KIRBY J:   It is self‑interested, it is speculation.  It is not evidence of what at the time the person was thinking but evidence of what now in a wholly different circumstance they are thinking about.

MR WALKER:   As Honore said, the question that it goes to is:  did one non‑event cause another non‑event?  That is of course exactly what the judge was asking about, “What would she have done” – a non‑event – “if she was warned?” a non‑event.  But there are two questions of fact at least involved in a warning question.  One would be:  would it have mattered to do that which the plaintiff proposes?  That is a very important question in this case for reasons I am about to come to.  Second:  what would you have done had you become aware of the warning?  That is the critical question and it is the question where in this country it is to be answered subjectively, that is to say, it is a question asked about this particular plaintiff in these particular circumstances.

For the reasons I have already put, paragraphs 23 and 24, combined with the earlier verbatim incorporation of the trial judge’s findings about the particular plaintiff and her circumstances is exactly what the Court of Appeal did.  At page 170 in volume 1, your Honour Justice Kirby has already pointed out that plaintiff’s counsel immediately, as it were, said, “Nobody can say what you would have done”.  That is interesting because that is a refrain more or less taken up later by defendant’s counsel because what we have by now in this Court is the defendant saying, “Well, you have to say what you would have done and, by the way, that is the kind of evidence which is preternaturally unreliable and one looks at objective circumstances”.  Objective circumstances, together with undisputed facts about this plaintiff such as her intelligence and capability, were exactly what the Court of Appeal did use.

HAYNE J:   Perhaps all that is because this part of the debate reflected at page 170 of the transcript proceeds on the false premise that the relevant question is whether knowledge would have affected conscious or advertent conduct.  But the real question here was:  was there advertent conduct?  The trial judge said, “No, there wasn’t.  She was preoccupied”.

MR WALKER:   Quite.  I accept that.  If your Honour does not mind, can I come back to that matter which your Honour raised with my learned friend by using I think Justice Kirby’s epithet “impetuous” from Romeo in order to deal with the question.  In this case it is not impetuosity; it would be something in the nature of urgency or emergency by reason of ‑ ‑ ‑

GUMMOW J:   The problem is the expression “thinking processes in play” in the second sentence at paragraph  23 of the Court of Appeal proceedings.  It assumes that will always be the case.

MR WALKER:   As a universal statement we have nothing to offer in support of it because it is not the province of factual fact finders, be they first instance or appellate, to utter as if this was a matter of lawmaking, universal propositions about either physiology or psychology.  They will be dependent upon the evidence in the particular case.

McHUGH J:   But it is very important, is it not, in a case like this, particularly having regard to what the Court of Appeal said.  I think it was Williams James who said that if we had to engage in a mental process in respect of every action, we would soon all go mad.

MR WALKER:   Certainly the species would probably have died out as well, may I say.

McHUGH J:   One does these things automatically.

MR WALKER:   That is what I was about to suggest.  The epithet “impulsive” raises the question, with respect.  Perhaps in this case we are talking more about instinctive or reflex or emergency, something of that kind, and that does the raise the question and, with respect ‑ ‑ ‑

HAYNE J:   And whether her mind was on other things.

MR WALKER:   “Distraction” perhaps is another way of putting it.

HAYNE J:   Yes.

MR WALKER:   Without any doubt, the factual, that is the subject of the particularistic question in this case, is what was the inference that should have been drawn in light of the circumstances which certainly raised the plausibility of her being distracted in light of the facts that we do know, both as to actual history found by the judge - on the strength, I should say, of the uncorroborated testimony of the plaintiff - together with that which was available by way of inference in relation to the hypothetical fact.

It is that to which I turn.  At page 170, as I say, counsel at line 45, and very much, as your Honour Justice Hayne has pointed out, simply said all that the witness could say is:

This is probably what I would have done –

Now, minds differ, alas, as to whether that means that the evidence should be given because it will be significant, or whether the evidence need not be given because it is, as it were, a matter as to which, it goes without saying, the plaintiff is not going to throw things away in‑chief.  At 202 the topic returned during the trial – that is in volume 1 still – at the top of 202 line 7 or so:

MCLOUGHLIN:  In view of the matters raised by your Honour I would seek to reopen the plaintiff’s case to deal with that question as to what she would have done should she have received a warning that the seat was likely to go back into an upright position.

There was then an objection based, in effect, and I paraphrase, upon the proposition that the evidence might be different now that there is the artificial prominence given to it by being the sole topic of a reopened evidence‑in‑chief.  Her Honour, with respect, correctly said that can all be dealt with as a matter of the way to be done, but then, significantly, at the foot of page 204, counsel for the defendant, about line 53 or so, in effect, adopts the very thing which somewhat quizzically counsel for the plaintiff had said earlier, namely:

if the plaintiff was recalled I would object to it and hopefully your Honour would rule on it because how can she say what might have happened.

Now, that is an interesting proposition to be put by a party that now says, in effect, she needed to say what might have happened.  There was a gap because what she did say eventually about what might have happened was not accepted.

KIRBY J:   He is just foreshadowing beating the drums.

MR WALKER:   That is right.

KIRBY J:   When the evidence is given he is going to be very critical of it.

MR WALKER:   Then there is a very curious passage which commences with what became characterised in the colloquy as a concession offered by counsel for the defendant and her Honour, with great respect, very cogently tried to explore what on earth this concession meant.  It was introduced under the banner “in respect of warning signs there is no issue about it”.  Her Honour tried to find out what that actually meant ‑ ‑ ‑

KIRBY J:   Where is this, what line?

MR WALKER:   Line 6 or 7 on page 205 and then on the same page, lines 32 or so, counsel for the defendant:

What we are saying is if we put the plaintiff to strict proof on signs because we don’t know, no one knows, what the effect of a sign might be – what I am saying your Honour is this; if the plaintiff came in to give evidence at 2.30 and was asked what the effect of a sign might have been how can she answer that question?  How can she be engaged in that speculation –

an interesting word because it is picked up and echoed in the reasons of the trial judge.  Now that, as it were, is odd from a defendant now taking the position it does in this case, counsel of despair, as it were.  This cannot depend upon it being a reopened matter; this has to do with the content of the hypothetical evidence.

KIRBY J:   Yes, but in fairness they do so now coming along to this Court after they have this – it is a bit further down the track.  You formulated the sign ‑ ‑ ‑

MR WALKER:   No, it is more than that.  This is going beyond the fact that this is at this artificially highlighted part of the hearing.  This has to do with the fact that it is a hypothetical and, of course, it cannot be an objection to such evidence that it is hypothetical because the law proceeds upon an hypothesis for the causation.  Then, after her Honour fairly asked:

What is your concession?

counsel for the defendant said, at line 47, amongst other things:

we don’t know where any sign might have been, she would not be able to give that evidence and it is pointless calling her to attempt to give such.

That is significant.  The concession, so‑called, is then withdrawn and we settle down to the question ‑ ‑ ‑

HAYNE J:   What do we make of all this passage at arms in the trial, Mr Walker?

MR WALKER:   Yes, but it is because what then happens in the cross‑examination, which then is informative as to what her Honour finds and, more to the point, does not find or says she is not able to find, does not have to do with some critical matters of fact upon which the Court of Appeal was entitled to proceed, in particular that she would have come to know of a matter had there been a warning.

Now, at the foot of page 206 the reopened evidence‑in‑chief has commenced, an objection at the outset by counsel for the defendant:

My primary objection is this is in the realm of pure speculation.

Now, that has nothing to do with when this question is being asked; that has to do with the nature of the question.  Correctly, her Honour says, “Let’s go on” and then there is the evidence‑in‑chief at 207 line 18:

Had there been signs there to warn me I would have been aware –

and I ask your Honours to note that the witness says she would have been aware because, we would submit, on the basis of a passage to which I am about to come, that so the judge found based only upon her testimony or upon an inference of the kind that the Court of Appeal was prepared to hold –

that the seat would retract and I would have made sure that the seat was completely down –

the passage drawn to your attention by my learned friend this morning.  Now, that is to be compared with the inference, and I stress the inference, not depending upon an acceptance of testimony on transcript, which is drawn in paragraphs 23 and 24 by Justice Sheller at page 665 of volume 3.  The word is “inference” but in each point it sets – it concludes in 24:

she would not have attempted to sit down with a small child in her arms –

and then the important passage –

without being satisfied that the seat was down.

Your Honours will note that the witness did not talk about turning around and looking at a seat in what is, after all, a darkened cinema, where one’s eyes have become used to looking at the lit screen.  Not a very happy situation under which to see the detail of where edges of material were compared to the carpet and the floor and the metal fitting.  So the witness said nothing about looking.  I draw that to attention because of the great emphasis that looking then assumed in the trial judge’s reasons. 

The source of that can be traced, with respect, to the nature of the cross‑examination, which really has two themes.  It is very short.  It starts at the foot of 207, it occupies 208 and finishes on 209.  When it starts, the issue is, importantly, see line 47: 

how can you say now if there were signs in the theatre, that you would become aware of them? 

So the first question, would you have become aware of the signs, seen them, read them, adverted to them? It is objected to and then it is repeated. The significance of the matter is this. Her Honour makes a finding in favour of the plaintiff on that point. Now, she does not go out of her way to say the testimony was plausible, reliable and given confidently on the point; she did not need to. But she does make a finding which can be supported only by the uncorroborated testimony of the plaintiff, thereby, in our submission, destroying utterly the notion that this is an area of the case, or a matter of factual contest in the case, where appellate review under section 75A of the Supreme Court Act was precluded by the restrictions placed upon the power to draw inferences of fact and to make findings of fact by reference to the advantages and credibility findings.  The judge did come this far ‑ ‑ ‑

CALLINAN J:   Well, we are in the same position. 

MR WALKER:   Yes. Well, except this now is an appeal in the strict sense, where the question is “Did the Court of Appeal proceed wrongly under section 75A?” That is the question.

CALLINAN J:   Among other things, in drawing the inference that it did. 

MR WALKER:   Yes. 

CALLINAN J:   Which might require us to draw the inference ourselves. 

MR WALKER:   Strictly speaking, your Honour is evaluating whether or not the inferential reasoning of the Court of Appeal was (a) within power, and (b) proper, in the sense that it is inferential reasoning as opposed to mere conjecture. 

CALLINAN J:   It should have been drawn. 

MR WALKER:   Yes.  So long as this Court does not, as it were, become an appeal by way of rehearing itself – which cannot be done, in our submission.  At the top of page 208, there is a passage, importantly, in our submission, clearly adopted by the trial judge, bearing in mind what she finds.  Counsel persisted: 

Q.  How can you say now that if there were signs in the theatre that you would have become aware of them? 

A.  Because I would have read the signs. 

Q.  How do you know you would have read them? 

A.  Well, if there had of been signs on the walls, or on the floor, or on the screen, I would have read the sign.  I can only say I would have read the signs. 

These questions and answers are always difficult in any case of this kind.  It may be there is very little one can say in hindsight, in the forensic position, with the self‑interest to the fore, but the point is this was the uncorroborated testimony of the plaintiff and it was accepted.  Then at line 12 or so: 

Q.  Do you agree what you are saying is mere speculation –

which presumably is intended to be an abstract question designed to go to the degrees of probability of a hypothetical state of affairs.  Not surprisingly, the witness says: 

A.  That’s very hard.  No, I would still say that had there of been signs I would have read them and known that the seat retracted. 

GUMMOW J:   But all this started with the question on 206 line 45:

If you had been made aware by the way of signs –

No one condescends to explaining how big the sign is ‑ ‑ ‑

CALLINAN J:   Or where it should have been, or when it should have been exhibited ‑ ‑ ‑

McHUGH J:   It is all fantasy. 

MR WALKER:   Well, your Honour, there was none of what I will call ‑ ‑ ‑

GUMMOW J:   Specificity. 

MR WALKER:   ‑ ‑ ‑ simple linear sequence of specific matters with concrete – “If a sign of such and such a kind, displayed in such and such a place, saying such and such had been there, can you tell the court” – and, of course, the weight of these questions and these answers will always be dubious – “do you think you would have seen it?” 

GUMMOW J:   Yes, but this is even more dubious. 

MR WALKER:   What I am saying, your Honour, is that with all the forensic raggedness that attends not only this case, but all cases of this kind being run in this fashion, the material was before the trial judge as to whether there had been a sign warning that the seats retracted automatically, when you stood up, having been on them – when you stood up, they would retract. 

CALLINAN J:   Mr Walker, the impression I have is that a lot of these cases are conducted on the basis of argumentative expert’s reports, often not tested in any way at all.  It seems to me to be an extraordinary way to conduct litigation involving large sums of money whether in a district court or anywhere.

MR WALKER:   Your Honour, I would not wish to dissuade your Honour from anything along those lines that your Honour has expressed in Fox v Percy.  There was, indeed, in this case such so‑called expert material.  The expertise may have been little more than using a ruler or a protractor.  However ‑ ‑ ‑

CALLINAN J:   They are full of argumentative assertions, both sides.

MR WALKER:   But we are spared in this particular argument concern about that because they are not germane to the particular issue before this Court.

CALLINAN J:   No, but that is the way the parties seem to be content to conduct their cases and the oral evidence by the people directly concerned, nobody seems to pay the attention to that that they should.  I think the primary judge may have done here, on a tentative view, but certainly not the Court of Appeal, with all due respect.

MR WALKER:   Your Honours, at 208 evidence is given which, my point is, is clearly accepted concerning that she would have read them, become aware of the matter, by the trial judge.  All the deficiencies in the forensic course identified by your Honours Justice Gummow and Callinan in the last number of questions – I am not suggesting the others if your Honours have not also identified deficiencies – those deficiencies, notwithstanding the factual matter was fairly before her Honour to deal with it as well as she could, as well as the Court of Appeal then could, given the material in play.

The material in play showed that both sides were content to proceed on the basis of talking about a hypothetical notice without, how shall I say, elementary matters of specificity, but that was not a matter which, in our submission, ultimately – although it is touched on by her Honour – did not ultimately form her reasoning on this point.  At 208, the second issue in the cross‑examination emerged, namely, “Assume you had seen it and read it, then what happens?”, line 39:

I suggest to you what you are saying is purely speculation of what you might have done if there were signs there.

Then there is the repetition, line 47:

I would have made sure that having that knowledge that I would have made sure that the seat was down.

Again, may I draw to attention this was not evidence that she would have looked.  Now, that is important because of the way in which her Honour deals with the faculty of sight as apparently a faculty not exercised by the plaintiff indicative of the plaintiff not exercising due care for her own safety.  In our submission, the sight question was a red herring quite apart from the inherent implausibility of sight having anything to do with it in a cinema darkened for the purpose of people looking at a lit screen, that is, looking away from the screen back to the dark position.

The speculation and the nature of all of this as inquiring about whether one non‑event was caused by another non‑event is highlighted perhaps by one of the final questions at 209, line 15:

It is entirely speculation from your part to deal with what might have been there, which in fact wasn’t there by way of signage?

Well, quite so, if by speculation you mean this is hypothetical, but that is the nature of the exercise.

McHUGH J:   What is the point of taking us to this evidence, given the trial judge’s rejection of it?

MR WALKER:   My point is it was not rejected, that is completely incorrect.  That part of it that said she would have become aware of the signs and read it and become aware of the risk which she was otherwise not aware of is found by the judge.  Could I now take your Honours to the passages which lead up to that?  It is not the case that all of that evidence was rejected.

My learned friend gave you most of the material matters in relation to credibility.  I should add ‑ against us on the ledger, as it were – the following matters which are of significance to evaluating whether or not this is, as it were, on the Warren v Coombes side or on the Abalos side.  At 623, lines 43 or so, a general submission about credit is recorded, that is:

should treat Ms Burns as being of little credit and view her evidence with considerable caution.  That I do.  I do not find she was deliberately dishonest.  On the contrary, I am of the view that Ms Burns now believes that of which she testified to be true.

So honest witness, but then her Honour simply says compendiously – and this is, of course, the beginning of the judgment ‑ ‑ ‑

KIRBY J:   What page is this, 628?

MR WALKER:   Page 623, line 43:

But that belief is not well founded.

It turns out that cannot be right for everything because as to essential matters, uncorroborated by anybody, the judge makes findings in favour of the plaintiff, which must be based upon her testimony.  At the foot of that page, that which was truly the focus of the credibility doubts ‑ ‑ ‑

GUMMOW J:   Do we know the age of the plaintiff?

CALLINAN J:   She was 47 at the time, I think.  It is in the chronology.

MR WALKER:   Yes, 47.  At the foot of 623:

Her testimony is frequently at variation with the history as recorded in the contemporaneous medical records.

That is the theme of the succeeding three or four pages.  Encapsulated, for example, along the way at the foot of 626 line 48 or so, a certain explanation not accepted in relation to a medical history discrepancy:

prefer the version as disclosed in the contemporaneous medical records.

This has, we submit, little or nothing to do with the question at hand bearing in mind what I shall show, namely the trial judge accepting uncorroborated testimony.  Other strictures upon her reliability in relation to history, symptoms and disabilities and the like, the top of 627 line 5, and then some more words of generalisation – we do not criticise them, but we do resist their expansion to occupy the whole of the factual issues in the case – at line 41 on 627:

In other respects . . . manifestly tainted by exaggeration, or understatement of those things that, not unreasonably, she would prefer not to recall.

The very example then given about “marital difficulties” not being disclosed fully and frankly in‑chief is not, with respect, a matter that one could sensibly see as extending to her Honour’s view on all matters about which the plaintiff gave evidence, her Honour having gone out of her way, with respect, to stress that she did not find her a dishonest witness.

At page 628 lines 35 and following, a passage which is of some importance about the way in which her Honour saw questions of credibility and fact‑finding by reference to contemporaneous documents.  It is said:

Ms Burns is a very unreliable witness whose perceptions have been distorted by hindsight, passage of time, pre‑occupation with this claim and (perhaps inevitably) this case. 

Of course that would not make her Robinson Crusoe.

Although I do not view her testimony as deliberately dishonest or as having engaged in any conscious fabrication in her evidence –

an important matter –

I have treated Ms Burns’ evidence with caution –

and that also is important –

and have not accepted it where it is contradicted by any contemporaneous record.

There is no contemporaneous record on this question of “Would you have seen a sign?  Would you have read it?  Would you have averted to it?  What would you have done?”  Then her Honour goes on:

Where the contemporaneous records differ, I prefer the version as disclosed in the records –

again, not applicable to this matter –

Where Ms Burns’ testimony is uncontradicted but is without contemporaneous corroboration –

thus my repetition of this notion of uncorroborated testimony –

I have viewed it with caution, and not accepted it on various occasions.

In fact, that discrimination, according to the nature of the evidence and the circumstances which is certainly required by judicial fact finders, is practised in this case but without reference, it turns out, to what I will call adverse positive finding against the plaintiff based on, thus against appellate review, bolstered or buttressed or protected by credibility findings.

The very next paragraph illustrates the matter perfectly and is, in our submission, the high point of what I am seeking to persuade your Honours, namely that there was acceptance of uncorroborated testimony.  In the next paragraph about line 43 I quote:

Ms Burns did not know that the seats retracted in this way, and there were no warning signs to this effect. 

The first part of that sentence must come from volume 1 in the appeal book, 102 to 104, and you can compare that with what was said in‑chief at 35 to 36.  Then, equally importantly, after line 46, the third line, the very contrast with having to put her seat down when she first came into the cinema:

She did not notice that her seat retracted when she got up to collect Joshua immediately before the accident.

That is a matter that comes only from the plaintiff and so, on these critical matters, without which there would have been a threshold objection to the whole of this “failure to warn” case, the judge finds the primary fact in a way which the Court of Appeal then very properly used without doubting as the basis of their inferential reasoning.  That means when one goes in particular to volume 1, 103 lines 21 to 24, one finds a passage that her Honour must be accepting.  Counsel was significantly cross‑examining on not looking at the seat – line 17:

You were going to sit on the seat . . . 

Q.  So isn’t that a reason to look?
A.  No, because I was not aware that the seats automatically retract.

Now, her Honour finds that.

I felt for what I thought was the seat and assumed that was the seat, not knowing that they go up when people aren’t sitting on them, and I sat down.

Q.  The only way to determine whether the seat went up when you are not sitting on it was to have a look at it –

which is a question that really assumes that you have some prescience of that which you say you did not know.  The answer is, with respect, a good one accepted by her Honour:

I had no reason to have a look because I was unaware that would occur.

Q.  But you would have discovered it if you had actually looked at the seat?

All sorts of assumptions about lighting and one’s iris, one would have thought.

A.  If I had have looked at the seat, yes, I probably may have seen that it was.  I don’t, I can’t – I can’t answer that question because that’s not what occurred.

Q.  You know that had you looked at it and observed –

so the assumption is had you observed this position –

you would have been able to put the seat down before sitting on it?
A.  I know that now.

At the foot of that page:

You would have seen that you had to move the seat down before sitting on it:
A.  Had I have looked . . . 

Q.  You didn’t look, you just felt?

While on this part of the evidence, for another related purpose to which I will be coming soon, at the foot of page 104, top of page 105, there was an attempt by the cross‑examiner to find out, as it were, what part of the illusory seat was the plaintiff trying to sit on.  At the top of page 105: 

Q.  You wanted to sit on the edge of the chair or what? 

A perfectly sensible and robust answer came back: 

A.  Just on the chair itself. 

Now, that is important for the so‑called second or edge point, as we would call it, the second point that the appellant has run this morning, and I will come back to that in a moment. 

So after that very important acceptance of evidence at 628, an acceptance of critical matters in a failure to warn case, one can then turn in the reasons to 632.  Her Honour sets out the passage of evidence to which I have just taken your Honours at the foot of page 631 and the top of 632.  In relation to this so‑called edge point, at the middle of 632, her Honour finds, line 29, that the plaintiff: 

attempted to seat herself when under a misapprehension as to the height of the seat – assuming it to be where she had felt, being somewhat higher than it actually was.  She recognised that there was a problem –

Now, that is not an expression of a judge finding that this was a woman who, in the emergency of the struggling Joshua under her arm and in a cinema where people were trying to watch a movie, was, as it were, operating without conscious thought, completely instinctively, by reflex.  That is about as close as one gets to a complete finding – that is, a specific finding – about what I will call the level of advertence compared to the nature of the distraction. 

McHUGH J:   But I rather read that as saying she realised there was a problem as she was on her way down and in trouble.  Her Honour goes on to say: 

but was unable to control her descent when the error became apparent ‑ ‑ ‑

MR WALKER:   I do not want to try and suggest it should be read any other way.  That is what it is talking about.  The judge is talking about someone’s thought processes during what must have been split seconds; conscious thought processes concerning “Goodness, I am not finding a seat where I expected to find one”.  Now, in our submission, there is nothing one finds earlier and nothing really that one finds later which suggests of the seconds before then where there was a conscious thought – I am going to come to this – to feel back for the chair, that not being an automatic or reflex motion, and no one is suggesting that, there is no suggestion that there was such a level of distraction that even if she had added the intellectual, cognitive component “These seats flip up”, that somehow she would not have proceeded to make sure, as she has said, and, as the Court of Appeal inferred, even without that testimony, would be satisfied that the seat was down before sitting on it.

That also is picked up in the next paragraph.  Her Honour says, erroneously: 

Having located what she (mistakenly) thought was the edge of the lowered seat base –

Unless I have missed something – certainly, the appellant’s submissions do not suggest any reference – there is no evidence that the plaintiff thought that what she had touched was the edge, that is, the leading edge – that is, the closest to the cinema screen, part of the horizontal seat ‑ as opposed to just any part.  In fact, she was cross‑examined about whether she thought she had touched the horizontal or the vertical and the judge finds that, though she clearly touched the vertical, she mistakenly thought it was the horizontal.  But the horizontal, of course, is the whole of the seat, from the leading edge back to where it intersects with the back of the seat. 

There is no evidence about this “edge” notion, which, of course, is critical to the idea of the second point the appellant runs, namely that even if she had put the seat down properly, she still lowered her bottom through an arc that somehow would have missed any part of that seat.  When one looks at the photographs - my friend showed your Honours 236 in volume 2.  You get a better view of this metal pedestal upon which the pivot operates at 233.  If one goes back to 236, what is being posited is that the plaintiff struck with her coccyx that metal pedestal, having lowered herself in an arc which, by some stretch of expert extrapolation, the judge could find would not have seen her bottom strike any part of the seat had the seat actually been down. 

One only has to look at the photograph to see what an unsubstantiated finding of fact that would be and, in our submission, one which properly presented no difficulty whatever to the Court of Appeal.  It is highlighted as to the difference between what the plaintiff apparently thought was there and what was actually there by the sentence at line 36 on page 362:

She thus attempted to lower herself through a plane –

I presume that means through an arc -

that was outside the edge of what she thought was the seat base.

Now, it is not clear from that sentence whether we are talking about outside the perceived edge or outside the actual edge.  It would need to be outside the actual edge and there is no finding of fact or expert evidence worth that name to support that proposition.  If it is outside the perceived edge, then, in our submission, that is even more an unsubstantiated speculation about matters which as a matter of common sense when one looks at 236 simply could not be the case.  If your coccyx hits that pedestal, the prospect that in the ordinary way that you have brought your bottom down to sit in the vicinity, the operative functional sensible vicinity of what you had felt is, in our submission, irresistible and correctly regarded as such by the Court of Appeal.

At 633 the notion of exploring what would have happened if – which is the critical matter – is introduced by a finding of some importance.  At line 17 or so, having found importantly, because this had been a contest and Ms Burns had been corroborated by her companion and colleague, Ms Zito, who was not cross‑examined and whose evidence is found at 423 in volume 3 - I do not need to take your Honours to it - namely, that her friend had sat down and hit the metal part after the seat flipped up, the judge actually finds - having included the plaintiff at line 21 as a person who had failed to take proper care for their own safety, she says:

She seated herself without looking at the seat in circumstances where she conceded that had she looked, she would have seen the risk.

I have taken you to the evidence.  I think her Honour’s “would have seen” must come from the plaintiff’s use of the word “probably”:

She says, of course –

and the fact is that that has been accepted -

that she did not apprehend any risk because she did not know that the seat would retract, or that it had.

Now, that is not said sceptically by the judge at that point.  It has already been accepted, and one finds acceptance of it further:

She says, of course, that she did not apprehend any risk because she did not know that the seat would retract, or that it had.  But that does not derogate –

et cetera.  So, even as a matter of argument in that paragraph it is being accepted what the plaintiff said.  As your Honours have already seen, it had already been accepted as findings of fact by her Honour.  The importance there is that in this passage her Honour is emphasising this notion that she did not look, as if that was the plaintiff’s case.  It is not what the plaintiff had said in the passages to which I have drawn attention and it is not inherently what one would expect in a darkened cinema.

McHUGH J:   Can I tell you one problem I have with all this evidence in the Court of Appeal’s findings.  It seems to me that the Court of Appeal is really saying that the seat should not have retracted.  What difference would it have made?  She is putting her hand behind her and she touches something and she sits down.  Now, if she had been given a warning would it have made any difference?

MR WALKER:   Yes.

McHUGH J:   What difference would it have made?

MR WALKER:   She would not have simply touched to locate where the seat was, which is what she did; she would have made sure it was down – not touch, not felt, but push, the very thing that she had done when she came into the cinema.  Now, that is an objective circumstance which is subjective to this plaintiff.  When she came into the cinema, at first she pushed the seat down.

McHUGH J:   But she thought she was touching the back of the seat.

MR WALKER:   I am sorry, your Honour?

McHUGH J:   She thought she was touching the seat itself.

MR WALKER:   Yes.  She mistook ‑ ‑ ‑

McHUGH J:   “I thought it was the seat”.

MR WALKER:   She mistook apparently the vertical for the horizontal.

McHUGH J:   She could have been thinking it was the part you sat on.

MR WALKER:   But if you did that you would certainly be well seated because you would be putting it right back on the back.  That is simply not an objection to the commonsense objective causal reasoning of the Court of Appeal.

McHUGH J:   But if you look at this way:  here is the back of the seat and here is the retraction.  Now, she touches which of the two, where the green pen is or the pad?

MR WALKER:   No one knows.  Her Honour’s best effort is to suggest that she touched, and I quote, “the vertical”.  Now, that must be one or other of two things.  Literally, it is neither, I think, because neither is actually perpendicular.  The back of the seat is raked and the seat comes up to 70 degrees but it gives you two possible verticals:  the underside of the seat – that is not suggested, I think – or the front of the back, if that makes sense, that is the part you rest your back against.

McHUGH J:   That seems to suggest that having put her hand back she would have then checked to see that it was not the retracted seat.

MR WALKER:   Your Honour, she did not know the seat had retracted.  That is found as a fact.

McHUGH J:   I know, but that is what you have to say.

MR WALKER:   No, it is what the judge – yes, I need it, but the judge found it.  She did not know the seats flipped up when you left, as opposed to having been flipped up when you arrived.  Now, that means that she having mistakenly touched what the judge infers was probably the vertical of the seat back but thought it was horizontal, she having located – presumably in two directions, two planes at that moment, back from her and transversely across her – she having located what she thought was the seat in lowered position.  She did not know it had flipped up.  She moves to sit down.  When you see what she struck on the way down, one can see that had the seat been lowered, the necessary imprecision of her backwards feeling with her hand for the location of the seat would not have defeated her purpose at all.  She would have sat down on the seat.

McHUGH J:   No, but did I not just hear you say that she thought she was feeling the lowered seat, that is the seat ‑ ‑ ‑

MR WALKER:   Yes, she thought she was feeling the horizontal surface of that upon which one places one’s bottom.  I will call that “the seat” although the whole thing is a seat, of course.

McHUGH J:   Why would she fall down then?

MR WALKER:   I think your Honour is, with respect, moving to the point which the appellant has implicitly argued, namely that she thought she had located the outside edge of the seat.  Of course, the second point the appellant makes is that if she thought she had located the outside edge of the seat by her mistake in touching of this part, then what was she doing lowering herself in an arc which missed even that?  Of course, the short answer to that is, there is no evidence that she thought she had located the nearest edge to her at all.  It does not follow from the finding that she deludedly thought that she had touched the horizontal.  The horizontal extends from the leading edge right back to where it meets the back of the seat.  When one actually looks, as a matter of commonsense, at the geometry on 236, if you have sat down, suffered the disaster of your bottom not meeting a horizontal when you expected it to, and you in fact hit that metal projection with your coccyx, it is pretty clear that if the seat had been flipped down you would have safely hit a horizontal seat on the way down.

CALLINAN J:   Mr Walker, is what you just said right?  I thought the contrary really emerged from page 102.  It may not say it expressly but she said she put her hand out to feel where the seat was - that is at about line 33.

MR WALKER:   It is the specificity of the edge that is my only point here, your Honour.

CALLINAN J:   But she must have felt something when she put her hand out to feel.

MR WALKER:   Quite.

CALLINAN J:   And no doubt she then sat down when she felt something?

MR WALKER:   Yes.

CALLINAN J:   Well, really, the picture she is painting is of coming into contact with the top of the upright seat, thinking that is the horizontal and then sitting down.

MR WALKER:   Yes, but, of course, that is perfectly consistent with her not thinking that she had located the nearest, that is, leading edge of the horizontal seat.  After all, without evidence to that effect, why would one think - when one feels back and you feel that there is a surface, which appears to you to be horizontal, why would you think that you have located the nearest part of it to you?  In fact, on any view of it, she had not.

CALLINAN J:   Well, because the top of it is a lot narrower ‑ ‑ ‑

MR WALKER:   None of that was explored, your Honour.

CALLINAN J:   It does not have to be.  It is self‑evident.  You can see it in the photographs.

MR WALKER:   Yes, but, your Honour, none of it was explored as to whether she had felt an edge, be that the edge of the top of the back or be it the edge of the seat in a folded-down position.  I have drawn to your attention ‑ ‑ ‑

CALLINAN J:   You could not be under any misapprehension if you felt the edge of the top of the back of the seat.  That is much narrower or it has a different plane, different angle ‑ ‑ ‑

MR WALKER:   Your Honour, that does not mean that you will have felt the whole of it from its back to its front.  You will have felt a horizontal.  That is all we have.  Now, counsel could have explored that, tried to, at the top of 105, to which I draw attention.

CALLINAN J:   I think perhaps counsel did not, because it is self‑evident what the answer would have been, what any credible answer must have been.

MR WALKER:   Your Honour, there is no finding of fact by the judge to the effect that somehow what actually happened was that this witness had located the leading edge, as she thought, of that upon which she wanted to sit when she felt back.

CALLINAN J:   People also know their own height, Mr Walker.  The notion that ‑ ‑ ‑

MR WALKER:   Your Honour, I am sorry, what I have just said is entirely contrary to what I have said earlier.  There is a finding by the judge to that effect; I have drawn it to attention several times.  Her Honour has used the word “edge”.  What there is not is any evidence to support that finding. 

CALLINAN J:   There is the photograph – the photograph and her description.  Why cannot the primary judge put them together? 

MR WALKER:   The photograph cannot possibly, your Honour, indicate that subjectively the plaintiff thought she had located the edge with her hand. 

CALLINAN J:   But it shows the edge in an upright position much closer than any other part of the seat to her body, and if she put her hand down to feel something then it is almost inevitable that that is what she would have come in contact with. 

MR WALKER:   With respect, that appears to be contrary to the way the trial judge reasoned.

HAYNE J:   Does not all this uncertainty to which you have taken us in such elaborate detail in fact work against the plaintiff’s case at trial?  Does it not give real content to her answer at page 103 line 6 which begins: 

I wasn’t taking any notice.  I felt around, I felt for what I thought was the seat –

She was not – there is material there which ‑ ‑ ‑

MR WALKER:   She was not, no. 

HAYNE J:   ‑ ‑ ‑ enabled the judge to reach the point of not being satisfied that, had there been a warning, something else would have been done.  Is not the very uncertainty of what she was looking for, feeling for, knew she touched, productive of the very finding which the judge makes at 641 and to which you have yet to come? 

MR WALKER:   No.  I will try to encompass my answer to your Honour’s question in dealing with what I have to deal with at 641, but, in short, the evidence at the foot of 102 to the top of 103 is not evidence of what I will call distraction of a kind that means even if the seat had been down, she still would have taken the tumble.  Rather, that was in answer to the question: 

When your hand touched the top of the seat –

an ambiguous expression that we still do not know, but let us assume it is the top of the back of the seat –

you must have realised that it was a far higher level than the level you previously had been seated? 

Now, that is a question which involves some kind of calibration of vertical displacement from the floor by reference to a seat you have sat in once ‑ ‑ ‑

CALLINAN J:   No, it does not ‑ ‑ ‑

MR WALKER:   ‑ ‑ ‑ never seen before. 

CALLINAN J:   No, what it involves is that somebody knows about how high he or she is and how long his or her arms are.  That is what it involves. 

MR WALKER:   Your Honour, all of that is a highly deliberate and self‑conscious exercise.

CALLINAN J:   No.  I suggest it is not. 

MR WALKER:   Counsel puts it to her and she says, “of that”.  That is, “Didn’t you notice that what you had touched was higher than that upon which you had just been sitting?” – which is really what has been put – and she simply says, “I wasn’t taking any notice”.  Now, that is, taking any notice of this verticality point.  The verticality point is not what led her into grief, with respect – the height point.  “I felt around”, in other words, consciously looking for something – that is conscious, not reflex: 

I felt around, I felt for what I thought was the seat –

Her Honour nowhere says that that is testimony which ought to be rejected.  In fact, in the passages to which I am about to come, in our submission, she accepts it.  At 637, line 13 or so, her Honour refers back to this earlier material and says that the plaintiff: 

did not come into contact with the raised seat at all –

because, as you know, she missed all of that and went down to the metal –

and she had felt for and touched the top of the upwardly pivoted seat (without looking at it) before starting to seat herself. 

“Without looking at it” is quite critical.

Would he have reached the same conclusions –

this is the expert –

had he known that Joshua was kicking and struggling, that the fall was not as he described (in that she missed the seat in entirely) –

without talking about discrepancies between assumptions and facts –

and that she felt the seat before attempting to sit?  Would Ms Burns have missed the seat if it had been a fixed seat and she had seated herself in similar circumstances (locating the seat by touch –

again, her Honour says –

without looking and struggling with Joshua).  I do not know.  They are matters of speculation. 

Now, that does not amount to any finding of fact against us.  It may be that, at the end of the day, it will be a contributor to our deficiency in the facts we had to prove positively, but they certainly do not amount to a positive finding against us, and they do not amount to a positive finding in favour of the appellant’s second point in this case.  Page 638, the matter is followed up at line 34: 

Ms Burns’ fall was consequent upon her miscalculation as to the position of the seats following her mis‑identification of the dimensions/location of the seat by touch. 

That, of course, simply does not supply any substantiated finding as to why, had the seat been down, in the position she had misidentified, why you would not infer from the way in which she did injure herself that she certainly would have been arrested in her descent by part of the lowered seat. 

One then comes to page 639 at line 12 or so.  One again finds findings of fact which proceed upon the plaintiff’s testimony.  She:

knew that seats were capable of retraction.  They were retracted when she entered the cinema.  She did not know that the seats retracted automatically.

That is the plaintiff’s evidence uncorroborated that produces that finding.

But Ms Burns admitted candidly –

an important comment in relation to testimony and credibility –

that she would have seen that the seat (under which she came to grief) had retracted had she looked.

In fact, I have taken your Honours to the evidence, you have seen the answer with the word “probably” in it; it is a matter of judgment as to whether it amounts to something quite so plain as her Honour says –

But she did not look -

There was then a passage, to which I have already taken your Honours, set out, including the particular answer, which is the third one there:

A.  If I had have looked at the seat, yes, I probably may have seen that it was.

Lighting and the like, what happens to one’s pupils when you look at a light source in a dark room, none of that was actually explored, regrettably.  At line 30:

Why did Ms Burns not look?

And the crucial pivotal nature of not looking is here emphasised again.

Her answer is obvious:  she did not see the need to do so.

Now, that is said with acceptance of the testimony, which is then quoted.  Line 35:

But she did find the need to locate her seat by touch –

Everybody who goes to sit down either does it by assumption that nobody has taken the chair out from under you or you feel back -

chose to do so – and did so.

That locution is uttered as if it is some fatal sequence of human conduct.  In our submission, it is a perfectly ordinary, mundane approach of anybody.

In so doing she misdirected herself.

That language borrowed, as it were, from administrative law seems to have to do with sat down in the wrong place, and for the reasons I have already put, they are not findings of fact which justify that acceptance.  Under the next heading “Lack of warning” at line 47 or so:

I have no evidence as to what effect any such warning would have had –

the passage that my learned friend has drawn to your Honours’ attention.

GUMMOW J:   These are very detailed reasons, Mr Walker, and her Honour has put an enormous amount of effort into this judgment.  It seems to me if her inferential conclusions are to be displaced, they have to be displaced by a better job than paragraphs 22 and 23 in the Court of Appeal.

MR WALKER:   Can I have a go, your Honour, at supplying that.  At 639 line 47, what her Honour says about the testimony is that she does not accept it there.  Now, it is called there “certain limited testimony”.  We know already that of that testimony which came from a recalled evidence‑in‑chief that her Honour did accept – I am sorry, we know, from the passages I am about to come to, that she did accept that she would have read the warnings and understood them.

So, having said there that there is “certain limited testimony” which must be whether she would have looked or not, which is where her Honour went wrong, because the plaintiff never said she would have looked, one then moves on to page 640 at line 7 or so:

There was no warning that the seat would retract or pivot . . . But Ms Burns knew . . . all the seats were upright.  She therefore knew, at least, that the seats were capable of being pivoted upright . . . She gave no evidence as to how she had thought that the seats came to be upright when she entered the cinema.  She knew that she was seated in close proximity . . . unfamiliar environment.  She knew that.  She knew that she had had to put her seat down when she first seated herself; and she was restraining the struggling Joshua on this second occasion.  But Ms Burns did not look directly at the seat when she seated herself the second time.  She located the seat by touch.

That is a finding of something unexceptionable and ordinary as a matter of human action; not reflex, not instinctive, not a matter without conscious thought.  You feel back for the seat by touch.

Is this a case where the risk was obvious such that there is no need of warning?

That question is answered in the next paragraph, line 23:

there is no need of any warning nor any duty to issue such.

That is how her Honour decided the case.

GUMMOW J:   Are we going to go through this judgment page by page, Mr Walker.

MR WALKER:   No, your Honour, I have two more to go.

GUMMOW J:   It is 25 pages long.

MR WALKER:   I have two more pages after this, because one cannot, with respect, understand 641 and 642 without seeing the way in which her Honour reasoned about this unfortunate lady trying to sit down.

In that paragraph at line 17 and following on 640, there is discussion, nothing to do with what would have happened had she been warned, to do with another basis upon which her Honour was prepared to decide the case, namely, no duty to warn.  That is an issue which, of course, is logically anterior to everything that I have talked about today, but it was not ventilated in the Court of Appeal and is not ventilated by the appellant here.  Then at 641, critically, for my argument, at line 17, immediately after the understandable general proposition:

I do not accept Ms Burns’ belated evidence as being of any weight, or credibility.

Immediately after that, her Honour then turns - just like the pattern to which I drew attention at 628 – to say:

I accept that a warning would have ensured that Ms Burns knew that the seats retracted automatically when not under pressure.

Now, that must be an acceptance of the evidence given in answer to the contrary suggestion by the cross-examiner to which I have drawn attention at 207 to 208 and, in particular, at 207, line 43.  Then her Honour, with respect, correctly, in the analysis of the facts that have to be found, moves to the next question, the question which was, of course, critical in a case such as Nagle v Rottnest.  Assume you have the warning, would it have made any difference?  That is, would it have averted the harm?

Normally, be it medical negligence or a different case, such as the present, or such as Nagle, that will involve speculation, if one likes, certainly hypothetical fact‑finding on the balance of probabilities for the purposes not of uttering universal psychological truths about humans or humans in this circumstance, but about making a finding for the dispute between the particular parties about the particular plaintiff, but hypothetically.

That is why her Honour is correct, with respect, in passing then to the precise question, that does not follow that this would have changed her course of conduct.  Then, finally, there are conclusions expressed which are conclusions of non‑satisfaction ‑ ‑ ‑

GUMMOW J:   Just a minute, Mr Walker.  You said – if we are going to get enmeshed in all of this – with reference to the sentence at line 16:

I accept that a warning would have ensured that Ms Burns knew –

You said that amounted to an endorsement of 207 and 208.

MR WALKER:   Yes.

GUMMOW J:   Not all of it?

MR WALKER:   No.  As I say, it involves a finding in ‑ ‑ ‑

GUMMOW J:   In particular, not 208, line 45.

MR WALKER:   No.  I am sorry, if I have given that impression, I must withdraw it.  Let me be quite precise.  It involves the contrary of the suggestion put by the combination of questions at 207, 47 and following, down to 208, line 32 or so.  It does not involve the proposition at page 208, lines 46 and following, following the word “and”.  It is only the first part of that answer:

I would have been more aware to know I would have known the seat automatically retracts –

That is where it stops.  That finding stops there.

McHUGH J:   One of the problems is that, to a large extent, this is an Abalos case.  Your client went into the witness box and she said “I would have acted differently”.  The judge did not accept that.  Now, the Court of Appeal says “Well, notwithstanding that the judge who saw her would not accept her evidence on that, these objective facts are such that that is the only inference that can be drawn, and the trial judge’s finding, based on her assessment of the witness, has to be overturned”.

KIRBY J:   Maybe that is the meaning of the word “overwhelming”.  It may be that is the use of a formula like “palpably wrong” or “contrary to the overwhelming inferences of the facts”.

MR WALKER:   On any view of it, as this Court has repeatedly said and most recently in Fox v Percy, in all reasons for judgment, with respect, one simply cannot in an ‑ ‑ ‑

KIRBY J:   You are dropping your voice.  I know you are trying to get me to listen more carefully, but it is an old tactic but I would like to hear you.

MR WALKER:   One simply cannot in an appeal by way of rehearing as an appellate court ignore the advantage in all its aspects, including apparently assessment of character and not merely the credibility of particular testimony enjoyed by the trial judge and not available on transcript.  That applies when one is looking at inferences from facts as well as when one looks at the more obvious Abalos question, who should have been believed, which is of course an impossible proposition except in the exceptional cases illustrated by Earthline.

But, in our submission, what Warren v Coombes, what this Court did in Nagle v Rottnest and the way they did it and the way they approved what the Full Court of the Supreme Court of Western Australia had done in Nagle v Rottnest is sufficient to demonstrate that unless there is a finding on these hypotheticals, which hypotheticals are in any event subject to judicial, as it were, generalised doubts as to their cogency uncorroborated, uncorroborated by objective circumstances not by other testimony, then unless there is something which is a positive finding, for example, to the effect of the one in Rosenberg v Percival, then one is left, as the trial judge was left for the reasons I am about to come to, to matters of inference.  Can I do that immediately?

GUMMOW J:   Yes, but the Full Court you see, after talking about overwhelming inference, the Court of Appeal at paragraph 23, they must have been pressed with Romeo’s Case and then they say:

This is not a case in which the impetuous nature of the plaintiff’s conduct –

It was not that she was being impetuous.  She was in a very stressful situation.

MR WALKER:   No, she was distracted.  There is no question about that, your Honour, but I think, with respect, the word “impetuous” must have been picked up from the discourse in argument and from the citation of Justice Kirby’s reasons in Romeo.

KIRBY J:   It is a red herring in the facts of this case, is it not, because no one is suggesting ‑ ‑ ‑

MR WALKER:   Yes, impetuosity is but distraction is not a red herring.  Distraction is at the heart of the matter.  I accept that.

KIRBY J:   Nobody was suggesting it was an impetuous action.  That has an element of a sort of moral fault on her part whereas there was no fault on the part of your client ‑ ‑ ‑

MR WALKER:   The reverse is the case here.  She was a carer looking after a difficult position so there is no question of moral fault and to be fair the appellant has never suggested to the contrary.  At 641 the passage where your Honour Justice Gummow has, with respect, focused attention, at line 18, as I say, the matter is expressed in terms of an inability it turns out to make a finding which is perceived to be necessary to the plaintiff’s case, not satisfied that possessed of knowledge, so that is the assumption made on the basis of the preceding finding of fact to which I have referred that:

Ms Burns would have ensured that the seat was down –

and her Honour there had, with great respect, entirely correctly captured the evidence given by my client, both in‑chief and in cross‑examination, would have made sure – her Honour uses the word “ensured”.  Your Honours will note that at that point this notion, the red herring as we would put it, of looking back is not intruded.  But it comes back again:

She was holding a struggling four year‑old child, manoeuvring between Joshua’s wheel chair and the other child seated in the bean bag to her left and had satisfied herself (wrongly) as to the location of the seat by touch.

Now, that expression – I am sorry if this appears to be a straw in a shipwreck but this notion of “had satisfied herself” is at least inconsistent with the notion of reflex, distraction or emergency conduct as opposed to some conscious advertence.  There is a high degree of artificiality in seeking to dissect the evidence and the findings about something that occurred in a split second as if one can talk about the factual material and the matters of argument which were available to the actor which were then considered consciously, weighed up, a conclusion reached and then fed into, as it were ‑ ‑ ‑

GUMMOW J:   That cuts both ways, Mr Walker.

MR WALKER:   Yes.

GUMMOW J:   The problem with the whole legal process in this situation – they are locked into it.

MR WALKER:   And my point simply is this, that before one reads these reasons as putting behind an Abalos fence an implicit finding that this was a lady so distracted that unfortunately nothing the defendant could have done would have averted this harm.  One needs a lot more than simply an understanding of the fact that the struggling Joshua was literally and metaphorically a handful at that time.

One needs, in our respectful submission, rather to deal with it on the basis of commonsense, that when you know of a danger then it is more likely than not that unless special circumstances demonstrate otherwise you will take ordinary steps to avert it.

McHUGH J:   Common experience contradicts that every day.

MR WALKER:   Not for something as automatic as this, your Honour.

McHUGH J:   Pedestrians in their hundreds know the dangers of stepping out in the line of traffic.  They step out and get knocked over day after day.

MR WALKER:   Not with something as constrained and tight a matter as this.  There is nothing else, in our submission, available as an inference had this lady known what the court has held she did not know and that which she would have known had the sign been here.  The next point I need to make in this paragraph ‑ ‑ ‑

KIRBY J:   And your client sued as an entrant as of contractual right, and that cast traditionally a higher duty on the defendant.  Is that relevant to duties relating to notices?

MR WALKER:   No.  Certainly it has not been argued that way.  It was not argued that way below.

KIRBY J:   You say that is only relevant to the ‑ ‑ ‑

MR WALKER:   Duty question and breach question.

KIRBY J:    ‑ ‑ ‑ condition of the chair and so on, and we are not concerned with that.

MR WALKER:   That is right.  They were live issues, they are not now.  At 641, the same paragraph I am struggling through.  The last sentence is important:

What she would have done differently is matter of pure speculation ‑

picking up counsel for the defendant’s approach in cross‑examination.  Now, that tells against me in the sense that that means that she declines - one of the reasons she declined to make findings in our favour, but it tells for us on appeal in the sense that it does not involve anything like an Abalos protected credibility finding.  That much, in our submission, is then made good at the foot of that page, 641 line 43:

Putting to one side the relevant testimony that I find of no weight ‑

the relevant testimony is not everything she said in recalled chief, we know that ‑

am I to infer that ‑

in other words her Honour very correctly, as in fact this Court has said both in medical negligence and in other cases, beware the hindsight “what if” answers by the plaintiff, she then turned to the other matters of a kind which time and time again Justices in this Court including Justices of the present Court have said need to be looked at in making the particular subjective factual decision about the particular plaintiff and the hypothetical conduct.

At the top of 642 those matters are then looked at and, in our submission, these are the ones that need to be taken into account in considering whether section 75A has been pushed too far by the Court of Appeal. She is “an intelligent and capable woman” and we do not shrink, your Honours, from saying that is really enough, bearing in mind the physical matters which thereafter follow. However, I do have more. She goes on:

she honestly concedes that she would have seen the risk had she looked.

Well, your Honours have already seen the evidence about that.  For present purposes what matters is her Honour is misdirecting herself by focusing on this notion of “you should’ve looked”:

I accept that she did not see the need to look ‑

That is an acceptance of her testimony given under cross‑examination ‑

But she located her seat by touch ‑

and that presumably is intended to encompass “also mislocated her seat”, but of course it is shorn of any finding of fact that enables her to say that the mislocation was by such a measure that there was always going to be a miss even if the seat had been down.  Then an important word:

she may have done the same.

Not, “she would have done the same” at all ‑

she may have done the same if she had known that the seats retracted automatically and she was in the same position struggling with Joshua.

This is not a finding about what would have happened in the case of distraction.

The quotation from Sir Frederick Jordan, in our submission, was not apposite to do what her Honour used it for, namely to dismiss this part of the causal case put by the plaintiff, because there was evidence - in fact her Honour had touched on this.  The question was:  did that evidence support an inference?  Her Honour said no, pursuant to Warren v Coombes and section 75A power the Court of Appeal was entitled and obliged to examine that for themselves, and said yes. Her Honour continues this theme of a non‑finding, not making a finding:

I am not satisfied that a warning would have had any impact upon Ms Burns’ consciousness or conduct in the circumstances.

That does not add anything to what has come before:

I do not find that a warning being given, Ms Burns would have done other than as she did, with the same consequence.

Now, that, in our submission, is equally a non‑finding.

Assuming (although this is speculative) – 

so, the word “speculative” is serving an odd purpose here, because it has to do with a finding that her Honour has earlier made –

Ms Burns had read a warning to the effect that the seat pivoted upright automatically when not under pressure, I am not satisfied that Ms Burns would have acted upon such a warning and desisted from pursuing the course of conduct . . . relevantly seeking to seat herself without looking directly at her seat – 

again, this red herring of whether or not she would have taken a backward look –

holding the struggling Joshua – 

et cetera.  That, your Honours, was the reasoning which, in our submission, for the reasons I have put, without repeating myself, were thus available, particularly bearing in mind that the primary findings are well and truly contained in the passages respectfully set out by Justice Sheller in his reasons for judgment, see in particular 663, 664 but not only there.  At 665, the critical paragraphs 20 through to 24, in our submission, simply display a difference of opinion as to an inference to be drawn from facts found by the judge and in the absence of facts supported by Abalos findings, Abalos‑style advantage, which could not be controverted within accepted appellate technique.

In our submission, for the reasons we have put in our written submissions, that is precisely what happened in the sequence from trial, through the Full Court of the Supreme Court of Western Australia, and in this Court in Nagle v Rottnest. Could I add for your Honours page references in (1991) Aust Torts Reports 81‑090 ‑ ‑ ‑

GUMMOW J:   Do you not have the Commonwealth Law Reports any more?

MR WALKER:   No, because this is for the Full Court of the Supreme Court of Western Australia.

GUMMOW J:   I see.

MR WALKER:    Their Honours’ reasons are referred to in the Commonwealth Law Report reference which we have given and set out in paragraph 17, but those particular references are Justice Wallace 68,761 to 2, Justice Kennedy at 68,766, Justice Rowland at 68,772.  All of them came to the same conclusion, very briefly, concerning the effect of the warning that they variously ‑ ‑ ‑

McHUGH J:   This is a new hazard for this Court.  We are going to have cited questions of fact found by trial judges in intermediate courts in other cases.

MR WALKER:   No.

McHUGH J:   What use is it?

MR WALKER:   It is the judicial technique involved, because in the passage which one finds set out in paragraph 17 of our written submissions in this Court, in our submission, what was there done is exactly what was done by the Court of Appeal in this case and would no more strike this Court as objectionable in this case as it struck this Court in Nagle.  The trial judge had been departed from in Nagle, including, importantly, on the question as to whether the danger was already known by the plaintiff. 

Now, that distinguishes the case, to some extent, from this, but on the question whether a warning of the danger of the submerged rock and diving for it would have, as a matter of the causal hypothetical reasoning, averted the harm, the Full Court simply, by dint of reasoning from the person being careful in Nagle to the nature of the risk that the warning would have been factored into the decision whether to dive from that position.  That approach is exactly what this Court upheld in the passage to which we have drawn attention in paragraph 17 of our written submission in Nagle.

To put it another way, if the Court of Appeal in this case was wrong in the approach they took to this inferential hypothetical finding about what would have happened if a non‑existent warning had been given, then this Court must have been proceeding wrongly in Nagle.

McHUGH J:   Many people say it did.

MR WALKER:   Well, it has not yet been said authoritatively and, in our submission ‑ ‑ ‑

McHUGH J:   It is a question of fact.

MR WALKER:   Your Honour, it is a question of fact which is why we have cited Warren v Coombes on the point.  May it please your Honours.

McHUGH J:   Thank you.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  There are four points I seek to make.  The first concerns the reference to the additional evidence that was called.  This is a case where the respondent was represented at trial by senior counsel.  The case was being heard before this Court’s judgment in Rosenberg v Percival.  There was a difficult decision to make:  should further evidence be sought to be adduced or not?  In the end the decision was made one way and that is the position and that is part of the evidence.

Your Honours, the second point we would make is this.  Our learned friend referred to the cross‑examination that occurred when that additional evidence was given – that is around page 207 – but that was not the whole of the evidence and nor was it the whole of the cross‑examination in the case.  If one goes, your Honours, to volume 1 at pages, for example, 101 through to 103, one sees that there was material there from which the judge, hearing the evidence being given and seeing how it was being given, could form a view about the likelihood of a warning having had any effect.

Your Honours the passage commences at about page 101 at about line 25.  I will not read it out, but could I invite your Honours to note particularly, as one goes down page 101 towards the bottom of the page, the last question and answer:

Q.  How were you holding him?
A.  Just with the right arm, he was kicking and screaming and I was trying to calm him down with the other arm.

Q. Across your chest?
A.  Yes, I was hanging on to him, he was facing outwards not inwards towards me, I had him like this because he was kicking.

Your Honours will see then, through the remainder of page 102 and then I will come back to some of that in just a moment for another purpose, but at the bottom of page 102 one then sees - and this must have been a very dramatic, in one sense, event because she was a small woman trying to hold onto the boy who was causing all the problems.  Then, when one comes finally to the bottom of page 102 there is a passage that your Honour Justice Hayne referred to earlier:

When your hand touched the top of the seat you must have realised that it was a far higher level than the level you previously had been seated?
A.  I wasn’t taking any notice, I felt around, I felt for what I thought was the seat, it was material and I sat down.

Having seen her give that evidence, the judge is perfectly entitled to say that in the circumstances in which she found herself she really was not taking notice of what was going on in the relevant respects.

KIRBY J:   But the suggestion is that if she knew and had been warned of the fact that these were retractable, that would be something in the subconscious that the person would take into account.  If you just do not know, if you have not been to the cinema since you went to the local Ritz back in the 1960s, then you just do not know that they have these newfangled seats.

CALLINAN J:   Could I take judicial notice of the fact that these seats have been in existence for 60 years at least.

KIRBY J:   They certainly were not in the Concord Ritz in Sydney.  They were just ordinary flat seats.

MR JACKSON:   One’s experience in picture theatres is perhaps better not discussed excessively fully, but your Honour, may I just say ‑ ‑ ‑

KIRBY J:   Hopalong Cassidy was what I was looking at.

MR JACKSON:   May I just say one thing in response to your Honour Justice Kirby and it is this, that if one looks at the reasons for judgment of the primary judge her Honour – and this is the part that my learned friend referred to once or twice – at page 641 line 16 you will see that she was prepared – she accepted that for relevant purposes that if there had been a warning it would have added to the background knowledge that she had.  But she then went on to next question:

But it does not follow that this would have changed her course of conduct.

So the judge did appreciate the point that your Honour was making.  So it then came down to the question of what would have happened making that assumption.

McHUGH J:   Mr Jackson, what puzzles me is that I would have thought it was far more important for your client to be challenging the finding that there was a duty to warn.  That is a question that would have major ramifications for your client.  If you happen to win this case it is neither here nor there.  You have a Court of Appeal finding that you had a duty to warn.

MR JACKSON:   Your Honour will appreciate that one does not obtain special leave as a right, and a decision has to be made about what aspects of a case are likely to be those which might result in the grant of special leave.  What your Honour says is perfectly right, but in terms of the enthusiasm of which an application for special leave based on that point might have been received, a different view was taken.

KIRBY J:   You are not seeking to reopen your case?

MR JACKSON:   No I am not, your Honour.  Your Honour, could I just say ‑ ‑ ‑

CALLINAN J:   You are relying upon what is sufficient for you in your judgment to win the case.

MR JACKSON:   Yes, your Honour.

CALLINAN J:   Without conceding the correctness of anything else that you do not need to rely on.

MR JACKSON:   Yes.

KIRBY J:   There is no notice of contention challenging the other point, so we just do not get into that.

MR JACKSON:   No.

McHUGH J:   And at the same time I am surprised that the plaintiff has not run a case on design.

KIRBY J:   So am I, I must admit, but anyway we just take these cases as they come.

McHUGH J:   Anyway, we have this very narrow factual case in the High Court of Australia.  Should we draw this inference or not?

KIRBY J:   Or should the Court of Appeal have drawn the inference?

MR JACKSON:   Your Honour, no doubt the Court does not appear to be short of work, and no doubt the Court will be happy to have a case which is of a narrow compass.  It will be almost like the days when there were appeals as of right.

CALLINAN J:   Can you promise us more of them, Mr Jackson?

MR JACKSON:   Well, it depends what side I am on, your Honour.  Your Honour, could I say the third point we would seek to make is that if one goes to the evidence relating to what part of the seat was touched by her, it is perfectly possible, we would submit, for an inference to be drawn, but if one goes to page 102 in volume 1 at about line 46 she was asked:

Q.  Do you know now whether you felt and your left hand touched the top of the retracted seat or not?
A.  Now?

Q.  Yes?
A.  Now I do because I have been shown the seats retract and apparently that’s what I had felt.

Now, your Honour, some evidence, but it was the obvious thing if one looks at it ‑ ‑ ‑

GUMMOW J:   Well, the emphasis on “Now” at line 48 helps explain 103 line 6.

MR JACKSON:   Yes, your Honour, and your Honours will see the discussion of the edge question, if I can put it that way, by the judge in the passages at pages 629 in volume 3.  There are three passages, your Honours, page 629 lines 14 to 30; 631, I think, about line 20 to 23, and then page 632 about line 21 through to about line 36.

Your Honours, the final thing we would seek to say is that if one looks at the way in which the judge expressed herself, it is perfectly plain, in our submission, that she was making a finding, if that be the right way of describing it, adverse to the party bearing the relevant burden of proof in this issue and that she did in fact reject the relevant evidence.  You will see that in the passages at page 641 line 14 and page 639, about line 47.  If one goes to the conclusion of her reasons on this point at page 642, she said at line 14:

I am not satisfied that a warning would have had any impact upon Ms Burns’ consciousness or conduct in the circumstances.

She makes similar observations in that and the next paragraph.  Our submission is that she is saying exactly that:  “I do not make a finding which is necessary for the plaintiff’s case to succeed”.  Your Honours, those are our submissions.

KIRBY J:   Could I just ask a small matter that came up during Mr Walker’s submissions relating to the role of this Court. You will remember he raised the point that this Court, as a court dealing with a true appeal, he suggested had a limited role in terms of, as it were, retrying the issue. The Court of Appeal has its powers under section 75A of the Supreme Court Act and it is a court with a rehearing; we are a court of error.  Now, what is the foundation for our redetermining the inferences in an appeal limited to one that is strictly so called?  Is the foundation section 37 of the Judiciary Act, which talks of our making the order that should have been made below, or is it something else?  What is the foundation of all of this?

MR JACKSON:   Your Honour, if one starts, in a sense, with section 73 of the Constitution, without getting into a constitutional issue, if I can do that, there is an ability for this Court to entertain appeals.

Now, the appeal contemplated by that provision is treated as being an appeal, strictu sensu, if one likes to put it that way.  What that means as a practical matter, and if one compares that with an appeal by way of rehearing, is not in reality very great, because what it means is, leaving aside questions of adducing further evidence which is something off the point, really, the difference is fundamentally that this Court is dealing with the situation as at the time the intermediate appeal court was dealing with it.

McHUGH J:   Dignan establishes that this Court should give the judgment that the Court of Appeal should have given on the materials before it.

MR JACKSON:   Before it, and with the law as it was then.

McHUGH J:   And with the law as it stood.

MR JACKSON:   Your Honour, that for practical purposes is the only difference between the position of this Court and of the intermediate appeal court, bearing in mind, of course, that what the Court is looking at, is the correctness of the manner of dealing with the matter by the Court of
Appeal.

KIRBY J:   I realise that in a sense is the essential point we are looking at, did the Court of Appeal err, and that is a point you made, but then when we go on in the course of dealing with that to consider the matter for ourselves, we do not pick up the advantages which the Court of Appeal has by section 75A of the Supreme Court Act.  We are not granted by legislation the powers of drawing inferences and ‑ ‑ ‑

MR JACKSON:   With respect to your Honour, the position, in our submission, is that this Court is, as I think it is section 37 says, entitled to do in effect what the Court of Appeal could have done.

KIRBY J:   So it is 37, is it, that is the foundation for this?

MR JACKSON:   Yes, I think it is, your Honour, of the Judiciary Act.

KIRBY J:   I know section 37 and ‑ ‑ ‑

GUMMOW J:   Section 37 is just epexegetical of 73 of the Constitution.

MR JACKSON:   The only point we would seek to make, your Honour ‑ ‑ ‑

GUMMOW J:   Otherwise it would be invalid.

MR JACKSON:   Well, you cannot go beyond it, of course.  To speak of something being the appeal in the strict sense or appeal in the constitutional sense really means no more than that the Court is dealing with the correctness of the matter as dealt with by the court appealed from.  It means that one leaves out of account changes in the law.  It means that there cannot be additional evidence adduced, but it is really nothing more than that in a sense.

McHUGH J:   Well, a clear illustration of it is for instance if the Court of Appeal should have admitted fresh evidence then we would say that they should have admitted it ‑ ‑ ‑

MR JACKSON:   And back it would go.

McHUGH J:   Yes, even though we ourselves cannot admit it for our purposes.

MR JACKSON:   Quite, your Honour, yes.  Your Honour, I do not in the end, with respect, think there is any relevant inhibition so far as this Court is concerned.

KIRBY J:   It is just that we have been going through this as if it were a rehearing.  We have been taken right through the transcript, but it may be that it is enough that it comes in as an appeal.  We have to in a sense decide error of the Court of Appeal, therefore we have to go back to the position that they were in and consider it as they did consider it, and that being so we have to plough through the evidence as they did under their powers, in order to see whether within their powers they committed error.

MR JACKSON:   It is a question, your Honour, too of what the ultimate result should be.  What I mean by that is that that will vary from case to case.  What I mean by that is this, if one takes this case, the contention that we advance is that the Court of Appeal in reversing the judgment of the trial judge impermissibly did not apply, to put it shortly, the finding of the trial judge.

Now, if that proposition as expressed in that way is correct, then the appropriate result would simply be that the appeal to the Court of Appeal should have failed and that would be the end of the matter, as it were.  If the position be that the matter was purely one where the Court of Appeal was as entitled as the trial judge to form an inference, to arrive at a particular conclusion as a matter of inference from proved or admitted facts, then the question would be whether the Court of Appeal was in error in the view that it adopted in that, and that is as much open to this Court as it would have been to the Court of Appeal.  Your Honour, again the result would be one way or the other.  I do not mean that in any facetious way but it would depend on the view this Court took on it.

McHUGH J:   Voulis v Kozary is an illustration of the trial judge finding for the defendant and the Court of Appeal refusing to interfere and this Court entering a verdict for the plaintiff because the Court of Appeal should have.

MR JACKSON:   Yes.

KIRBY J:   That has not happened for a while.

MR JACKSON:   Your Honour, I have nothing else to say about that.

McHUGH J:   Yes, thank you.  The Court will reserve its judgment.  We will now adjourn until tomorrow morning in Sydney and Canberra.

AT 12.29 PM THE MATTER WASADJOURNED