Hoyts Pty Ltd v Burns S39/2002

[2002] HCATrans 595

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S39 of 2002

B e t w e e n -

HOYTS PTY LTD

Applicant

and

DIANE BURNS

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 2002, AT 9.55 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 applicant.  (instructed by Herbert Geer & Rundle)

MR L. KING, SC:   May it please the Court, I appear with my learned friend, MR R.S. SHELDON, for the respondent.  (instructed by R.J. Rimes)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, although the written submissions range rather more widely, one issue is pursued on this application.  That issue is the propriety of the Court of Appeal’s disregarding, as we would put it, the judge’s finding that the respondent’s conduct would not have been different if warning signs had been erected.

Your Honours, may I say immediately we accept that the legal issues involved in this case relate to the particular case.  It may have flow‑on factual effects of course, but in our submission the course ‑ ‑ ‑

GLEESON CJ:   You mean there are people falling all over picture theatres throughout the State?

MR JACKSON:   No, I do not mean that at all, your Honour.  In fact the evidence was the other way, but the result in relation to warning signs may mean that the area of picture theatres are littered with these things. 

HAYNE J:   …..nearest to your seat, yes.

MR JACKSON:   Your Honours, may I just say this.  In our submission the course taken by the Court of Appeal in the particular case is such that it merits the intervention of this Court.

GLEESON CJ:   Where is that finding, Mr Jackson?

MR JACKSON:   Your Honour, may I come to it in just one moment because I did intend to take your Honours to it, and then to what was done by the Court of Appeal.  Your Honours, the circumstances are very short of course.

This is a case where the respondent did not appreciate the cinema seat she was using had retracted when she left it and she injured herself when she sat down, missing the seat.  Your Honours, she felt the presence of the seat with one hand on her return but did not appreciate that it was up not down.  Basic facts, your Honours, page 1 lines 26 to 42.  In the primary judge’s reasons your Honours will see the reasons why she was there, sitting in the front seat, the little boy ran away and she sat back in her seat with him wriggling around, and there we were.

Your Honours, there was a finding that the respondent did not know that the seats retracted.  That is at page 6 line 42.  She did know that the seat had been retracted at the time she entered, line 46 on the same page.  Your Honours, at trial ‑ it is for this reason I have deferred answering your Honour for just a moment ‑ it was argued by counsel for the present respondent during the addresses that the judge should infer that if there had been warning signs the respondent would have acted on them and would not have been injured. 

The judge, in the course of dealing with that aspect during the addresses, expressed some reservation about adopting that course in the absence of evidence from the respondent.  In the event the respondent’s counsel was given leave to recall the respondent but what happened, however, was that the judge did not accept her evidence that it would have made a difference.  Your Honours will see the judge’s discussion of this issue at page 18.

GLEESON CJ:   What sort of warning was in contemplation?

MR JACKSON:   I can only give your Honour an answer to that by referring to what the Court of Appeal said.  Your Honours will see that referred to at page 41 paragraph 22 where Justice Sheller gave an example.

GLEESON CJ:   This is a warning in the foyer.

MR JACKSON:   In the foyer, your Honour.  Other suggestions were that there be something in the theatre either shown on the seats or something shown on the screen at times when the picture was not being shown.

GLEESON CJ:   They could introduce them by saying every picture theatre is subtly different.

MR JACKSON:   Yes, your Honour, a phrase I am sure your Honour has heard many times.  Your Honour, could I say at line 25 on page 18, your Honours will see what took place:

Over the defendant’s objection, I permitted the plaintiff to re‑open her case ‑

and your Honours will see, going down that page to about line 36, there is set out her evidence, or the essential part of her evidence on that issue.  There is then, your Honours, if I could ‑ ‑ ‑

CALLINAN J:   I think in Rosenberg v Percival the same thing happened.  I thought the plaintiff there presented a case initially on negligence only and then was recalled to give evidence about warning and what she would have done ‑ not warning, about advice and what she would have done.

MR JACKSON:   Yes.

CALLINAN J:   It is rather less convincing when it happens that way I must say.

MR JACKSON:   Your Honour, difficulties do arise.  If I could just go back from a particular case for a moment.  If one had a case where someone had died before the trial, so they cannot give evidence about what they would have done, it becomes a matter of inference.  When a person does give evidence about what they would have done it is subject of course to questions of credibility and reliability, and there is always the tendency ‑ adverted to by the primary judge in this case at the top of page 19 ‑ to say exactly what one would expect them to say they would have done it.  It does in the end present a question for the judge when the evidence has been given. 

Your Honours will then see at page 19 about line 14 the judge said that she did not accept her evidence as “being of any weight, or credibility”.  Your Honours will see that she then said:

I accept that a warning would have ensured that Ms Burns knew that the seats retracted automatically when not under pressure.  But it does not follow that this would have changed her course or conduct.

The reason for that, your Honours, is set out in the next paragraph, namely that she was in a difficult situation:

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

Then at the bottom of that page in the last paragraph your Honours will see that she said:

Putting to one side the relevant testimony . . . am I to infer that if Ms Burns had been warned . . . she would not have done as she did ‑

That is discussed by her Honour on the next page in a passage which goes down to about line 24.  Your Honours, could I add one further thing about it, and that is that to the extent to which this was a finding into which the judge’s view of the credibility of the respondent intrudes, one needs to remember that the judge’s view on that, speaking more generally, was not favourable to the respondent.  She discussed the issue at some length and then concluded, your Honours, at page 6 about line 34, that she was:

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 did not think she was:

deliberately dishonest or as having engaged in any conscious fabrication –

Your Honours will see the remainder of what is set out in that paragraph.

CALLINAN J:   Mr Jackson, would there have been any legislation or anything that would have prevented her from suing her employer?  Was she below some threshold or something of that kind?

MR JACKSON:   I do not think so, your Honour.  No, I do not think so.  There was not an actual assessment of the number of dollars of damage but your Honour will see there was some discussion of it and it was a not insubstantial claim.  Your Honours, could I go then to what happened in the Court of Appeal.  The judge’s finding on that issue was overturned.  That happened, your Honours, purely on the basis of inference.  You will see that at page 41.  The relevant paragraphs are paragraphs 22 to 25 of their Honours’ reasons.  I took your Honours to paragraph 22 before, and then the core of the reasons seems to be in the second sentence in paragraph 23:

But there is an overwhelming inference that a person, who did not know from observation or experience that the seats retracted automatically when she stood up but who read on a warning notice that they did, would have included that added piece of knowledge in the thinking processes in play when returning to the seat and would have taken care to ensure that the seat was down before she sat.

HAYNE J:   Now, is that an inference about what a person would have done, or an inference about what this person would have done?

MR JACKSON:   Your Honour, it is expressed in general terms.  It seems then to go on to the particular.  In that regard your Honours will see paragraph 24 where it seems to be related to the position of the particular plaintiff, and then the conclusion at paragraph 25.  The conflict, in our submission, your Honours, is between the general view expressed by the judges and the view expressed specifically by the primary judge at page 19 lines 15 to 22 where she, having heard her evidence, accepted that the warning would have ensured that she knew that the seats retracted, but she went on to say:

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

Your Honours will see why in the next paragraph.  Your Honours, in our submission, this is a case where the Court of Appeal should not have interfered with the decision of the court at first instance and I submit that this Court now should.

HAYNE J:   That appears then to be a reformulation of the grounds of appeal that presently appear at 48.  I just wonder whether that is right and if it is right, whether you would formulate what you say is the ground now pursued.

MR JACKSON:   Your Honour, we would leave out of account ground 2(a).  We would rely on grounds 2(b) and 2(c).

HAYNE J:   Yes.

GLEESON CJ:   Now, just before you sit down.  The decision of the primary judge turned upon her inference that knowledge, as a result of a warning, of the fact that these seats were retractable would not have altered the conduct of the respondent in the events that occurred.

MR JACKSON:   Yes.

GLEESON CJ:   On page 41 the Court of Appeal said that that was a wrong inference because there was what they described as “an overwhelming inference” that somebody who had not known that the seats were retractable and had then been told that the seats were retractable would have behaved differently from someone who at no material time knew that the seats were retractable.

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   Now, what is the error in the approach to the inference that the Court of Appeal drew?

MR JACKSON:   Your Honour, the error is seen in two things.  One is that the Court of Appeal does not, with respect, appear to have recognised that the judge had given consideration to that question in the first place.  That

she had appears at page 19 in the paragraph commencing at line 16, where she accepts that it would have added, to put it shortly, to the store of knowledge, as it were, but then goes on to say, “I am not satisfied” et cetera in the next paragraph.

Your Honours, the second point, which is related to that of course, and the more important of the two, is that the finding in the latter of those two paragraphs is inevitably, in our submission, one based on the judge’s view of the circumstances with which the respondent was confronted and her possible reactions to it and that, in our submission, must have depended in significant measure upon her view as to the evidence given by her and the credibility to be attached to it.  Your Honours, I cannot put it more highly than that, but that is our submission.

HAYNE J:   It is no use trying to sit down, Mr Jackson.  But the reasoning appears to be if a person knows of a risk he or she will avoid it.

MR JACKSON:   Yes.

CALLINAN J:   The Court of Appeal focused upon the question whether the plaintiff’s conduct might have been of an impetuous kind or not.  That appears in paragraph 23.  But that does not seem to me to have been the question.  It was not any conduct of hers really that prevented her from attending to this.  It was struggling with the four year‑old disabled child that deflected her or distracted her.  Nothing to do with her conduct.

MR JACKSON:   Yes.  Your Honour, it is a sad case.  She was engaged in a perfectly worthy activity.  But that was the point that the primary judge made.

CALLINAN J:   I am looking at about line 36 on page 41:

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 ‑

That does not seem to me to be the question.

MR JACKSON:   Yes, Your Honour.  Your Honour, making certain that my chair is here, perhaps I might ‑ ‑ ‑

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr King.

MR KING:   Your Honour, in answer to the first point that Mr Jackson distilled in reply to the Chief Justice, as I understood him, he said that the Court of Appeal had not considered her Honour’s finding about the lack of utility of a warning.  That, with all respect to him, does not seem to reflect the understanding of paragraph 15 and following on page 39 of the book, where at the middle of paragraph 15 at about line 33 Justice Sheller speaking for the majority says:

Her Honour was not satisfied . . . the plaintiff would have ensured that the seat was down ‑

in other words that she would have acted differently.

Now, your Honours, moving to Mr Jackson’s second and main point put in answer to the Chief Justice about the finding made by her Honour is to be seen inevitably as involving an impression or a demeanour component.  He did say earlier to the extent that that is so, which recognises properly, in my submission, that it is not really a demeanour‑based finding at all.  Mr Jackson took your Honours to page 1 of the book where the trial judge in effect said that the respondent was honest but mistaken.  It follows from that that her demeanour was good, but upon analysis of the content of her evidence against other material, chiefly the medical reports which she discusses at length, she found her to be unreliable.  But when you come to this critical matter upon which my learned friend relies about the warning, her Honour’s decision that she would not accept that the respondent would have acted differently seems to be driven by her Honour’s view of the authorities.

If you look at the passage to which my learned friend took your Honours, starting at the very foot of page 18 running through 19 down into 20, her Honour seems to have fastened upon passages in judgments speaking of the somewhat artificial nature of this evidence of what would have been done in response to a warning.  Overlooking, at 19 line 34, that Justice Samuels in Ellis pointed out that the absence of that evidence is never to be seen as fatal, absolutely fatal.  If it is there, it has to be looked at with reserve.

GLEESON CJ:   Mr King, I may not have understood the detail of the evidence about what occurred sufficiently, and you may be able to correct me, but what actually happened that caused the problem was that when she went to sit down, where she put her bottom there was no seat.

MR KING:   That is right.

GLEESON CJ:   As I understand the case that your client made out at trial, if she had known the seats were retractable, that would amount to knowing that there was no seat in the place where she put her bottom.  The trial judge drew the inference that if she had known there was no seat where she put her bottom, she would not have put her bottom there.

MR KING:   I do not ‑ ‑ ‑

GLEESON CJ:   Is it more complicated than that?

MR KING:   The trial judge seems to have thought, your Honour, that if she had a warning she would still have done just as she did, rather that ‑ ‑ ‑

GLEESON CJ:   But the point of the warning was to give her some information she did not otherwise have.

MR KING:   That is right.

GLEESON CJ:   Which was that there was no seat there.

MR KING:   Yes.

GLEESON CJ:   By “there” I mean where she was trying to put it.

MR KING:   That is right, your Honour.  The trial judge seems to have taken the view that a warning would not have impressed that information upon her and that she would not have acted differently.  The Court of Appeal has taken a different factual view based on a legitimate evaluation of the effect of the authorities, including for example Naxakis which follows ‑ ‑ ‑

HAYNE J:   What does it matter that the authorities say?  Is not the question of what this plaintiff would have done in this set of circumstances a pure question of fact?

MR KING:   It was, your Honour.  My learned friend criticises ‑ ‑ ‑

HAYNE J:   If that is so, does it not depend in part upon an assessment made by the trial judge of what this plaintiff would have done in the particular circumstances including pursuing the child?

MR KING:   No, your Honour, not in this situation because the trial judge admittedly made an assessment of what she would have done, refusing to accept her assertion as to what she would have done.

HAYNE J:   Leave out the assertion for the moment.

MR KING:   Now, what the Court of Appeal did was to say unanimously at a factual level, “The trial judge was wrong to do that.”  My learned friend ‑ ‑ ‑

HAYNE J:   On the basis that if a person knew they would be injured they would not do it.  Now, as a proposition that is unexceptional.  If a person knows they are going to be injured, of course they are not going to do it.  But the question is, what would this plaintiff have done?  Now, how can the Court of Appeal interject its view when it has not seen the plaintiff?

MR KING:   It can do that, your Honour, if in truth the finding of the trial judge is not affected by the subtle influence of demeanour or any other demeanour‑based consideration.  What I was putting a moment ago is my point on that, that her Honour does not say that she is rejecting the plaintiff on that basis.  She appears to be driven to her rejection of the plaintiff by a dialectical view of what the authorities mean.  She was wrong about that.

The situation is that this was a different factual position taken by the Court of Appeal that they were entitled to take on a proper view of what the law is in this area.  For example, if in fact her Honour’s assessment of the plaintiff as an honest woman who meant what she said but in certain respects was unreliable follows through, it means that her demeanour was good when she said hypothetically what she would have done.  It drives one very squarely back to the conclusion that this was a view driven by a view of the authorities rather than a demeanour‑based finding.

That brings me to my necessity to deal with a matter Justice Callinan put to my learned friend, the comment about impetuous conduct.  Your Honour, that is a reference to Romeo and the alcohol and so forth.

CALLINAN J:   I know that.

MR KING:   It is not a critical point in the Court of Appeal’s reasoning here.  It is just an example.  It cannot be better answered in relation to the fact that the plaintiff would have acted differently, although I can interrupt myself here I think to put that it is really only necessary to show that the absence of negligence on the part of the defendant would have minimised the risk.  It is not always necessary to show that it would have totally removed it.  It cannot be put any better than it was put below.  Justice Ipp asked:

What does her Honour mean that it does not follow that it would have changed her course of conduct?

Justice Heydon came in with exactly the matter that Justice Callinan raises:

What she means is something like this isn’t it?  Because of the crisis of the struggling four year old child and so on, the knowledge she had gained would just not have been present to her mind.

Mr Hislop answered it, in my submission, shortly and compellingly by saying:

That may be what she means, there were some words used that may raise that as a possibility, but it simply can’t be accepted because she had the presence of mind to reach back, locate her position apropos what she thought was her seat ‑

and so on.  The trial judge found that the plaintiff was an intelligent sort of a woman and that evidence was there that she did, notwithstanding her partial preoccupation with a disabled child, take some steps.  Now, it is a matter of strong and very much available inference that if the warning had been given the problem would have been solved or the risk would have been very much minimised.  Your Honours, we are dealing with ‑ it is a trite thing to say ‑ a factual matter.

HAYNE J:   Could the Court of Appeal legitimately interfere with what the trial judge did except on the basis that no other inference was open to the trial judge?

MR KING:   It only has to take the view ‑ once the Court of Appeal approaches the matter on the basis that they are not fettered by some demeanour‑based content in the finding, they only have to take the view as to what is the better inference, not the only inference, your Honour.

HAYNE J:   So if the inference which the trial judge declined to draw was open, that is if that course was open, what is the error which the Court of Appeal is correcting?

MR KING:   Your Honour, in this case the Court of Appeal is saying that the inference that was drawn was wrong.  I am sorry, I misunderstood what you put a moment ago.

HAYNE J:   Two many negatives.

MR KING:   Yes, they are denying that in this case that was open because they say it is an overwhelming inference, and there is no error in that, with respect.

HAYNE J:   Do I understand you to say the Court of Appeal is acting on the basis that the only inference available here was that a warning would have changed her conduct?

MR KING:   Your Honour, I would put it this way.  The Court of Appeal is saying definitely one thing, that her Honour was wrong to reach the view she did.  That is their starting point.  They depart from her there.  Then they say, “When we come to look at this on the facts, whatever else might be said about it, we think the overwhelming inference is that a warning would have avoided or minimised this risk”.  Hence they arrive at their decision.

GLEESON CJ:   It is not so much the warning, is it?  It is the information conveyed by the warning.

MR KING:   The content.

GLEESON CJ:   They seem to be saying there is such a strong inference that if this woman had known that there was no seat where she thought a seat would be, she would have behaved differently.  “That we disagree with the trial judge”.  That seems to be the process of reasoning.

MR KING:   Yes, your Honour.

HAYNE J:   And that the knowledge thus conveyed would have been translated into advertence to the knowledge followed by conduct.  There are those steps, are there not?

MR KING:   That is right.

HAYNE J:   She knows it.  She adverts to it.  She acts.

MR KING:   In such a way as to minimise or avoid the consequences of ‑ ‑ ‑

HAYNE J:   But did not the trial judge cut it off at the point of advertence saying, “Look, she’s preoccupied with a struggling four year‑old, which is” ‑ ‑ ‑

MR KING:   She does not actually say that in the clearest terms.  I will not weary your Honours again with the exchange in the court below which ‑ ‑ ‑

CALLINAN J:   She does, Mr King.  It is set out at page 9, is it not?

MR KING:   It is not in terms a finding that she was so preoccupied with the child.  It is as Mr Hislop put it, with respect.

CALLINAN J:   But she told the doctor – that is at page 9:

She was still holding the child who was kicking and screaming in her right arm.

It is sufficient to support an inference, I would have thought, of distraction.

MR KING:   Your Honour, with respect, there is no finding by her Honour that that was her only preoccupation and was always necessarily going to be her only preoccupation.  The evidence was there.  Her Honour accepted the plaintiff as to what happened, that she felt for the seat in the process of sitting down, and she felt some object covered by material.  So, with respect, Mr Hislop was right in the submission I read out.  It deprives her Honour’s passage in the reasons of the sort of force that, with respect, your Honour appears to want to attribute to it. 

It is not correct to say that she was doing nothing in respect of her own safety when she went to sit down.  That is an ample springboard through the inference that if an appropriately phrased warning had been given this very likely would not have happened.  Your Honours, I think, with respect, that we are in, in my submission, a realm of fact.  It is not a matter which ought to attract the attention of this Court.

GLEESON CJ:   Thank you.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I say just one thing in relation to the approach taken by the primary judge and the suggestion that there was simply a misapplication of extracts from authorities, as it were.  If I could just take your Honours back to page 18.  I do not intend to read the parts out of course, but may I just take you to line 25.  You will see the introduction, where she permits the plaintiff to reopen.  Then, your Honours, the observation at line 32:

Such a question is, of course, hypothetical, and answers to such questions tend to be somewhat coloured by the wisdom of hindsight.

Then her Honour refers to what Justice McHugh said in Chappel v Hart and your Honours will see the observation there:

But if the evidence suggests that the acts or omissions of the defendant would have made no difference to the plaintiff’s course of action, the defendant has not caused the harm which the plaintiff suffered.

She then refers to the questions and answers.  Could I refer particularly to line 41 where the respondent said what she would have done if she had the knowledge, as it were.  She then refers on the next page at line 14, saying:

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

Now, your Honours, in relation to that, it is then that one sees the two next paragraphs, and she is prepared to accept in a sense, hypothetically:

that a warning would have ensured that Ms Burns knew that the seats retracted ‑

but then she says:

But it does not follow that this would have changed her course or conduct ‑

and then proceeds to deal with that.  Your Honours, that is our submission.

GLEESON CJ:   Thank you, Mr Jackson.  We will adjourn for a few minutes to consider the course we will take.

AT 10.26 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.30 AM:

GLEESON CJ:   In this matter there will be a grant of special leave to appeal.

We will adjourn for a short time to reconstitute.

AT 10.30 AM THE MATTER WAS CONCLUDED