Inverell Municipal Council v Pennington & Ors; Grennan & Anor v Pennington

[1994] HCATrans 209

·-·~I'

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl14 of 1993

B e t w e e n -

INVERELL MUNICIPAL COUNCIL

Applicant

and

WARREN ERIC PENNINGTON

Respondent

Office of the Registry

Sydney No Sl76 of 1993

B e t w e e n -

ROBERT AND ALISON GRENNAN

Applicants

and

Inverell	11/2/94
BRENNAN J DEANE J GAUDRON J

WARREN ERIC PENNINGTON

First Respondent

and

INVERELL MUNICIPAL COUNCIL

Second Respondent

Applications for special leave

to appeal

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 1994, AT 3.09 PM

Copyright in the High Court of Australia

MR J.D. REYDON, OC: If Your Honours please, I appear with

MR P.R. GARLING for the applicant in the first matter. (instructed by Audrey Lee)

MR P.J. DEAKIN, OC: In the Grennan matter, I appear with my

learned junior, MR P.R. STOCKLEY, for the

applicants. (instructed by Curwood & Partners)

MR P. WEBB, OC:  May it please the Court, I appear with my

learned friends, MR D.R. CONTI and MS B. MacRAE,

for the respondent. (instructed by McClellands)

BRENNAN J:	Mr Reydon.
MR REYDON:	Your Honours, the judges in the court below

considered the law compelled them to the
conclusion they arrived at. That result provoked

what might be called extreme disquiet in two of

them because they considered that the law ought to

be different and that if it were different in the

manner they would wish, the applicants would have

succeeded.

The third judge in the Court of Appeal,

Mr Justice Mahoney, could not be said to have

expressed extreme disquiet, but he did reach his

conclusions with hesitation and he found it

necessary to refashion what might be thought to be

the received law.

Can I just illustrate those opening remarks

particularly by reference to Mr Justice Clarke's

reasons and we would submit they call for some

careful consideration in view of his extensive

experience of the field.	He really made four
points.	The first point which appears on page 67

Inverell 2 11/2/94

is that the decision the court arrived at placed

the Council, and for that matter placed Mr Deakin's

client, in the position of an insurer.

The second point he made was that the

reasoning which produced that result, as he

understood the law, depended on the application of

a mechanical test in that once a duty had been

found to exist, then no matter how unlikely it was

that any injury might result, if it were cheap and

relatively easy to put in place means to prevent

the injury which had not been carried out,

liability automatically followed. He, at page 71,

really reiterated that point by saying that once it

had been established that an easy precaution had

been omitted, that was virtually determinative of

liability.

GAUDRON J:  One of the difficulties with that analysis is it

bears no relationship to the facts of this case

where you had had a waterslide positioned right in

the middle of the pool at a relatively shallow

point where one would have thought the positioning

of a waterslide really was an invitation to enter

the water by whatever means one saw fit at that

point.

MR HEYDON: That was not - with respect, Your Honour's

observation may well be perfectly correct, but

that was not the way in which the trial judge

reasoned. He assigned no determinative

significance to the waterslide in itself. His

conclusion was that there ought to have been

warnings as to the danger of diving, essentially

for the very large part of the perimeter of the

pool, or parts other than the parts that abutted

on those more than six feet deep. In his

reasoning, the waterslide played no roll and,

correspondingly, it did not in the Court of Appeal

either.

So that putting oneselves in the chairs of the

Court of Appeal in considering the correctness of	the trial judge's reasoning, they found that they
could not interfere with that reasoning by reason
of the law as they conceived it. Though the case,
to a limited extent, was run on a wider basis, the
decision of the courts did not incorporate that
factor.

I was, I think, moving to the third point that

Mr Justice Clarke made. On page 72 he said that

the result was that liability was being imposed by

the court:

for negligence in circumstances which a lay

person could be forgiven for thinking bore

Inverell 11/2/94

little relationship to the failings of the

reasonable person.

And finally, he contended that there were serious

implications of a practical character arising from

the far reach of the present law.

Mr Justice Meagher's judgment was briefer and

I need not draw attention to it, except that he

commented on the surprising nature of the result.

Both of those judge would have preferred to have found in the law some propositions enunciated by

Mr Justice Walsh at trial in the Wagon Mound

(No.2). Those propositions were not explicitly

referred to by Mr Justice Mahoney but he, we would

submit, re-analysed Shirt's case, the operative

ruling of this Court in determining whether there

had been a breach of the duty of care, by reference

to something that at least up to a point took into

account the propositions of Mr Justice Walsh, they

being essentially that one cannot find liability

unless the risk of danger was significant enough in

a practical sense to require a reasonable man to

guard against it and which took into account what

Mr Justice Walsh called:

the over-all pattern of business and other

activities -

and the importance of not unduly restricting and

confining the ordinary affairs of life.

Now, in different ways, the judges of the

Court of Appeal endeavoured - or at least the first two of them that I have referred to endeavoured to

see whether or not Mr Justice Walsh's approach was

part of the present law. Mr Justice Meagher
thought that they were not because they could not be brought in at the stage of determining whether

or not there was a duty of care at all and he

considered that that result had been precluded by
Shirt's case itself.	We would submit that was,

with respect, wrong because Shirt's case - - -

BRENNAN J:  I do not understand this sectionalized approach

to the question of liability for the damage caused

in negligence. What do you say about determining

whether there is a duty there in the first place

and why does one look at it that way?

MR REYDON:	One looks at it, I suppose, that way simply because it is conventional to approach the factual
material by reference -
BRENNAN J:	The factual material is the damage. You find out

what caused the damage, how it came to be, and then

Inverell 11/2/94

you ask the question was that damage the result of

failure to take reasonable care?

MR HEYDON: It is not, though, in every circumstance that a

duty to take reasonable care is imposed. What

Your Honour is calling the sectionalized approach,

the first section I suppose I had identified was
the search for a duty, that search has been thought

necessary, in traditional theory, because of the

necessity of splitting off some forms of conduct

for which there is to be no liability and leaving

behind those for which there is to be liability.

BRENNAN J:  I thought the conventional approach was that you

could not determine the existence of duty apart

from the damage in the particular case.

MR HEYDON:  I suppose none of these questions can be

answered save by reference to the facts of the

particular case, and a salient fact is damage. But

sectionalized though it may be, it is convenient to

analyse and - - -

BRENNAN J: Provided it does not mislead.

MR HEYDON:  Yes, Your Honour. At all events, the court

below thought it was necessary to adopt, in effect,

a tripartite approach of analysis and

Mr Justice Meagher found there was a duty, found

there was a breach of duty, and obviously enough

found easily that there was damage caused by that

breach. Each of the first two members of the court

endeavoured to see whether Mr Justice Walsh's

approach could be incorporated at either the duty

or the breach stage. Neither were able to db so,

they thought, because of earlier decisions of this

Court, in particular the decision in Shirt's case.

Our submission, briefly, is Shirt's case can

have said nothing about duty, because that was a

matter conceded in Shirt's case. Shirt's case is a

case about determining whether or not there is a
breach of duty.	Mr Justice Clarke, who
precluded Mr Justice Walsh's approach.	concentrated on breach, considered Shirt's case although he did, by a process of fresh analysis of
Mr Justice Mason's reasons for judgment in Shirt's
case, in effect make them appear less flexible,
although not sufficiently to assist the present applicants.

The essence of our submission would be that

where there is dispute in the Court of Appeal as to

the justice of a result applying what were thought

to be the orthodox and received principles, where

there is a dispute as to whether a proposition of

Inverell 11/2/94

law or propositions of law which they had thought
to be desirable were part of the law or not, and

where one of the justices found it 'necessary to

gloss or restate the classical method by which -

that is to say the Shirt statement - conditions are

such that the result of the case really compels an

analysis of the received principles because it is

only in what are perhaps novel cases that one can

see exactly how far the principles go and how f~r

they mesh satisfactorily in together - - -

BRENNAN J: That is assuming the received principles

receive their proper consideration in the Court of

Appeal. If they are being fragmented into three

parts: is there a duty; is there a breach; did the

breach cause the damage; as distinct questions

which can be considered severally one from the

other, then for my part I regard the whole exercise

as being doomed to frustration.

MR HEYDON:	The instruction of this Court that that process of fragmentation was itself impermissible would be
valuable, we would submit, because it is a matter of daily approach to analyse problems - - -
BRENNAN J:	You could take it back to Wagon Mound, could you

not, and see it there.

MR HEYDON:  See the impermissible approach there, or see

the - - -

BRENNAN J: Yes, see the impermissible approach there.

MR HEYDON:  In that case, it is all the more important for

this Court to identify that so that - - -

BRENNAN J:  I have said it at least for my part on a couple

of occasions in this Court.	I do not know how many
more times it has to be said.

MR HEYDON:  I appreciate that this particular debate may be one - at least I perhaps ought to be conducting

another debate with persons other than Your Honour.

DEANE J: But in this case what do you say about the central

paragraph on page 17 of the application book?

MR HEYDON:	We would submit that if Mr Justice Walsh's approach were adopted in relation to that
proposition the following conclusions would flow. First of all, because the six foot level was about
three-quarters down the length of a 55 yard
swimming pool, one is talking about approximately
100 yards of perimeter that notices would have to
be put up at - - -
Inverell	11/2/94
DEANE J:	But the paragraph then highlights on the point

Justice Gaudron raised with you.

MR .IEYDON: This particular accident happened near the

slide. But, Your Honour, Mr Justice Finlay does

not limit his reasoning to the slide.

DEANE J: That is one way of putting it. But he hones in on

the waterslide. I would have thought those factual

findings were the end of the case. I could

understand you wanting to challenge them or

complain about them in an intermediate appellate

court, but that is not what we are here about.

MR HEYDON:  I appreciate that, Your Honour. Can I just

invite Your Honour to take that passage on one side

and take a passage in Mr Justice Mahoney's judgment

and put beside it. From about page 54 onwards he

endeavours to work out what the precise wrong of

the Council was and he concludes that process of

analysis on page 57. At the top of that page he
points out that Mr Pennington believed he was

diving into five to six feet of water and he had

earlier pointed out that Mr Pennington was

conscious of the need for care in diving, and about

half-way down page 57, about line 17, after the

question, "What, then, was the relevant default?":

It must, in my opinion, have been that

the defendants did not bring the danger -

of diving and the depth of the water -

to the plaintiff's immediate attention.

Then about line 23:

the absence of signs warning of the danger of

diving and of depth indicators was essentially

that is resulted in the plaintiff not being

then warned and subjectively aware of the

danger he was taking.

And the words about "immediate attention" are then repeated.

It is an unfortunate fact that Mr Pennington

suffered the injury at the point he did. Diving could take place at any point in the pool and at

many relatively shallow points in the pool, and one

could apply that process of reasoning in the case

of all the hypothetical other people who might have

been injured. On the trial judge's reasoning,

coupled with Mr Justice Mahoney's analysis, you

would have to bring to the attention of these

people immediately, just before the process of

decision, what the problem was.

Inverell	11/2/94
DEANE J:	I follow what you say about Mr Justice Mahoney's

judgment, but all I am suggesting to you is the

findings of fact made by the learned trial judge in

the paragraph to which I directed your attention

automatically, really, disposed of this case,
subject to the difficult question of causation

which he dealt with in a way that the Court of

Appeal may not have been completely happy with but

was not prepared to disturb.

MR REYDON: 

Could I, with respect, endeavour to take issue

with Your Honour in characterizing that passage on
page 17 as purely a finding of fact. Is it not,

whether concealed or otherwise, in truth a

characterization of what would have been

reasonable, and does that not have a tincture of

law about it, which tincture might have been

different if one took into account the approach of

Mr Justice Walsh in the Wagon Mound. That is a rhetorical question and I should not - - -

BRENNAN J: Is not the question of reasonableness a question

for a jury?

MR HEYDON:  Yes, but certain jury verdicts could be

perverse. It depends on what the law is. Can I

just repeat the words again - - -

BRENNAN J: Tinctures are not likely to make them perverse,

Mr Reydon.

MR REYDON:  Might not the reasonable man think "certain

conduct proper because, in the over-all pattern of
business and other activities" of running a

swimming pool "and in order that the affairs of

life" involved in running that swimming pool, there

should not be undue constriction or confinement.

People can be injured by diving into the pool, they

can be injured by people diving on to them while

they are in the pool, they can be injured by

slipping in the pool or slipping when they are near
the pool.	They can be injured because the

chemicals in the pool injure their unduly

sensitive ears and a mixture of the strength and

the weakness or fragility of the human body is such

that quite small and trivial injuries to some

people may be very damaging to others. Does that

not respectfully highlight, we would respectfully

submit, that where one is dealing with risks which

are, though real, none the less obvious, and where

there are a great many of them, there are simply

certain human activities that cannot be cabined

unduly, even though it might be relatively

inexpensive to stop them.	I mean, how extensive
are the warning signs to be?

Inverell	11/2/94
DEANE J:	I see the force of all that you say in disagreeing

with what is said in that paragraph. I still do

not see how, if you find that any reasonable person

would have done the thing which, on His Honour's

finding, failure to do would satisfy the

requirement of causation, quite frankly I just

cannot see how this case goes anywhere at all.

MR HEYDON: This is just repeating myself. In our

submission - - -

DEANE J:  I can understand you attacking that paragraph.

MR HEYDON:  Yes. A conclusion that any reasonable person

would have done something is not a mere matter of

fact. I see the light, but can I do one other

thing and that is - - -

DEANE J:  Mr Heydon, since I have diverted you more than is

ordinarily the case, I think - - -

MR HEYDON:  I am grateful for Your Honour's indication, but

I think we have put the points we wished to put and
I will not repeat myself for the third time in

answer to the paragraph on page 17.	I hope
Mr Deakin can do better.

BRENNAN J:	Mr Deakin.
MR DEAKIN:	As Your Honours appreciate, there are two

applications that my clients need to make to

Your Honours, the first being an application for an

abridgment of the time within which an application

for special leave is required to be brought. There

was - I do not think the evidence discloses,

Your Honours,. there is no dispute - there was a

deliberate decision by my client's insurer not to

pursue his rights to bring an application for

special leave in this Court.

DEANE J:  Does that mean that the outcome of that

application should depend on whether leave is

granted in the other case?

MR DEAKIN:  We would respectfully submit not. Clearly in

considering the matters which Your Honours must

consider, namely any injustice to my client, the outcome of my learned friend's application would

have particularly unjust consequences if

Your Honours were to grant to that client

leave - - -

DEANE J:  I thought that had brought about the change of

approach.

MR DEAKIN:  Yes, and it is for that reason that the

application, we frankly concede, Your Honour, was

Inverell 11/2/94

brought at the time it was.	But we would submit
case, it would be appropriate to grant us leave.	that in any event, balancing the justice of the there is no injustice to the plaintiff who would
have been here in any event to answer the special
leave application brought on behalf of the Council.
In the event of special leave being granted, we
would also respectfully submit that we would be
entitled to be heard on the hearing of the appeal.
For those reasons, we would submit it would be an appropriate case for the time to be extended, an
extension of time being granted to my client.

Of course, one of the matters that

Your Honours would consider in determining whether

an extension should be granted would be the merits

of the appeal, vis-a-vis my client, and we do not

want to repeat what my learned friend Mr Heydon

said as to the remarks made by Mr Justice Clarke

and Mr Justice Meagher wherein they expressed

concerns about the consequences of the law as it

presently stands in cases such as this.

But in answer to the matter that is raised by

Your Honour Justice Deane in relation to that

paragraph containing findings on page 17,

Your Honours will note that it appears after a

treatment of the expert evidence in the case,

including not only Dr Yeo but other lay witnesses

who gave evidence in the case, and although

His Honour does use the words of fairly broad

import, namely "any reasonable person having

responsibility for this pool", we would submit to

Your Honours that because none of the expert

evidence in the case was directed to the position

of Mr and Mrs Grennan per se, it was directed to those in control of the pool, it is true in some respects, but none of the expert evidence was

specifically directed towards the position of a

pool manager in respect of whom the Council

preserved its right to control the operation of the

pool, which is the present case.

So that that passage that Your Honour

Justice Deane has referred to does not, we would

submit with respect, in terms deal with the
position of the pool managers who were not in

control of the pool, whose duties were limited to

routine maintenance only, and as His Honour found

and as Mr Justice Mahoney confirmed, were not able

to take any steps in relation to the pool without
obtaining prior consent from the Council to do it.

So, Your Honours, we would submit that one of the major criticisms we would make of these judgments

of the Court of Appeal is that with the exception

of Mr Justice Mahoney, neither of the other two

Inverell 10 11/2/94

judges looked at the position of Mr and Mrs Grennan

at all. They formed no part, even, of

Mr Justice Clarke's decision, they were not even

mentioned in it, and Mr Justice Meagher also did

not treat them in any way separate from the

position of the Council. And they failed to have

any regard to the fact that they were in a

particular position which should not be equated, in

all fairness, with the position of the Council who

are in control of the pool.

So that as far as Mr and Mrs Grennan is

concerned, they are questions of fact, as

Your Honour Justice Deane has pointed out. But

they are facts which the members of the Court of

Appeal did not choose to deal with in respect of Mr

and Mrs Grennan, the applicants in this case.

BRENNAN J: It is unlikely that there could be any

conceivable difference in the outcome of the case,

is it not - - -

MR DEA.KIN:  With respect not, Your Honour, because there

were a number of other aspects of their case that
did fall for separate determination. If one
accepts, as the evidence establishes, that they
were not able to do anything, such as the purchase
of a sign or the erection of a sign, without
obtaining prior approval and consent from the

Council, the allegation against them was never put

to Mr Grennan but was accepted by His Honour as

being an allegation that they had a duty to

recommend the erection of signs. That is a very

different allegation to an allegation -

BRENNAN J:  Or even to say to those who came in, "Be careful

of diving around this area".

MR DEAKIN:	It was never put on that basis, Your Honour.
BRENNAN J:	I am not suggesting it was. All I am saying is

if the risk to bathers was such that a reasonable

person would have taken some preventive steps in

relation to it, then the fact that no steps were

taken, does it matter very much that in the case of

one defendant the relevant step should have been

the erection of a sign, in the case of another,
that the relevant step could have been either a

verbal or other kind of warning.

MR DEAKIN:	Your Honour, we respectfully submit it does, because the position of a defendant against whom
there is a single allegation of a failure to recommend, recognizing the reality of his position,
namely that he had no power to erect any warning
signs, does require him to be treated separately
and distinctly from that body which both

Inverell 11 11/2/94

statutorily and under the arrangements between it

and its manager, reserved to itself the control and

supervision of this pool. We submit that that puts

my clients into a different position to the

position of the Council, particularly in relation
to that finding of fact that Your Honour

Justice Deane has referred to.

Your Honours, the matters raised by

Mr Justice Clarke in particular that my learned

friend has already taken Your Honours to, we submit
are of sufficient importance and the facts of this

case can be equated with so many other public

recreational facilities, not just swimming pools,

but as we have referred in our written submissions,

to matters such as fun parks, such as playgrounds

and many other leisure and recreational facilities
which are offered to members of the public and used
by members of the community, and Your Honours, if

what Mr Justice Clarke and Mr Justice Meagher have

referred to as being the state of the law in

relation to not only swimming pools but all those

other public recreational facilities is right, then

we would submit it is a matter that does call for

sufficient public concern for this Court to warrant

the granting of special leave to appeal.

Either their treatment of those principles is

correct and this Court would, in those

circumstances, we would submit - it would be

appropriate for this Court at least to review the
statement of those principles, if they do have

those effects as both those judges have outlined,

or, alternatively, that they are wrong in the

statement of those principles, in which event also
it would be appropriate, because of the
consequences of this case, for special leave to be

granted.

As far as Mr Justice Mahoney is concerned, we

do submit that with the greatest respect to

His Honour that there are particular areas in the

method which he adopted in dealing with the case -

my learned friend has referred to the first, namely

what His Honour referred to as a distinction of
which we are unaware of having ever been referred

to in any other authority, a distinction which

sought to differentiate between knowledge, when

this man knew of the risks of diving, and knew that

he should take care with diving, and what

Mr Justice Mahoney referred to as the requirement

and duty on the defendants to bring to the

plaintiff's immediate attention, so that he was

subjectively aware or conscious of those matters

that he knew of.

Inverell 12 11/2/94

Now, we respectfully submit that that is not a

concept recognized at law and that there is no

relevant distinction between what this plaintiff

knew of the risks of diving and what would have

been conveyed to him by any appropriate sign.

There is no distinction between what he knew and

matters which could have been brought to his

immediate attention.

Secondly, Your Honours, we would submit that

his view of what meaning should be attached to the

central passage of Justice Mason in Shirt's case,

he frankly concedes has not been referred to in any
other authority and we would submit has not ever

been adopted in any other judgment of any court and

if it is to mean what His Honour Mr Justice Mahoney

says it means, then it would again be appropriate

for this Court to pronounce on that matter and not

to be left to speculation, as His Honour

Mr Justice Mahoney has referred to. As far as his

findings relevant particularly to my clients, the applicants to this matter, we submit that both on his findings on causation, dealing with the

erection of any sign, His Honour's findings were,

at page 64:

I shall assume that Mr and Mrs Grennan,

in law or in the way the parties acted,

required the consent of the Council to do what

was here necessary. But if they had sought

it, the probability is that they would-have

obtained it.

Now, that was not the case that was brought against

them, but equating for the purposes of the present

argument requiring "the consent of the Council to

do what was here necessary" with the case that was

brought against my clients ultimately, namely a

requirement that we recommend to the Council the

erection of the signs, we submit that the evidence

on causation was to the contrary of that finding by

His Honour Mr Justice Mahoney because the evidence

was that after this incident had occurred and this	young man had been tragically injured, Mr Grennan
did take it upon himself to approach the officers
of the Health Department of the Council and say it
is a good idea to put some depth markers on the
pool, and although he approached the Council
officers a number of times on that topic, a period
of three years elapsed between the first approach
and when he was finally supplied with some
appropriate depth marker notices, and they were
stick-on notices that only lasted three weeks. So
far from there being any basis for concluding as a
matter of causation that any recommendation by Mr Grennan would have been acted upon, the evidence in
fact was to the contrary.

Inverell 13 11/2/94

It is also to be borne in mind that where

Mr Justice Mahoney then concludes his findings in

relation to my clients, he deals only with the

question of duty. In the next sentence he refers

to the facts that Mr and Mrs Grennan:

did not see it necessary and took no steps in

this regard. For that reason, the precautions

were not taken. In such circumstances, they

had, in my opinion, a duty of care to the

plaintiff.

And that is where he left it. There is no

treatment by any judge of the court below of the

question of breach on the part of the managers of

this pool.

Now, Your Honours, we submit that those

matters, combined with the other matters that have

been referred to my learned friend in relation to

Mr Justice Clarke and Mr Justice Meagher, are of

sufficient importance to warrant special leave.

This case does have an impact in a far wider range

of factual circumstances than the particular

circumstances of this case.

BRENNAN J:  What is the circumstance which would attribute

to your clients' case a better prospect of success

on appeal than in the case of Mr Heydon's client?

MR DEAKIN:  Because of the limited responsibility which they

had at this pool. Mr Grennan was responsible for making sure the filters were working and the pool

was clean, and his wife was responsible for right to control the operations of the pool and the
operating the turnstile and working the canteen.

arrangement was, as Mr Justice Mahoney has referred

to, that the consent of the Council was needed before any steps were taken by the Grennans in

relation to anything in the pool, for instance, the

purchase of some appropriate sign or the erection

of some appropriate sign. That puts him in a

position which His Honour thought rendered him

15 per cent responsible for the plaintiff's

damages, but we would submit in a position that was
very distinguishable from the body which owned and

had operated the pool since 1958, he arriving at

the pool in 1981 when the pool was already

established and had been in operation for some

considerable time.	And it is to be borne in
mind - - -

BRENNAN J:  He was the manager and occupier of the pool, was

he not?

Inverell 14 11/2/94

MR DEAKIN:  He was not the occupier, with respect,

Your Honour, no. He was the manager who had

defined duties and they were limited to routine

maintenance matters. He had to splash a bit of

paint around if the paint was coming off, it was

true, but otherwise his duties were limited to

servicing the filtering systems and cleaning the

pool. He took it upon himself, it should also be

said - I am sorry, Your Honours, I omitted this -

he took it upon himself to ensure that people were
not skylarking within the precincts of the pool,

that is true, but that, we submit, is something in

his favour because it shows where the delineation

of function and responsibility was. He had

responsibility for behaviour and routine

maintenance, but the Council had all other

responsibility for relevant purposes.

GAUDRON J:  Were these matters argued in the Court of

Appeal?

MR DEAKIN:  They were, indeed, Your Honours, and was one of

the things which, as Your Honours would understand,

my client finds particularly difficult to accept

because the matters were simply not dealt with in

any way by two members of the Court of Appeal and

we submit unsatisfactorily dealt with by the single

member of the Court of Appeal who dealt with the

position of Mr and Mrs Grennan. We submit that

that is a very powerful additional reason why they

are entitled to be treated differently and why this

Court should deal with the issues that they sought to have determined in the Court of Appeal.

Your Honours, we would also submit that there

has been a fundamental misunderstanding of the

operation of this Court's decision in Abalos which

has a relevance to this case and which, also, is a

further ground which we advance for why special

leave should be granted, because we submit that nothing that this Court decided in Abalos v The

Australian Postal Commission was intended to

preclude a court, an appellate court, from drawing

its own inferences from facts which were

established on the evidence.

In this case, neither the plaintiff nor any

other witness was able to explain how it was that,

having entered the water in a shallow dive with his

hands stretched out in front of him, face down, he

sustained a sufficient blow to the back of his head

to render him quadriplegic and the tragic injuries

that he sustained. The plaintiff could not explain

it and no other witness observed it and was unable

to explain it. What His Honour accepted was an

assumption that Dr Yeo had made that he had

executed some manoeuvre to avoid an impact with the

Inverell 15 11/2/94

bottom of the pool. But that assumption was not

based upon and did not derive from any findings of

credibility on the part of any witness.

It was a matter for inference as to how the

accident occurred, and the appellate court was as
in good a position to determine what were the
appropriate inferences to draw as to how the
accident happened, as the trial judge was.
Notwithstanding that, the members of the court -

Mr Justice Clarke did not expressly refer to

Abalos, it is true. He simply took the view that

the authorities, as they now stood, rendered this

appeal inevitable, that it would fail, but the

other two judges did specifically refer -

Mr Justice Mahoney at page 55 and

Mr Justice Meagher at page 81 - to the effect of

Abalos, to say, essentially, it is a matter that we

cannot interfere with in view of findings of fact.

We submit that demonstrates a fundamental misunderstanding of what this Court decided in Abalos and that it renders - - -

GAUDRON J: But it is a bit clearer than you would have it,

is it not? As Mr Justice Mahoney points out, there

was no evidence that it could not have happened in

the way the plaintiff said and once he was accepted

as a witness of truth, it carried with it its own

conclusion.

MR DEAKIN:  His Honour's words, as Your Honours are aware,

were that he was a witness who undoubtedly believed

the truth of what he said - that is at page 12,

line 22 - which, in itself, is a curious

terminology to use. We do not take any great point

on that but it is not the usual terminology that is

employed. But the critical thing, in answer to

Your Honour's question, is that the plaintiff said

he cannot explain how he bumped the back of his

head and that he did not recall and denied making

any specific manoeuvre. But His Honour's finding

was that notwithstanding that denial, that it was

some instinctive movement on his part - His Honour

said admittedly "forgotten" - which had caused the
accident.

Now, His Honour, on the one hand, accepted his denial that there was a movement but, on the other

hand, said, "I nevertheless conclude that he must
have done something of which he has now forgotten".

Now, Your Honours, with respect, whatever view is

taken of that conclusion on the facts, it could
not, we would respectfully submit, preclude an

appellate court from investigating that matter for

themselves and, yet, that is, in our respectful

submission, the view that the Court of Appeal

Inverell 16 11/2/94

adopted in respect of this matter, and we would

submit that as a separate - - -

GAUDRON J: Well, if it was an instinctive response it would

not avail you at all.	You have still the trial
judge's finding.

MR DEAKIN: It is a finding, we accept that, Your Honour,

but the question is whether an appellate court

should be precluded from investigating those

matters for themselves in circumstances where the

findings do not substantially derive from

credibility conclusions arrived at by the trial

judge. That matter does not appear anywhere in the

Court of Appeal's decision that they were findings

substantially dependent upon credibility and yet

that is what Abalos is limited to. We submit that that has a wider impact than this case, of course,

because if the Court of Appeal is to adhere to the

view that factual findings which in any way derive

from evidence in the case are not able to be

reviewed on appeal, then that would substantially

limit the rights of parties to have factual matters

reviewed on appeal in the only court, of course,

where such an appeal can be brought as of right.

For that additional reason, we would submit that it

is an appropriate matter for special leave.

BRENNAN J:  We need not trouble you, Mr Webb.

Having regard to the findings of fact by the

trial judge, an appeal to this Court by the

Inverell Municipal Council does not enjoy

sufficient prospects of success to warrant a grant

of special leave to appeal.

We would extend the time for Mr &

Mrs Grennan's application for special leave but having regard to the facts found by the learned

trial judge, we would refuse special leave so far

as special leave is sought on the grounds advanced

by the Council in its application. Whether in the

circumstances of this case the findings of the

learned trial judge should have been set aside as
against these applicants by the Court of Appeal is

not a question which is of sufficient importance to

justify a grant of special leave. Accordingly,

special leave will be refused in both cases.

MR WEBB:	I seek an order for costs, Your Honour.
BRENNAN J:	It will be refused in both cases with costs.

AT 3.53 PM THE MATTER WAS ADJOURNED SINE DIE

Inverell 17 11/2/94