Jaber v Rockdale City Council

[2008] HCATrans 309

[2008] HCATrans 309

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S300 of 2008

B e t w e e n -

BILAL JABER

Applicant

and

ROCKDALE CITY COUNCIL

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 AUGUST 2008, AT 9.42 AM

Copyright in the High Court of Australia

MR M.R. ALDRIDGE, SC:   May it please the Court, I appear with my learned friend, MS M. FRASER, for the applicant.  (instructed by L J Sharpe & Co Lawyers)

MR D.J. HIGGS, SC:   If the Court pleases, I appear with MR J.G. STEWART, for the respondent.  (instructed by McCulloch & Buggy)

GUMMOW J:   Yes, Mr Aldridge.

MR ALDRIDGE: May it please the Court. This application concerns the definition of “obvious risk” as it appears in section 5H of the Civil Liability Act and as defined in section 5F.  In section 5F “obvious risk” is defined as:

an “obvious risk” to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

So it is an objective test but an objective test that places the reasonable person in the circumstances of, in this case, the plaintiff or the applicant.

KIRBY J:   Should we ignore the fact that this was legislation enacted in response to such decisions as the Rottnest Island decision and the other cases?

MR ALDRIDGE:   Ultimately, your Honours cannot ignore that but ultimately what has to be done is to apply the words of the section as guided by its legislative history.  What we submit, respectfully, is that the Court of Appeal made two errors in relation to the interpretation of this.  The first was to fail to take account, adequately, or at all, of the surrounding circumstances and, secondly, to add or to add as a test or as a gloss to the statutory test the phrase “potential for danger” and apply that rather than the words “the section”.

KIRBY J:   Did I not read that your client conceded at one stage that he knew that to jump into water, the depth of which he did not know, was obviously dangerous?

MR ALDRIDGE:   Yes.

KIRBY J:   So he did that.  He did not know the depth.  He jumped headfirst with his hands out.  He did so from about a metre above the water and he had to gain access to the jumping platform by climbing around a guardrail fixed in the perimeter of the wharf deck.

MR ALDRIDGE:   Yes.  He thought it was deep enough, your Honour, because of a number of factors, one of which was the design structure of the wharf itself, it was designed to tie boats up to of some size.  More importantly, he had observed a number of people diving off the wharf safely beforehand.  He swum to the wharf from the beach.  That is to say, he did not approach it from the land but swum to the wharf from the beach and entered the wharf from steps on the sea side of the wharf.  As he approached the wharf he trod water at least twice to ascertain the depth of the water and when he was about to dive he looked at the water and saw that it was dark and assumed from that that it was deep enough to dive, there being some evidence that at some stage the beach went out quite level and then there was a two metre drop off.

KIRBY J:   But is not that a problem with all of these cases, that the person will not have jumped if he did not think it was safe, but the statute hypothesises that you have to stand back and say, “Well, objectively, was this an obvious risk?”

MR ALDRIDGE:   Yes, exactly, your Honour.  If it was a subjective test we would have passed it because the trial judge found and the Court of Appeal found that the applicant would not have dived off the platform had he known it was too shallow.  The point is, he believed it was deep enough.  The relevant question posed for the Court is whether a reasonable person in those circumstances would have thought diving presented an obvious risk, diving in the circumstances that I have just mentioned where other people had safely dived off the platform immediately before, where he had trod water a couple of times before to ascertain the depth and when he had looked ‑ ‑ ‑

GUMMOW J:   It comes down to this phrase “obvious risk”, does it?

MR ALDRIDGE:   I am sorry, your Honour?

GUMMOW J:   We have to construe this phrase “obvious risk”?

MR ALDRIDGE:   Yes, as defined by the Act.

KIEFEL J:   Do you say that the Court of Appeal has undertaken an objective assessment?

MR ALDRIDGE:   We say, respectfully, two things.  First of all, the Court of Appeal did not undertake the complete objective assessment by having regard to each of those factors.  What the court seemed to say is that treading water was not an adequate way of determining the depth of the water, which is to try and pose a test as what is the best way of determining the depth of the water, not whether the totality of the circumstances led to an obvious risk or not and, secondly, that their Honours significantly in paragraphs 38 and 39, which seem to be the essential paragraphs of the judgment, use the phrase “potential for danger”.

Paragraph 38 referred to what your Honour Justice Kirby had said that:

The appellant accepted that he knew in a general sense that diving into shallow water or water of uncertain depth might result in injury and so was aware of what the primary judge referred to as the “potential for danger”.

KIEFEL J:   That is really what I was trying to – to what extent has the Court of Appeal intruded assessments of the plaintiff’s own subjective assessment into what is an objective assessment?

MR ALDRIDGE:   We say they did that in the very next sentence, your Honour, because the court then concluded:

It was that “potential for danger” that constituted the relevant risk.

KIRBY J:   But is not that a bit of a problem for you because, in a sense, it is the plaintiff’s own assessment that helps you.  He thought the water was dark, he had trodden in the water, whereas if you stand back and say, well, objectively, he is jumping from one metre above water into water, the depth of which you do not know, objectively obviously risky – an obvious risk.

MR ALDRIDGE:   The point is, your Honour, that the reasonable person there would, we say, not conclude there was an obvious risk because ‑ ‑ ‑

KIRBY J:   What, jumping into water from one metre up, the depth of which you do not know?

MR ALDRIDGE:   The point is “the depth was unknown” has been tested in a way that is reasonable, that he was seeing other people dive, you have trod water twice and you have looked to see the depth.  The question is whether taking all these factors together as a package, there presents an obvious risk, not the test that we if dived into water of an unknown depth, there is a potential for risk.  They are different tests, and it is the latter that the court applied.  It is “the relevant risk” is defined as “the potential for danger” which is set out in paragraph 38 and that is not an analysis required by the section.

It is, with respect, wrong to say the applicant did not know the depth of the water.  He did not know the exact depth – I accept this is not the test – but he thought it was deep enough.  We would submit that a reasonable person in those circumstances would also have thought it was deep enough.  You do not need to know the exact depth.  All you need to know that it was deep enough.  The court then continued in paragraph 39:

The fact that the appellant believed that the water was deep enough, because he had purported to check its depth by treading water, does not militate against a finding on the objective facts –

and his Honour does refer to the objective facts there –

that would be readily apparent to a reasonable person . . . A reasonable person in the position of the [plaintiff], wishing to dive head first from the top of a bollard, two to three metres above the surface level of the water, would not regard that method, if it be such, as a reasonable substitute for testing the depth by the more reliable means of “duck diving” or jumping feet first.

Now, whether or not that would have enabled you to test the depth of the water any more accurately is a different question.  We would say what the court has really done is two things, looked at what is the best method of testing the depth of the water, and because you did not follow that that there was an obvious risk, and use the phrase “potential for danger”.  “Potential for danger” is a, we would submit, much lower test than “obvious risk” as defined by the section; that many, many things carry a potential for risk where the risk is not obvious, and in doing so, the court fell into error.

GUMMOW J:   Reading what you say are the facts in this case, against section 5F how do you say it pans out, just reading through section 5F.  At the end of the day that is what you would have to satisfy.

MR ALDRIDGE:   Yes, we have to say at the end of the day ‑ ‑ ‑

GUMMOW J:   Because you want a new trial limited to damages?

MR ALDRIDGE:   Yes.  What we say is that when one looks at the package of facts which we have set out in our submissions at page 120 ‑ ‑ ‑

GUMMOW J:   Do we know what “would have been obvious” means?

MR ALDRIDGE:   Yes, it would not have been obvious that the water was too shallow to dive into.

GUMMOW J:   Do you say subsection (2) has any operation of the definition?  Was it patent?

MR ALDRIDGE:   No, if you could see that the water was shallow it would be patent, but the point of this is we could not see that the water was shallow and the objective facts would tend to demonstrate that it was deep enough to dive.

GUMMOW J:   And then (3) and (4) are a similar nature, really.  A risk can be obvious even if “a low probability of occurring” and can be obvious “even if the risk . . . is not prominent, conspicuous or physically observable”.  Was this conspicuous?

MR ALDRIDGE:   No, because they could not see the bottom.  Your Honours, one of the difficulties in diving cases, it is quite clear, we would submit, that diving into deep water is quite safe, diving into shallow water is quite unsafe, and what the court needed to do in this case was look at the objective facts to determine whether a reasonable person would in those facts, where there was an obvious risk, choose whether it was too shallow in which to dive safely, and it requires ‑ ‑ ‑

KIEFEL J:   But does subsection (4) cut down your argument a little, because the obvious nature – the meaning that you are giving to “obvious” is that it must have been apparent that subsection (4) seems to somewhat cut away that full meaning of “obvious”, does it not?  Is there a conflict there in the two subsections?

MR ALDRIDGE:   It is something that does have to be balanced out, but what those sections, in my submission, are directed to – and (3) and (4) need to seem to be taken as a package – that, for example, if you could not see the bottom of the water because it was murky, that might be something that one would take into account.  There is a conflict in the sense that a reasonable person has to observe these things, so the test is on the reasonable person, but what (3) and (4) do is cut that down in a limited way in their terms.

GUMMOW J:   There is another dimension to this, too.  If this legislation did not exist – and this is a pure common law case – do you say you would clearly succeed?

MR ALDRIDGE:   Yes, but the common law ‑ ‑ ‑

GUMMOW J:   Even in the light of Vairy and the other case?

KIRBY J:    Dederer.

MR ALDRIDGE:   Yes, we would say that, your Honour, but in any event, this has changed the common law.  This now supplants what used to be the common law.

GUMMOW J:   Yes, but the starting point of reading the Act is trying to work out what they were destroying.  It is the common law rights.  The Parliament of New South Wales is setting out to destroy people’s common law rights.  The question is what those common law rights would have been in this case and against that you then apply the section.

MR ALDRIDGE:   Yes.  What we would say on this, your Honour, is this was not just the destroying of common law rights.  It was a redefining of common law rights, and something was given back, because one could have simply said – taken out the reasonable person ‑ ‑ ‑

GUMMOW J:   Do you say people can succeed under this, even if they would have failed otherwise?

MR ALDRIDGE:   Yes, and it is possible we could be one of them for the reasons that I have ‑ ‑ ‑

KIRBY J:   Just explain how that would happen?

MR ALDRIDGE:   Because it requires – well, first of all, “obvious risk” was not a phrase that was favoured by the courts and indeed, was criticised by this Court in Vairy.  The test of “obvious risk” requires a combination of objective reasoning of a reasonable person, but in the subjective circumstances of the plaintiff, in a way that focuses attention on what risk would have been apparent to a reasonable person rather than focusing on the duty of the defendant towards the plaintiff, and for those reasons ‑ ‑ ‑

KIRBY J:   Having taken that journey through Dederer and other cases, one hesitates to bring up a case where we would not be doing your client a favour.  I know that is for you to judge and you say, well, we want the favour and we are willing to take the risk.

MR ALDRIDGE:   Your Honour, at the moment, we have lost, so the opportunity of succeeding in the High Court ‑ ‑ ‑

KIRBY J:   You have not picked up one guernsey so far?

MR ALDRIDGE:   No.

KIRBY J:   The problem is that “obvious risk” has to be read in the context of a statute cutting back rights.  That statute itself was a response to what Parliament saw as unrealistic decisions by courts, and therefore we would be frustrating the purpose of Parliament if we were to give it an artificial reading.

MR ALDRIDGE:   But the point of this legislation, your Honours, was to require people to take reasonable care for themselves rather than to cast the onus upon the defendants – if I could call that generally.  The section permits people to succeed where they have taken reasonable care for themselves, and our submission is that the applicant in this case did take reasonable care for himself.

KIRBY J:   But is it not fair to say that Parliament’s judgment is that you do not objectively take reasonable care for yourself if you jump from a wharf head first not knowing what the depth of the water is, with your hands out and just from one metre above the water?

MR ALDRIDGE:   You do take reasonable care for yourself if you have taken reasonable steps to ascertain that it is safe, and that is, with respect, the difference between the position that was the law, and we submit the position that now is the law.  They are our submissions, may it please the Court.

GUMMOW J:   Yes, Mr Higgs.

MR HIGGS:   Your Honours, in our submission, diving even into the surf let alone from a wharf is well known to be risky and so much was said and observed and repeated in the judgment at page 99 of the application book ‑ ‑ ‑

GUMMOW J:   Page 99?

MR HIGGS:   Yes, your Honours, paragraph 44, they refer to the joint judgment of the Chief Justice and Justice Kirby and, in particular, towards the bottom of the page where there is a reference to diving even into the surf as always being risky.

KIRBY J:   The problem with Vairy was it was really a case about jury verdicts, was it not?

MR HIGGS:   That is so.

KIRBY J:   So it is out there all on its own.  Dederer is closer to this case.

MR HIGGS:   It is, yes.

KIRBY J:   I found for the plaintiff in Dederer, as I think one other Justice did, but the majority did not. 

MR HIGGS:   No.  The problem always is ‑ ‑ ‑

KIRBY J:   You learn from these experiences.

MR HIGGS:   The depth was known by this applicant to be not known to him.

GUMMOW J:   Say that again.

MR HIGGS:   Sorry, your Honour.

GUMMOW J:   It sounds like a common law argument. 

MR HIGGS:   Yes, it does.  Your Honours, it was the first occasion that he had ever dived from the wharf, so much as ‑ ‑ ‑

KIRBY J:   But he had seen people diving before.

MR HIGGS:   He had, but he went one better ‑ ‑ ‑

KIRBY J:   This was the problem with Dederer, was it not?  Mr Dederer saw persons diving.  In fact it was a very common thing.  People were diving all the time.  They were even in communications which warned about it.  None of that is present in this case.

MR HIGGS:   But here it was his first occasion.  He knew and admitted as much as listed in paragraph 9 of the judgment at page 87, that he needed to now whether the water deep enough because it was the first time that he was diving and not from the wharf but from a bollard above the wharf.  It was not one metre above the water.  It was two to three metres above the water, which was a greater depth than his own height.  He did not take the normal precaution, as is referred to in the judgment, of “duck diving” in order to see if the water was deep enough or jumping from the wharf rather than from the higher bollard, feet first rather than head first in order to see whether the water was deep enough.  What he did was he goes there and he knows and admits as much that if he was unsure of the depth of the water, he could be “injured, killed or confined to a wheelchair”, as is set out in paragraph 9(e) on page 87 of the application book.  

Also, at page 36 at first instance, I am reminded that the trial judge found that in relation to observing other people, in the second paragraph – I am reading from about line 19:

There is nothing in the plaintiff’s evidence which indicates that he observed anyone diving from the top of a post from the wharf.

Rather, that it was from the wharf, although that to a degree is dealt with as well in the judgment of Justice Tobias in the Court of Appeal where his Honour found that there might be some confusion about that part of the evidence in terms of what he meant when he said that he saw people jumping from the wharf as opposed to from the bollard.

So in this particular case he knew all of those things.  When one goes, as is set out on page 90 of the application book, that the meaning of “obvious risk” takes up a person’s appreciation:

a person who suffers harm is a risk that, in the circumstances –

and here the circumstances are all of those matters that the Court of Appeal took into account on pages 88, 89, and then also taking into account everything that was listed on page 94 of the application book, which is repeated in my learned friend’s written arguments; all of those matters were taken into account and they weighed all of that up and it came down to this, that, in the circumstances, as is the natural inference, if you are diving head first from a height, one knows that there is going to be an obvious risk if you do not know that the water is deep enough.

Once it is appreciated, as this person actually did appreciate, that one must know how deep the water was, it is not an answer for him to simply tread water and not be able to have his feet touch the seabed, because it could be one inch below his feet, it could be a little bit more but, nonetheless, not deep enough in order to avoid the accident that did happen and mercifully did not render him either a quadriplegic or a paraplegic, but nonetheless caused significant injury because it fractured one of his cervical vertebrae which he mercifully recovered from.

GUMMOW J:   Now, how do you read 5F(1) onto the facts of this case as you have been explaining them to us.  This weighing exercise, is that conveyed by the phrase “in the circumstances” in 5F(1)?

MR HIGGS:   Yes, your Honour. It was obvious to a reasonable person that that imports an objective test and with the gloss – there is the subjective gloss of what this particular plaintiff actually knew. In order to answer what fell from your Honour Justice Gummow just a little while ago in terms of the way in which it changes the test that previously applied at the common law, if I can take your Honours - that was specifically considered at page 96 of the application book in paragraph 35 where their Honours pointed out that under section 5F(1), which is a duty to warn case, which relates back to obvious risk and being one of the bases upon which the matter was defended, that the Act focuses the inquiry “not upon the putative tortfeasor but upon the person who has been injured”.

So you have to actually examine his conduct whereas, if your Honour Justice Kirby no doubt remembers, as no doubt your Honour Justice Gummow recalls, that in Vairy, in particular in the judgment of Justice Hayne, the criticism of importing the notion of obvious risk into the issue as to defining the duty of care was that it concentrated the inquiry upon the person who had been injured.  His Honour said that that was not very helpful.

But the legislature, in our respectful submission, as found by the Court of Appeal quite properly – and it does not seem to be challenged in this part of the judgment - held that section 5F, insofar as it defines “obvious risks”, turns the inquiry upon what the victim did in order to define the duty of care, whereas beforehand that had not been the case.

KIRBY J:   Is it capable of being argued in a way that the Court of Appeal did not deal with, that if a person sees lots of others jumping, that therefore objectively the risk is not obvious?

MR HIGGS:   No, for this reason, that there was – the seabed is not at a constant depth.  That cannot ever be assumed.  It really depends upon where this particular person is going to dive and how he is going to dive.  That takes into account the height from which he dives, the angle at which he dives and the spot in the water into which he does dive.  There was no evidence and no finding that he dived into the water in exactly the same spot where he had been treading water.  There was no evidence, and there could not in the normal course one would expect be evidence, that where he had observed other people diving into the water, that had been of a sufficient depth to make that which he was doing, diving from the top of a bollard in the way that he did, it did not establish that the water was deep enough.

GUMMOW J:   Now, what was said to be against you?  What was said against your client to be the breach of its duty?  Failure to have signs, was it not?

MR HIGGS:   There were two things.  Duty to warn and it was accepted that it was a duty to warn case.

KIRBY J:   There was a sign, but he went around it.  He escaped seeing it.

MR HIGGS:   That is so, because he ‑ ‑ ‑

KIRBY J:   He clambered up the ‑ ‑ ‑

MR HIGGS:   He swam from the beach around to the steps at the end of the jetty and there was no sign erected suggesting that you do not dive to

people approaching the wharf that way.  If you approached it from the beach there was a sign.

GUMMOW J:   Signage cases are not high in the firmament these days.

MR HIGGS:   No, and the other thing too about it is that there is a finding at first instance at page 53, and no one seems to have challenged it, at about line 10, that his Honour at first instance found that if any warning sign had been established in all likelihood it would not have deterred the plaintiff from jumping.  That was a reasonable inference given that the sign that one would naturally infer most people saw and consistent with the observation of this Court in Vairy – that was the case of jumping from the rocks near the surf – signs notoriously are not adequate in deterring people from undertaking this sort of activity.

GUMMOW J:   We do not need to hear you any more, Mr Higgs.  Yes, Mr Aldridge?

MR ALDRIDGE:   Two things to add in reply, your Honour.  Firstly, both my learned friend’s submissions in the Court of Appeal proceeded on the basis that if one had performed a duck dive to ascertain the depth of the water, it would have then been safe to dive.  We would submit there is no reason to assume why performing a duck dive is any better a method than what the ‑ ‑ ‑

KIRBY J:   In Dederer I remember well there was duck diving and headfirst diving, but it all depends on the size of the person, momentum, their weight, a whole series of factors.

MR ALDRIDGE:   So, with respect, that is a significant error of the court to do that, and the second point is that one would assume ‑ ‑ ‑

KIRBY J:   You could not get up in Dederer where a letter was sent warning the council of the danger.  I just do not see how in this case you could get up.

MR ALDRIDGE:   The second point, your Honours, is that one would think that the seabed around a wharf, which is designed to berth vehicles, would be of a uniform depth and there was, in the court below, an appeal taken against the trial judge’s conclusion about the inference to be drawn that we would not have obeyed the sign had we seen it.

GUMMOW J:   Thank you.  Yes, we will take a short adjournment.

AT 10.11 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.15 AM:

GUMMOW J:   The critical question in this application is whether the risk of harm to the applicant of diving headfirst from a bollard above the wharf into water, the depth of which he did not know, was an obvious risk within the meaning of section 5F(1) of the Civil Liability Act 2002 (NSW).

Upon that question, despite the careful arguments for the applicant, we are not convinced that the applicant would enjoy reasonable prospects of ultimate success in any appeal to this Court upon a grant of special leave.  Accordingly, special leave is refused.  The applicant must pay the respondent’s costs.

AT 10.16 AM THE MATTER WAS CONCLUDED