Jandson Pty Limited v Welsh

[2009] HCATrans 125

[2009] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S581 of 2008

B e t w e e n -

JANDSON PTY LIMITED

Applicant

and

JUDITH CAROL WELSH

Respondent

Application for special leave to appeal

FRENCH CJ
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 JUNE 2009, AT 2.22 PM

Copyright in the High Court of Australia

FRENCH CJ:   Before we commence proceedings today, we are joined on the Bench by Chief Justice Balakrishnan of the Supreme Court of India who, with a delegation of judges from that court, has been visiting with the High Court this week in the second Indo‑Australian Legal Forum Meet.  Also present in Court is Justice Sinha, a senior judge of the Supreme Court of India, and we welcome them to this special leave day. 

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR D.A. PRIESTLEY, for the applicant.  (instructed by Thompson Cooper Lawyers)

MS S. NORTON, SC:   If it please the Court, I appear with my learned friend, MS M. FRASER, for the respondent.  (instructed by Brydens Law Office)

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, a couple of steps inside a residential building, designed no doubt for the purposes of either function or amenity or both, not designed according to findings of fact so as to present any unusual danger, that is, a danger out of the ordinary for steps, or a danger by being out of the ordinary in the location, were nonetheless the location and, we accept, cause for the respondent to have injured herself.

Now, she injured herself while visiting these premises for the purpose no doubt of informing herself about the wares that were on offer by my client, or those with whom my client had made arrangements, because it was what is called a display village, the point being, as your Honours have seen in the written submissions between us, that the respondent emphasises that this was a commercial opportunity so as to raise, as it were, the standard of care, whereas we point out that it was a commercial opportunity, the very gist of which was to show what residential buildings would be like if built in accordance with these plans.

FRENCH CJ:   You do not cavil with the enunciation of the standard of care, as I understand it.  Rather you say that its application effectively lowers the bar for liability as a factual matter?

MR WALKER:   Yes, that is right.  Your Honours will have seen what I hope amount to a complete abdication by us of any challenge, any attempt to detect any error in the enunciation of principle.  There is no infidelity, implicit or explicit, to any authority involved in the way in which the Court of Appeal’s reasons are expressed; I have to accept all of that.  It is a bit like House v The King.  One cannot see in the reasons given, let alone in what might be called primary factual findings, anything that is erroneous but it feels wrong.

Now, why it feels wrong in particular is that the need to be able to negotiate steps that divide the levels of the one enclosed space, as for example in this courtroom, is so ordinary that in our submission it is simply unreasonable to require precautions of one or other, or perhaps a combination of the three kinds that are referred to by the trial judge.  Now, I say the three kinds and one or other or perhaps more because, as your Honours appreciate, no choice was made by her Honour.  Page 10 of the application book, paragraph 43, in this display home, as they are called, one has a sloping – “nosings” on “the steps”.

FRENCH CJ:   One did not have a nosing on the step, is that right?

MR WALKER:   I am sorry?

FRENCH CJ:   I am sorry, there was no nosing strip.

MR WALKER:   There was no nosing strip.

FRENCH CJ:   Yes.

MR WALKER:   Now, there is no finding of fact that the visibility of the steps would have been in any decisive or critical way improved in that fashion, nor is there a finding usual to cases of nosings and the like that it had something to do with friction, and that is no doubt because it is not possible to have reconstructed the accident itself in any great detail.  Then, secondly, “installing a sloping handrail” which is not, we submit, a reasonable thing to expect in most residential dwellings unless and until there is something special about the infirmity of the people using the steps.  This is not a stairway to a second storey.  These are just a couple of steps to differentiate levels.

Then, finally, “placing a sign”.  Now, if a sign is to be placed on these steps because the respondent slipped on these, why would there not be a sign near a kitchen cupboard, “If this door is opened it may hit someone standing behind you”, et cetera, et cetera, et cetera.  In our submission, there is a difficulty of logic involved in the notion of a warning sign because if here, why not everywhere, and before you know it you have something like a Jacques Tati sign instead of a serious display home.  This is meant to be what the residence will look like if you buy our house, and in our submission, there is therefore not a great deal, not a great deal, perhaps nothing, in the evident commerciality of the position.

FRENCH CJ:   The finding that the steps were hazardous, that is not challenged?

MR WALKER:   No, but they are hazardous only in the same sense as a door is hazardous, or indeed a window can be hazardous.  That is, doors ‑ ‑ ‑

FRENCH CJ:   The trial judge was not really using it in that ‑ ‑ ‑

MR WALKER:   No, but there was no extra hazard, there was nothing unusual or defective in design.  It was a failure to take one of these precautions.  In our submission, it involves a kind of incomplete hindsight reasoning.  It simply says if she had seen the sign she would not have fallen; if there had been a handrail she would have been grasping it.  Presumably, though it is not quite so clear by inference, if there had been a nosing, I am not quite sure that she would not have slipped or she would have seen earlier, it is not quite ‑ ‑ ‑

FRENCH CJ:   Anything to indicate a change of level really was implicit in what the trial judge was ‑ ‑ ‑

MR WALKER:   I think that might be right, but, of course, in ordinary living – and that is our point – the change of level is signalled by the fact that you can see the change of level.  That is why people do not fall down steps, or when they do it is because they have unfortunately failed to take reasonable care for their own safety.  In the usual case – I do stress ‑ ‑ ‑

KIEFEL J:   The key to the finding appears to have been the plaintiff’s expectation that the house was on one level, nothing to indicate to the contrary.

MR WALKER:   That seems to be so, your Honour, yes.

KIEFEL J:   Combined with the fact that it was not just a residence she was walking into, it was a display home where it was intended, or could be anticipated, that she would be looking about.

MR WALKER:   Some people do that in private dwellings they visit too, your Honour.

KIEFEL J:   They might.

MR WALKER:   Yes.

KIEFEL J:   It is the expectation, is it not, of the plaintiff about the one level that it all hinges upon ‑ ‑ ‑

MR WALKER:   Yes, that is right.

KIEFEL J:   ‑ ‑ ‑ and whether or not the defendant ought to have anticipated that.

MR WALKER:   Your Honours, the scene as reconstructed in your minds from reading the facts, and no doubt they will differ for every reader but there must be a common core, either strikes one as something which falls sufficiently short of the commonsense response in terms of reasonableness or it does not.  It is ultimately a matter, as we have put, of oppression, impression.  We say, I hope not tendentiously, the first impression should have been, that does not look like negligence, and that on further investigation that should have been the abiding impression, but that is the point.  May it please the Court.

Jandson Pty Limited
French CJ, Heydon & Kiefel JJ
Sydney – 5/6/09

FRENCH CJ:   Thank you, Mr Walker.  Ms Norton, we will not need to call on you.

In January 2006, the respondent fell and injured herself while inspecting a display home open for inspection by the applicant.  She fell because she did not see steps between a carpeted and a timbered area of the floor of the home.  The applicant was held liable as occupier of the display home for breach of its duty of care to the respondent.  The District Court of New South Wales awarded the respondent damages.  An appeal to the Court of Appeal of New South Wales was dismissed by majority.

The special leave question propounded is whether a finding of negligence was reasonable in the circumstances, having regard to commonsense and prevailing community standards.  No question of general principle is involved.  The applicant contends that the finding of liability offends against commonsense expectations of ordinary people and that the Court’s intervention would be salutary.  A reliance was placed upon the precedential value of the decision in setting a standard for occupiers which would be followed in lower courts.

In our opinion, however, the case turns upon its own facts.  The trial judge and the Court of Appeal applied well‑established principles.  The appeal would not have a prospect of success sufficient to warrant the grant of special leave.  Special leave will be refused.  Do you apply for costs?

MS NORTON:   Yes.

FRENCH CJ:   Can you resist an order for costs?

MR WALKER:   No, I cannot.

FRENCH CJ:   Special leave will be refused with costs. 

AT 2.32 PM THE MATTER WAS CONCLUDED