Johnston v Frazer

[1991] HCATrans 49

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl27 of 1990

B e t w e e n -

MALCOLM JOHNSTON

Applicant

and

GLENN WILLIAM FRAZER

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Johnston 1 15/2/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 1991, AT 11.35 AM

Copyright in the High Court of Australia

MR T.E.F. HUGHES, QC:  May it please the Court, I appear

with my learned friends, MR A.J. SULLIVAN, OC, and

MR s. WHITE, for the applicant, the defendant

below. (instructed by Colin w. Love & Co)

MR B.J. GROSS, OC:  May it please the Court, I appear with

MR P.C.B. SEMMLER for the respondent. (instructed

by Devitt & Partners)

MR HUGHES:  Your Honours, we have an outline and we have

attached to the outline the - - -

MASON CJ:  I have already seen an outline. I do not know

whether you have seen it.	It was prepared by your
junior.	I should not say "your junior",

Mr Sullivan I should say.

MR HUGHES:  I did have some part in it, Your Honour. hand up the volume? Can we

MASON CJ:	Yes.
MR HUGHES:	Your Honours, ever since the speech of

Lord Wilberforce in the House of Lords in Anns v

The Merton London Borough Council it has become

accepted, and with particular relevance accepted in

this Court, that in determining whether in any

particular circumstances a duty of care is owed by

someone to another and the content of that duty,

there has to be a two-stage process. The first

question arises as to whether there is by reference
to considerations of proximity or, as

Lord Wilberforce said, "neighbourhood", some duty based upon the foreseeability of likely or possible damage exists and then, as the second question,

there has to be considered whether, in the

particular circumstances of the case, there is as a

matter of law some limit or restriction or

qualification to be imposed upon the scope or

content of that duty.

MASON CJ: But what do you mean by "scope or content"? Are

you talking about the standard of care or are you

talking about the duty of care itself?

MR HUGHES:  The standard of care which, of course is wrapped up in the duty of care, Your Honour.

MASON CJ: Because Lord Wilberforce was speaking of the duty

of care, he was not speaking of the standard of

care.

MR HUGHES:  But whichever way one looks at it from the

viewpoint of a standard or of a duty, it is our

respectful submission that particular circumstances

may place a restriction, operating - - -

Johnston 2 15/2/91

MASON CJ: Well, Cook v Cook, for example.

MR HUGHES:  Cook v Cook, exactly. Cook v Cook is a leading

example of it. Now, what we say, and it is set out

in our outline, is that it was inappropriate in the

particular circumstances of this case which

involved a cup race - horse race in which

professional jockeys were engaged to impose a

generalized duty or to propound a generalized duty

which failed to take into account, as we would say,

the need to limit the standard of performance of the duty appropriate to the particular case. In

other words, we say, consistently with ideas that

have been articulated in the Court of Appeal in

England and in American authorities and in Canadian

authorities and works of reference - textbooks -

that where the law has to consider the standard of

duty, the scope of the duty, to exercise reasonable
care, in the circumstances of a highly competitive
sport, then it is appropriate to confine the scope

of the duty to a duty not to inflict reckless or

deliberate harm. That is the essence of the case

that we seek to make in support of the special

leave application.

We invoke, without reading, unless

Your Honours wish me to go to them, the two

American authorities, the course of authority in

the Court of Appeal, particularly Wooldridge v

Sumner, being the principal English case, decided

in 1963, as support for the proposition that the

duty is limited, in the circumstances of this case,

to a duty not to be reckless or deliberate.

MASON CJ:  How far does this duty extend? You mentioned

competitive sport. Is it confined to horse racing?

MR HUGHES:  The extent of the confinement will depend upon

the circumstances of the particular case but,
certainly, we would say, it can be applied to horse

racing.

Your Honours, even as long ago as Rootes v

Shelton, in which the leading judgment has come to

be regarded the judgment of Sir Frank Kitto,

His Honour recognized clearly the two-stage

process. If I may, I will just invite Your Honours

to look at Rootes v Shelton which is under tab Din

the folder, and at page 387, in a paragraph which

perhaps I should read in full to get the context:

I cannot think that there is anything new

or mysterious about the application of the law

of negligence to a sport or a game. Their

kind is older by far than the common law

itself. And though water skiing may be

slightly faster than chariot-racing it is,

Johnston 15/2/91

like every other sport, simply an activity in

which participants place themselves in a

special relation or succession of relations to other participants, so that adjudication under

the common law upon a claim by one participant
against another for damages for negligence in
respect of injuries sustained in the course of
the activity requires only that the tribunal
of fact apply itself to the same kind of
questions of fact as arise in other cases of

personal injury by negligence. It must do so,

of course, under judicial guidance as to what

the law has to say upon the questions whether,

in the situation in which the plaintiff's
injuries were caused, the defendant owed him a

duty to take care not to harm him, what the

extent of the duty was if a duty did exist and

what causal relation the plaintiff must prove
between an act or omission by the defendant

which was a breach of the duty and the

plaintiff's injuries.

Now, we seek to emphasize the second element

in the equation. It is a question of law in any

given case to decide not only whether the duty did

exist but what was its extent.

DEANE J: Is that saying anything different to saying what

constitutes reasonable care, in the circumstances?

MR HUGHES:  Yes, but that is a question of law and we would

say that in the highly charged context of a horse

race on the flat the extent of the duty is arguably

limited to a duty not to be reckless or deliberate

in infliction of harm, in other words, not to

inflict harm in circumstances where you know that

you are exposing your competitor to a risk of

injury and go ahead regardless.

Now, I am bound to say, and no doubt

Your Honours will have noticed this already, that

the primary judge in this case made a finding of
recklessness.	We faced that problem in the Court

of Appeal and signalled our argument that the facts did not warrant that finding and it is fair to say, I suggest, that the Court of Appeal did not make a

concurrent finding of fact on that suggested issue

of recklessness. That appears at page 61 of the

application book where Mr Justice Priestley said:

Counsel for the appellant -

I should really ask Your Honours to read from the bottom of page 60:

This all leads me to the conclusion that

the submission put for the appellant about the

Johnston 4 15/2/91

content of the duty of care in the present
case fails. That means that it is unnecessary

for the court to hear further argument in the
case or to go into the question of the

correctness of Finlay J's sixth conclusion.

That was the recklessness conclusion, Your Honours.

Counsel for the appellant made it clear that from the appellant's point of view, there

were arguments to be urged against the

validity of the factual elements of that
conclusion. Because of the course the
proceedings have taken, it is not necessary

for the court to express any opinion about

that, although, having said that the appellant

wished to submit the incorrectness of the

factual views involved I mention also that it

does appear to me that the learned trial judge

had material before him upon which such view

was well open; at the same time, I stress

that I venture that tentative view without

having had the benefit of submissions on it,

or without its being any more than tentative.

MASON CJ: It is somewhat unsatisfactory, is it not, for us

to be considering the first question when, on the

face of it, there is some kind of likelihood - you

would say tentative - that the factual issue would

be resolved against you; a factual issue which, if

resolved against you, would make this point

academic?

MR HUGHES:  It is not entirely satisfactory but it is not

our fault, if I may say so.

DEANE J:  If argument was not heard on it we should really

disregard that tentative view, should we not?

MR HUGHES:  Yes, Your Honour. And the only unsatisfactory

feature of the matter is that if we were

successful, assuming special leave was granted, in

rehearing. But that is a consequence of the way in	the appeal, the matter would have to go back for a
which - - -

DEANE J: For a rehearing by whom?

MR HUGHES:  Well, that would be within the discretion of

this Court, I submit.

DEANE J:  I mean, if there is a finding of recklessness by

the trial judge, there is no way it could go back

to him, it would have to go back to the Court of

Appeal.

MR HUGHES:	No, it would have to go back to another judge.
Johnston	15/2/91
MASON CJ:	The Court of Appeal.

DEANE J: Yes, to consider the factual elements.

MR HUGHES:  The factual elements, yes. Your Honours, I hope

I do not do injustice to the question by the

attempted brevity of the argument but it is, we

submit, a significant question. The only case that

we have been able to find in this country which

deals with a racing context was Bondarenko v

Sommers back in 1968 in the -

MASON CJ: That is a different kind of race.

MR HUGHES:  A different kind of race, yes; a race between

stolen cars, and there has been no conclusive

principle derived from that case.

MASON CJ:  Can you very shortly identify for us one or two

passages in the English authorities which you claim

support you but which the Court of Appeal obviously

regarded as not supporting you?

MR HUGHES:  Yes, Your Honour. May I go to Wooldridge v

Sumner, (1963) 2 QB 43, which is at tab c. There

is the judgment of Lord Justice Sellers at page 57.

This was not a race, it was an equestrian event,

Olympiad. But at the top of the page His Lordship

said:

If the conduct is deliberately intended

to injure someone whose presence is known, or

is reckless and in disregard of all safety of
others so that it is a departure from the

standards which might reasonably be expected

in anyone pursuing the competition or game,

then the performer might well be held liable

for any injury his act caused. There would, I

think, be a difference, for instance, in

assessing blame which is actionable between an

injury caused by a tennis ball hit or a racket accidentally thrown in the course of play into

the spectators at Wimbledon and a ball hit or

a racket thrown into the stands in temper or
annoyance when play was not in progress.

So there is the concept of recklessness or deliberate infliction of harm.

MASON CJ:	What did Lord Justice Diplock say?
MR HUGHES:	I will come to that now, if I may, Your Honour.

First of all, there is page 68. And, of course,

this case, again, was different in degree, perhaps,

from the present case because here a spectator was

Johnston 6 15/2/91

seeking to recover for injuries caused by the out-

of-control horse.	At page 68 His Lordship said
this:

The practical result of this analysis of the application of the common law of

negligence to participant and spectator would,

I think, be expressed by the common man in

some such terms as these:  "A person attending

a game or competition takes the risk of any

damage caused to him by any act of a

participant done in the course of and for the
purposes of the game or competition
notwithstanding that such act may involve an
error of judgment or a lapse of skill, unless

the participant's conduct is such as to evince

a reckless disregard of the spectator's

safety."

The spectator takes the risk because such

an act involves no breach of the duty of care

owed by the participant to him. He does not

take the risk by virtue of the doctrine

expressed or obscured by the maxim volenti non

fit injuria. That maxim states a principle of

estoppel applicable originally to a Roman

citizen who consented to being sold as a

slave. Although pleaded and argued below it

was only faintly relied upon by Mr Everett in

this court. In my view, the maxim in the

absence of expressed contract has no

application to negligence simpliciter where

the duty of care is based solely upon
proximity or "neighbourship" in the Atkinian

sense.

I do not think I need read on except to go to the

last paragraph, Your Honours, at page 72:

The most that can be said against

Mr Holladay is that in the course of and for the purposes of the competition he was guilty

of an error or errors of judgment of a lapse

of skill. That is not enough to constitute a

breach of the duty of reasonable care which a
participant owes to a spectator. In such

circumstances something in the nature of a

reckless disregard of the spectator's safety

must be proved, and of this there is no

suggestion in the evidence.

They are perhaps the best statements in the English

authorities.

I should refer Your Honours to another case in

this folder which is Wilks v Cheltenham Cycle Club,

underneath tab F. This, again, was another case

Johnston 7 15/2/91

involving a plaintiff who had been a spectator at

what was called a motor cycle scramble and the

spectators were in an enclosure adjoining the

course.	At page 670C, Lord Denning had this to
say:

Let me first try to state the duty which

lies upon a competitor in a race. He must, of

course, use reasonable care. But that means

reasonable care having regard to the fact that

he is a competitor in a race in which he is

expected to go "allout" to win.	Take a
batsman at the wicket.	He is expected to hit

six, if he can, even if it lands among the

spectators. So also in a race, a competitor

is expected to go as fast as he can, so long

as he is not foolhardy. In seeing if a man is

negligent, you ask what a reasonable man in

his place would or would not do. In a race a

reasonable man would do everything he could do

to win, but he would not be foolhardy. That,

I think, is the standard of care to be

expected of him.

We were referred to Wooldridge v Sumner.

It is, I think, different. It concerned a

horse show where horses were to display their

paces, but not to race. The riders ought not

to give their horses their heads so as to go

too fast. On that account the decision was

criticized by Dr Goodhart in a note in the Law

Quarterly Review, vol. 78. His criticism may

be justified. But he points out at p. 496, it

is different in a race when a rider is

expected to go "all out to win. In a race the

rider is, I think, liable if his conduct is

such as to evince a reckless disregard of the

spectators, safety: in other words, if his

conduct is foolhardy.

It is perhaps not altogether satisfactory, with

respect to Lord Denning, that there was an implied	analogy between "recklessness" and "foolhardy" but	it would seem, we would suggest, that what
His Lordship was doing was really to equate
"foolhardiness" with "recklessness". Those are the
principal passages.

MASON CJ: But if you look at Lord Justice Edmund Davies, he

seems to take a different view of it.

MR HUGHES:	He takes a different view.
MASON CJ:	And what is more, he seems to take a different

view of Lord Denning as well because he says, at

the bottom of page 673 that he respectfully shares

Lord Denning's difficulty -

Johnston 15/2/91

difficulty in accepting the view there

expressed that a competitor in such events as

this is to be held liable only if he acts in

reckless disregard of the spectators' safety.

MR HUGHES:  Yes. Well, I must accept precisely what

Your Honour the Chief Justice says to me. The

terminology of the judgments is not altogether

perhaps satisfactory but there is a question.	We
have appended to the outline the two American
authorities; one in - - -

MASON CJ:  What is more, Lord Justice Phillimore is against

the view you espouse, is he not, in Wilks?

MR HUGHES:	Yes, in Wilks.
MASON CJ:	And is not Condon v Basi against you?
MR HUGHES:	Not really, Your Honour, because that was a

deliberate foul.

MASON CJ: True, it was a deliberate foul, but is not the

principle enunciated rather in terms of the

standard being "reasonable care in the

circumstances"?

MR HUGHES:  Yes, but that leaves, with respect, for

examination the question what is the content of

that standard in the particular circumstances. The

two American cases, the principal one being in the

Court of Appeals of the State of New York - - -

MASON CJ:  Which one was that, Turcotte?

MR HUGHES: Turcotte, Your Honour. That is underneath

tab H. This case - the reasoning is substantially

reliant upon the concept or principle of implied

assumption of risk but what one might describe as

the policy reasons in favour of limiting the scope

or standard of the duty to recklessness or avoiding

recklessness or avoiding deliberate harm is set out

at page 56.

MASON CJ:  Mr Hughes, can I direct your attention to page 58

of the application book?

MR HUGHES:  Yes, Your Honour.

MASON CJ:  The paragraph commencing at the foot of that

page. Now, what do you say about what

Mr Justice Priestley says there?	I ask that
question because, prima facie, it	appeals to me as
a correct statement.

MR HUGHES:  We do not dispute that. We cannot. Now, that

the Australia Act has long since been· in force,

Johnston 9 15/2/91

judgments of United Kingdom courts are useful only

in so far as their reasoning may be persuasive, and

the same idea applies to a judgment of a court even of such status as the Court of Appeals of the State
of New York. But we can invoke Cook v Cook as some

support for the view that the content or the

standard - the scope of the standard can vary

depending on particular exceptional circumstances.

MASON CJ: But His Honour ended up with the proposition on

page 59:

that the single standard of care remains, but

it shapes what the reasonable response of a

man in the particular situation would be.

MR HUGHES:	Yes.
MASON CJ:	And Mr Justice Priestley took the view that that

is the standard that Mr Justice Finlay applied in

this case.

MR HUGHES:  We would submit, with respect, that that is an undue generalization of the position. As I

endeavoured to say some minutes ago, even if one

goes back to what was said by Sir Frank Kitto in

Rootes v Shelton, one sees that in his judgment

there was a second question as to the scope of the

particular duty of care in the particular

circumstances of the case and that is a question of

law. That is the way I would seek to respond to

what Your Honour the Chief Justice has put to me.

For those reasons, we would submit there is a

question warranting special leave.

MASON CJ: Yes, thank you, Mr Hughes. The Court need not

trouble you, Mr Gross.

The Court is of opinion that the decision of the Court of Appeal is not attended with sufficient

doubt to justify the grant of special leave to

appeal.

You do not resist an application for costs,

Mr Hughes?

MR HUGHES:	No, Your Honour.
MASON CJ:	The application is refused with costs.

MR GROSS: If the Court pleases.

AT 12.04 PM THE MATTER WAS ADJOURNED SINE DIE

Johnston 10 15/2/91