Jones v Yates

[1990] HCATrans 158

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S8 of 1990

B e t w e e n -

SHARON JONES

Applicant

and

GREG YATES·

Respondent

Application for special

leave to appeal

MASON CJ

TOOHEY J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 6 AUGUST 1990, AT 12.50 PM

Copyright in the High Court of Australia

Jones 1 6/8/90

MR R. MCILWAINE:  May it please the Court, I appear for the

applicant. (instructed by Hardings)

MR C.M. BRANSON, QC:  May it please the Court, I appear for

the respondent with my learned friend,

MISS L. McPHEE. (instructed by G. Meadows,

Solicitor to GIO)

MASON CJ:- Yes, Mr Branson.

MR McILWAINE:  Your Honour, this is an application for

special leave to appeal against a majority judgment

of the New South Wales Court of Appeal.

Your Honours, the short point is that the

majority decision denies foreseeability and
causation for heroin-related loss and damage,
arising out of a tortuous act. It is the

applicant's submission, Your Honour, that the

decision, in respect of which special leave is

sought, is in direct conflict with an earlier

decision of the Court of Appeal in the case of

Grey v Simpson, which is an unreported decision of

3 April 1978.

TOOHEY J:  Mr Mcilwaine, is it right to say that the

majority denied foreseeability and causation?

MR McILWAINE: Well, Mr Justice Meagher based his judgment

on the grounds of novus actus. Mr Justice Samuels,

and I must come back to his judgment in a moment,

made certain rulings in relation to the factual
matters and that is something that I need to

address in due course. But what he said was that

if he were wrong in that respect then the plaintiff

was denied damages because she had not satisfied

the causation link, or established a causation

link, and satisfied the foreseeability test.

MASON CJ: Did he say anything about foreseeability?

MR MCILWAINE: Yes, yes he did, Your Honour.

TOOHEY J: Justice Meagher said nothing about

foreseeability, did he?

MR MCILWAINE: Well, not directly, although one can, as it

were, read into his thought process that he

probably would have found against the plaintiff in respect of foreseeability and causation because he

tends. to wrap it all up in a novus actus. He ruled

that the taking of heroin by the plaintiff was a

novus actus and then did not go further.

McHUGH J: Well, he did not say that, did he, it was the

introduction of the stranger that made - - -

Jones 6/8/90

MR McILWAINE: Well, the acceptance of the heroin from the

stranger.· Now, it is the applicant's submission

that that is in direct conflict with the holding in

Grey v Simpson, the decision there being - the lead

judgment there being Mr Justice Samuels in fact,

with whom Justices Hope and Reynolds agreed.

But may I hand to Your Honours four copies of the unreported decision in Grey v Simpson.

TOOHEY J: But when you attack the judgment of the Court of

Appeal - this is what prompted my question to you -

are you attacking a judgment that the particular

component of damages was not foreseeable, which

could be derived from what Mr Justice Samuels says,

or was not caused by the defendant, which is what

Mr Justice Meagher appears to say, or both, which

might be more difficult to extract from the two

judgments.

MR McILWAINE: Well, may I just read what Mr Justice Samuels

says, at page 76 of the application book, he says:

If, on the other hand, the learned judge's

findings of fact are to be accepted -

and I accept that is something that I will have to

return to -

then I agree in the conclusion expressed by

Meagher JA that the respondent has failed to

establish a causal link between the

appellant's breach of duty and her heroin

addition.

Further, I do not consider that this item

of the respondent's damage was reasonably

foreseeable as a consequence of the

appellant's breach of duty.

TOOHEY J: There is no difficulty in.extracting those two

bases from what Mr Justice Samuels says?

MR MCILWAINE:  Yes.

TOOHEY J: The question is what does one extract from what

Mr Justice Meagher says, "beyond the question of

causation", or lack thereof?

MR McILWAINE:  Yes. Mr Justice Meagher, of course, in his

judgment refers to the judgment of

Mr Justice Kirby.	He says, this is on page 80,
Your Honour:

The question which the case poses is whether

the appellant •.•.. is in law responsible for

these consequences.

Jones 3 6/8/90

The consequences being the initial taking and

addition to heroin. He observes the learned trial

judge thought that the plaintiff was and observes

that the president agreed with the learned trial

judge and simply says:

I do not.

When one looks at the judgment which I would seek

to take Your Honours to at the moment? of the

learned trial judge, His Honour there clearly finds

foreseeability and finds that the causal link was

established and the president in his reasons for

judgment accepts that. Mr Justice Meagher goes on

in the next paragraph simply to say that there was

a novus actus. He then - - -

McHUGH J: But he does summarize Beard v Richmond, when he

says that Mr Justice Ambrose:

held that there was no causative link between
the plaintiff's drug addition and the

accident, as it was too remote; her decision

made voluntarily, to embark on what she knew

was the risky course .... was a novus actus.

MR MCILWAINE:  Yes. So if one can - - -

McHUGH J: Well, they are two different concepts, are they

not, remoteness and novus actus.

MR McILWAINE:  Yes. It seems to have been running together.

Now, that may be an accident of expression or

it -

McHUGH J: Well, what is the true view of the law If a

novus actus is reasonably foreseeable can it be

relied on to split the chain of causation?

MR McILWAINE: Well, Your Honour, if there is some

intervening factor which is not foreseeable,

clearly it cannot; if there is a - - -

McHUGH J: If it is not foreseeable then it fails on the

remoteness test?

MR MCILWAINE:  Yes. If there is an intervening cause which

is foreseeable, but not fanciful, with respect

Shirt would then draw the liability to the tortfeasor.

McHUGH J: Well, have you read Mahony's case, Mahony v

Kruschich, you should have a look at that over the adjournment, in 156 CLR and the relative passage is at 528, and this Court seems to have taken a view

that novus actus' question altogether independent

of remoteness.

Jones	4	6/8/90
MR MCILWAINE:	Mind you, if I can just say this:	in Grey

the Court of Appeal ruled that resort to heroin in

circumstances in which we would submit are not

different in any material way to this case, was

foreseeable. I might add, leave was not sought to

reargue Grey v Simpson when this appeal was heard

and it is our submission that the facts are

so - - -

McHUGH J: But they are only questions of fact, are they

not? I mean, it is not a finding of law that the

use of heroin is reasonably foreseeable, it is just

a finding of fact. Another trial judge might take

a different view.

MR McILWAINE: With respect, Your Honour, the problem that

will face practitioners now is that we have Grey v

Simpson saying, on facts which I suggest for all

material purposes are the same as the facts in

Jones, that it is foreseeable and yet we have

another decision of the very same court saying that

it is not.

TOOHEY J: But the facts are quite different in the two

cases, are they not?

MR McILWAINE: With respect, Your Honour, they are not

different in the material sense. In Jones we have

a young woman who was admitted to hospital after an

accident who claims to be in pain and claims that

that pain was unrelieved by the nursing staff

through giving her medication and the like, and

that in due course she accepted heroin from another person in order to relieve the pain. Now, they are the findings that were made by the trial judge.

In Grey, we have a man who suffered pain

through injury and as best one can extract the

findings from the Court of Appeal judgment, at

page 2, Mr Justice Samuels' judgment, he says in

the third paragraph:

persistence of the pain over this long period The plaintiff's account is that the

and what he believed to be unsympathetic

treatment led to his becoming involved in the taking of heroin; and this habit continued -

and so forth. So that, really, we have materially

the same kind of situation.

McHUGH J: Mr Justice Meagher would say it is not because in

Grey's case the plaintiff himself sought out heroin to relieve his pain. What

Mr Justice Meagher seems to be saying is that a

stranger comes on the scene and he is the person

who induces the plaintiff to take heroin.

Jones	6/8/90
MR McILWAINE:	He offers the plaintiff the heroin which she,

in due course, takes. But, with respect, that is

no different from the plaintiff going out and

finding a third person who provides the heroin.

MASON CJ: Mr Justice Meagher says it is because there is an

independent voluntary act on the part of a third

party.

MR McILWAINE:  With respect, Your Honour, there was a

voluntary act in Grey where, albeit that Mr Grey or
whoever the plaintiff was - the plaintiff sought

out a third person so that it is really, with

respect, the same, that there is a third person

providing the heroin.

MASON CJ: Yes, but you see, Mr Justice Meagher regards the

fact that there was an initiative on the part of a

third person as decisive.

MR MCILWAINE:  With respect, Your Honour, we would suggest

that common experience would suggest that - - -

MR BRANSON:  Before the Court adjourns, with Your Honours'

leave, in lieu of the facts set forth in the

affidavit at pages 89 to 90,.my friend and I have

agreed on a statement of facts. Maybe nothing will

turn upon it and I appreciate, Your Honour, this

has been done at the heel of the hunt and I

apologize for that, but might I hand it in,

Your Honour, and subject to any discipline at

2 o'clock - - -

MASON CJ:  Hand it in and we will have a look at it. We

will adjourn now until 2 o'clock.

AT 1.04 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:
MR MCILWAINE:	Your Honours, going directly to that point

MASON CJ: Yes?

that Mr Justice McHugh raised before the break, may

I just make this observation: in Grey

Mr Justice Samuels ruled that a tribunal of fact

would be entitled to find that the plaintiff's

addiction fell within the boundaries of the

foresight test.

Jones 6 6/8/90

Now, true it is that the plaintiff in Grey

apparently sought out the source of heroin where

the plaintiff in Jones had it offered to her while

she was in hospital but nevertheless there was

still the component of a third person, namely a

supplier of the heroin. In my respectful

submission, the means of acquiring it really is not
the relevant feature; the feature being that there

was the introduction of heroin into the equation in

both cases. Now, in Mahony the - - -

McHUGH J: But it may be. Supposing against her will a

stranger, in this case, had injected her with

heroin and as a result she became addicted.	Would
that have been a nevus actus?

MR McILWAINE:  We do not concede that in the circumstances

that it was introduced to her as a nevus actus so
therefore we certainly would not concede that, in

the example that Your Honour gives, there is a

novus actus. Bear in mind, of course, that this

was not just an occasion where heroin was offered

to her in the ordinary course; it was offered to

her in circumstances where she was in unrelieved

pain as was found by the trial judge.

McHUGH J:  Can you rely on that fact now, having regard to

this statement of agreed facts? You seem to have

abandoned all of the facts in your favour.

MR McILWAINE:  No. What that statement of agreed facts

simply does is to take out of the equation the

facts that, if I can put it this way, were

controversial. It is not sought by letting that

document·in in any way to abandon the findings made

by the trial judge.

MASON CJ: Well, it seems a rather useless document in the

circumstances.

TOOHEY J: Especially as it points up that the injection

took place on the day before discharge.

MR MCILWAINE: Well, that is correct.

TOOHEY J: Which is a curious circumstance if the appellant

was, in fact, suffering unrelieved pain as was

suggested.

MR McILWAINE:  Indeed, and that was the whole point, of

course, that throughout the entire time that she

was there, particularly in the latter part, it is

her evidence that the pain was unrelieved because
the nursing staff were not paying heed to her
request for medication and the evidence is that

this man came on three occasions and on the first two occasions she rejected the heroin. It was on

Jones 7 6/8/90

because of the fact that her pain remained	the third occasion, so the trial judge found,
unrelieved, that she succumbed.

TOOHEY J: Although she was to be discharged from hospital

the following day apparently able to return home.

MR McILWAINE:	Yes, but nevertheless we still have those findings by the trial judge, and I understand
Mr Justice Samuels found fault in those findings
but that is another issue.

McHUGH J: Well, that does not count. You have still got

the findings in your favour.

MR McILWAINE:  Yes. But she is, with respect, no different

to the plaintiff in Grey who, apparently, well

after discharge and well back living within his
ordinary form of society sought out heroin because

of unrelieved pain. So, the real question is

whether - and it is the same question, with

respect, in both cases - the resort by an injured

plaintiff to a narcotic, heroin, to relieve the

otherwise unrelieved pain is foreseeable. Now,

Mr Justice Samuels in Grey found that it was.

McHUGH J: Well, you say it is foreseeable.

Mr Justice Meagher, he let that question go through

to the keeper. He said that whether it was

foreseeable or not, it was a novus.

MR McILWAINE: Well then, with respect, Mr Justice Meagher

falls foul of what was said in Mahony because in

Mahony at page 528 - if I can hand some copies up -

the second paragraph on page 528:

A negligent tortfeasor does not always

avoid liability for the consequences of a
plaintiff's subsequent injury, even if the
subsequent injury is tortiously inflicted. It
depends on whether or not the subsequent tort

and its consequences are themselves properly

to be regarded as foreseeable consequences of

the first tortfeasor's negligence. A line

marking the boundary of the damage for which a

tortfeasor is liable in negligence may be

drawn -

and I appreciate the next

McHUGH J: It is the next sentence that is - - -

MR McILWAINE: Well, at first, when one reads that, one

stands back a bit but one has to go on and that is

what I would wish to do, to take you further:

Jones 6/8/90

because the relevant injury is not reasonably foreseeable or because the chain of causation

is broken by a novus actus.

Well now, one is horrified when one gets to that

point but one goes on - - -

McHUGH J:  You would be more horrified if you read the

actual decision which they cite which is against

you.

MR McILWAINE:  Yes, but if one goes on in the expression of

the High Court:

But it must be possible to draw such a line

clearly before a liability for damage that

would not have occurred but for the wrongful

act or omission of a tortfeasor and that is

reasonably foreseeable by him is treated as
the result of a second tortfeasor's negligence

alone.

And then it is developed - - -

MASON CJ: What about the next sentence?

MR McILWAINE: Well, that was a different situation, with

respect. More analogous to our situation is what is

referred to on - - -

MASON CJ: Yes, but the proposition is that whether the line

can be drawn is very much a question of fact and

degree.

MR MCILWAINE:  Yes.

MASON CJ: And that is the problem in these cases, is it

not?

MR McILWAINE:  Except here we have a ruling of an

intermediate Court of Appeal on facts which, we

submit, are sufficiently the same as the facts in

the present matter to fall within the ruling of

Mr Justice Samuels, that it is foreseeable and yet

in - - -

McHUGH J:  Not foreseeable; only one of

Mr Justice Samuels. What you have got is two

judges, Mr Justice Meagher and Mr Justice Samuels

who said that this was a novus actus and that is a

question of fact and degree. So, you have got this

finding of fact. Why should we give you leave to

appeal against a finding of fact which is always

one of fact and degree?

MR McILWAINE: For this reason, Your Honour, that we now

have in this State, in New South Wales, two

Jones 9 6/8/90

decisions of the Court of Appeal which, on the face of it, appear to be in conflict because the factual

circumstances are so similar that it would be

difficult to resolve the findings in Grey where the
other two justices agreed with Mr Justice Samuels

to the findings in Jones - - -

McHUGH J: But this Court would be taking a large burden on

itself to set itself the task of reconciling
inconsistent findings of fact between various

divisions of the intermediate courts of appeal.

MR McILWAINE:  But that is the point I am making, with

respect. One must approach it on the basis that

the findings of fact are essentially the same. It
is the application of principle to those findings
of fact where the error has occurred and
importantly, in terms of demonstrating that this is

a case which is suitable for special leave, we have

that application made by the same court in

different ways.

It may be convenient if I take you to the

findings in Jones to demonstrate that in all

material senses those findings upon which the court

have applied principle are materially the same.

MASON CJ: It is fairly obvious, is it not, that the

majority in the Court of Appeal took the view that
it was critical in the earlier case that the
psychological problem was a direct consequence of
the tortious act or omission and that the addiction

to heroin flowed directly from that psychological

problem whereas, in this case, the majority took

the view- that you could classify the addiction as
the consequence of a novus actus because it came
about as a result of the intervention and

importunes of a third party?

MR MCILWAINE:	But that is not consistent - - -
MASON CJ:	Now, it may not be a very satisfactory

distinction in terms of fact but that, none the

less, is the distinction that they have made.

MR MCILWAINE:  Yes, and that is a distinction, with respect,

that was not available to be made when one looks at

the findings of fact of the trial judge.

MASON CJ: Maybe, but why should we be concerned about that?

MR McILWAINE: Because this could well, with respect, in the

future lead to a great deal of confusion in the

State of New South Wales when people - .- -

MASON CJ: But do you expect an intermediate court of appeal

to work out solutions that eliminate, as a possible

Jones 10 6/8/90

source of confusion, distinctions that they have

drawn on the facts between particular cases. You

do not expect the High Court to be called upon to

intervene to do that.

MR McILWAINE:  No, but what I am submitting is that when one

accepts that the facts are so materially the same

that it points up a wrongful application of

principle so much so that it is going to be

difficult for people in the future confronted with

these two decisions to know which way to point

their advice.

McHUGH J: They are simply questions of fact. I mean,

surely, trial judges do not look at other decisions

to decide questions of fact, do they? They decide

questions of fact on the evidence, not on what some

other court said about some similar -

MR McILWAINE:  Indeed, Your Honour, but if one were to look

at the these two decisions, if one were to advise a

client and one were to have these two decisions

before them and have to decide whether they were
able to advise whether it was foreseeable or not,

they would be confronted with a dilemma because

when one looks at the factual circumstances in both

cases, one would not be able to say that one is

different to the other.

McHUGH J: Supposing we reversed the court of - we gave

leave, there would be nothing to stop a court of
appeal then refusing to follow us. What we say on

a question of fact is not binding on them.

MR McILWAINE:  No, but what this Court could restate or

perhaps state for the first time in relation to

these questions of the introduction of narcotics is

that it is a foreseeable consequence arising from

injury at the time that we are concerned with, and

that is just not car accidents, it could be any

other form of injury.

McHUGH J:  On the question of fact, this case has got a very

narrow operation, has it not? I mean, on

Mr Justice Meagher's reasoning with which

Mr Justice Samuels agreed, your client failed

because a stranger came along and initiated your

client into the use of heroin. Any other case

falls within Grey v Simpson.

MR McILWAINE:  But we submit that that is an incorrect

application of principle and should be so stated by

this Court because it is submitted that it is a

foreseeable consequence of someone reacting to pain

as the plaintiff in - - -

McHUGH J: Well, that means then you want to attack Mahony?

Jones 11 6/8/90

MR MCILWAINE: Well, Mahony, with respect - - -

McHUGH J:  Mahony says there is a dichotomy. Remoteness -

foreseeability is one issue; nevus actus is another

and in that respect Mahony is a gloss on Wagon

Mound (No 1).

MR McILWAINE:  But Mahony also, with respect, says that -

and it uses the example because it was a medical

negligence case, of the medical negligence

situation - if there is the intervention of further

medical treatment which exacerbates the condition,

that can be visited back to the original tortfeasor

because it is reasonably foreseeable that injured

persons will, in the ordinary course of events,

seek medical treatment.

Now, Mahony is not the proposition that that

amounts to a novus actus and it is our submission or

the applicant's submission in this case that there

is a need for a clear ruling from this Court,

because of the decisions in Grey and in Jones, that

the introduction of some other form of pain relief

such as a narcotic -

McHUGH J:	I understand what you are putting but it is not the way they have decided it. What they have said
is that this heroin addiction is not the direct
result or a natural result, whatever you like to
say, of the injury which your client sustained. It
is the result of a stranger coming along and for
some purpose or other deciding to initiate your
client into the use of heroin, as a result of which
she became addicted. So, the majority of the Court
of Appeal said that was a novus actus. Well, it
may be right, it may be wrong, but it is only a
question of fact, is it not?

MR MCILWAINE: Well, with respect, it goes more than just

to a question of fact, but even if it is only a

question of fact it is a matter of substantial

importance in contemporary Australian society to

have this issue resolved by the High Court. As the

President point out, sadly, this kind of thing is

going to happen - perhaps increasingly going to

happen in our contemporary society and it is

something that really ought to be resolved by the

High Court.

MASON CJ: Well, that is as far as you can take us, is it

not?

MR MCILWAINE:  Yes. We were also seeking leave to appeal on

that question of reassessment but I do not think

that can be said to be - - -

Jones 12 6/8/90

MASON CJ:  I do not think we would find that particularly

appealing; Mr Mcilwaine.

MR McILWAINE:	No, I do not think so, Your Honour.
MASON CJ:	The Court need not trouble you, Mr Branson.

MR BRANSON: If the Court pleases.

MASON CJ: 

In order to succeed in the proposed appeal, the

applicant must establish that the majority in the
Court of Appeal was wrong in holding that the

applicant's addiction to heroin was the consequence

of a nevus actus in the form of the intervention

and importunings of a third party.

Whether the majority was correct in so

concluding is a question of fact and degree. This

is not a question appropriate for the grant of

special leave.	The application is therefore
refused.

MR BRANSON:	We ask for costs, if the Court pleases.
MASON CJ:	And you cannot resist, Mr Mcilwaine?
MR McILWAINE:	No.
MASON CJ:	The application is refused with costs.

AT 2.20 PM THE MATTER WAS ADJOURNED SINE DIE

Jones 13 6/8/90