Kathryn Strong and Woolworths Limited T/As Big W ABN 000 014 675 v CPT Manager Ltd ABN 054 494 307

[2011] HCATrans 194

[2010] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S172 of 2011

B e t w e e n -

KATHRYN STRONG

Appellant

and

WOOLWORTHS LIMITED T/AS BIG W ABN 000 014 675

First Respondent

CPT MANAGER LTD ABN 054 494 307

Second Respondent

FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 AUGUST 2011, AT 10.02 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friends, MR T.J.J. WILLIS and MR E.G. ROMANIUK, for the appellant.  (instructed by Leitch Hasson Dent Lawyers)

MR J.E. MACONACHIE, QC:   I appear with MR P. BIGGINS for the respondent, if your Honours please.  (instructed by Bartier Perry Solicitors)

FRENCH CJ:   Thank you.  There is a submitting appearance for the second respondent.  Yes, Mr Toomey.

MR TOOMEY:   That is so, your Honour.  Your Honours, the appellant was a 50‑year‑old woman who had suffered an amputation because of bone cancer at the age of 20, who entered the CPT centre at Taree on a day in September 2004 at about lunchtime.  She entered an area outside the Big W store which was having what is called a “sidewalk sale”, that is, in an area of the common space which had been dedicated to Woolworths for this purpose.  There were lines of pot plants which were a sort of daily special for sale, as it were, and they formed a corridor which directed anyone who went into the main doors of the Big W store.  Mrs Strong entered that corridor, with her daughter and another woman, on crutches and the tip of her crutch came into contact with a chip on the floor as a result of which she fell and suffered severe spinal injuries made more serious by the fact that it affected her core musculature which she had built up to overcome the deficits caused by her amputation.

The area of the sidewalk sale was within some metres of a food court.  The food court had been open since 8 o’clock in the morning.  The accident happened about 12.30.  So there had been a period of about four and a half hours.  The cleaning of the area of the sidewalk sale where the accident happened was not covered by the contractual cleaning of the centre; it was the responsibility of Woolworths.  Woolworths conceded in the case and the appeal was run on the basis that on the day in question there was no system of cleaning in place to prevent any material, such as that on which the appellant slipped, from being on the floor.  The ultimate factual question in the case resolved itself into whether there was evidence that a proper system, if it had been enforced, would more probably than not have prevented the plaintiff’s injury.

I might say, your Honours, that it could be instructed and I say this only because of one matter which I see in my learned friend’s outline of argument where he refers to no evidence of a history of spillages.  That, of course, would go to duty and/or breach, but if one goes to page 422 of the appeal book, one will see that a heavy emendation of the grounds of appeal left the only ground of appeal as being:

His Honour erred in finding that the First Respondent had established a causal –

nexus and one must assume that that means that breach of duty was conceded, as is my understanding of the manner in which the appeal was conducted.  So that was the sole ground on which the case proceeded.

I should say one other thing, your Honours.  We concede that the trial judgment was unsatisfactory.  It did not direct itself to section 5D, indeed it did not direct itself to the Civil Liability Act at all, and the method of making findings was also unsatisfactory.  However, we would point out that there is no complaint in the ground of appeal directed to that fact.  The only complaint made by the respondent in the Court of Appeal was on causation.  The judgment in the Court of Appeal was given by Justice Campbell with Justices Handley and Harrison agreeing.  On page 443 of the appeal book at paragraph 44 of the Court of Appeal judgment Justice Campbell said:

At common law, a “but for” test had a role (though “subject to qualifications”) as a “negative criterion of causation” – i.e., if one could not conclude (on the balance of probabilities) that the harm would not have happened but for the negligence, then (subject to those qualifications) one could not conclude that the harm was caused by the negligence –

Then his Honour sets out the provisions of section 5D(1) of the Civil Liability Act which deals with factual causation in 5D(1)(a) and scope of liability in 5D(1)(b).  His Honour went on to say:

Before a court makes a finding “that negligence caused particular harm” –

which of course is taken from the introductory lines of the section –

section 5D(1)(a) Civil Liability Act identifies, as one of the two elements that must usually be proved, “that the negligence was a necessary condition of the occurrence of the harm”.  “Negligence” there has its defined meaning, arising from section 5 Civil Liability Act, of “failure to exercise reasonable care and skill”.  The statutory test for causation thus usually requires a decision about whether failure to exercise reasonable care and skill was a necessary condition of the occurrence of the harm.  (I say “usually requires” because section 5D(2) recognises that there can be an “exceptional case” . . . However, it is not contended that the present is an “exceptional case” within the meaning of 5D(2).).  Test for causation under 5D(1)(a) has some measure of continuity with the previous common law, because if A is a necessary condition for the occurrence of B, one can always say that B would not happen but for A. 

When causation was decided according to the common law, it was held that a defendant having materially increased the risk of an injury of a particular type occurring is not the same as the defendant having materially contributed to (and thus, according to the common law, caused) a particular injury of that type that has occurred:  Bendix Mintex –

Your Honours, I should point out that that is incomplete to the extent that Bendix Mintex said that if there was a material increase in risk and that risk came home, that was enough for a plaintiff to succeed.  So the phrase of effect “and the risk came home” is omitted by his Honour there.  At paragraph 48, his Honour said:

Now, apart from the “exceptional case” that section 5D(2) recognises, section 5D(1) sets out what must be established to conclude that negligence caused particular harm.  That emerges from the words “comprises the following elements” in the chapeau to section 5D(1).  “Material contribution”, and notions of increase in risk, have no role to play in section 5D(1).  It well may be that many actions or omissions that the common law would have recognised as making a material contribution to the harm that a plaintiff suffered will fall within section 5D(1), but that does not alter the fact that the concepts of material contribution and increase in risk have no role to play in deciding whether section 5D(1) is satisfied in any particular case.

I read his Honour to be saying that you may have facts which do establish what needs to be established and which touch on elements of material contribution and increase in risk, but ‑ ‑ ‑

CRENNAN J:   Your complaint about this I think is picked up in paragraph 24 of your written submissions.

MR TOOMEY:   Yes, your Honour.

CRENNAN J:   What I wanted to ask you about that is, when his Honour says that acts or omissions which would once have been spoken of as material contributions to the harm may fall within section 5D(1), is his Honour recognising that necessary contribution includes actions or omissions which once might have been described as making a material contribution to harm?  I am asking that because paragraph 24 of your written submissions seems to suggest that the purport of what his Honour is saying is that “necessary condition” in the section does not include material contribution, whereas I rather thought, and would be assisted if I am wrong, that what he was saying was the correct question to now ask is whether or not the act or omission complained of is a necessary condition rather than to frame the question in terms of material contribution, but act or omissions that could be described as material contribution at common law may well be a necessary contribution.

MR TOOMEY:   May I take it your Honour is suggesting that perhaps it is a matter of description, to an extent?

CRENNAN J:   Yes, that his Honour is directing attention to the need to frame the question of causation now in terms of the Act.

MR TOOMEY:   We would say that that would seem to be contrary to the words used:

“Material contribution”, and notions of increase in risk –

CRENNAN J:   There is a tension in the sentence, I accept that.

MR TOOMEY:   Yes, there definitely is, because – your Honour, with respect, may be right.  He may be saying, you do not pose the question of the material contribution but then he goes on to say not, and you do not pose the question in the words of increase in risk.  He says, “notions of increase in risk” have no part to play, but, with respect, we agree that there is a tension in the sentence.  His Honour then went on in paragraph 49:

It is only if the “necessary condition” test in section 5D(1)(a) is satisfied that there can be causation within the meaning of section 5D(1).  That is because section 5D(1)(b) poses a further test (ie, that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused), that is to be applied even if the “necessary condition” test is satisfied.  In other words, section 5D(1)(b) operates as a means by which causation might not be found, even if the “necessary condition” test of section 5D(1)(a) were to be satisfied.

We say, and it probably does not matter, that in fact the first sentence of that paragraph seems to be wrong, there can only be causation within the meaning of section 5D(1) if after the application of section 5D(1)(b) it is found that it falls within the scope of liability.  It is not enough that you have 5D(1)(a).

FRENCH CJ:   Section 5D(1)(a) is a necessary condition of liability.

MR TOOMEY:   Yes.

FRENCH CJ:   And then, attribution of legal responsibility comes through 5D(1)(b), that is how it works.

MR TOOMEY:   Yes, that is correct, your Honour, but in any event, it is probably only my misreading of his Honour’s words.

GUMMOW J:   This expression “necessary condition” where does that come from?  What is the provenance of it?

MR TOOMEY:   I am sorry, your Honour?

GUMMOW J:   What is the provenance of it outside paragraph (a)?  I do not think the people drafting this were writing on a blank slate.

MR TOOMEY:   No, your Honour, of course not.

GUMMOW J:   What is on the slate does not ‑ ‑ ‑

MR TOOMEY:   Your Honour, it pops up all over the place.

GUMMOW J:   Is it another way of saying without which it could not have happened, but then, that is not enough because there are a lot of things, as we know, that would be caught?

MR TOOMEY:   Yes.

FRENCH CJ:   It is the distinction between causality and causation, is it not, the latter involving the normative judgment.

MR TOOMEY:   The legal distinction, yes, your Honour.

GUMMOW J:   If that is right, does 5D(1) do any more than restate succinctly what everyone knew?

MR TOOMEY:   It has been so interpreted, your Honour, by the New South Wales courts before this case and the New South Wales Court of Appeal had said, well, it just states the common law.

GUMMOW J:   Has said what?

MR TOOMEY:   It states the common law.

GUMMOW J:   Yes.  A real bite of 5D is in subsection (2) which is designed to deal with the difficult asbestos cases and so on in the United Kingdom, I suppose.

TOOMEY:   Yes, your Honour.  If I can say so, there seems to be ‑ ‑ ‑

GUMMOW J:   Does Justice Campbell depart from that view of the structure of the section?  You say he does, I think.

MR TOOMEY:   We say that if he is saying, as we say he is, that in determining causation in this common law case you are not allowed to rely upon the fact of material contribution or the fact of increase in risk then he is departing very radically from it.

FRENCH CJ:   Let us just ask how that fits into the words of 5D(1)(a).  Take the easier case first of increase in risk.  You increase risk but if the risk does not eventuate or come home, to use the expression you used, then you do not have ‑ ‑ ‑

MR TOOMEY:   It was not ours, your Honour.

FRENCH CJ:   I am sorry?

MR TOOMEY:   It was not our expression.

FRENCH CJ:   Okay; it does not come home.

MR TOOMEY:   No.

FRENCH CJ:   Then you do not have causality established.  In other words, you do not satisfy 5D(1)(a).  Maybe you come in under (2), but you do not get in under (1)(a).  The question then is, what does material contribution encompass?  Does it encompass something which is one of, perhaps, a complex of causes, and then the question is simply can such a cause‑effect relationship fall into the category of necessary condition – satisfying a necessary condition – for the incurring of the injury or the damage?

MR TOOMEY:   Yes, your Honour.

FRENCH CJ:   It all reduces to the same question, the statutory question, in a sense, does it not?

MR TOOMEY:   It does, and if section 5D(1)(a) is to be read in the way in which Justice Campbell says it is, and if that has an effect on multiple causes, that is a very radical change to the law indeed.  It might be a help if I were to take your Honours to a statement in Charlesworth ‑ ‑ ‑

FRENCH CJ:   You can have more than one necessary condition for an event.

MR TOOMEY:   Indeed.  With respect, there cannot be any doubt about that.

FRENCH CJ:   So you can have multiple causes which satisfy 5D(1)(a).

MR TOOMEY:   That is what we say, but we say that it does not sit necessarily with what Justice Campbell said.

FRENCH CJ:   The question whether a material contribution fits into 5D(1)(a) is answered by asking whether it is one of a number of causes which are necessary conditions of the event.

MR TOOMEY:   Yes.  We have set out in our submissions a fair amount of stuff about what has been said in this Court and in the House of Lords about what constitutes causation, particularly in the consideration of material contribution.

FRENCH CJ:   In this case that would reduce to the question, would it not – and maybe I am oversimplifying it – whether, if there had been a cleaning system in place, the probabilities are that the chip would not have been there and Mrs Strong would not have suffered her injury?

MR TOOMEY:   Yes, your Honour, as one of a number of causes ‑ ‑ ‑

FRENCH CJ:   Yes, somebody dropped the chip and all sorts of other things happen.

MR TOOMEY:   Yes, your Honour, but also that question could be framed in terms of increase in risk because a breach was not in question.  There was no system so the duty to Mrs Strong had been breached.

FRENCH CJ:   A free‑floating risk does not get you into cause‑effect ‑ ‑ ‑

MR TOOMEY:   No.

FRENCH CJ:   ‑ ‑ ‑ it crystallises into an event.

MR TOOMEY:   I was about to say, your Honour, there was no system, and by reason of there being no system, the floor was not kept clean and Mrs Strong fell, but that is not the free‑floating risk, that is the risk as capped by, and the risk comes home.

FRENCH CJ:   You are simply asking the question, as a matter of inference of the balance of probabilities, would this have happened but for that?

MR TOOMEY:   Yes, but your Honours, can I say this?  This case has caused a huge fluttering in the dovecotes in New South Wales, where a differently constituted Court of Appeal has disagreed with this statement, and other judges sitting as single judges have also expressed one has “profound disagreement” with the proposition.

GUMMOW J:   Well, we have got to make up our own mind.

MR TOOMEY:   You do.

GUMMOW J:   Where does the notion of material contribution fit in?  It just fits into paragraph (a), does it, of 5D(1)?

MR TOOMEY:   Yes, your Honour.

FRENCH CJ:   You can take away that label and just say, was it a cause of the event?

MR TOOMEY:   As a necessary condition.

CRENNAN J:   It is capable of being a necessary condition.

MR TOOMEY:   Yes, your Honour.  But you see, that is turning it one way.  If you turn it the other way, you say material condition – and this is perhaps going back to the argument Justice Crennan put to me earlier – if it is the concept of material contribution which is removed, then that is serious, because the concept of material contribution, as we hope we have demonstrated in our submissions, is deeply embedded in the concept of causation, it is part of a causation.  I was going to read to your Honours a passage from Charlesworth on Negligence.  I found this by chance in the sixth edition, which is one of Mr Percy’s editions.  It is only a sentence, but if I could ‑ ‑ ‑

CRENNAN J:   Page number?

MR TOOMEY:   It is the sixth edition of Charlesworth on Negligence, page 226 at about point 5, your Honours, and it is under a shoulder‑heading “Principle cause of the accident” and it sets out what was said by Lord Reid in Bonnington Castings v Wardlaw.

GUMMOW J:   Lord Reid seems to have got that from Scotland.  There are a whole lot of Scottish cases before that using this notion, where there were – take a situation where there is a polluted river, there are a number of factories spewing out noxious substances.  The plaintiff cannot pinpoint one to the exclusion of the others, but each seems to be materially contributing, and that seems to be enough.

MR TOOMEY:   Yes, your Honour.

GUMMOW J:   That seems to be the idea.

MR TOOMEY:   Yes.  Your Honour, can I say this?  I was going to come to this later, but since your Honour raises it, Lord Keith of Avonholm in ‑ ‑ ‑

GUMMOW J:   Well, he is a Scot too, you see.

MR TOOMEY:   He is a Scot, indeed, as Lord Reid was, but Lord Keith described “material contribution” as a material contributing cause.  It pins it to what it is supposed to be, and we say using that phrase makes it very much clearer.  I am sorry, getting back to Charlesworth, after setting out the famous passage from Lord Reid’s speech, where he said any contribution which was not de minimis was material, the text continues:

It follows that in an action for damages for breach of statutory duty or negligence it is not necessary to prove that the breach alleged was the whole or even the main cause of the accident, but it is sufficient to show that it materially contributed to the damage.

GUMMOW J:   What is the force of the adjective “material”?

MR TOOMEY:   I suppose one has to go back to Lord Reid, your Honour, where he says if it is not de minimis, it is material. 

GUMMOW J:   Yes.

MR TOOMEY:    It would have to mean has some effect, would it not, your Honour, having some effect?

FRENCH CJ:   That raises.....main cause.  If you have got a sequence of events, a chain of events, and if one of them did not occur, the accident would not have occurred.  They are all, in a logical sense, I suppose, of equal weight.

MR TOOMEY:   Your Honour, with respect, is getting back to Stapley v Gypsum Mines where Lord Asquith said we are not philosophers.

FRENCH CJ:   I thought I was just talking ordinary logic, but ‑ ‑ ‑

MR TOOMEY:   We do not follow philosophical cause, we follow legal cause and ‑ ‑ ‑

FRENCH CJ:   That is on the causation assessment.  That is (b), I am talking (a).

MR TOOMEY:   Yes, your Honour, quite.  But the material contribution must be a contribution which has an effect and then whether it is sufficient to be said to have, or to be comprehended by the law, as said in (b).

FRENCH CJ:   Whether it has legal consequences, yes.

MR TOOMEY:   Yes that is (b).

CRENNAN J:   Mr Toomey, can I ask for this assistance.  How do the paragraphs 47 and 48, in which his Honour discusses material contribution, play into the conclusion of his Honour, paragraph 67 of his judgment?

MR TOOMEY:   Your Honour, if you go to paragraph 52 of the appeal judgment at page 446, you will see the heading “Was Section 5D Applied?” and his Honour decides it was not:

the judge has not decided the case in the way the statute requires.

Then he says in the last two sentences –

When the judge has not addressed the questions the statute requires to be addressed, his conclusion cannot stand.  This Court must examine the question of causation of damage for itself.

There then follow 18 paragraphs, 10 of which are devoted to a question which does not arise in this appeal, and that is section 5E, the onus section.  The only mention of section 5D appears to be in paragraph 64 in which his Honour effectively says that the test or a test or a statement made in a judgment which could be read to be a test from Hampton Court Ltd v Crooks appears to validate the “necessary condition” test of section 5D(1)(a).  In other words, what his Honour seems to be saying is, “Well, I have said that we have got to rehear it because section 5D was not applied”, and then he, in fact, refers to 5D only in that passing glance to say, we say, that section 5D and the common law are the same, which we say is also inconsistent with his statement that material contribution and increase in risk are not part of 5D.

BELL J:   There may be some ambiguity about paragraph 48 of his Honour’s judgment, but it does seem that this case does not, on its facts, raise the sorts of causation difficulties that a consideration of material contribution and section 5D might give rise to.  It is a slipping case and, as far as I could see, when one gets to the nub of his Honour’s reasoning, it is very difficult to see how he is adopting an approach different to the approach that might have been taken before the enactment of Civil Liability Act and, as I understand it, you do not cavil with that?

MR TOOMEY:   No, your Honour.

BELL J:   So that when one comes to an analysis of whether his Honour arrived at the wrong conclusion, we are not really looking at the issue raised as to material contribution and his Honour’s observations in paragraph 48.  It is the correctness of his analysis at paragraphs 66 and 67, is it not?

MR TOOMEY:   Well, ultimately it comes to that, but your Honour, can I read to your Honours from our outline of oral submissions.  We say, at paragraph 4, it is difficult to isolate the precise manner in which the Court of Appeal used what the appellant submits was its wrong reading of section 5D.  Although Justice Campbell referred in [52] to the need for the court to examine the question of causation of damage for itself, section 5D is mentioned only once in the succeeding 18 paragraphs, and I have already taken your Honours to that. 

We then go on, the appellant is thus in the position where (1) the Court of Appeal found it must determine causation for itself because the trial judge had not applied section 5D; (2) the Court of Appeal had adopted a particular restrictive reading of section 5D(1)(a) which the appellant wishes to challenge; (3) presumably the Court of Appeal applied that reading in its determination of causation, but (4) it is not possible for the appellant to identify with any precision from the judgment how that application was made or even what it was.

CRENNAN J:   It is a complaint about reasons.

MR TOOMEY:   Well, to an extent it is, your Honour, but we do not want to be foisted with that in the sense that we do not want it to turn only on reasons because we want to get to the point that Justice Bell raised that ultimately it gets to the question of whether the analysis was right.

BELL J:   It was common ground that the primary judge simply did not direct attention to causation, I think, so that the starting point for the Court of Appeal’s analysis was inevitably it was necessary for it to turn to causation, the proper starting point since the Civil Liability Act is section 5D.  There is some analysis of the operation of that provision, but then the court proceeds, when one looks at its reasoning, to what I might describe as a conventional analysis of causation, not suggesting that the court has taken into account any limiting factor under 5D in resolving that issue against the appellant.

MR TOOMEY:   Your Honour, it seems perhaps the only factual manner in which it might have been applied is if their Honours thought that material increase in risk by the absence of a system either did not apply or applied in some modified way because it was not covered by section 5D(1)(a).  Because ultimately, if you analyse the facts, I suppose what you say is, breach of duty is admitted, so a danger was created by the failure to have a system to take care for people who came into the supermarket.  The appellant’s argument is, “Because there was no system, this stuff was allowed to remain on the floor.  I fell on it and I grossly injured myself”, which can be fitted in within what Justice Campbell seems to say is not part of 5D.  He says he is applying 5D, although, with respect, the various statements, the various questions asked of us which suggest that it is really just a common law test seem to us to be right, but we do not know.

CRENNAN J:   Are you saying that the right question is whether, if there had been a proper system in place, whether more probably than not that would have prevented the injury, so that one does not focus on how long the chip has been on the floor in circumstances where there is no proper system in place?

MR TOOMEY:   There are two theories – I am sorry, two suggested ‑ ‑ ‑

CRENNAN J:   Analyses.

MR TOOMEY:   ‑ ‑ ‑ analyses, your Honour, and they both appear in the Victorian case called Kocis, and in Kocis Justice Hayne said you have got to apply probability theory and you can overcome the lack of direct knowledge by saying, well, a proper system – his Honour in fact gives an example.  He says there is no cleaning for eight hours, a proper system of cleaning would be every hour, someone slips on something at the end of eight hours it is seven to one – and in the absence of some particular distinguishing factor, the odds are seven to one that the material fell between hour one and the start of hour eight – the start of hour one and the start of hour eight, rather than that it fell during hour eight.  That is the example Justice Hayne gave.  That is probability theory.

Justice Phillips, as he then was, who was also on the Victorian Court of Appeal which decided Kocis, dealt with that but he also took a broader view which was, look, if you prove that (a) there was a complete failure of a system to safeguard people and injury occurs, in the absence of something pointing against it, you may find causation.

CRENNAN J:   I think you picked that up on page 425, just below line 15.

MR TOOMEY:   I am sorry, your Honour, I do not have your Honour’s ‑ ‑ ‑

CRENNAN J:   I am sorry, I was just assuming you were referring to [1998] 3 VR.

MR TOOMEY:   I thought your Honour was referring to the appeal book.

CRENNAN J:   I beg your pardon, no.  I thought you were still talking about Justice Phillips’ analysis.

MR TOOMEY:   That is so, your Honour, and we reproduce that in our submissions, between paragraphs 28 and 32 of our submissions we deal with Kocis at some length and we set out the different ways in which the question was approached.  Justice Phillips’ approach is particularly set out at page 11 of our submissions just below the black “10” in the margin:

Phillips JA, in considering the probability theory approach discussed in Rose –

that was a New South Wales case –

stated:  ‘That having been said, I confess to finding some difficulty in seeing how it was more probable than not that the spillage in question occurred before 2.50pm.

In Rose there was a period of an hour and there should have been three cleaning intervals:

It may be that because 60 minutes is three times as long as 20 minutes an oil spill was more likely to occur within the space of one hour than within the space of 20 minutes –

That was a case where the New South Wales Court of Appeal decided that on that basis they could find a garage owner liable for a person slipping on oil in the garage when the garage floor had not been cleaned for an hour and it was agreed that an appropriate period of cleaning would have been 20 minutes.  Justice Phillips went on:

It may be that because 60 minutes is three times as long as 20 minutes an oil spill was more likely to occur within the space of one hour than within the space of 20 minutes – although even that inference depends upon an assumption that the conditions affecting spillages, such as traffic use, remain constant.  But if that inference can be drawn, it says nothing, to my mind, about the time at which any particular oil spill actually occurred, whether on the balance of probabilities or otherwise.  Beyond the mere passage of time, there was nothing in the evidence to make it more probable that the oil on which the plaintiff slipped was in fact spilled before 2.50pm, rather than after it.

This is the passage I want particularly to direct your Honours’ attention to:

But why was it necessary to resolve that question?  It would surely have been sufficient – and therefore appropriate, with respect – to have posed the question of causation more directly, as I have suggested, with reference to the defendant’s negligence, which was in failing to carry out any inspection for an hour, not just 20 minutes.  Suffice it for present purposes to say that the answer to that question need not have depended upon determining whether the oil was spilt before or after 2.50pm –

We have taken the liberty of applying our own labels to those two different approaches – the confined approach of Justice Hayne and the broad approach of Justice Phillips.

BELL J:   You need in the circumstances of this case to depend on the broad approach, do you not, because Justice Campbell provided reasons on the narrow or probability based approach for the conclusion that the appellant had not made good her case?

MR TOOMEY:   Your Honour, unless we can successfully attack Justice Campbell’s reasons for saying there ought to be a differentiation, we do, but we have something to say on the basis of Justice Campbell’s factual conclusions.  He made no analysis.  He simply said, in effect, well, it was lunchtime and that is a time when people eat chips.  He relied on a fact which was doubtful and probably not available to him.  He said, in paragraph 68 of the Court of Appeal judgment, that:

The fact that the cleaning contractor engaged a second cleaner, with special duties that included (but were not confined to) attending to the food court area from 11:00am to 2:00pm provides some basis for believing that there was an increased risk of things being dropped in that area during the time period.

But that depends on there having been two cleaners there.  In fact, at the time of the accident, one cleaner was working and one cleaner was having lunch, so the centre obviously did not think there was sufficient danger to require two cleaners at that time.

BELL J:   The lunch period, one might expect, did not extend between 11.00 and 2.00 pm.  It seems that his Honour was making a different point about the circumstance that the centre manager had contracted to have an additional person over that window period.

MR TOOMEY:   But, with respect, he ties that, your Honour, to an increased risk of things being dropped in that area during the time period.

BELL J:   Yes.  Accepting that for part of that period the other clear would have been on a routine lunch break, it seems to me it might still be open to draw the inference that his Honour did, but that, of course, leaves the window period of the busy time when things are more likely to be spilled as rather larger than between 10 past 12 and 12.30 when the incident occurred.

MR TOOMEY:   Yes, indeed, your Honour.  If the centre manager knows, and we make this point in our outline, then he knows that he is putting on an extra cleaner from 11.00 am and one may say then, as indeed we first do, we constrain our analysis to 11.00 to 12.30, although we say that we ought be entitled to take it back to 8 o’clock because the food court is open from 8’clock and there was no evidence before the court of just what the use was.  This is in a country time.  There is no evidence that you could expect the same incidence of use that you could in the city.  There is no evidence of traffic, as it were.  So, certainly, if one were entitled to take the period of 8.00 to 12.30, four and a half hours against the either 15 minutes or 20 minutes which would have been the last cleaning interval, then there would be a sound basis for applying the probability theory.

GUMMOW J:   Mr Toomey, you seek to have us set aside the Court of Appeal and dismiss the appeal from the primary judge.  Is there any difficulty in us doing that, given the unsatisfactory nature of the trial?

MR TOOMEY:   Your Honour, I can see just what your Honour is putting to me, but in this case there was no appeal from the unsatisfactory nature of his Honour’s reasons.  The respondent accepted those reasons but said there is no causal connection.  So it seems that that was the only question that was sought to be argued and if your Honours were in our favour on that point, then we would be entitled to have the verdict.  I think that is the essence of our argument, your Honours.  If there is anything your Honours would like me to answer, of course I will.  May it please the Court.

FRENCH CJ:   Thank you, Mr Toomey.  Yes, Mr Maconachie.

MR MACONACHIE:   Your Honours have our outline of oral submissions; I hope so.  This is a case, we say, about inference drawing and nothing more.  We have attempted to assist by an analysis of what section 5D contains and conveys, but for us to succeed on this appeal, we do not need to persuade your Honours that material contribution, which is essentially directed, as was Bonnington Castings, to multiple causes.  That is not this case. 

This is something quite different and it is a very, very simple proposition we say.  Was there sufficient evidence, absent an explanation, to put it in shorthand, to permit and then to require – because Justice Campbell was deciding the facts as well as the availability of the inference – for an inference in favour of the plaintiff to be drawn, and there was not.  Justice Bell has referred several times to the reasons given by Justice Campbell which he determined as an evaluation of the evidence that there was a reason to the contrary, if you like.  Can we provide your Honours copies of two cases. 

CRENNAN J:   Just before you do, what about Mr Toomey’s suggestion that if you can take the four hours from 8.00 to 12.30, you are in the territory of having a sound basis for applying probability theories, as I understood him.

MR MACONACHIE:   If you could do that, your Honour, but that assumes, as Justice Hayne when in the Court of Appeal in Victoria said if you just have bare facts that do not suggest any differentiation, I think was the word he used, you might be able to do that, but in this case, there were a number of findings of fact by Justice Campbell, the most important of which was that a reasonable system involved periodicity and not constant supervision.  That is not attacked.  If periodicity was enough, then one looks to see what would have been a proper and reasonable system.  He said 20 minutes or 15 minutes, it does not matter from our point of view.

It was not a case where the evidence was that nothing had happened between 8.00 am in the morning and the middle of the day which enabled an inference to be drawn on the broader probability theory because Justice Campbell found that there were reasons why that kind of approach could not be engaged.  First, it was lunchtime, secondly, it was a piece of detritus or a grease mark, or a chip and a grease mark, that is the sort of item that you might expect to be dropped, kicked, walked in, during a luncheon period because it was very close to the food court, which was the third matter that he dealt with and said at paragraph 62:

In my view, the fact that the item slipped on was a chip (a type of food some people eat for lunch), and that the fall occurred quite close to a food court and at lunchtime, distinguish the present case from Shoeys.

Shoeys was a case not dissimilar factually to Kocis.  This is not an exercise in attempting to demonstrate that the facts of this case are similar to the facts of another case.  Your Honours do not do that sort of thing.  The question is whether or not the principles expounded in Bradshaw, which is one of the most important but very lately reported cases on this area.  Can I hand your Honours each a copy of Bradshaw v McEwans.

FRENCH CJ:   The citation please.

MR MACONACHIE:   Yes, I am about to give your Honours that.

FRENCH CJ:   Thank you.

MR MACONACHIE: It is (1951) 217 ALR 1.

GUMMOW J:   Say that again.

MR MACONACHIE:   I am sorry?

CRENNAN J:   That cannot be right.

GUMMOW J:   What year?

MR MACONACHIE:   1951.

GUMMOW J:   I see.

MR MACONACHIE:   I take responsibility for that report, if I may so.  I spoke to Mr Merralls and said this case has always been referred to and it is not reported.  He would not put in the Commonwealth Law Reports, so it went into the ALRs.

FRENCH CJ:   Mr Merralls stood firm, did he?

MR MACONACHIE:   Rock solid, would not be moved, neither would Mr Justice Young for the Australian Law Journal Reports.  It is an unsatisfactory report, your Honours, in that there are a multiple of spelling errors, but at least it is there.  I will take you to in a moment.  Could I also refer you to Betts v Whittingslowe.  The essence is that both cases demonstrate that what is important in this exercise of inference drawing ‑ ‑ ‑

GUMMOW J:   What is the citation of that?

MR MACONACHIE:   I am sorry, your Honour, (1945) ‑ ‑ ‑

GUMMOW J: 71 CLR 637.

MR MACONACHIE:   Yes, your Honour, I was just about to say that, but I was interrupted by Mr Toomey, uncharacteristically.  Can I take you to the purple passages in those two cases if I may.

GUMMOW J:   Just before you do that, what is the breach of duty?

MR MACONACHIE:   The breach of duty, your Honour, is failing to have a proper system, as Mr Toomey asserted, that is, a system which, as a matter of fact Justice Campbell held, required inspections at 20 minute intervals.  That is the breach.

FRENCH CJ:   Well, the failure to have periodic inspections in between would have constituted a reasonable system.

MR MACONACHIE:   Yes.

FRENCH CJ:   That is the way in which it was put, was it not?

MR MACONACHIE:   Yes, your Honour.  Justice Campbell says, at paragraph 63 of the judgment at page 450, line 42 of the appeal book:

However, it is not possible to decide whether the breach of duty was a necessary condition of the particular harm without giving consideration to what the minimum content of the obligation to take reasonable care to prevent patrons from slipping would have been.

That step in his Honour’s reasoning has not been attacked and we would say it is self‑evidently obvious.

FRENCH CJ:   We treat this notional system as the reasonable minimum, if you like.

MR MACONACHIE:   Yes, the discharge of the obligation to take reasonable care for the safety of entrance to the premises.  That was a necessary step because whether or not there is a causal relationship between breach and injury requires you to identify the breach and he identified the breach in the way that your Honour the Chief Justice has just implicated.

CRENNAN J:   Look at the third and fourth lines, top of 452.

MR MACONACHIE:   I beg your Honour’s pardon?

CRENNAN J:   You can look at that conclusion, the third and fourth lines at page 452.  It is really the starting point of his Honour’s ‑ ‑ ‑

MR MACONACHIE:   It is, your Honour.  I am sure it is referred to in our written submissions.  Now, I had a marked up copy of both Betts and Bradshaw’s Case.  Can I take you to Bradshaw’s Case at page 5, your Honours.  Perhaps page 6 is where it occurs most clearly:

All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence.  By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.  Here unexplained the death of a man on the roadway resulting from impact –

et cetera.  It is the absence of reasons to deny the inference that is of importance.  At page 5, if I could take your Honours to Bradshaw, right in the centre of the page commencing in the middle of a line:

In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence –

I think in the original it is now “if in the circumstances appearing in the evidence” –

give rise to a reasonable and definite inference –

It has to be reasonable and it has to be definite –

they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture.

There is a reference to Lord Robson who might also be a Scotsman, your Honour –

But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise.

FRENCH CJ:   This case and Kocis both concerned the question whether there was evidence sufficient to go to a jury, is that right?

MR MACONACHIE:   Yes.

FRENCH CJ:   So that involves the question is the inference open?  I suppose you would say for the appellant to succeed the appellant must show that not only was the inference open but the inference should have been drawn by Justice Campbell.

MR MACONACHIE:   The question in Bradshaw and the question in Kocis was “could” and the question in this case is “should”.

FRENCH CJ:   Does that make a difference?

MR MACONACHIE:   It makes a very big difference because Justice Campbell was, as the tribunal of fact, determining whether or not on the whole of the evidence, not only was it open to him, but that he should not draw the inference, consistent with causation or causality.

FRENCH CJ:   He did not go through that two‑stage process, did he?  He just declined to draw the inference, is that right?

MR MACONACHIE:   I think it is there, your Honours.  Let me see if I can persuade you that it is.

FRENCH CJ:   Did he say that the inference was not open or did he just say that ‑ ‑ ‑

MR MACONACHIE:   No, no he did not say ‑ ‑ ‑

FRENCH CJ:   He just said, “I do not draw the inference”.

MR MACONACHIE:   Yes.  There is a suggestion, however, at paragraph 62, page 450 of the appeal book.  It can be read this way because he comes back to the point later.  He says:

I see nothing in section 5E that prevents such a method of reasoning –

that is the Shoeys method of reasoning or the Kocis method of reasoning –

from continuing to be adopted.  However, the inferences that are open in the present case are dependent upon the facts that have been established in the present case.  In my view . . . distinguish the present case from Shoeys.

So at that point he is saying, I am addressing the question of whether it is open or not.  At 452 he comes to the evaluative judgment, as it were, at line 27 or thereabouts:

She slipped on a chip near a food court at lunch time, and the reasonableness of a cleaning system depends on the range of items it is foreseeable might be dropped rather than just on the particular hazard a particular plaintiff encountered.  Because of those aspects of the facts, I am not prepared to draw that inference.

FRENCH CJ:   Earlier on he says:

The present is not a case in which one can infer –

It may be ‑ ‑ ‑

MR MACONACHIE:   Yes, that is perhaps not as sharply focused as it might have been earlier – as I would have your Honours see it – determined the question of whether or not it was open.  And then he determines here that on the particular facts, at a level of persuasion, he was not prepared to draw the inference because there were four, maybe five, factors which played against the inference that the substance had been on the floor for a period longer than detection by a reasonable system of inspection and cleaning – and I emphasise “inspection or cleaning”, that was what the finding was – would have removed the item.

Your Honours, it has been said a number of times, once by the Chief Justice at least, but does it matter when it was dropped?  Dropping a chip was not the only mechanism by which it could get there.  It might have been kicked in from the nearby food court.  It might have been walked in at any time, such that the – whether or not it did come within 20 minutes of the last notional cleaning period is neither here nor there because of the findings that I have taken you to.  His Honour’s reasons that gave a basis for asserting that the narrower or broader probability theory should not be applied and that is because, as a matter of inference drawing, there were reasons to the contrary of the inference that was propounded, such that to choose between inferences was to involve oneself in conjecture.

Apart from what we have said in our written submissions, that is the heart of the problem, we submit, your Honour, that there were differentiating factual considerations which were open to his Honour and which persuaded him that the inference should not be drawn and, in our submission, that is the beginning and the end of the matter.

FRENCH CJ:   You are calling in aid 5E, are you not?

MR MACONACHIE:   I do not have to because ‑ ‑ ‑

FRENCH CJ:   I just notice you refer to it in your submissions.

MR MACONACHIE:   Mr Toomey this morning, as I understood it, said that 5E had no part to play in the case, so if that is the case, I am content with that.  But if I need to say anything about 5E, the word “always” is the powerful word in that section; the plaintiff always bears the onus of proof.  The fact of the matter is that on the evidence that she called – remembering that at the trial there were three parties and Mr Cranitch, perhaps somewhat cunningly, threw the ball into the scrum expecting the two defendants to fight the case out and make a case for him – there was a dearth of evidence.  The evidence provided reasons why the inference that he had to rely on should not be drawn.  The inference was not drawn for good reason by the fact‑finding judge in the Court of Appeal and therefore the plaintiff failed.

Can I take you to Betts v Whittingslowe 71 CLR 637. Your Honours will be familiar with it, I am sure, but the relevant passage is in the judgment of Mr Justice Dixon as he then was. On page 7 of the pamphlet the relevant passage appears. I have got a marked up copy, but it has become lost, I regret to say, your Honours. It is at the top of page 7 immediately after the citation by his Honour from the judgment of Vyner v Waldenberg Bros Ltd which appears at the bottom of page 6.  After citing what is said by their Lordships after the designation of footnote [7] Mr Justice Dixon says:

It is not necessary to inquire whether their Lordships meant more than that the breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary –

They are the words I particularly rely on, “in the absence of any sufficient reason to the contrary” –

that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty.

There being in this case the presence of a sufficient reason for the contrary, the inference was either not open or if it was open, there were good reasons why it was not drawn.  As a matter of fact, the plaintiff left the case in a condition in which the evidence was insufficient to persuade the fact‑finder an inference should be drawn and the plaintiff thereby failed and the appeal should be dismissed.

FRENCH CJ:   Thank you, Mr Maconachie.  Yes, Mr Toomey.

MR TOOMEY:   Your Honours, can I read to you a passage from the judgment of Justice Hayne in Kocis on page 430 of the report?  This goes particularly to the passage cited by my learned friend from Justice Campbell that:

Periodical inspections and cleanings were all that reasonable care required.  That gives rise to the possibility that, even if periodical inspections and cleaning had been carried out, with the minimum frequency required for the Appellant to be taking reasonable care, the chip fell between the last such inspection and the time the First Respondent encountered it.

Of course, we are looking then to what would happen in the phantom inspection, because there never was one.  If I could take your Honours to page 430 at line 5 of Kocis?  His Honour said:

In my view it is of the first importance to bear steadily in mind that a plaintiff must prove his or her case on the balance of probabilities and that it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open.  Thus, a jury may reasonably conclude that the probabilities are that a particular spillage would have been cleaned up by the proper application of a reasonable cleaning regime on the part of the defendant occupier while at the same time acknowledging the possibility (but not probability) that the substance was spilled only a moment before the plaintiff slipped on it.  The question of causation is to be resolved by consideration of the probabilities.

Now, we say that, indeed, in this case what the Court of Appeal did was say there is a possibility that this chip fell perhaps a minute before the appellant fell and therefore she has not proved her case, but that is precisely what Justice Hayne says you cannot do.  You cannot trump a probability with a possibility.  He was saying that in the context of probability theory.  So if you say between 8 o’clock and 12.30 there were 13 or 14 periods for inspection, it is perfectly true that the chip may have fallen 30 seconds before Mrs Strong stood on it, but what are the probabilities? 

We say that if one looks carefully at the basis of Justice Campbell’s rejection of probability, it turns solely on the matters which appear in paragraph 62, that is, it “was a chip (a type of food some people eat for lunch)”, which I think can be counted by in the Centro Shopping Centre at Taree where the food court opened at 8.00 in the morning, very likely a food that people ate from 8 o’clock in the morning on, and that the fall occurred quite close to a food court, it happened in a quite distinct section of the common area, not in the food court or on the verge of the food court, but in the corridor between the pot plants set up by the respondent.

FRENCH CJ:   Is he saying anything more, that there were a range of possibilities to which one could not usefully assign probabilities?

MR TOOMEY:   I think, your Honour, it is hard to tell ‑ ‑ ‑

FRENCH CJ:   I am looking at 66 and 67 when I say that.

MR TOOMEY:   Yes, your Honour.  Well, 66, of course, is where the sentence appears that:

Periodical inspections and cleanings were all that reasonable care required.  That gives rise to the possibility that, even if periodical inspections and cleaning had been carried out –

might have fallen between the last one and the fall.  But that is of no efficacy in a judgment such as this without analysing what the time periods and the probabilities were.

FRENCH CJ:   Well, you say that you can use the time periods to assign probabilities.

MR TOOMEY:   Yes, you can. 

GUMMOW J:   I have some difficulty with paragraph 67 as the over‑emphatic use ‑ ‑ ‑

MR TOOMEY:   I am sorry, I did not catch the last word.

GUMMOW J:   In paragraph 67, the phrase “no basis” is used four times.  That may be over‑emphatic, I suspect.

FRENCH CJ:   It is a bit like eliding the question whether the inference was open with the question whether he draws the inference.  It all seems to be done on the basis that it is not open.

MR TOOMEY:   Yes, exactly so.  We say that he arrived at the conclusion that it was not open because his Honour did not do a proper analysis.  It is something that has been used at times in the law.  There is no case I know of which says that probability theory cannot be used to assign causation, but his Honour simply did not analyse the facts before him and, in our respectful submission, had those facts been properly assessed, setting aside the importance he gave to the cleaning contactor engaging a second cleaner – that is in paragraph 68 which we say was not of any weight when one

realised that the cleaning contractor engaged a second cleaner so that the first cleaner, among other things, could have a lunch break.  So it was not saying that there had to be two people there, it was saying there has to be one person there, but his Honour used that differently.

A possibility is again referred to in paragraph 69, your Honours, and this goes back to what your Honour Justice Gummow said about the reiteration of no basis:

There was no evidence on the basis of which a judge could conclude that the taking of reasonable care to prevent physical injury to people within the sidewalk sales area involved any higher degree of diligence or vigilance than was applied immediately outside the perimeter of the sidewalk sales area.  Even if one took the possibility most favourable to the First Respondent, namely that that system required periodical cleaning every 15 minutes –

which was in fact the terms of the contract, although honoured in the breach –

rather than every 20 minutes . . . it cannot be concluded that it was more likely than not that if there had been dedicated cleaning of the area every 15 minutes . . . it is more likely than not that the First Respondent would not have fallen.

Now, that statement demanded analysis because it is an ipse dixit.  Why is that so?  If you got to the analysis of applying 15 minutes, you have got 17 periodical cleaning inspections which should have taken place before the fall, and yet, we say, his Honour allows the possibility of a fall in the last inspection period, and that is the one he must have of course.  There must a possibility in the last cleaning period which trumps the plaintiff’s claim on probability because if it had been dropped in the second last of the cleaning periods, let us say half an hour before, then a proper cleaning system would have picked it up in the next two inspections.

We say also that the apparent exclusion of the test of increase in risk adds to the difficulty of accepting that his Honour has properly analysed the events of the day.  My learned friend said there were four or five factors that are against the finding.  The only factors I can analyse are; it was lunchtime, it was near a food court and chips are something some people eat at lunchtime, and the two cleaners, but we say the two cleaners was wrong anyway and the other ones are of no weight in the absence of any particular evidence.  May it please your Honours.

FRENCH CJ:   Yes, thank you Mr Toomey.  The Court will reserve its decision and adjourns until 10.15 am, Tuesday, 9 August 2011.

AT 11.25 AM THE MATTER WAS ADJOURNED