Kosciusko Thredbo Pty Ltd v Posetti

[2005] HCATrans 753

[2005] HCATrans 753

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  No C5 of 2005

B e t w e e n -

KOSCIUSKO THREDBO PTY LTD

Applicant

and

JULIE POSETTI

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 SEPTEMBER 2005, AT 10.11 AM

Copyright in the High Court of Australia

MR B.J. SALMON, QC:   May it please the Court, I appear with my learned friend, MR P.A. WALKER, for the applicant.  (instructed by Moray & Agnew)

MR J.P. GORMLY, SC:   May it please the Court, I appear with my learned friend, MS K.T. NOMCHONG, for the respondent.  (instructed by Pamela Coward & Associates)

KIRBY J:   Yes, Mr Salmon.  I notice that the actual orders of the Court of Appeal of the Australian Capital Territory do not include an order setting aside the judgment of the Master.

MR SALMON:   I must admit I had not noticed that myself.

KIRBY J:   We sit here to review under the Constitution orders and judgments, not reasons as such, so we always look at the orders.

MR SALMON:   Certainly it was inherent in what they actually said.

KIRBY J:   Justice Hayne has pointed out at 115 there is in fact such an order, so I will take that back.  Somewhere else there was.

MR SALMON:   Yes, in the settled order.  As your Honours probably noticed, the judgment of the Court of Appeal was delivered ex tempore and the orders were taken out some time after that.

KIRBY J:   Yes.

MR SALMON:   Also they are in two parts.  We say, your Honours, that this case raises what a trial judge is required to do in determining a common law negligence claim.  It is our submission that the first instance judge – in this case of course it was the Master – reaches a judgment on the case presented by the parties.

KIRBY J:   Yes, but do you concede that as originally brought and particularised the issue of the slope of the ramp and the issue of the handrail were within the claim of the plaintiff?

MR SALMON:   The issue of the handrail had been included in the particulars but so far as the slope is concerned in every particular the slope was relevant in icy conditions not as a ‑ ‑ ‑

KIRBY J:   I realise that, but you were on notice that there were really three complaints:  the icy conditions, the lack of the handrail and the slope of the ramp.

MR SALMON:   With respect, certainly it was accepted, and as we say in our written submissions, that in a ski resort in winter the mere presence of ice would not have been – depending, of course, where it was.  That is the whole issue.  The fact that there was ice on a path caused by natural causes and a person slipped on the path because of the ice would not have achieved anything in the ordinary course because it is what everybody who goes to those sort of places and walks on paths when there is a frost has to face.

It has not been suggested that the occupier has to make sure there is no ice all over the village, as it were.  So we were entitled to assume that the plaintiff was relying on both the slope and the ice and, of course, it was the presence of ice which was fought out over quite an extended time to the extent of calling meteorological evidence, having photographs, going through the sources of moisture. 

The case that we put forward was – and in a sense if I could just refer briefly to the facts, that this happened during the rescue operation after the disaster and my client’s employees and those associated were in a position to recall what the weather conditions were like at this time because this particular path had suddenly come into prominence because the usual route, the main route between the dormitory part of Woodridge and the main part of the village had been closed off by rescue vehicles.  So this path was being used right throughout the period, so they were in a position when they three years after the event received notice of the claim to meet it not only with factual evidence of people who had used the path on the very day and within a short time of the time that the plaintiff said she fell but by other means. 

It was absolutely incumbent on the plaintiff in the way her case was presented, because, of course, it was put to her she was wrong about there being ice – it was incumbent on the plaintiff, we say, to persuade the court that there was ice or, alternatively, during the time that the case was actually running to put forward an alternative case.  It is our submission, your Honours, that what happened was that the plaintiff not having presented a case that even if there was no ice the defendant was still negligent, in the Court of Appeal, by looking at little bits of evidence and one little bit of submission, decided – and the words they used, if I can quote from page 111, line 31 of the application book, was that the material before the Master:

gave rise to a real possibility of negligence which required investigation.

The same thing was said again on the next page right at the bottom, page 112 of the application book:

The conclusion which I have reached that a proposition had been advanced before the Master which suggested a real possibility of negligence, albeit one not embraced by the particulars and the further conclusion that at one allegation of negligence that was embraced by the particulars was not resolved –

and that is the handrail issue which, if I could, I will leave just for the moment –

leads me inexorably to the conclusion that the appeal should be allowed.

So what we say in this Court is that it was conceded by the Court of Appeal that this alternative case, which of course in one sense was inconsistent with the case actually put forward, had never really been raised in the court.  Can I take you to the second judgment?  As your Honours have noticed, there were certain aspects that could not be dealt with because of the judge’s travel arrangements and there were some written submissions lodged and a subsequent judgment which dealt with exactly whether this matter could be referred for rehearing to the Master or should it be referred independently was dealt with and the question of costs.  At page 120 of the application book – I am going to read the whole of paragraph 3 which appears there at line 37:

In fact, the appeal was upheld on only two quite narrow grounds.  First, the Master had regarded the appellant’s claim as dependent upon proof that her fall was caused by ice on the ramp in question and he had not proceeded to consider whether it could have been sustained on the basis that the ramp was so steep and smooth as to be dangerous even in the absence of ice or water.  Second, the Master had failed to determine an issue as to whether her injuries were attributable to negligence in failing to provide adequate handrails.  It was these issues that we intended be remitted for determination.  It was not our intention to require that all issues as to liability be re‑litigated.  Accordingly, the contentions advanced on behalf of the respondent must be rejected.

We are satisfied that these further issues should be determined by the Master.

They did not actually formulate the exact issues.

KIRBY J:   It is reasonably clear though.  There are those two issues that have to be considered.  The Master was found to have erred in assuming that because he found that there was no ice that that was an end to the case.  The Court of Appeal has said it is convenient and proper to send it back to the Master, he had the advantage of the trial and there is no reason of bias or otherwise to stop that but he should have regard to the two added matters, handrails and pitch.  It is clear enough that that is what they did and that they did it for economical reasons.  I can understand why you want to hang on to your judgment, but where is the great issue of principle in this case, Mr Salmon?

MR SALMON:   It is in this, that the Master in a very lengthy decision dealing with a whole lot of issues had identified what the plaintiff’s case was and it was the one that we came to meet.  It is expressly conceded by the reference to the fact that we can call new evidence before the Master on these new issues that that was not the case, that it was, as it were ‑ ‑ ‑

KIRBY J:   That is one way to interpret it.  The other is that the Court of Appeal thought maybe there had been a misunderstanding as between both of you as to whether the plaintiff was giving away all the other elements in the case and that just to ensure that justice is done you should have the chance to call any additional evidence that you want on those two points.

MR SALMON:   Yes.

KIRBY J:   Mistakes can happen as to what concessions give away.  That is apparently what the Court of Appeal thought in this case, that you put all your eggs into that basket and the Master did, but that was not really how the plaintiff framed the case, nor was it the way that justice required the case to be decided.

MR SALMON:   With respect, it is the fact that the Court of Appeal in truth could not say that the issue of the ramp in dry condition had been litigated at all in the court below that caused them to have to have a rehearing.  This is exactly the position that occurred in Moustakas.

KIRBY J:   There must have been some litigation because there was some evidence about what the building regulation requirements were as to pitch.

MR SALMON:   That is so.

KIRBY J:   I remember reading that.  There is one in 20 as distinct from one in three, or something of that order.

MR SALMON:   There was a big argument about the applicability of that.

KIRBY J:   I am sure there was, but I do not think the High Court of Australia would want to be ploughing through all that, unless there was some serious issue of a miscarriage of justice that warranted it.

MR SALMON:   The issue which we say this raises is that instead of following the, as it were, time honoured way in which cases are presented, that is, a party says, “This is my case” and then calls evidence and the matter is dealt with, what has occurred here is that that case having been concluded there was a possibility – they were the words, “a real possibility” – that had she run her case differently she might have got a different result.  It is a matter of principle, with due respect.  I understand what your Honour is saying.  If there was any real suggestion that somehow or other the experienced counsel appearing for the plaintiff had been tricked into saying, as he did, “Yes, we have to succeed.  That was her evidence.  That has always been her evidence.  That is our case.”

KIRBY J:   The actual formula of the words used by Mr Gormly though does not indicate trick; it indicates a carefully chosen concession which the Master interpreted as having a wider effect than the word “sustained”, at least that was my impression when I read the words.

MR SALMON:   With respect, the issue that counsel was dealing with was the cause of the fall and the plaintiff’s evidence was that the cause of the fall was not her inadvertence or some other unidentified cause or, for that matter, her footwear but it was the fact that there was ice on the ramp.  The alternative proposition, in our respectful ‑ ‑ ‑

KIRBY J:   Mr Gormly said, “It has always been our case that there was ice.”  He was not giving ice away but he was not saying, “And that is our only case.”  He did not say that.

MR SALMON:   He did not specifically say that, but the question he was actually dealing with at the time that this was raised was the issue of causation and what he was talking about was the presence of ice.  The issue – and, of course, I had already finished my submissions by this time and I had been harping very strongly on our very strong meteorological evidence to suggest that the Master would be unable find that and also that the particulars, except for the handrail one, all referred to us, so that when the Master put the matter to him it was in that circumstance.

He never suggested any other cause and, with respect, he could not because the reason that a person normally slips on a slope is because the slope creates a situation in which the footwear the person has or whatever is on the sole of the feet cannot stick because the slope is too high.  There had been two pairs of boots at different times that the plaintiff said she was wearing, one of the reasons why ultimately the Master said that he really could not rely on her recollection as to what had actually happened.  One of the reasons was she could not remember what boots she was wearing.  But both of those boots were put to the principal expert of the plaintiff who had talked about how dangerous the slope was.  I certainly face the fact that one of the witnesses called by the plaintiff was highly critical of the slope on this ramp.

HAYNE J:   And the Master accepted it, did he not?

MR SALMON:   He accepted it was steep.

HAYNE J:   The Master accepted it at page 77:

147.    I accept the evidence of Mr Fozzard . . . that the ramp, having regard to its gradient, surface and lack of proper handrails, was potentially dangerous, particularly in an alpine area.

Where do we go, Mr Salmon?  You have that finding by the Master.  You have this issue about ice.  You have a case that is pleaded that involves or permits complaint about gradient.  Why has the Master completed the inquiry?  Was it not open to the Court of Appeal to decide, “Enquiry not complete; go back and complete it”?

MR SALMON:   In the circumstances of this case we say no, because the plaintiff had every opportunity of explaining how she fell otherwise than by ice and so did her counsel and her counsel said it was because of the ice.  I mean, she now has to say – and she is going to have some problems when she goes back because the footwear that were put to her expert ‑ ‑ ‑

KIRBY J:   You could still win before the Master.  If the Master took the view that the real cause of the slip was the ice and only the ice and that in the way in which it happened the gradient and the absence of handrails where she was walking was irrelevant.  You could still win on that basis but it still has to be tried.  It is within the pleading.  It is within the action, within the pleadings and not excluded by the concession.  At least, that is at it looks and that the idea of the High Court of Australia becoming involved in one of our 70 slots we should have that above this Bench – 70, keep your eye on it.

MR SALMON:   Your Honours, we put it on this basis that this new way of presenting the case was not what the plaintiff had ever attempted to do.  It was something that the Court of Appeal in their sympathy thought might be available, a possibility.  That could happen in almost every case in which a trial is dealt with at first instance and comes before a court of appeal.  Time and time again – there was, of course, new counsel in the Court of Appeal and new minds put to it and someone says, “Well, if only we had run the case this way, we might have been able to win.”  Now we say that this judgment that we want to appeal from has allowed that sort of approach to be taken.

It, of course, makes it inevitable that every possibility has to be dealt with at first instance, notwithstanding that it was never really pursued by the plaintiff in the way of which the plaintiff in the particular circumstances had put the case.  Certainly, if it had been properly raised and it had not been dealt with, it would have to go back – or it could have been dealt with by the Court of Appeal.  This exactly what happened in Moustakas, that is that had it really been raised the Court of Appeal would have been able to deal with it on the evidence that was there.

KIRBY J:   Naxakis was a jury case.

MR SALMON:   No, with respect, it was not.  No, it was a judge.

KIRBY J:   You are talking of Moustakas, are you?

MR SALMON:   Moustakas, I am sorry, yes.

KIRBY J:   I was thinking of Naxakis.

MR SALMON:   That was the case about whether or not the ‑ ‑ ‑

KIRBY J:   Yes, I remember that.  That was the Water Board.

MR SALMON:   Actually it is a bit like this case in a way because the particulars as pleaded said that there should be barriers and on appeal they tried to run a case that the barriers were there to stop the plaintiff getting into the wrong lane, not to stop the buses running over the plaintiff in the correct lane.  The High Court said if that had been actually an issue before the first instance judge, the Court of Appeal could have looked at the evidence and reversed it there and then.

KIRBY J:   It sounds as though we have laid down all the principles.

MR SALMON:   The thing is it was 17 years ago, your Honour, and the Australian Capital Territory Court of Appeal totally misunderstood its duty.  That is our submission and that is why we say it is a matter that ought to be corrected because it might keep going on and on forever.  It is quite clear your Honours have understood what our submission is.  We say that it has got a real possibility of matters ‑ ‑ ‑

KIRBY J:   You have scored a few hits, Mr Salmon.  I understand the way in which you put the case, but your time is up.

MR SALMON:   In notice that.  Thank you, your Honour.

KIRBY J:   The Court does not need your assistance, Mr Gormly.

The determination of whether a claim, as decided, fell within the claim as pleaded, particularised, presented and matters conceded is normally a matter for trial judges and intermediate courts of appeal.  We are not convinced that the Court of Appeal of the Australian Capital Territory erred in holding that certain matters of claim should be considered by the Master, not having been finally considered in the trial. 

The complaint that the Court of Appeal adopted impermissibly an inquisitorial approach is not, in our view, made out.  No issue of general principle or law arises requiring the attention of this Court.  Accordingly, special leave is refused.  It must be refused with costs.

AT 10.33 AM THE MATTER WAS CONCLUDED