Lettice v State of New South Wales and Anor S15/2001

[2001] HCATrans 593

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S14 of 2001

B e t w e e n -

JASON LETTICE

Applicant

and

THE COUNCIL OF THE SHIRE OF MUSWELLBROOK

First Respondent

THE STATE OF NEW SOUTH WALES

Second Respondent

Office of the Registry
  Sydney  No S15 of 2001

B e t w e e n -

JASON LETTICE

Applicant

and

THE STATE OF NEW SOUTH WALES

First Respondent

THE COUNCIL OF THE SHIRE OF MUSWELLBROOK

Second Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 20 NOVEMBER 2001, AT 10.00 AM

Copyright in the High Court of Australia

__________________

MR B.J. GROSS, QC:   May it please the Court, I appear with MR D.J.F. WILLIAMS for the applicant.  (instructed by Carroll & O’Dea)

MR L. KING, SC:   May it please the Court, I appear with my learned friend, MR M.J. WARD, for the first respondent in the first application and the second respondent in the second application, the Council of the Shire of Muswellbrook.  (instructed by McLachlan Chilton)

MR B.H.K. DONOVAN, QC:   May it please the Court, I appear for the second respondent in the first application and the first respondent in the second application, the State of New South Wales.  (instructed by Conway MacCallum)

GUMMOW J:   Why are there two applications?

KIRBY J:   Yes, I was going to ask that.  Is this some new subtle means of getting more money?

MR GROSS:   They are separate appeals.  I have only read one, your Honours, but there are separate appeals by the losing defendants at trial and we end up with different numbers.  I think that is the reason.

GUMMOW J:   Anyhow, so far as we are concerned there is one proceeding.

MR GROSS:   Yes, your Honour.  This case raises issues as to negligent decisions in design of a structural product, in this case a bridge railing for use by the public.  We submit it has potential ramifications beyond this particular example for builders, architects, engineers, public authorities or any design or construction body or manufacturing entity.  We also submit it raises questions as to the duty to alter a structure in light of subsequently available information and knowledge concerning risk.

KIRBY J:   Does it also include the question of causation, because, as I understand it, by reason of your client’s height, a suggestion is made that even if, on the case you ran, that a barrier had been put eight inches or so higher, that your client’s centre of gravity was such that he would have gone over it anyway?

MR GROSS:   Yes.  That assumption involves a proposition he is not using his arms to stop himself.  He has falling rather like a timber pole, but in any event there is that issue, your Honours.  The Court of Appeal on the causation issue held Justice Dowd assumed causation without making any express finding and said it was not self‑evident that addition of a railing eight inches higher with a superior grip at the top would have saved the plaintiff.

GUMMOW J:   Well, it is said against you that there was no evidence upon which the trial judge could decide that the extra height would have made any difference.

MR GROSS:   Yes.  Well, your Honours, we submit that there was, but in any event, next ‑ ‑ ‑

GUMMOW J:   Well, where is it?

MR GROSS:   Not in the application book, but, your Honours, the ‑ ‑ ‑

GUMMOW J:   Well, it should have been to put the point.

MR GROSS:   Your Honours, the extra eight inches in height, in our submission, plus something that you could grip, provided a basis for a lay inference of causation but, in any event, there was available evidence at the trial that it would have prevented the particular fall and Justice Dowd plainly acted on this basis.

Your Honours, the plaintiff fell over a railing, the total height of which was three foot six, which was six inches of step and three foot of railing, total three foot six.  Justice Dowd rejected the plaintiff’s recollection and our ‑ ‑ ‑

GUMMOW J:   How tall was the plaintiff, again?

MR GROSS:   Six foot three.  The plaintiff’s preferred position was he stepped on to the six inch step before going over the three foot railing.  Justice Dowd found he was on the footpath before falling over a total height of three foot six inches of step and railing.  Your Honours, the Court of Appeal overruled Justice Dowd’s acceptance of the expert evidence of two professional engineers that proper and safe engineering practice in 1970 required a higher railing with a total height above the footpath of four foot, according to Mr Brown, and four foot two inches, according to Mr Simpson, together with a railing, which was two inches in diameter at the top rather than five inches at the top which could not be effectively grasped.

Your Honours, on the negligence issue, the plaintiff had, in effect, two separate streams of allegations.  The first was the negligent design of the bridge by both defendants in 1970, which included the subsequent failure to fix the bridge in order to remedy that original design and construction choice.  Second, the failure by the Council to alter the bridge railing between 1970 and 1990 because of the growing use of the bridge by citizens, including drunks and children.

Your Honours, on the negligent design issue, Justice Meagher found no negligence by the Department and, by inference, the Council, because there was no obvious risk of any fall over railings, even in 1990.  There was no record of anyone else falling over the bridge during that time.  The bridge was of the same kind as other bridges in New South Wales and the bridge complied with the requirements of NAASRA, which is the ‑ ‑ ‑

GUMMOW J:   Have you a particular passage in the Court of Appeal judgment, Mr Gross?

MR GROSS:   I will just summarise it for your Honour, if I can.

GUMMOW J:   Yes, I realise that.

MR GROSS:   Yes. 

GUMMOW J:   It is quite a short judgment.

MR GROSS:   Yes, it is.  Page 59, lines 30 to 41, appears to bring together the reasoning and the four reasons I have given come from that paragraph.

GUMMOW J:   Thank you.

MR GROSS:   Your Honours, there is additional factual matter raised in the next paragraph.  There is no existence of certain factors in 1970 and you will see three factors are listed in the next paragraph, the bottom of page 29, (a), (b) and (c).  We contend that there was plenty of evidence of those factual matters and we have summarised that but the point is that all of these matters were readily foreseeable at the time.

Your Honours, we submit that the approach taken by the Court of Appeal was wrong on this aspect.  Foreseeability did not require an obvious risk and, in any event, both experts said that in engineering terms the railing was unacceptably low and not providing reasonable safety.  The absence of a record of prior falls was neither here nor there.  Your Honours, of course, the law recognises that the blind are owed some obligations in relation to footpaths and we would submit that the drunken pedestrian does not fall into any different category.

Your Honours, the fact that other bridges were similar merely involved an assertion of common practice, but the evidence did not establish that that common practice was safe generally or, more particularly, that in relation to this particular bridge it was an appropriate decision to apply common practice to a bridge where so many people would be using the bridge in various recreational and even drinking situations.

Your Honours, the compliance with the NAASRA standard was addressed fully at trial and it was accepted this was only a minimum standard.  It was not established by the standard to be an appropriate one but rather that the standard was a starting point for any design professional.  But where other factors came into account, including the potential drop from the bridge, the risk of injury or the severity of injury if you fell and, of course, the degree of use by pedestrians, you have a different bridge in a town region serving recreational areas from a bridge which is out in the middle of nowhere with a minimal drop.

KIRBY J:   Can I tell you, Mr Gross, what is concerning me?

MR GROSS:   Yes.

KIRBY J:   This case was heard by the Court of Appeal before the decision of this Court in Brodie.

MR GROSS:   Yes, it was.

KIRBY J:   It appears from what I understand from the application book that that was by the election of your client.  Your client wanted to press on with the case rather than wait.  Now, that does not necessarily govern what happens but I think it would be helpful to me to know how you say that decision, which is referred to in the reasons of the Court of Appeal, had it been known, would have affected the outcome of your case in that court.

MR GROSS:   Yes.  Your Honours, that decision did not affect our case in relation to the original negligent design and constructions back in 1970.

KIRBY J:   So, that lets the State out.

MR GROSS:   But rather it applied particularly to the Council because qua the Council, the second aspect of our case was that the Council was public authority and occupier of the bridge with powers of management and control.  It was obliged to remedy the railing in light of the growing use of the bridge and its awareness of the use by significant numbers of young people and on that particular aspect of the case ‑ ‑ ‑

GUMMOW J:   But the question is, are you putting your case that way against the Council?  How is the pre‑Brodie law used against that case?

MR GROSS:   Your Honour, Justice Meagher found that the nonfeasance rule operated in relation to this particular argument.

GUMMOW J:   Yes.

MR GROSS:   And, of course, nonfeasance was  ‑ ‑ ‑

GUMMOW J:   So, it is the misfeasance/nonfeasance distinction that is used against you?

MR GROSS:   Yes.

KIRBY J:   And do you say that he used it as, as it were, a complete defence, that the Council did not have to do anything to maintain the bridge in a safe state once it was built and that, therefore, the reformulation of the common law in Brodie provides you a leg up into upholding the decision of the primary judge.  Is that right?

MR GROSS:   Yes, yes.  Your Honours, at page 30, line 51:

“the non‑feasance rule” precludes any liability in the Council for any period of time after its construction –

et cetera.  Then, at the top of page 31:

Even apart from the “non‑feasance rule”, however, it is not easy to what act of negligence the Council committed. 

GUMMOW J:   Well, that is the point, is it not?

MR GROSS:   Well, if I can just come to that reasoning.

GUMMOW J:   Yes.

MR GROSS:   There is a description of the state of control of alcohol at the bowling club but then at line 20:

While it was foreseeable before 1990 that persons might cross the bridge, and that they might become drunk either after visiting the bowling club or after visiting some other liquor outlet, and while there was evidence that they might stop on the bridge, the court was taken to no evidence that persons congregated on the bridge at night before the time when the plaintiff fell.  In particular, the rapid movement of a person, drunk or sober, from one side of the bridge to the other at right angles was not a foreseeable source of injury.

So there are two reasons given.  Although there are lots of people using the bridge they did not congregate, I suppose, as in church, forming a collection which actually stayed on the bridge as distinct from passed over it.  That is not a very good basis for distinction, in our submission, and secondly, it was said that “the rapid movement” of anyone “at right angles” across the bridge to the railing “was not a foreseeable source of injury”.

Now, we submit that that was using the foreseeability concept, not as sometimes happens as an excessive support for a plaintiff’s case because foreseeability is so undemanding, but rather against the plaintiff by saying there had to be this degree of particularity or specificity of what was foreseeable and I suppose all angles are possible on a bridge and whether somebody is drunk or sober involves a range of possibilities well within the general concept of what would be foreseen pedestrians might do, whether by day or night.

GUMMOW J:   Now, granting all of that though, the court only went on to deal with this as way of dicta, really, did it not?  It decided it on causation, or they said they did, anyway, on page 29.

MR GROSS:   Justice Meagher said that, and your Honours  ‑ ‑ ‑

GUMMOW J:   At page 29, line 20.

MR GROSS:   Yes, but the lines which deal with this basically say – this is at page 29 lines 8 to 25, his Honour assumed causation but did not make any express finding and did not discuss the evidence and then at line 14:

It is by no means self evident that the addition of a railing eight inches higher with a superior grip would have made any difference.

So he is just saying, “Well, it is not obvious, therefore, it is a potential issue which can be resolved”.  Then his Honour goes on to say he:

does not address the issue . . . he does not even make a finding of causation.  This conclusion of itself should resolve each appeal in favour of the appellants.  However, in deference to the arguments of Counsel, I shall deal with some other aspects of the case.

Now, this conclusion, that is that he did not really address himself to it, is only a new trial point.  It is not a situation where the plaintiff must lose and although his Honour says ‑ ‑ ‑

HAYNE J:   Why?  What is the best finding of fact on causation you had below?

MR GROSS:   We would submit there was a finding by Justice Dowd that if it had been higher the ‑ ‑ ‑

HAYNE J:   Where do I find that?

MR GROSS:   Your Honour will not find that in explicit language.  It has to arise from inference from the conclusory language as to negligence and resultant injury.

HAYNE J:   And his Honour also found that warning would have helped, which is, at the least, an unusual finding, I would have thought.

MR GROSS:   Yes.  Your Honour, if I can switch to warning ‑ ‑ ‑

HAYNE J:   Well, no, I do not want to divert you.  I will stick with causation.

MR GROSS:   Yes, but on causation his Honour said, “Well, look, Justice Dowd should have addressed himself to the question.”  When Justice Meagher says it is not, in effect, “self evident” that it would have saved him, Justice Meagher is saying it is up in the air.  The issue could go either way.  He is not saying the plaintiff had to lose on that issue.  Justice Meagher basically finds error but if there is error there, there is failure to address the matter by appropriate reasoning and findings and, therefore, it does not resolve the issue at all in terms of who wins.  It might show there is an error and, therefore, arguably a new trial or the Court of Appeal has to address itself but the Court of Appeal does not address the causation issue itself, or the evidence.

So when Justice Meagher says “in deference to the arguments of Counsel, I shall deal with some other aspects of the case” that might explain why some of the reasoning is a bit terse.  But, your Honours, the way the Court of Appeal dealt with the other aspects of the case made the difference between a new trial and losing altogether, or made the difference between the Court of Appeal resolving the causation issue itself and the plaintiff losing altogether.  We submit that the causation issue, on one view, has not been decided against us.  It has merely been found to be the error which triggers further findings by the Court of Appeal. 

GUMMOW J:   I see time is getting on.

MR GROSS:   I do also, and, your Honours, we have made our submissions on warnings, which is a back‑up point if our other points fail.

GUMMOW J:   Yes, Mr King.

MR KING:   Your Honours, with respect, the critical point has been identified by the Court.  It is this.  What would the difference have been had the nonfeasance immunity had not been available?  The short answer to that is twofold and appears from the reasons of the Court of Appeal but, in any event, causation would be necessary whatever the formulation of the law of negligence.  Once some breach of duty is shown, you have to go further than point to causation.

Now, it is not being too unkind to my learned friend to say that if there were any evidence of causation, your Honours would have been referred to it in terms, then there was none.  Mr Donovan’s summary of argument deals in depth with that.

GUMMOW J:   Where do we see that in your colleague’s argument?  Page 67.

MR KING:   Yes, your Honour.

GUMMOW J:   Paragraph 4.

MR KING:   Starting at paragraph 4.

GUMMOW J:   Yes.

MR KING:   But, your Honours, apart from causation, it is really difficult to read the Court of Appeal’s reasons at 29 of the book as anything other than a statement to the effect that his Honour had to find causation to support his own decision.  He did not do so and we cannot find causation either, but secondly, your Honours, over at ‑ ‑ ‑

KIRBY J:   Was the evidence that the applicant ran across the road diagonally at the bridge parapet and went over?  I mean, is that what the evidence showed at trial?

MR KING:   The evidence was that he moved at some speed.  It would be wrong, your Honours, to say that the evidence supported that he ran.  It was the speed ‑ ‑ ‑

KIRBY J:   He was about to vomit, and that is what I assumed that he might have moved quickly to do.  I mean, I think the notice issue is out of the question.  The thought that a notice there saying, “Be very careful of bridges” when a person is intoxicated, wanting to vomit and running to the other side to do that, would take notice of a notice is, I think, unreal.

So, we have come to the point, the State seems to be off the hook because of the concession that the Brodie point would not have helped against the State who did the design years and years ago so it really leaves your client.  The question is, because of the profound injuries of the applicant, if I thought that the Brodie point would, looked at again, give the applicant another chance to have the decision of the trial judge upheld, I would give him that opportunity.  But I am just not convinced at the moment that the causation issue would mean that he would really be any further ahead.  That is really what we have to concentrate on.

MR KING:   With respect, your Honour is right to be very doubtful about that.  The better view is that it would not and again, with respect, your Honour put it correctly that the applicant moved quickly, a sort of a jog.  The last thing that was seen going over the railing were the soles of his feet.  His state of intoxication was quite profound.

KIRBY J:   You really have two causation points.  One is the centrifugal position of such a tall man on the case that was run of eight inches and the other is moving with speed to the other side, even if you had had a high parapet would that have stopped him anyway.

MR KING:   Your Honour, the further point is the comment at page 31 of the book, Mr Justice Meagher’s reasons:

it is not easy to see what act of negligence the Council committed.

His Honour is obviously there not talking of the complete cause of action in negligence involving causation.  He is talking about a point antecedent to causation of some breach of duty.

KIRBY J:   It is the question of whether you should have been maintaining your bridges, on the new principle in Brodie, whether you should have been going around looking at the bridges and making sure they had parapets or guardrails that would protect against this, given that it is said you knew that young people, intoxicated young people, tended to congregate round that bridge.  That is the case.

MR KING:   But, again, it is not being too unkind to my learned friend to say that the court would squarely have been taken to evidence that we knew, to use the language of Mr Justice Meagher, drunks were congregating there to continue drinking.  There was no evidence of that.  What is said by the Court of Appeal at 31 of the application book is a further point which deals with two of the matters that are relevant for present purposes.  One is that it is not easy to see what act constituting a breach of duty of care was committed by the Council.

The second goes to my learned friend’s point about foreseeability.  What he was really driving at was Hughes v Lord Advocate as to foreseeability, that you do have not to see the precise mechanism of injury but that is predicated on the source of injury being a known danger.  In Hughes v Lord Advocate the lighted lamp which burned the young child was a known danger anybody would see.  There was no evidence that this bridge, at the time, was a known danger.

KIRBY J:   There had been no evidence of a previous form?

MR KING:   No.  There was no evidence of previous ‑ ‑ ‑

KIRBY J:   That is not necessarily fatal to a plaintiff but if you can get a previous fall you are a long way towards getting home.  There was no such evidence.

MR KING:   There was no such evidence and the three matters Mr Justice Meagher spells out at the foot of page 29, (c) is the critical one

for present purposes.  At about line 52 his Honour says correctly - and this Court may take it, with respect, that his Honour says correctly because of the absence of any reference to concrete evidence made by ‑ ‑ ‑

GUMMOW J:   The third factor “at any time”.

MR KING:   Now, that is what I am driving at, your Honours, the third factor, in a bridge which is a common old garden bridge, bridge all around New South Wales, as was established.  My learned friend really has to get up some evidence that it was established against the Council that it knew what was going on.  There was absolutely no evidence of that and, your Honours, with respect, that is ‑ ‑ ‑

KIRBY J:   Knew or ought to have known.  It is not actual knowledge.  It would be that it did not have a proper maintenance system or something of that kind but having regard to accidents on bridges of this kind elsewhere in the State that that ought to have alerted them to put a parapet across the bridge.  There was no evidence of that kind.

MR KING:   There was no evidence of that kind.  Your Honours, those are the things I would ‑ ‑ ‑

GUMMOW J:   Yes, thank you, Mr King.  We do not need to hear you, Mr Donovan. 

MR DONOVAN:   Thank you.

GUMMOW J:   Yes, Mr Gross.  Do you want to reply to Mr King?

MR GROSS:   Yes.  On the question of what “knew or ought to have been known” from 1970, can I just remind your Honours what Justice Dowd said at page 11 line 40.  This is describing the evidence of Mr Brown who was a resident of the town back then:

His evidence was that at the time of construction of the bridge in 1970 there were recreation fields in place, a football field, a cycle track, the velodrome, and that he expected there to be young children and that the bowling club was already in place and that it was not uncommon at the time for people to consume alcohol in and around the bowling club.

So the adjacent bridge was, at the time of construction, one which would be foreseeably used by people who had been drinking because the bridge was the only practicable means of getting from that area back to the rest of the town.

KIRBY J:   But I thought I had read something that was a foundation for your argument, but it still falls rather short of saying that a council, without any prior accident, without any established evidence that accidents of this kind on these types of bridges had become a common problem, has to anticipate that a young person, who is intoxicated, is going to move quickly to one side of the bridge and to vomit over it and because of his considerable height is going to fall over.  I mean, it is a tragic case, but foreseeability and causation seem to be your problems.

MR GROSS:   Well, your Honour, we start with the fact that as at 1970, on the evidence accepted by Justice Dowd, the bridge of the relevant height was regarded as being unreasonably low measured against engineering standards at the time, regardless of what happened as a matter of habit with building other bridges.  It was also established that a prudent engineer at the time, 1970, would take into account the risk of injury and the degree of user in taking the minimum height and then creating an appropriate height so the Council used its own engineer, on the evidence, for the purpose of making the design decisions.  He chose to use a prototype that departed from the Public Works plan.

GUMMOW J:   But this was used all over New South Wales.  There was no evidence that there had been other problems elsewhere in New South Wales with it, was there?

MR GROSS:   No, there was not, no, but it was used ‑ ‑ ‑

KIRBY J:   You say it was just a standard bridge?

MR GROSS:   No.  The standard was used all over New South Wales in terms of it being a minimum but, all over New South Wales, as we showed in the evidence there are bridges that are built much higher than that where you have an expectable degree of pedestrian use in an urban setting and there are photographs of all sorts of bridges showing that very thing so that the common practice was merely a reference to how other bridges get built in country towns and elsewhere where the same attention is not given.

Your Honours, on the causation issue, we submit that it was available to the judge to accept the expert evidence that the extra height would have protected the plaintiff and his Honour inferentially accepted that evidence.  To go to Justice Meagher’s judgment for evidence as to what occurred is to enter fairly sparse territory but, your Honours, it is clear that all his Honour said was that he was not satisfied it was clear, that is self‑evident that it would have saved the plaintiff.  We submit that cannot be constructed into a finding by the Court of Appeal that contrary to Dowd J’s findings that the extra eight inches of height and a graspable rail would not have saved the plaintiff.  We submit the injury fell within the

zone of increased risk created by the negligence of the defendant and, therefore, causation is established.

GUMMOW J:   Yes, thank you, Mr Gross.

The decision of the Court of Appeal of New South Wales in this matter was given before the decision of this Court in Brodie v Singleton Shire Council [2001] HCA 29. It is conceded, properly, that that decision with its re‑expression of the common law with respect to the liability of road authorities for nonfeasance does not help the applicant against the State. That leaves the liability of the local authority.

The Court of Appeal’s decision on that issue was expressed in terms of causation as well as in terms of the former nonfeasance rule.  In our view, it has not been shown that there are reasonable prospects of success were special leave to be granted.  Accordingly, special leave is refused and refused with costs.

We will adjourn to reconstitute.

AT 10.30 AM THE MATTER WAS CONCLUDED