Leyden v Caboolture Shire Council

[2007] HCATrans 475

[2007] HCATrans 475

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B28 of 2007

B e t w e e n -

SCOTT RODERICK LEYDEN

Applicant

and

CABOOLTURE SHIRE COUNCIL

Respondent

Application for special leave to appeal

KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 31 AUGUST 2007, AT 11.43 AM

Copyright in the High Court of Australia

MR R.J. DOUGLAS, SC:   If it please the Court, I appear with MR D.J. KELLY for the applicant.  (instructed by Carter Capner and Co)

MR H.B. FRASER, QC:   May it please the Court, I appear with MR R.J. MORGAN for the respondent.  (instructed by HBM Lawyers)

KIRBY J:   Yes, Mr Douglas.

MR DOUGLAS:   Thank you.  Your Honours, there are two issues, in our submission, which ordain this matter as apt for appellate disposition by this Court.

KIRBY J:   Could you explain to me what a BMX bike is?  My rather cloistered life has prevented my ever getting to know what that form of bicycle is.

MR DOUGLAS:   I join with your Honour.  I have had to find out.  Your Honour, it is a smaller form of bike than the conventional rally bike or the sort of bike we were used to in our youth.  It is a squat form of bike which in modern times in the last decade or two has been utilised for quick performance use by persons usually, as in this case, on tracks which have mounds which one speeds up towards and jumps from place to place.  So it is a form of performance bike within a confined environment.

KIRBY J:   I see.

MR DOUGLAS:   Is that a sufficient explanation for your Honour?

KIRBY J:   I think I might have seen one, so I think I know.  The Council did provide this particular place for just this purpose of riding these bicycles?

MR DOUGLAS:   It did, your Honours.  In fact, the type of bike in question and the place where it was utilised is described by the trial judge on page 2 of the application book at about line 35, paragraph [3].  It was provided for use by members of the public.  It had been opened a matter of months earlier.  The applicant and others, others older than him, some younger than him, used to have recourse to the place without the payment necessarily of a fee and utilised it from time to time.  The finding in relation to liability made ultimately in the Court of Appeal was that there was a breach of duty by the respondent causatively resulting in injury to the applicant by dint of a failure by the respondent’s officers to correct a modification to the track which had been undertaken by third parties. 

Now, that particular fact or that finding of the Court of Appeal, as we raised in our outline of argument, is of some significance, because, in our respectful submission, it is tantamount to a finding of causative liability inhering in the respondent for failing to effect a correction of this modification of the track and in circumstances, as found by the Court of Appeal, for the benefit not only of those who knew about the modification which had been made to the track, but also others who had not known about it.  The category into which the applicant falls is the first category.  He knew about the modification that had been made.  He was informed about that but as the Court found, as we say critically, the Court of Appeal at least, that was a matter which still vested him with the benefit of a finding of causative liability.

KIRBY J:   But you lost at trial both on duty of care and on breach, did you not?

MR DOUGLAS:   That is correct.

KIRBY J:   Both matters were decided against you and if this Court were to look at the matter, you would not only have to win on duty, the volenti issue, but you would have to win on breach and this Court would have to really find the primary judge was wrong on the breach issue for you to come home.

MR DOUGLAS:   No, Justice Kirby, because the finding of breach was made in favour of the applicant in the Court of Appeal and the first instance.  The only issue that the High Court, this Court, would need to consider on any appeal is the application of the volenti principles.

KIRBY J:   Yes, but it is very likely, would it not be, that if we were to grant special leave on the volenti point, that we would have a notice of contention contesting the decision of the Court of Appeal on the breach?

MR DOUGLAS:   Your Honours, we received no notice of such a matter.  We can only speculate about that.  We do not, with respect, consider that is likely given the strength of the findings below.

KIRBY J:   I would have thought there would have been – many cases are lost not on the duty, but on the breach.  Many negligence cases are lost on breach and here you have this special track with what is obviously a dangerous activity and your client went in there.  Even if you got up on the volenti, you might have, I would have thought, some difficulties on breach.  Anyway, you press on.  Your main argument is you say Justice Jerrard was the only one who got it right, that volenti is not simply being a volunteer.  It is a volunteer who accepts the risk and runs the risk at his own insurance.

MR DOUGLAS:   That is right.  In effect, we submit, the twofold issues.  The first issue is whether in the case of a plaintiff who freely, deliberately and in an informed fashion is courting a risk, where the content of the duty, as was found by the court below, was sufficient to still make a finding of causative liability.  We submit that the disposition of the fact of the courting of the risk falls to be determined by the touchstones of causation, remoteness, foreseeability and, indeed, by dint of statute, apportionment and that is the impact, we would submit, of the ‑ ‑ ‑

KIRBY J:   Look at some recent decisions in this Court like Woods and other cases, especially I am thinking of reasons of Justice Callinan.  It does not look a very promising case for success of a plaintiff because, in a sense, this is a bit similar to Woods, going in and doing something that is of itself quite a dangerous activity.

MR DOUGLAS:   Your Honour, there is no question it is a dangerous activity, but all the more reason, we would submit, why, as was found below, the respondent Council in maintaining the track for utilisation by people and, indeed, young persons such as the applicant, would exercise a high degree of scrutiny to provide for the safety of that track.  There is no question that it is in the nature of a sporting or recreational activity and, like all those other activities, carries risk.  We would submit that that actually amplifies the obligation of the occupying party to provide for a safe place.

KIRBY J:   I just feel when I am hearing these submissions that I am sitting back there in Woods’ Case and they persuaded me, but they did not persuade the majority of this Court.  Of course, that was a case that turned significantly on notices and warnings.

MR DOUGLAS:   Your Honour, this is not a warning case and that is a matter of significance.  If this were merely a warning case like the decision handed by this Court yesterday in Dederer, I believe is the correct pronunciation, then the task for the applicant would be a difficult one.  It is not that.  It is a case where the breach of duty identified was the failure of the respondent party, the occupier, to take steps to diminish or obviate the risk of injury which had been created, a risk which, it was found in the courts below, to be one which had a content which extended not only to those who knew about the risk in question, as was the case with the applicant, but also those who did not know about such a risk.  It comprehended both categories.  Again, we submit that that really lies at the heart of the issue which the Court should consider.

Your Honours, in our outline of argument we have referred to a number of recent appellate decisions in this Court from which it is apparent that in conventional negligence cases, there seems to be a vogue now to plead the issue or the maxim of volenti and in the various cases, most of which unsurprisingly have emanated in the last 10 years from the New South Wales Court of Appeal, there have been disparate statements as to the manner in which volenti falls to be adjudicated. 

One sees among those which we have put to the Court, a decision of Muzic where a lady walked along a promenade which she knew to be very slippery and which the allegation was ultimately successful that the defendant council should have closed it and volenti was decided against the council in that instance because it was found by the New South Wales Court of Appeal that she did not have knowledge of all the information which went to make up the legal risk in question.  That is one of the issues we have identified for the disposition of this Court on special leave in our outline.  There seems to be some disparate approach in the authorities, both in England and Australia, but the authorities in England assist us, between a juxtaposition of deciding volenti on the basis ‑ ‑ ‑

KIRBY J:   I understand that submission, but we have to look at the facts of this particular case and in this particular area of sporting injuries the parliaments throughout the country almost unanimously have now introduced in the form of civil liability Acts, including in Queensland, restrictions on recovery of so‑called obvious risks and recreational injury.  So really the question of volenti would be better dealt with if it were to come up from the point of view of the High Court in a case of a motor car accident or employment injury or something of that kind, a local government injury even, than in a case which is specifically a sporting injury in what is a risky activity.

MR DOUGLAS:   Your Honour, as we adumbrate in the outline, the Civil Liability Act where it deals with knowledge in the case of volenti does not touch the issue which is in question in this particular matter.  The civil liability legislation, as we say in our outline, only goes to the extent of knowledge and appreciation of the risk.  It deliberately goes no higher than that.  That is all that Justice Ipp, in his report, which precursed the new civil liability legislation, recommended that it go.  That is all it did.  In this particular case, there is no question whatsoever that the applicant was found to have appreciated and know of the risk. 

The critical question is whether, in terms of the authorities, he accepted the risk.  The Civil Liability Act does not touch that.  Likewise, the pure recreational risk provisions, which in Queensland find voice in section 19 of the civil liability legislation with analogues in many if not most of the States, poses the statutory jurisprudence in that context as one of exemption from liability in the case of dangerous recreational activity.  It does not do so on a foundational footing of a voluntary assumption of risk.  Volens has no role to play on the present drafting of the civil liability

legislation insofar as it pertains to recreational risk.  Our learned friends put that against us.  We submit there is a matter of clear drafting to the contrary.

Your Honours, we do submit – and we do not want to rehearse what is in our outline – that this case is a proper vehicle which raises all of the issues that have vexed the courts over the last half century in relation to volens.  We press the Court with what Lord Diplock had to say in Wooldridge’s Case where he propounded in his exegesis in that case that in fact foreseeability was a far more efficacious tool for deciding the consequences of informed consent to risk in circumstances whereby what was or was not foreseeable was the very act of voluntary conduct which is said to found liability. 

We would submit that it is those other negligence touchstones, those other procedural touchstones as we outlined before, whether it be foreseeability, causation, or even ultimately the statutory touchstone of apportionment which better serves to deal with a case of volens.  Your Honours, we would really be rehearsing further what is in our outline if we proceed ‑ ‑ ‑

KIRBY J:   No, there is no need for you to do that.  You have put the arguments very well in your outline and, if I can say so, in your oral submissions too.  Thank you, Mr Douglas.

MR DOUGLAS:   Thank you.

KIRBY J:   Mr Fraser, although it is always pleasurable to hear from you, we do not need your assistance on this occasion. 

There is much to be said for the dissenting view of Justice Jerrard in the Court of Appeal of Queensland that “youthful willingness to undertake risk to impress others by displaying skill on BMX bicycle riding is less than the voluntary assumption of the risk of injury by a person comprehending the consequences which will relieve a council from the consequences of a breach of duty”.  The defence of volenti non fit injuria must not be confused with contributory negligence.  Nevertheless, we cannot conclude that this case is suitable for a grant of special leave. 

The applicant failed at trial and, by majority, in the Court of Appeal.  The facts are somewhat special, involving, as they do, a deliberately risky activity.  If, as counsel for the applicant persuasively suggested, it would be timely for this Court to consider issues of volenti non fit injuria, it would be preferable that those issues be considered outside the context of sporting injuries which are now the subject of the Civil Liability Act 2003 (Qld) and similar Acts in other States. Those statutes introduce new and different considerations that would then not arise.

In the end, we are not convinced that an appeal to this Court would enjoy reasonable prospects of success.  It therefore follows that special leave must be refused. 

Do you ask for costs, Mr Fraser?

MR FRASER:   Yes, your Honour.

KIRBY J:   There is no reason, Mr Douglas, is there, why they should not be ordered.

MR DOUGLAS:   No, there is not.  Thank you.

KIRBY J:   Special leave is refused.  The applicant must pay the respondent’s costs.

AT 12.01 PM THE MATTER WAS CONCLUDED