Lodge v Council of Municipality of Waverley

[2002] HCATrans 395

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S296 of 2001

B e t w e e n -

JOHN JAMES LODGE

Applicant

and

COUNCIL OF THE MUNICIPALITY OF WAVERLEY

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 OCTOBER 2002, AT 12.42 PM

Copyright in the High Court of Australia

MR J.J. GRAVES, SC:    May it please the Court, I appear with my learned friend, MR R.J. de MEYRICK, for the applicant.  (instructed by T.D. Kelly & Co)

MR P.R. GARLING, SC:   May it please the Court, I appear with my learned friend, MR S.P.W. GLASCOTT, for the respondent.  (instructed by Phillips Fox Lawyers)

McHUGH J:   Yes.  I just might put on the record, I own two properties in the Waverley Municipality on which I pay rates and, I think, at the relevant time of these events, I owned three properties. 

MR GRAVES:   I thank your Honour for that.  Your Honours, the error that the applicant identifies in the reasoning of the Court of Appeal of the Supreme Court of New South Wales is the emasculation of the finding of the trial judge of the particular risk of injury that came to pass to cause the plaintiff significant personal injury that sounded in an assessment of damages in excess of $600,000 and, after discount for contributory negligence, a judgment of $400,000. 

In particular, your Honours, the error was this:  that, in our submission, the trial judge, that is, the trial judge on the issue of liability, Judge Phegan, found a state of affairs that notwithstanding the exercise of reasonable care on the part of the plaintiff, deceived him, namely, without his prescription glasses on, he having taken them off for the purpose of bathing in the rock pool at Bondi and looking through the seawater to the surface below, adverting to the risk of slipping on rock but, in particular, on mossy or algal covered rock and attempting to place his feet on sand only, he was posed with the dilemma of having to place his foot on a rock.  He made a judgment through the lens of the seawater that the rock upon which he was going to place his foot was clean of any marine growth.

McHUGH J:   But Mr Graves is not the first problem that you have to overcome is that the judge found that it was not an unreasonable conclusion to draw even though the Council may not have similarly indicated by way of signage at the time that it had assumed responsibility for the safety of persons using the children’s pool and had assumed a sufficient degree of control over that area to expose it to responsibility as an occupier and the Court of Appeal said there was no basis for finding that control extended to the area between the pools, including the rock shelf where the respondent fell?

MR GRAVES:   No, your Honour, with respect that is not an impediment to the applicant’s argument for this reason:  that as the Court of Appeal found through the reasons of Justice Bryson, where facilities are provided, people will seek a means of access to them.

McHUGH J:   That is the point, is it not, whether they provided them ‑ ‑ ‑

MR GRAVES:   On the basis upon which the Court of Appeal was prepared to decide the case they were, in a relevant sense – in the sense of control, provided.  May I take your Honours to two passages in the reasons of the Court of Appeal.  Firstly, at page 56 at line 30, there is a paragraph that commences:

To spell out the foresight of the risk of injury which I find –

that is Justice Bryson in the Court of Appeal –

a reasonable person in the position of the appellant –

that is the Council –

exercising some undefined functions and control over the promenade the pools and the steps, would have foreseen that his conduct in making available the promenade pools and steps involved a risk that a person approaching them over a nearby area of rock which the appellant did not control would be injured by slipping on the rock; if there are facilities to which people will want to have access, people will have access.

It is on that basis that the Court of Appeal proceeded and proceeded in addition, Justice McHugh, in this way, comparably, at page 58 from line 34, at the middle of the page.

McHUGH J:   That passage has to be qualified by what appears at line 10 on page 58:

What is available is general awareness . . . is heavily qualified by the facts that the place where the respondent fell is not itself within the area of control, and is swept by the tide, and that it has not been established that the appellant has any powers or exercises any functions there.

MR GRAVES:   Yes, your Honour, but that sentence or sentences find their place in a judgment after the passage I have just read to your Honours and before the passage that I am just coming to and must, in those ‑ ‑ ‑

McHUGH J:   This case had to be determined on a Pyrenees‑type case, was it not?  There just was not any evidence that they were an occupier in any relevant sense or that they provided any facilities.

MR GRAVES:   Your Honour, this case had to be decided conformably with the passage that I have taken the Court to and the passage I have identified at page 58 with the decision in Nagle, namely, that like Nagle the place where the plaintiff was injured was not a place of control, was not a place in the control of the relevant authority, but having ‑ ‑ ‑

KIRBY J:   Nagle was certainly the high‑water mark or the low‑water mark depending on your point of view.

MR GRAVES:   And the rock was below the ‑ ‑ ‑

McHUGH J:   The tide has been going out ever since, Mr Graves.

MR GRAVES:   Your Honour, my point is the fact that the area or the place where a plaintiff comes to grief is not in the control of the public authority is not fatal to the plaintiff’s case.  That is all I am simply submitting to you.

KIRBY J:   I just want to understand the facts a little better.  Your client, a very careful person as has been found, was stepping, but what he was stepping onto was natural rock with moss, was it not?  It was not concrete structure that had been built by the respondent?

MR GRAVES:   It was, as your Honour Justice Kirby can see, imperfectly, from page 1 of the application book, the composite photograph.  The area about two or three metres distant, that is, towards the surf, if I can put it that way, below the steps seen in the photograph and between what was called the “children’s pool”, that is the pool closer to the beach more western and the so‑called rock pool in which he did wade which is seen in the foreground.  In the access way or passage way, inelegantly described by me, between the two pools, the plaintiff/applicant was making his way from the rock pool towards the bottom of the set of steps that we can see in view in the photograph with a view to, so the trial judge found ‑ and there was no contest about this in the Court of Appeal ‑ to get to the first landing which we can see in view and then to move from there to the wall around the children’s pool where he had left his glasses and his street clothes.

To answer your Honour Justice Kirby’s question specifically, the area was one of natural rocky headland which some of us may have experienced around Sydney, comprising in the area in which the applicant fell, a combination of sandy surface upon which he could tread but also areas where the surface comprised rock so it was necessary for him to place his feet or a foot on rock, so it was a mixture of sand and rock.

KIRBY J:   And, indeed, that is the beauty of the spot, that they have kept the natural environment as far as possible though they have built these small pools and the concrete structure that you can see but they have left it as a natural as possible.  Is not the fault of your theory of the case that you have to then deface all of this promenade with signs and warnings and/or that you have to get rid of all the natural rock and other parts of the environment which are the attraction?

MR GRAVES:   No, with respect, that is to misunderstand our theory.  The theory being the facilities being there in place to be enjoyed, although the area in which the plaintiff fell not being in the actual control of the Council, it is foreseeable that if you provide a particular place that assumes more than just the function of the natural rocky headland but the means of access to and from one or other of the pools, then foresight, as both Judge Phegan and the Court of Appeal found, informs one that if in that access way there is a risk of injury the question arises, what should a responsible local government authority do in response to that risk?  The risk that Judge Phegan found, Justice Kirby, was a deceptive risk, namely, apparently reasonably safe to encounter in this access way.  On the other hand, the Court of Appeal saying an adverted risk run in any event.

Without disturbing, destroying, setting aside the reasons of the trial judge, the Court of Appeal proceeded on that latter basis, namely, that what was present on the rock could be seen when the trial judge found that it was not able to be seen by the plaintiff exercising reasonable care for his own safety.  Your Honours, we would not have a case if we are asking the court, or one had asked a trial court, to seek to impose upon a local government authority an obligation to post signs generally on headlands or rocky outcrops around our coast of the risk of falling on rocks because they are slippery.

The burden of our case rather is, where the headland or outcrop is altered from its natural state, and there exists areas for pleasure and pastime, namely swimming pools and steps down from the promenade, and a means of access between the pools to those steps up to the promenade and then off the beach, it is in those changed circumstances from the natural that the local government authority has the duty, the position found by Judge Phegan.  That is the nub of our argument.

Without addressing that position, but taking a different stance, the Court of Appeal said, on any rocky headland around Australia there are rocks and there is moss; the plaintiff did not advert to that risk and it is a risk that is obvious to everybody and one, which in the circumstances, a

local government authority should not have to warn.  But that was not, as I have sought to point out to your Honours, the case or the findings of the trial judge.  It is the particular circumstances of the natural transformed and its use by the public in the area of the municipality of the respondent, that gave rise to the duty, notwithstanding that the actual point at which the injury occurred was a point outside, so the Court of Appeal held, its area of control.  They are the applicant’s submissions, if the Court pleases.

McHUGH J:   Thank you.

KIRBY J:   Mr Garling, what do you say about the complaint that the Court of Appeal simply ventured into a retrial of the matter for itself, without first finding error on the part of the primary judge?

MR GARLING:   Well they did find error, your Honour, and in a very significant way.

KIRBY J:   I am not concerned with the warning aspect of the case; I am concerned with the point that Mr Graves is taking.

MR GARLING:   The error arose in this way.  There were, broadly speaking, three tracts of relevant land:  there is the rock shelf, which was tidal ‑ ‑ ‑

KIRBY J:   I am looking at page 1 now.

MR GARLING:    Yes.  The rock shelf, which was tidal, where these swimming pools existed.

KIRBY J:   Had been built, presumably by your client or its predecessor.

MR GARLING:   No.  And there was an express finding that there was no evidence which permitted that finding nor that we had ever exercised any control over them or carried out any maintenance on them.  So one starts with the proposition, your Honours, that the rock shelf in this photograph found by the trial judge not to be Council land and clearly, your Honours, since it is between the high and low-water mark it cannot be.

The next tract of land was, as your Honours can see in the photograph on the right-hand side, the concrete promenade, and there is a third tract of land, which your Honours cannot see in this photograph, which is above the promenade, which was a parkland.  The trial judge found that the promenade was not within the Council’s control or ownership ‑ that remained so ‑ but that the parkland was, and because access was available across the parkland and perhaps a small part of the promenade within the Council’s ownership and control, a sign should have been erected for people passing through there into this area of danger.  The Court of Appeal held that that finding, about the parkland and piece of promenade, was incorrect, and that parkland and part of the promenade was not under the Council’s ownership and control.

McHUGH J:   Well, since 1981 it had been vested in the Crown.

MR GARLING:   Correct, since 1981; this was a 1989 accident.  So that was the error with which the court started and said one therefore had to visit again the notion of what control, if any, the Council exercised in this general area and that is picked up, commencing at page 52 of the application book, where the Court of Appeal held, at about line 6:

there is no basis on which it would be correct to regard control by the Council of means of access –

and at line 15:

There is no basis for the finding that the Council had assumed control of all the land up to and including the retaining wall immediately behind the pool area ‑

which is where the promenade was, your Honour.

KIRBY J:   Now have you studied the facts in Rottnest v Nagle’s Case; do those determinations distinguish the case from those cases?

MR GARLING:   Yes they do, for these three principal reasons, your Honour:  the Rottnest Island Authority controlled the entirety of the land of the island.  There was a hidden rock beneath the sea, but it was capable of being discovered by the Authority.  So the Authority had complete control over the island.  The second step was that it had as one of its objectives, and it did, in fact, encourage and promote Rottnest Island as a place for recreation and swimming, and it invited people to come there for that purpose; thirdly, Rottnest Island held that the particular plaintiff, Mr Nagle, was an employee of the Authority and was encouraged in his spare time between split shifts and the like to familiarise themselves with the island and take part in the recreation that was offered.

Now, the Council in this case on the findings in this case do not promote this area, do not encourage people to come to it, but own land, or is the relevant local government authority for, the land which abuts this area.  Hence, at page 53 at line 2 the Court of Appeal says:

there is no evidence establishing that the appellant carries on any activity of control, management or maintenance on the promenade or

in the park above, and the Court is left to the limited and highly general notice which it may take of the existence and general nature of the activities of Local Government authorities.

And then they then describe that in the paragraph below, to which the Court has been taken.  In other words, it exercised some vague “functions and control” in the area, “nothing specific is known”, “There is no basis for a finding that that control extended to the area” et cetera.  So, your Honour, this is very different from Nagle v Rottnest.

McHUGH J:   It seems to have been a case in which it was argued, or it would have to be argued, that the Council, because of its powers, had an affirmative obligation to put up a sign here.

MR GARLING:   And then one runs into the sign issues about breach of duty, which are ‑ ‑ ‑

KIRBY J:   And also into causation issues, given that this was a very careful person anyway.

MR GARLING:   Absolutely, your Honour, and we would submit with respect to breach, whatever one makes of the duty, the findings on breach here are firstly factual and overwhelmingly correct.  If the Court pleases.

McHUGH J:   Yes, anything in reply to that, Mr Graves?

MR GRAVES:   Just shortly, if I may.  Your Honours, in Rottnest the risk, which were submerged rocks, was not in an area under the control of the Authority; the rocks were in what was called ‑ ‑ ‑

KIRBY J:   The submerged rocks were not, but, in a sense, the beach – I do not remember the facts, but Mr Garling has said ‑ ‑ ‑

MR GRAVES:   The place in which the Authority encouraged people to come, which was a recreational area next to which there was a body of water where people could swim, certainly was.

KIRBY J:   It seems a different factual substratum in this case.

MR GRAVES:   Your Honour, except for this, that we take as our starting point the point to which we took the Court when we commenced, and that was notwithstanding the errors found – we say irrelevant errors at this stage – of Judge Phegan with respect to ownership of land, we came to the point, and we do come to the point, that I read to your Honours at page 56, where the Court of Appeal spelled out the position in relation to this local government authority exercising some undefined functions and control over the promenade, the pools and the steps.  That is our starting point.  We are driven to it.  We are content with it.

Next, may I deal with this aspect.  So we say that the errors which my learned friend, Mr Garling, identified to your Honours, we accept that there were those errors, but we say they do not affect what we are about here.  We are past that point here; we are at the point that I have taken your Honours to in the Court of Appeal’s judgment.  Second, in relation to signage, if it matters, our case, your Honours, was in relation to this access way, as I have described it.  The Court of Appeal dealt with signage, as it dealt with risk, differently to that of the trial judge.  One is speaking of a purpose‑specific sign at or about the steps in respect of the area which the local government authority knew or ought to know - and Justice Bryson for the Court of Appeal finds and accepts, knew – would be used by all manner of people, including people with disabilities, people sight impaired, young people, old people, people who have never been to our beaches before, as the means to get from one or other of the pools, to the steps or vice versa.

KIRBY J:   I accept that point and Justice McHugh and I dissented in a case concerning indoor cricket concerning signs.  Signs can sometimes be useful with specificity, but just take this case:  here is a very careful man.  How can it be suggested that a sign would have changed in any way what he would have done?  He would have kept being careful.

MR GRAVES:   Your Honour, the trial judge dealt with that and dealt with it at page 27 and 28 of the application book from line 34, where the trial judge noticed:

The defendant’s submission in this regard was that the plaintiff on his own evidence was a particularly cautious individual –

and it was the defendant’s argument, at line 45:

that a sign would have been of no causal effectiveness in those circumstances –

and at 51 the trial judge writes:

On the other hand, it was the plaintiff’s own evidence which was not in any way disturbed, that if there had been a sign warning of the possibility that the rocks which he negotiated were slippery, or might be slippery for reasons which I have held existed –

namely, the deception of apparently non‑algal rock, when, in fact, the rock was covered in moss –

he simply would not have taken that particular path. 

That finding was not challenged in the Court of Appeal or could it be.  They are the submissions in reply.

McHUGH J:   This case raises no question of principle.  The decision turned on its own merits.  Moreover, we are of opinion that there is no reason to doubt the correctness of the Court of Appeal’s findings on breach of duty. 

The case is not one for special leave to appeal, which is therefore refused with costs.

AT 1.07 PM THE MATTER WAS CONCLUDED