Lorne Foreshore Committee of Management Inc v Gosling & Ors

[2010] HCATrans 114

[2010] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M98 of 2009

B e t w e e n -

LORNE FORESHORE COMMITTEE OF MANAGEMENT INC

Applicant

and

STANLEY GOSLING

First Respondent

ERIKA GOSLING

Second Respondent

DANIELLE NORRIS

Third Respondent

RACHEL NORRIS

Fourth Respondent

GARY GOSLING

Fifth Respondent

NICOLE GREEN

Sixth Respondent

SERENA GOSLING

Seventh Respondent

LUCAS GOSLING

Eighth Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 APRIL 2010, AT 3.10 PM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR C.J. BLANDEN, SC and MS D.A. SIEMENSMA, for the applicant.  (instructed by Herbert Geer)

MR J.H. MIGHELL, SC:   If the Court pleases, I appear with my learned friends, MR B.F. QUINN and MR A.S. PILLAY, for the respondents.  (instructed by Slater & Gordon Lawyers)

HAYNE J:   Yes, Mr Walker.

MR WALKER:   Your Honours, could I, notwithstanding this is a special leave application for leave to appeal from the Court of Appeal, start at first instance and on pages 18 and 19 of the application book and draw to attention – and I have gone to the middle of matters – that his Honour is there in the course of considering in an entirely orthodox fashion and prospectively the questions that arose in light of the circumstances presented by these facts.  In paragraph 37 on page 19 there are matters which can scarcely be gainsaid when one considers the horrible facts of this case.  There is no doubt that if the poor girl had not commenced to do what she did, clearly choosing to do so in the way she at least commenced to do it, that the tragedy which occurred would not have happened.

Everything that led to the death was put in train by and caused by a decision which in itself had nothing to do with the imperceptible drop off.  It is quite fantastic, in our submission, to suppose that anything in relation to being able to see or being warned that you could not see a drop off affected the way in which she commenced to go down the embankment.

CRENNAN J:   I think the trial judge emphasised the embankment, not the drop off.  That is part of your ‑ ‑ ‑

MR WALKER:   That is what I am seeking to address now.  I accept that the way in which the trial judge was overturned, the correction administered according to the likes of the Court of Appeal reasoning, was to find that the trial judge had misidentified or incompletely identified the circumstances that gave rise to the risk.  But the risk, with respect, is not what might happen at the bottom of the irregular topography of which there might be 13 or 14 kilometres under the charge of my client, the risk is that if somebody goes down on or near or so as to reflect what are called goat tracks in the evidence, that is, the informal, unprovided way of going down a naturally precipitous slope from Great Ocean Road to the beach ‑ ‑ ‑

HAYNE J:   From the hotel to surf club, was it not?

MR WALKER:   Hotel and surf club are important for reasons to which I will come and for reasons to which the Court of Appeal turned.  In particular, they may provide an answer in part to an approach, which I do not take, that the whole 13 or 14 kilometres of foreshore is to be treated indifferently.  That would be wrong, contrary to common sense and certainly contrary to the approach taken by this Court in, for example, Vairy.

On page 19, in our submission, there is an unexceptionable directing of himself by his Honour in relation, in particular, to the prospective question which is raised by the general appearance, certainly not confined to what must have been a very narrow, as it were, tragic avenue to hitting your head on the drainage cover.  That is not a realistic way of understanding the defendant’s prospective consideration of what to do about the risk.  It could not possibly be whatever tiny geometric track might lead an unfortunate person to hit their head on that.  Thus understood, in our submission, particularly where one considers that the suggested expedience offence, a light, a warning sign or a combination of the last two are in themselves not expedients which single out what lies at the bottom of the drop off, either permanently or temporarily – someone may leave a surf board, for example, underneath one – as the reason to shape conduct by judicial retrospective mandating of what the defendant prospectively should have guarded against. 

In our submission, the point about fences, of course, is that unless some discrete and contained part of a precipitous coastline or other land form can be supposed by findings of fact which dispel the notion that you are simply translocating the risk, then a fence, in our submission, provides no answer, just as, in our submission, on obviously very different circumstances, elaborate fencing suggestions did not retrospectively show that there was a breach of the duty of care owed in Dederer.  It is for those reasons, in our submission, that the way in which on, of course, a finding of fact and, of course, in accordance with well‑accepted authoritatively promulgated principles in this Court, was wrongly overturned by the Court of Appeal bearing in mind the way in which the trial judge addressed the question.

CRENNAN J:   You are really putting to us, are you not, that the trial judge came to a preferable conclusion on the evidence?

MR WALKER:   Your Honour appreciates that I inwardly wince at the use of the word “preferable”.  Rather, as we have tried to put it in writing, an exemplary and unexceptionable conclusion.  Now, bearing in mind that there is ultimately a jury question involved here, I would obviously seek to resist being dragged into the question, well, could one have reviewed a jury who found for the plaintiff?  I am not going that far.

HAYNE J:   But it becomes visitation or nothing, does it not?  Do you point to any error of principle?

MR WALKER:   No.  The only error we point to – I hope we have made this clear in our written submission – is that there is, by dint of what one can see implied by the precautions proposed by the Court of Appeal, fencing, lighting, warning sign or a combination of the last two, one can see that there is, in our submission, an error committed in fact of the retrospective kind that this Court has been at pains to identify as error and to seek to warn courts against.

Why I say that it shows retrospectivity, because in every case these are, in our submission, expedients which it can be seen the Court of Appeal sees as appropriate to have been required because of what has happened in the particular circumstances of this case.  But what my client was faced with was not simply the, whatever it was, three, four, five metres of breadth of potential out‑of‑control rolling down country which would land you on top of the drainage lid or, for that matter, any other object harder than a soft landing.  My client was faced with a considerably larger and, in our submission, insufficiently described vulnerability for anybody who in hundreds of places along the coast may choose to take an informal route on steep country down to the beach.

It is for those reasons, in our submission, that though of course neither in the Court of Appeal nor at first instance does one see what might be called a misdirection in terms, there has been a false step taken which we do put forward as showing an error in principle.  It is an error in principle of a kind that is by no means novel but, in our submission, that occasionally becomes a reason for a grant of special leave not against a grant of special leave.  It is, in our submission, for the reasons we have tried to capture in paragraph 30 of our written submission at pages 76 and 77, particularly for parties such as my client, of very considerable concern, of great moment, how cases of this kind are decided with the implications they have for operational decisions of the future.

A perhaps not so cynical view of the raison d’etre of parties such as my client is that they are there as a lightning rod for the kind of risk management which includes litigation such as the present case, and not a bad thing.  Someone must be responsible not only positively for the safety and amenity of an area but also must be an accountable party.  All the more reason then, when a decision of this kind is made, to examine what the implications are with respect to passages or portions of the foreshore under stewardship where no such untoward incident has been known from what we can gather from the evidence.

There is one exception to that.  The policeman who gave that evidence said that he himself, chasing an alleged suspected malefactor, had come to grief.  That is so far different from the kind of risk which it was reasonable for a public authority or a public body such as my client to be taking into account prospectively and looking at the whole of its remit rather than at the very focused track which led to this tragedy occurring.

HAYNE J:   Was it relevant to take to account the matters identified in paragraphs 23 and 24 of the Court of Appeal’s reason, namely, the frequency with which this part of the embankment was used to get from hotel to club?

MR WALKER:   I cannot possibly answer that any other way than of course it was relevant, yes.  I think that is consistent with what I earlier answered, your Honour.  It does not suffice for a body in my client’s position to say, “I’ve got all this foreshore, I’m not going to undertake a spot‑by‑spot analysis”.  That would be a derisory performance of the common law duty.  We accept that.  Of course risk management involves understanding that a crumbling cliff may be reasonably left alone in one position but in another position must be the subject perhaps of extensive geotechnical stabilising as well as fencing.  Obviously traffic or usual recourse to it will be, because we are here looking after the safety of human beings principally, an indicator of that.

So of course it is not relevant but, with respect, this was a slope and a means of access where, as everybody knows – and this, as it were, is my obviousness point – if you go pell‑mell down a slope steep enough, there will be grief at the bottom.  That is what happened in this case.  It is the kind of elementary taking reasonable care for your own safety which is part of the calculus not only at a duty point but, as in a case like this, at the breach of the standard of care point.  It is for those reasons, in our submission, that there has been the error, which we would sum up by the one word “retrospectivity” in the Court of Appeal, with what are very large practical consequences not only for my client but for all bodies in such a position.

It really means that risk management in particular is not something that can be performed by prioritising or using resources by reference, for example, to the fact that nothing is known, notwithstanding a deal of use of this means of access of anybody suffering something as terrible as rolling completely out of control horizontally over the edge of a lip and onto something which happened to be on the bottom.  For all we know, of course, even without hitting the drainage cover, there may still have been terrible injury or even death.

It is for those reasons, in our submission, your Honours, that it was wrong as a matter of appellate approach for the Court of Appeal to detect an error requiring or permitting overturning of the first instance judge.  The manner in which that was done, preceded by finding that his Honour had misidentified a risk when in reality his Honour had correctly identified the risk, he had not left out of account a drainage cover at the bottom of the drop off any more than he had left of account the drop off.  He merely observed that the risk came about in the same way as in Dederer, it came about without the boy having to know anything about the possible variable and dangerous depth of the water in which he was about to dive.  The combination of the elevated structure of the bridge and the boy’s reckless dive explains the risk in Dederer and the analogy with this case, in our submission, is a compelling one.

We accept that in this Court’s control of its business by special leave there must come an end or at least a temporary cessation of the grants of special leave where well‑accepted principle having been unexceptionably followed at first instance nonetheless have a result overturned in intermediate Court of Appeal which has neither ‑ ‑ ‑

HAYNE J:   I do not think you should work on the assumption that if established principle is departed from that this Court will not intervene in every occasion that it is made apparent that there has been some departure from principle, Mr Walker.

MR WALKER:   I was hoping your Honour would say something like that, but I accept that the task for me ‑ ‑ ‑

HAYNE J:   I am simply telling you how you should order your affairs, Mr Walker.  I am not indicating what we will do.

MR WALKER:   No, not all, your Honour.  I understand the task for me is to try and persuade your Honours that, though this appears to be a case where there was an application at both levels below of recent clear guidance, showing no gap to be filled, and not only in the visitorial jurisdiction, which we do invoke in this case, not only in the visitorial jurisdiction, when it can be seen that the character of the intermediate appellate decision, which obviously has more importance than any first instance decision when it comes to the shaping of conduct of bodies such as my client and their insurers, when it can be seen from the approach that the well‑established error of retrospectivity of simply saying, that should have been done which we now know factually would have prevented this disaster, and really proceeding in no more elaborate fashion than that, when that can be seen, in our submission, it does call for correction by this Court.  May it please the Court.

HAYNE J:   Thank you, Mr Walker.  We will not trouble you, Mr Mighell.

The decision of the Court of Appeal depended upon the application of established principles to the particular facts and circumstances of the case.  The conclusion reached by the Court of Appeal on the factual question of breach of duty is not, in our opinion, attended by sufficient doubt to warrant a grant of special leave to appeal.  Once it is recognised that the decision of the Court of Appeal turned on a question of fact, and thus establishes no precedent for determination of other cases, it is evident that the interests of justice, neither generally nor in the particular case, require the grant of special leave.  Special leave to appeal is refused.  It must be refused with costs.

MR WALKER:   May it please the Court.

MR MIGHELL:   If the Court pleases.

HAYNE J:   The Court will adjourn until 10.15 am on Tuesday, 18 May 2010 in Canberra.

AT 3.28 PM THE MATTER WAS CONCLUDED