Lujans v Yarrabee Coal Company Pty Ltd & Anor

[2010] HCATrans 20

[2010] HCATrans 020

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney     No S201 of 2009

B e t w e e n -

MARTINA LUJANS

Applicant

and

YARRABEE COAL COMPANY PTY LTD

First Respondent

JALGRID PTY LTD

Second Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2010, AT 2.45 PM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC:   May it please the Court, I appear with my learned friend, MR S.J. LONGHURST, for the applicant.  (instructed by Russell McLelland Brown)

MR C.T. BARRY, QC:   I appear for the respondents with my learned friend, MR G.J. DAVIDSON.  (instructed by McCabe Terrill Lawyers)

HAYNE J:   Yes, Mr Toomey.

MR TOOMEY:   May it please, your Honours.  I am reminded of an etching by Daumier of Monsieur l’Avocat standing outside the court with his obviously unsuccessful client beside him and he has his hands in the air and he is saying “Encore, le Cour de cassation”.  This case has spent 29 days at first instance, four days in the Court of Appeal, an application for leave and a hearing here, sent back for a rehearing in the Court of Appeal, another four days, and here we are again.

However, can I make two points, because one might say that that series of facts is against us.  The two points are these, that there has never been a proper appellate hearing, we say, of this case before this hearing from which we appeal because the reason your Honours overturned the first Court of Appeal decision was because there had not been a proper review as the Court has mandated in Fox v Percy. 

The second point, your Honour, is that this is an appeal from an intermediate court.  It is not an appeal in which there are new facts.  It has not gone back for a rehearing so that the Court of Appeal were dealing with a new set of facts.  They were dealing with the facts which had been considered by the first court, and which your Honours had considered and on which your Honours had made certain observations which ought, at least, to have guided the Court of Appeal in the second hearing.  In our respectful submission, the Court of Appeal was not guided by the suggestions, at least, of this Court.

Your Honours, there are a number of matters of which we complain.  Can I just summarise them shortly.  The first and perhaps the most important, and it appears on this application as it appeared on the first application, and the appeal which arose from it, that is the use made by the Court of Appeal of the photographs.  The view of Justice Beazley – who dissented on the question of fact as to the effect of the photographs – was that the evidence which had been received by Acting Justice Cooper had been of what the witnesses had actually seen at the scene of the accident, as illuminated by reference to the photographs.  The view of the judges in the majority on that question of fact, the President and Justice Giles was that the witnesses had merely been referring to what they saw in the photographs.

It appears at paragraph 195 of the Court of Appeal judgment at 235 of the papers.  His Honour Justice Giles, with whom the President agreed, had set out the evidence of the eyewitnesses on the state of the road, and whether or not one could distinguish the edge from the running surface.  At paragraph 195, Justice Giles said:

Again, the evidence was mixed, and a deal of it was evidence of what a witness saw or explained from photographs rather than what the witness described from observation and experience.  The respondent relied on appeal particularly on the evidence of Messrs O’Loughlin and Routledge.  Mr O’Loughlin’s agreement that, if the road looked as in Exhibit 3 on the morning of the respondent’s accident, it would be “more difficult” to “pick up visually where the road ended and the soft shoulder began” was not expressly linked with uniformity in colour, but in the light of earlier questions uniformity of colour was probably understood as the basis for what was put to him.  Similarly as to Mr Routledge’s evidence.  But neither had explicitly accepted that the road looked as in Exhibit 3, and the force of this evidence turns on what this Court makes of that Exhibit.

Your Honours, the majority of the Court thereby arrogated to themselves the decision on the state of the road by what they made of the photographs.  The first vice of the statement is that neither of the witnesses, Routledge and O’Loughlin, had explicitly accepted that the road looked as it did in exhibit 3.  We have set out in our written submissions at paragraphs 23 and 24 the evidence of Routledge and O’Loughlin which negatives what his Honour said.  O’Loughlin was shown exhibit 3:

Q.Now you said earlier that that roadway at this point on that morning was uniform in colour from rill to rill.

A.Yes I believe so.

Q.That jogs your memory as to the uniformity of the colour does it not?

A.It does yes.

Your Honours, omitted from that evidence which is a quotation from what his Honour said in his judgment, is an important phrase.  After the words “on that morning was uniform in colour from rill to rill” the cross‑examiner said “That is borne out by that photo, isn’t it?” and the witness said “Yes, I believe so.”  Mr Routledge, whose evidence is next produced at paragraph 24 agreed that exhibit 3 was a:

true representation of the colour of the surface after coal dust had been ground into it’, and –

Q.And at least on the morning of the accident [the road was] graded so that it had the appearance it does in exhibit 3?

A.Yes I would say that’s it.

Q.It’s uniform in colour from rill to rill, is that right?

A.Yes.

Q.And that’s how it looked on the morning on the accident?

A.Yes I would say so, yes.

In our respectful submission, his Honour was clearly mistaken to say that the witnesses had not explicitly accepted that the road looked as it did in exhibit 3.  In our submission, they had.  They did not use the words “I explicitly agree”, but they had used words which, in normal parlance made it plain that they were saying “What is in exhibit 3 is what I saw on the morning.”

Their evidence, of course, was enlivened by their memory and knowledge of what the road really did look like, and when his Honour said that the force of their evidence turned on what the court made of the exhibit, he was mistaken because as Justice Beazley said, they were giving their evidence by reference to exhibit 3, but from their knowledge of the fact.  When the court went to look at the photograph – which as I will demonstrate to your Honours then became the focus of their factual decision – it looked at it merely as a picture.  No memory, no fleshing out.  Justice Giles continued with the use of the photograph by saying in paragraph 197:

I respectfully differ from the trial judge.

Then he set out matters which caused them to disagree, and he said on page 236:

Mr O’Loughlin gave a like explanation for his belief that you could tell where the hard part ended and the soft part began.

That is, that you can see the difference between the soft shoulder and the hard road surface.  Mr O’Loughlin’s evidence was fundamentally misunderstood by his Honour.  Mr O’Loughlin had been asked in cross‑examination, and it is reproduced at paragraph 25 on page 270 - it is reproduced, your Honour, if I can just find it, I am so sorry.

HEYDON J:   About paragraph 26, the last two parts of the question.

MR TOOMEY:   Your Honour, that is actually the contradicting evidence, which it is submitted his Honour did not understand.  He said when he was first asked – it was suggested to him that he could not tell the shoulder from the surface and he said “Yes, you could”.  However, that was by reference to exhibit 3, which was the photograph taken on the day.  At 185 his Honour set out Mr O’Loughlin’s further evidence when he was shown exhibit K.  That is paragraph 185 of Justice Giles, and he said, on page 231:

Mr O’Loughlin was asked further about telling the difference between where the road ended and the soft shoulder began.  It was put that “you couldn’t tell where the hard part ended and the soft part began”, and he replied, “I believe you could, yes”.  When shown Exhibit K, he gave the evidence –

Q.       (Witness shown Exhibit K) When you said that you could tell where the shoulder, that is, the soft area began because there would be gravel there, is that the sort of thing you had in mind?
A.       Yes.

Q.       In that photograph, you can see the roadway proper, can’t you?
A.       Yes . . . 

Q.       Then you can see a gravely area . . . 

Your Honours, the point which his Honour does not appear to have appreciated is that as established by evidence I will take your Honours to, exhibit 3 was of the road on the morning and at more or less the time of the accident.  Exhibit K was of the road a week later, immediately after it had been graded and maintained, and where there was no dispute that there was a clear distinction between the shoulder and the road surface.  His Honour had said in respect of Mr O’Loughlin’s evidence that it was difficult to see how his Honour could have used his evidence - his Honour the trial judge could have used his evidence to say that it was difficult to distinguish, having regard to the fact that he had said “Yes, you could tell the difference”.  But his Honour did not appreciate that.  He said that, as he agreed in the evidence I have just read your Honours, in relation to what was shown in exhibit K which was not a photograph of the road at the relevant time.

HAYNE J:   Were not those differences present to his Honour’s mind in respect to the evidence of Mr Routledge at paragraphs 189 and following, and is not the burden of what appears at 189 and following the distinction between the two photographs, no doubt founded on the difference in time?

MR TOOMEY:   Well, your Honour, it would seem that it ought to have been but, in our respectful submission, it clearly was not because his Honour never seems to have appreciated that the distinction between K and 3 was a distinction between a later time and a present time.  His Honour said again at paragraph 197 at the top of the page:

As Mr Shannon said, “any country roads you can see where the actual line is or the hard area on a country road is”, and Mr O’Loughlin gave a like explanation for his belief that you could tell where the hard part ended and the soft part began.

But that was in respect of exhibit K, your Honour.  It was not in respect of the time and question which was the condition of the road at the time the accident happened.

HAYNE J:   But do you accept that the consideration in the Court of Appeal of this issue and an assessment of whether your complaint is made out depends on reading the whole of what is said from perhaps earlier than 159, but at least from paragraph 159 through to 205?

MR TOOMEY:   Yes, your Honour, it does, but it ultimately comes to the question of whether the Court of Appeal were entitled to decide the matter, as Justice Giles did on the photo himself.  The court is entitled to make its decision on the photo.  In our respectful submission, the court never were.  The court were entitled to make their decision on the evidence of the witnesses enlightened by the photograph, but not enlightened by it in such a way as was contrary to the evidence.  That, in our respectful submission, is what they did.  The misunderstanding, we say, of the evidence of Mr O’Loughlin leads to errors in a number of paragraphs.  I will not take your Honours to them all.  I do not have time to and your Honours do not have time to listen to them. 

The Court of Appeal also completely omitted any reference to a piece of crucial evidence.  The question, as your Honours know, was whether or not the road upon which the applicant was injured was deceptive at the time of the accident.  The suggested mechanism of deception was that the road was graded one a week.  After it was graded the huge number of coal trucks, 500 per day, carrying up to 200 tonnes a day, 100,000 tonnes of coal a day, came down the road, dropped the coal, crushed it and it was spread across the road.  So the factual basis for a finding of a road which was polluted so as to make it difficult to distinguish was laid.  The learned trial judge was puzzled by the difference between the state of the road in exhibit K and the state of the road in exhibit 3.  At page 41 of the papers, at 207 at the bottom, his Honour said – Mr Jellick had been called, he was the grader driver:

He explained that areas shown in exhibits K and L had probably been graded earlier on the morning the photograph was taken because the white material is clearly visible.  Generally, after a day of traffic on there you get a lot of coal dust and it seals off fairly quickly.

He was then asked if he could advance a reason for the difference in colour of the road surface between what he was shown in exhibits 3 and 4 and on exhibits K and L.  He answered:‑

“You do get discolouring on the road after I have graded it because the coal trucks coming down the road, they lose a find dust and coal, they drop coal on the road too and that gets crushed up on to the surface too, of the road.  So it goes dark, gets that black look about it, yes.”

Now, that is the man who was responsible for it explaining how the road became polluted which gave content to the applicant’s claim that indeed the road was deceptive by reason of this mixture of black material so that you could not tell the difference from one side to the other.  That passage, which was then reproduced by his Honour on the question of foreseeability at page 61 where he said in paragraph 269 to 272, he posed to himself the question –

whether it was reasonably foreseeable that the surface of the road would develop such a deceptive appearance –

and he said –

The answer to this question is provided by the evidence of the man who regularly graded the road, Mr Barry Jellick.

Then he sets out the passage I have just read to your Honours.

HAYNE J:   I see the time.  Is there anything particular that needs to be added to you application, Mr Toomey?

MR TOOMEY:   Yes.

HAYNE J:   If you could simply state it in summary form.

MR TOOMEY:   Yes.  Your Honours, there is a statement by the President in paragraph 3 of the Court of Appeal’s judgment which we say is unorthodox and demonstrates a wrong approach by an appellate court to an appeal such as this.  It is in the context of whether the ‑ ‑ ‑

HAYNE J:   Mr Toomey, what I said was “state in summary form”.

MR TOOMEY:   I am sorry, your Honour.  What the President said was that the trial court had no advantage over the Court of Appeal in the determining of the facts and he gave reasons for it and, in our respectful submission, that was clearly wrong.  The other point which we say is of importance is the question of where the plaintiff felt unsafe on the road.  If it had been decided in her favour by the trial judge, it was decided against her by the Court of Appeal in precisely the same way as it was found against her on the first appeal in this Court on the appeal where the first Court of Appeal was overturned.  Your Honours had pointed to the fact that there did not appear to be evidence to support the finding of the Court of Appeal.  That point was crucial because it went to causation.

HAYNE J:   Yes, thank you, Mr Toomey.  We will not trouble you, Mr Barry.

In our opinion an appeal would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.  Special leave is accordingly refused.  It must be refused with costs.

AT 3.09 PM THE MATTER WAS CONCLUDED