Lujans v Yarrabee Coal Company Pty Ltd & Anor

[2008] HCATrans 239

[2008] HCATrans 239

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S3 of 2008

B e t w e e n -

MATINA LUJANS

Applicant

and

YARRABEE COAL COMPANY PTY LTD

First Respondent

JALGRID PTY LTD

Second Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 JUNE 2008, AT 11.32 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR A.J. BARTLEY, SC, for the applicant.  (instructed by Russell McLelland Brown)

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

KIRBY J:   Yes, Mr Toomey,

MR TOOMEY:   Your Honours, this is a case concerning a woman aged 28 who was left quadriplegic after a single car accident on a mine road in Queensland.  She was employed at the mine and she was driving the 35 kilometre stretch of road to the mine.  There was a curious context to the consideration of the safety or otherwise of the road which was ignored by the Court of Appeal and which we think is important and I would like to outline that to your Honours. 

It was that the road, being a road made of clay and gravel of course rolled and mixed into it, had to be graded.  Down the road every day there came about 500 coal trains carrying 400 tonnes of coal each.  So about 200,000 tonnes of freight was carried across that road every day.  It also served as a service road for the local graziers and people who worked at the mine and such like.  But it was owned by the first defendant and maintained by the second defendant.  Because of the length of the road and because of the huge amount of traffic it had, the road was graded.  The 35 metres was graded once every five days.  The road started from the Capricorn Highway at a place called Boonal and on Sunday night the first seven kilometres was graded, on Monday night the next seven kilometres, and so on so that over the five nights from Sunday to Thursday the whole of the road was graded. 

However, as I will, I hope, demonstrate to your Honours, the effect of that was that the nature of the road surface and its consistency was actually of five separate natures and that is because when the coal trucks came down the road, they dropped coal onto the road and dropped dust onto the road, and because of the huge amount of traffic and the huge weight of the trucks, the coal was crushed into the surface of the road and spread across the road.  The result, as found by the learned trial judge, Acting Justice Cooper, was that after three or four days the coal dust crushed into the surface created a uniform surface from what was locally called a “rill”, a windrow on one side to the windrow on the other.  The effect of that was that the central eight metres of hard road surface was to a large degree indistinguishable from the 1.5 or so metres of softer shoulder on either side.  Now, I think your Honours should have a set of photographs?

KIRBY J:   You offered at page 158 of the application book to show us some photographs and transcript which was not before us.  Are these the photographs you are ‑ ‑ ‑

MR TOOMEY:   Indeed, your Honour.  I thought, in fact, they had been filed.

KIRBY J:   We have some additional photographs.

MR TOOMEY:   The ones in the application book were unsatisfactory so we actually had the hard copies done.  Your Honours, can I show you the two photos I want to draw your Honours attention to.

KIRBY J:   We have exhibit numbers on them.  Which one are you referring to?

MR TOOMEY:   It is exhibit L, your Honour. 

KIRBY J:   Yes, we have that.

MR TOOMEY:   Can I ask your Honours also to look at exhibit 3?

KIRBY J:   Yes, we have that too.

MR TOOMEY:   Your Honours, the evidence of the man who graded the road, Mr Barry Jellick, was that the difference between those two photographs, which are of the same stretch of road looking in a different direction – the explanation of the difference between them was because exhibit L is the photograph of the road on the day it had been graded.  So it has been graded down to the white underlying clay and there is a ‑ ‑ ‑

KIRBY J:   This is to remove the refuse of the coal that is dropped by the truck?

MR TOOMEY:   The lot, your Honour.  It is all graded off the surface and leaves the road in that state.  Exhibit 3, which was taken probably five or six hours after the applicant’s accident, shows the road on Friday morning, same stretch of road.  It shows, as his Honour found, the effect of the road being ungraded with this huge amount of traffic for the four days, Monday to Thursday, before the plaintiff’s accident.

KIRBY J:   There are markings on my copy of exhibit 3 which ‑ ‑ ‑

MR TOOMEY:   That is the mark of where the plaintiff’s car came across the road, your Honour. 

KIRBY J:   Is it open to inference or was it suggested that the car simply continued in a generally straight trajectory and thereby left the road because of inattention?

MR TOOMEY:   It was certainly suggested by the defendant, your Honour, but the learned trial judge found that that was not the case.  He found that she had been actually deceived by the lack of distinction between the hard surface and the soft surface.  Your Honours, we say that there were a number of different errors in the Court of Appeal’s consideration of this case; errors of fact, errors of process and one very important error of principle. 

The case turned on two essential fact findings.  Was the road deceptive by reason of its uniformity of colour and if so, did the deceptiveness contribute to the accident?  There was evidence both ways on whether the road was uniform in colour.  There was anecdotal evidence, there are the photographs which I have shown your Honour, but the evidence which obviously had most cogency for his Honour and which he accepted was the evidence of Mr Barry Jellick, the man who graded the road every night.  That is to be found at 37 of the book. 

In paragraph 206 the learned trial judge referred to the difference in appearance of the photographs I have shown your Honours between the day of the accident and a road which had been freshly graded and he said the evidence of Mr Jellick threw light on it.  He said:

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. 

That, of course, as it appears, was a quote from Mr Jellick. 

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 fine 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, I should take you to page 149 of the book where in his address to the trial court my learned friend Mr Barry said this, reproduced at 149 line 18.

“ . . . . [T]he appearance of exhibit 3 [the photograph taken on the morning of the accident] is of a consistent layer of black coal dust all the way across the road and all the way across the grille [sic rill] the inference being that it is more probable than not that any grading that had taken place had taken place several days before and not the night before.

And that is what his Honour found.  But we would submit that that was an admission by the defendant that in fact the road was affected, we say, by the uniformity of colour and the difficulty of distinction, which his Honour found.  His Honour made the findings shortly at pages 55 and 56 of the book.  He says at the top of that page, paragraph 259:

Exhibit 3, the photograph looking south from the guide post taken by Mr Rawlins between about three and six hours after the accident shows some, but not complete, uniformity of colour of the road surface from rill to rill.  The strip of roadway extending about 1.5 metres to the east of the western rill is a slightly darker colour than the central part of that road.  However, the contrast in colours is nowhere near as marked as appears in the photographs taken a week later, exhibits K and L.

Then at 261 under the heading “Consideration”:

In the light of all of this evidence I am satisfied on the balance of probabilities that a reasonably prudent driver travelling along the Haul Road –

which the road was called –

at the same time and place as the plaintiff was, could not readily distinguish where the hard compacted surface of the roadway ended and the relatively softer shoulder began.  I am further satisfied that his state of affairs could materially contribute to the plaintiff so manoeuvring her vehicle that the left wheels entered up that shoulder.

Then his Honour posed the question as to whether it did contribute, and he goes on:

On behalf of the plaintiff it is submitted that the notion of momentary inattention is merely speculation, and flies in the face of her evidence that she felt unsafe and slackened off her speed.

That is a matter I will take your Honours to immediately after this.  At 264, perhaps I should come to that.  Paragraph 266:

Accordingly I am satisfied on the balance of probabilities that the plaintiff did allow the left wheels of her vehicle to enter onto the shoulder because she was paying attention but was misled by the deceptive nature of the road surface.

KIRBY J:   What sort of maintenance of the road, given that it is a coal road, could possibly prevent parts of the road from time to time having coal deposit on it?  This is not a great public road, it is just a rural road.

MR TOOMEY:   No, but, your Honour, no plea or case was ever run by the defendant that it was not in a position to be able to afford to grade the road more frequently.  I have told your Honours that 500 trains with 400 tonnes of coal was going down it every day, which is about 200,000 tonnes of coal a day.

KIRBY J:   That is a lot of detritus, one would think.

MR TOOMEY:   It certainly is, your Honour, and it is also a huge amount of money flowing into the coffers of the mine from this work.  I am not, of course, criticising that, but I am saying that in the light of that there could be no question that it would be unreasonable to ask the mine, if indeed there were a danger created by their activities, to take all reasonable steps to prevent that happening. 

KIRBY J:   Well, it took some reasonable steps by the regular up ‑ ‑ ‑

MR TOOMEY:   It was reasonable to grade it and it graded it well.

KIRBY J:   The question is, were they sufficient and did they cause this accident?

MR TOOMEY:   That is so, your Honour.

KIRBY J:   Justice Handley came to a conclusion that they did not and the problem for you is that we have to respect the respective fact finding roles, both of the Court of Appeal and of the trial judge.  We have to look, therefore, for any error that is in the Court of Appeal’s approach, given the advantages that the trial judge had.

MR TOOMEY:   I hope to demonstrate to your Honours that there were clear errors in the Court of Appeal’s finding of facts process and, as I sat, principle.  If I can turn to the facts.  There is a passage from the evidence of the plaintiff at the trial reproduced in the judgment of the Court of Appeal at 132 of the book.  Can I give your Honours a little background on this, 

As I told your Honours, the accident happened when the plaintiff was about six kilometres down the mine road from the main road she had turned off.  When she turned off the road, there was a large truck being driven by Mr Routledge and she had to pass that.  He was doing 80, the speed limit on the road was 100.  So she had to get past him.  She used her CB radio to tell him she was coming to ask him was it safe to pass and he said, yes, it was.  She passed him.  She said, as your Honours will see, that she passed at a speed of between 100 or 110 and she said the reason she exceeded the speed limit was because she had been told to get around the trucks as quickly as possible and she was scared because it was so large.  She was then asked:

Q        Now do you recall what happened after you had overtaken the truck?  A  No, I pulled back in quite safely.

Q        Do you remember that?  A  Yes . . . 

Q        Do you recall what happened with your speed after you had finished overtaking?  A  I remember lowering my speed as I was feeling unsafe for whatever reason I don’t recall.  I just recall feeling unsafe and dropping my speed back down to between 80 and 90.

Q        And after that what’s the next thing that you can remember?  A  Hitting my head on the window and then hanging upside down in the car.

Now, his Honour having regard to the evidence that there was that she had been followed from as soon as she passed the truck at a constant speed of 100 kilometres an hour until the man behind her lost sight of her at a slight bend 300 metres before the accident, his Honour inferred that that feeling of unsafety and lowering of speed must have occurred in the context of the happening of the accident.  In our respectful submission, that was a logical and proper finding of fact.  The Court of Appeal at the next page, page 133, at paragraph 19 said:

The respondent overtook Mr Routledge’s truck just after she turned onto the road . . . In its context her evidence about reducing her speed “after” she had overtaken the truck meant shortly afterwards, rather than afterwards in the right hand bend several kilometres away.

Other evidence about her speed supports this. 

His Honour says that the evidence of Mr Smith supports that when Mr Smith’s evidence was that he had followed her from the time she had passed the truck at a constant 100 kilometres an hour and had never seen her change her speed.  Both he and Mr Routledge said there had been nothing about the conduct of her driving at any time she was in their view.  The learned trial judge inferred that the probability was that that happened at the time of the accident and that it indicated that the plaintiff had been paying attention, but had been deceived so that the accident happened.

Now, in our respectful submission, that was an available finding of fact and there was no basis whatsoever for the Court of Appeal to say in its context, reducing her speed after she had overtaken the truck meant shortly afterwards.

KIRBY J:   Mr Toomey, the High Court does not normally get into such detailed factual findings unless there is an error of process or an error of principle.  You have said that, but before the time is up, you had better identify what they are.

MR TOOMEY:   Your Honours, the errors of process are these.  The learned trial judge, as I have I hope shown your Honours, relied upon the uniformity of the road by reason of the spilling of the coal and it spreading across the road.  In their consideration of the case, which had gone for 26 days, 1490 pages of transcript, their Honours made no reference whatsoever to the basis of the trial judge’s finding of negligence, that is, the spreading of the coal dust across the road.  There is no reference in the Court of Appeal judgment to the basis of the trial judge’s finding.

It is simply waved aside by the Court of Appeal on the basis that they looked at the photographs, having incorrectly said that they had then the principal evidence relied upon by the trial judge.  They looked at the photographs and they thought that it was quite easy to distinguish between the shoulder and the road.  In our respectful submission, that was a gross error in process.  There is also no reference ‑ ‑ ‑

KIRBY J:   It is true, as you have told us, that exhibit 3 was a photograph taken immediately after the accident.

MR TOOMEY:   It was taken six hours later, your Honour.

KIRBY J:   It was not suggested the road was regraded or ‑ ‑ ‑

MR TOOMEY:   No, my learned friend says three, it was not.  It was taken by Mr Rawlins and it shows in it a crane which it was proved had not been on the site until six hours after the accident.  So those photographs were taken six hours after the accident.  They were also taken after noon, whereas the accident happened at a quarter past six in the morning, in September.

KIRBY J:   Yes.  Now, you said an error of principle?

MR TOOMEY:   There was, your Honour.

KIRBY J:   Your time is up, but we will hear what you have to say about that.

MR TOOMEY:   Will your Honours give me a short indulgence?  Your Honours, March v Stramare, of course, is a classic statement by this Court of the necessity to balance not just the behaviour of one party, but both.  At paragraph 32 on page 136 Justice Handley of the court said this:

Even if the appearance of the road at the boundary between the shoulder and the smooth central surface was deceptive this could only be relevant and causative of the accident if the respondent was attempting to drive close to the left shoulder.  There was no good reason for her to do this.  She could and should have kept her vehicle well away from the left shoulder wherever it began.

Then at paragraph 34 his Honour found that:

The compelling inference is that it was inadvertence rather than the deceptive nature of the road’s surface where the shoulder began –

KIRBY J:   What is the error of principle?

MR TOOMEY:   The error of principle is that his Honour made that finding without ever considering whether the road was, in fact, deceptive and that could not be done.

KIRBY J:   This goes back to what you say is the error of fact finding.

MR TOOMEY:   It is.

KIRBY J:   Yes.  I think we understand the point you say is the error of principle and the error of process.

MR TOOMEY:   Can I just refer your Honours to one paragraph which makes it plain that their Honours did not regard the case as being a proper apportionment case, but as a sole cause case.  In paragraph 36 Justice Handley said:

The appeal must therefore be allowed.  It is not necessary to consider the appellants’ challenge to the findings that the appearance of the road was deceptive at the boundary of the left shoulder at this bend –

Now, in our respectful submission, this case could never be considered – the question of what caused the accident could never be considered without a proper consideration of whether the road was deceptive.

KIRBY J:   Yes, thank you for your help, Mr Toomey.  Yes, Mr Barry.

MR BARRY:   The case that was presented at trial was that the road had been defectively graded the night before.  That is why the submission was put by me, as my learned friend has correctly identified, that as to what inferences could or could not drawn from photographs.  That is the first point.  So a separate case was run, in effect, on appeal and is run in this Court and was run at trial.  The case at trial was that the material used to grade the road was defective or inadequate and that the road had in fact been graded the night before, but graded, in effect, negligently and that caused the accident.  That is why the submission was put by me that if one looks at the photograph which is at exhibit 3 to which your Honours have been taken, the inference is that the grading had probably occurred some time before. 

My learned friend said that photograph was taken six hours after and I corrected him to say it was taken at about three hours after.  One can see that because if one looks at exhibit 3 there is a gentleman standing on the right‑hand side.  His name is Mr Ross, he was a surveyor who happened upon the scene of the accident and that is him standing in the photograph that was taken.  Your Honour referred to the markings across the road.  They were the markings that were highlighted by the photographer when he got the photographs back to show the course that the vehicle had taken.  So that was the position as far as that was concerned.

KIRBY J:   Mr Barry, can I tell you what worries me a bit about this case.  It is the fact that the reasons of the primary judge after a very long trial and lots of evidence, extending over 117 pages, and the reasons of Justice Handley and the Court of Appeal extend over 12.  Myself, I have never thought the advantage of primary judges is seeing witnesses; it is absorbing all the detail.  The primary judge felt it necessary, even allowing for maybe some of it was not really necessary, but to explain his reasons in very lengthy reasons for judgment and the Court of Appeal dealt with its conclusion in a relatively short form.  Now, there is a new procedure in the Court of Appeal for dealing with matters in short form.  Was that invoked in this case or this is just regular short form?

MR BARRY:   I do not know whether it is regular or otherwise, but what the Court of Appeal ‑ ‑ ‑

KIRBY J:   Mr Toomey’s argument to us is that the Court of Appeal really did not fully appreciate and understand all the details that the primary judge had taken into account in his reasons.  What is your answer to that?

MR BARRY:   Their Honours did because there was no direct evidence as to what caused the accident.  The only evidence that was available was evidence by way of inferences that might have been drawn from other facts and the interpretation of photographs.  I think there were 16 witnesses who gave evidence at the trial.  None of them had indicated and nor were they ever asked whether they found the road in any way confusing or deceptive.  The word “deceptive” and the finding of so‑called deceptiveness first appears in the judgment of first instance.  As I said, the case was run at trial on the basis that it was a negligently maintained road, not that it was a deceptive road. 

The Court of Appeal had to decide on those facts what inferences could be drawn.  A two‑step process was engaged.  Firstly, they examined the trial judge’s findings and the finding about when the feeling of unsafe occurred, of course, was fundamental.  We established in the Court of Appeal that that was an error.  The obvious reason that the events must have occurred over a time span of about 1.5 seconds at the greatest for the feeling of being unsafe, then reducing speed from 100 kilometres an hour to 80 kilometres per hour.  The question was whether that finding by the trial judge was correct.

The Court of Appeal found it was incorrect and that it related to the events when the truck had been overtaken.  That was the error which was identified in a fundamental matter.  The Court of Appeal then had to say to itself, well, on those facts and on the material available, what inferences can be drawn as to what caused this accident?  The overwhelming inference in the absence of any other explanation was the res ipsa loquitur inference that the appellant had failed to keep a proper lookout and it was that inadvertence, for whatever reason, adjusting a radio or some other reason, that caused the vehicle to take the course that it did.  That is a finding of fact made by the Court of Appeal, they having been satisfied the primary judge was wrong on a critical matter as to how this accident occurred.

In our respectful submission, that is a course which was appropriate.  When the accident was one where there was such an obvious explanation, namely, inadvertence, it was not necessary for the court to go further than that when they had to determine the facts for itself.  In our respectful submission, that is what was done, a perfectly appropriate course in a case such as this.

KIRBY J:   What do you say in relation to the suggested error of process and error of principle?

MR BARRY:   The alleged error of principle is that the court should have considered the question of deceptiveness.  It was not necessary to do so because that was not the case that was run at trial.  The case that was run at trial was one of negligent grading of the road creating a circumstance where the vehicle left the road.  In the context there needed to be an explanation as to why these events had occurred.  It was simply a matter that was not necessary for the court to identify.  It was not a matter that they had to deal with and therefore there is no error of principle.  Those, your Honours, are our submissions.

KIRBY J:   Anything in reply, Mr Toomey?

MR TOOMEY:   Yes, your Honour.  Your Honours, the Court of Appeal considered, as is apparent, the question of whether the road was deceptive or not and they considered it as part of the defendant’s appeal and that appears at paragraph 36 on page 137:

It is not necessary to consider the appellants’ challenge to the findings that the appearance of the road was deceptive at the boundary of the left shoulder at this bend . . . 

That was the issue before the Court of Appeal and nothing was said to the Court of Appeal to suggest that it was not relevantly before them, and to be determined.  In fact, a large part of the time in the Court of Appeal was spent in arguing whether or not the road was deceptive.  My learned friend now says it was never an issue.  It is plain from the Court of Appeal judgment that they recognised it was deceptive, but, in our respectful submission, made the error outside principle of putting it to one side until they had considered the behaviour of the plaintiff.  Can I just remind your Honours of what Justice Deane said in March v Stramare at page 521? 

The case is one in which there was fault on both sides and in which, in the context of apportionment legislation, the accident must be seen as the result not only of the negligence of the appellant in driving his own vehicle but also of the negligence of the second respondent in parking the truck in breach of the duty of care which he owed . . . Expressed in terms of causative fault, the effective causes of the appellant’s injuries were the negligence of the second respondent in creating a hazard for a careless and inattentive driver and the negligence of the appellant in being such a driver.

Now, the learned trial judge found that the applicant could have been less far over.  She did not have to be over as far as she was on the road.  But it must clearly have been foreseeable that a person in those circumstances, driving to work day after day, a quarter past six in the morning, must clearly have been foreseeable that a person might allow themselves to get on the road into a position where they might be near the shoulder.  Then the question for the Court of Appeal must have been, was her negligence a contributing factor, and they accepted what the trial judge found about that, there was no challenge to it.  Was there negligence on the part of the defendant in creating the danger?  They never got to that crucial question until they had already decided the question.  May it please, your Honours.

KIRBY J:   The Court will adjourn briefly to consider the course it will take in this application.

AT 12.05 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.07 PM:

KIRBY J:   Without proceeding to a grant of special leave, the Court will refer this matter to a Full Court to be argued on hearing as on an application for special leave to appeal but with the parties ready to argue the full appeal.

MR TOOMEY:   May it please, your Honour.

KIRBY J:   You, from your recent experience, Mr Toomey, will explain to your client that that does not necessarily mean that your client will have special leave from the Court.

MR TOOMEY:   I do understand, your Honour.

KIRBY J:   It is very important that she understands that and that her hopes are not unduly raised.

MR TOOMEY:   Indeed, your Honour.

KIRBY J:   Very well.  The matter would not take more than a day, I assume?

MR TOOMEY:   I would not think so, your Honour.  Limited issues before your Honour.

KIRBY J:   Yes.  If I can say so, it should be concentrating on what you suggest was the principle and the error of process because it simply is not the function of the High Court of Australia to be redetermining factual questions.  You will have to get through that gateway, I would suggest, before you are going to sail on to getting the Full Court to consider the whole matter.

MR TOOMEY:   Yes, your Honour.

AT 12.09 PM THE MATTER WAS CONCLUDED