McCormack & Anor v Schultz

[2016] HCATrans 119

[2016] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S240 of 2015

B e t w e e n -

NORMAN McCORMACK

First Applicant

CATHRYN McCORMACK

Second Applicant

and

SHERAN ANN SCHULTZ

Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 16 MAY 2016, AT 2.21 PM

Copyright in the High Court of Australia

MR J.E. SEXTON, SC:   May it please the Court, I appear with my learned friend, MR S.E. TORRINGTON, for the applicants.  (instructed by Hall & Wilcox Lawyers)

MR S. SHELDON, SC:   May it please the Court, I appear with my learned friend, MR V.M. SCIGLITANO, for the respondent.  (instructed by Brydens Law Office)

KIEFEL J:   Yes, Mr Sexton.

MR SEXTON:  Thank you, your Honour. May I take your Honours immediately to the text of section 5F of the Civil Liability Act, which appears at page 115 of the application book?  Your Honours will see that subsection (1) provides that an:

“obvious risk” to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

Firstly, that language distinguishes between the harm and the risk but, secondly, and more importantly for the purposes of this application, as your Honours will see from section 5B, which appears on the previous page, the statutory prescription concerning breach is directed towards the failure to take precautions against a risk of harm and subsection (1)(a) speaks in terms of foreseeability and (b) in terms of significance, the point being that section 5B is directed towards a spectrum of risk.  It ranges from something which is not far‑fetched and fanciful up to something which is almost or, indeed, could be a certainty.

So the risk which is the obvious risk for the purposes of section 5F is a risk which directs attention to a spectrum between almost a mere possibility up to an almost certainty. Our complaint in this case is that the primary judge implicitly recognised that circumstance because he made a finding, which I will take your Honours to in a moment, about the risk and whether it was obvious within the meaning of section 5F by reference to possibilities.

However, the Court of Appeal, erroneously in our submission, overturned that finding by adverting to matters which increased, or would have if they had been known to the respondent, where on the spectrum between possibility and certainty the risk lay but, nevertheless, did not derogate from the proposition that there was an obvious risk because of the possibility, the possibility, of course, being the risk of harm from slipping on wet steps.

The primary judge dealt with this at paragraphs 49 and 50 of his judgment which appear at application book page 18, paragraph 49.  His Honour speaks of there being:

a reasonable prospect or possibility that the steps she was about to descend could possibly have been wet and slippery due to previous rainfall.

In my view, the plaintiff ought to have known of that possibility before she commenced to descend the steps.  The plaintiff was able to see that the roof over the verandah did not have a significant overhang covering the steps.  She ought to have realised –

that.  The language in ‑ ‑ ‑

KIEFEL J:   Given the findings about ought to have known of the risk that it was wet and slippery, do the additional observations in the second and third sentences in paragraph 50 take the matter any further?

MR SEXTON:   No, your Honour, that is our submission, but the Court of Appeal considered that those circumstances did take the matter further.

KIEFEL J:   Is that by way of suggesting that a person in the plaintiff’s position ought to have or needs to have a greater awareness of risk?  You have put it as a spectrum of possibilities.

MR SEXTON:   Yes, your Honour.

KIEFEL J:   Another approach might be as to the level of understanding of the risk.

MR SEXTON:   That may be so, your Honour, but the Court of Appeal approached it by discounting matters additional to the finding which was made, as it were, concurrently both at first instance in the Court of Appeal that the plaintiff did know, was aware of the possibility of the location where she slipped being wet.  His Honour the primary judge on the next page at paragraph 55 expressed his conclusion in terms that:

it would have been obvious to a reasonable person in the position of the plaintiff that the wet state of the stairs posed a risk of slipping.

In the Court of Appeal, Justice McColl gave the first judgment and Justices McFarlan and Beech‑Jones agreed with her reasons but added some reasons of their own.

BELL J:   And am I right in thinking in the case of Justice Beech‑Jones, though he agreed with her Honour’s reasons with respect to the failure to warn, he did not embrace the failure to place the adhesive matting?  Perhaps it does not matter.

MR SEXTON:   I am not sure that it matters but that may be the position.  He certainly expressed the risk that he was addressing in his additional reasons differently to the risk that Justice McColl identified.  The starting point for this submission in Justice McColl’s reasons is at application book 84 in paragraphs 97 and 98, picking up an answer in the evidence at the end of 96 about whether the landing was wet or not:

It was then put to her that the landing “was only partially covered by the awning” to which she responded “most of it”.

To that extent, it is apparent the appellant appreciated that there may have been a risk of rain having wet the porch, and it might be inferred a reasonable person in her position would have the same perception.

Now, what we submit about that is that that is sufficient to identify the more than far‑fetched and fanciful risk that there may be a slip and a fall on the wet porch and that the other matters do not take it any further.  Her Honour in 101 went on to say at about line 12 or 13:

the awning protected the landing by providing cover, and to her observation, the landing was not wet.  Accordingly, in my view, the primary judge’s finding that a reasonable person in the appellant’s position should have appreciated the limitations of the roof protecting the verandah from rain was not open to his Honour.

As we have already discussed whether or not that be so, it does not derogate from the proposition that there was a factual basis for a finding that there was an obvious risk based on what the respondent did know.

I should interpolate, the application book at page 9 reproduced a photograph that was in the primary judge’s reasons.  Can I hand up to your Honours two copies of that which are more legible.  Your Honours will see the references to awning and verandah roof and so on are references to what could be characterised as an unremarkable suburban roof.  There is nothing special about that or about the steps and the verandah and so on.

Next, her Honour at paragraph 104 dealt with an issue about the available lighting and at line 41 says:

the primary judge ought to have concluded that the ability of a reasonable person in the appellant’s position to perceive the condition of the porch was obscured to the extent that that person’s shadow would fall on the area he or she was approaching.

That again is a matter which, in our submission, if known would increase the probability of there being a risk of falling but does not derogate from the proposition that there was a relevant risk.  Then in paragraph 106 on page 86 of the application book, Justice McColl says:

the most cogent criticism of the primary judge’s finding on obvious risk is his attribution to a reasonable person in the appellant’s of a perception the porch may be wet due to wind‑blown rain.  It is apparent that that was a matter which would have only been apparent to a person in the respondents’ position, with experience of the premises.

There are two points to be made about that.  Firstly, again, it does not matter because the source of the water was not important; it was the fact of the possibility of it being wet.  Secondly, the evidence was that the respondent and her husband had been to these premises many times before, including when it was wet, and therefore it was not something that was – if the qualification was experience of the premises, that is not something that was made out on the evidence.  Justice McFarlan, in his additional reasons at paragraph 142, at application book 94, says:

The risk that the appellant should have been warned about would not have been obvious to a reasonable person in her position.

He does not identify precisely the risk but he goes on to say:

Her evidence was that she was not aware of any excessive slipperiness of the landing when wet ‑

Again, she was aware of the risk of slipping, whether that was due to excessive slipperiness or only ordinary slipperiness, whatever that may be, is not identified.  His Honour goes on:

In any event, she had no reason to know that the part of the landing near the top of the steps could become wet when there was rain and wind or that it was in fact wet when she fell.

Again, it did not matter because she was aware of the possibility that it was wet from whatever source and he then distinguishes between knowledge that the respondents, as owners and occupiers, had or ought to have had that had not been communicated to the respondent.

Justice Beech‑Jones, in his additional reasons at 150 on application book 96, somewhat with respect inconsistently giving that he had agreed with what Justice McColl had said at paragraph 98 said:

As she departed the premises Mrs Schultz did not know and could not reasonably be expected to have known that the tiles on the top of the landing were wet, whereas Mr McCormack knew that was likely.

Assuming that his Honour is accepting the possibility at 98, what his Honour is distinguishing there is between a possibility and likelihood, but they are both positions on the spectrum between mere possibility and certainty so far as 5F is concerned. 

His Honour at paragraph 153 on page 97 of the application book, identifies the risk – this is at line 39 – in a different way to that which either the primary judge or Justice McColl or Justice McFarlan did.  He identified the risk as being:

the potential for water to have pooled on the top of the landing due to the configuration of the awning.

That is a much more specific risk than the risk of slipping on wet stairs but, again, it does not derogate from the possibility known to the respondent, and his Honour finds that that was known to at least Mr McCormack who:

should have appreciated the potential for a person such as Mrs Schultz to be unaware that the tiles . . . were wet ‑

Again, that is inconsistent with the ‑ ‑ ‑

BELL J:   His Honour’s finding there refers back to Justice McColl’s analysis at paragraph 101.

MR SEXTON:   Yes, your Honour.

BELL J:   I think the point that is being made is that the top of the landing, as distinct from the stairs, was wet.  True enough, Justice McColl does not speak of the water pooling and, as I understand your argument, it matters not.  The risk was a risk of the surface being wet, presumably at the top of the landing, which you might call the first stair, or the stairs themselves.  But I am not sure that it is right to say that his Honour is really at odds with Justice McColl.

MR SEXTON:   That may be so, your Honour, but the critical point is that in each of paragraphs 96, 97 and 98 on page 84, attention has been directed to the landing and the finding at 98 is:

the appellant appreciated that there may have been a risk of rain having wet the porch ‑

There was an important distinction in this case and, indeed, the Court of Appeal pointed out that the primary judge was in error in finding that the respondent slipped on a step rather than on the top of the porch.  So it cannot be suggested that it was not in the Court of Appeal’s mind that there was a distinction between the steps and the porch and Justice McColl is clearly dealing with the porch where the respondent slipped. 

For those reasons, we submit that the Court of Appeal construed and applied section 5F in a manner which unduly restricts the application of that section, not in a way that is limited to the particular facts of this case but which is apt to have precedential value in terms of other cases where one is looking at degrees of knowledge but in this case what one is dealing with is conceptually a risk which has a number of steps in it.

As Justice McColl recognised and it has been recognised in a number of other cases, all steps wet or dry, for example, are dangerous. Wet steps are more dangerous than dry steps. Steps in darkness may be more dangerous than steps that are well lit, and so on, but at the level of identifying an obvious risk where the question is ‑ and the impact of section 5F is that section 5H provides that the defendant does not owe a duty of care to warn of an obvious risk.

So in terms of applying the general law of negligence, it is taking one element of the scope of the duty away – that is, warning – but as we pointed out in our written submissions, if the degree of change in the probability of the risk is not such as to change the response of the person who is warned, then one can accept that the risk can be characterised at a relatively general level without invoking the criticism that that is not the purposive application of the section.

So, in this particular case, not only is there a spectrum on which various degrees of risk depending on knowledge can be identified but in addition in this case the response would not be any different.  If you say to somebody “be careful, the landing might be wet” the response will not be any different to that which the expected reasonable response would be if you said “the landing might be wet because of wind‑blown rain”.  It does not add anything to the expected response.

For that reason, in our submission, the Court of Appeal has at least applied, if not construed, section 5F too narrowly, which has led to an error in terms of the warning aspect. The second aspect of the case which is related to that is the complaint about ‑ ‑ ‑

KIEFEL J:   I see that you are out of time.  Are you going to be short?

MR SEXTON:  Yes, your Honour. Very shortly, the factual finding is that the Court of Appeal took an expression of general expert opinion evidence and applied it to the particular in order to exclude the potential for the applicants to have been unaware of the slippery or non‑slip‑resistant nature of the steps or the landing, even though they had no actual experience of there being an absence of slipperiness. We accept that that point is not a point which would attract special leave but the section 5F point, in our submission, would.

KIEFEL J:   Just on that, the section 5F point on your submission has wider ramifications.

MR SEXTON:   Yes, your Honour.

KIEFEL J:   But I see that you have not made any ‑ I do not think you have made any reference to the terms on which costs should be dealt with in a case such as this.

MR SEXTON:   I accept and I have instructions that the usual order about not disturbing costs below and ‑ ‑ ‑

KIEFEL J:   Below and paying the costs of the appeal.

MR SEXTON:   ‑ ‑ ‑ paying the costs of the appeal in any event on a party‑party basis would apply.

KIEFEL J:   Thank you, Mr Sexton.  Yes.

MR SHELDON:  Your Honours, can I start at section 5F on page 115 of the application book. Every matter that my learned friend has taken the Court to today is a matter which is referrable to, in our submission, the circumstances and the position of the person whose reasonable perception is in question.

The application was put in the application for special leave on the basis that the question raised was some question to do with the level of abstraction at which one determined what was the risk.  Well, that has not featured at all today and what that has done, in our respectful submission, is to elide the difference between identifying the risk as to which, in our respectful submission, there was no material difference between the primary judge, Justice McColl, Justice McFarlan and Justice Beech‑Jones, who may have expressed it in slightly different terms, but it all turned on a risk of slipping on a wet surface, if I can put it that way.

So when my learned friend took your Honours to page 84 of the application book, which I will do now if I may, what he omitted to draw your Honours’ attention to starts in paragraph 96 where her Honour Justice McColl says in the second sentence:

She said, as I read her evidence, immediately before her fall, the area in which she was standing was dry.  That was clearly a reference to the time immediately before she turned to leave the premises.  In response to a question as to her appreciation that if she walked on a wet surface it could be slippery ‑ ‑ ‑

which we say is doing no more than identifying the general risk:

she responded:

“Like I said, the landing wasn’t wet, it’s undercover.”

We say that is very important because that speaks of both the circumstances and of the perception of a person whose position is relevant to the second limb of the test of obviousness, namely, what would a reasonable person in the position perceive.

BELL J:   But I think, Mr Sheldon, the emphasis placed by your opponent was on paragraph 97, the response, when it was put to her that:

the landing “was only partially covered by the awning” to which she responded “most of it”.

MR SHELDON:   Yes, your Honour, but what going straight to 97 does is it overlooks the fact that the plaintiff’s evidence was that where she was standing was dry and the landing was not wet.  She justified that, I accept, by “it’s under cover”, but when she says “most of it” that does not derogate, in our respectful submission, from her understanding and perception that the landing was not wet.  Your Honours have been taken to 97, but in 98 her Honour Justice McColl says:

it is apparent the appellant appreciated that there may have been a risk of rain having wet the porch ‑

But she did not appreciate that it was wet.  So we say that the relevant circumstances are of a person who could appreciate the theoretical possibility of the porch becoming wet and we accept appreciates the theoretical possibility that when something is wet it may be slippery, but the reason that say his Honour erred and the Court of Appeal is correct is because putting those two things together actually involves the very thing that my learned friend was criticising and your Honours will see that from paragraph 98, the second sentence:

there was no cross‑examination of the appellant to indicate that she had any appreciation of the extent to which there was a discrepancy between the area of the verandah the awning protected and the porch itself.

Now, we say that that observation makes good the suggestion that the plaintiff in her circumstances and a reasonable person in that position would have proceeded on the basis that the landing was not wet and that the subsequent reasoning, which my learned friend deploys, was not something that a reasonable person in the position of the plaintiff would have undertaken.

BELL J:   That might be thought to illustrate the point that your opponent seeks to make respecting the degree of abstraction of the risk or, alternatively, the degree to which you particularise it.  So are we looking at the risk of stepping out onto a surface that one knows might be wet or something much more precisely drawn when one identifies the risk?

MR SHELDON:  Your Honour, I think my answer to the observation is that this is going to the particular circumstances and the relevant position of the person whose reasonable perception is in question in section 5F and what it ultimately leads to is acceptance of the submission in paragraph 94 at 83 of the application book. But when these aspects of the plaintiff’s position are properly understood, they involve an unrealistic accumulation of insights which a reasonable person would not have. Further, if your Honours go to paragraph 99 of the Court of Appeal’s decision at application book 84, about line 41, Mr McCormack:

gave evidence that the awning covered the landing, but not the stairs.

So most of this answer at 97 is actually contradicted by the applicant’s evidence that it covered the whole of the landing but not the stairs.  That is the way in which one would understand that.

KIEFEL J:    But his evidence would not be relevant to the question of whether it was an obvious risk to the plaintiff.

MR SHELDON:   No, but her Honour Justice Bell pointed out to me that there might be seen to be some retreat in paragraph 97 from the absolute terms of the answer quoted in 96.

KIEFEL J:   Mr Sheldon, do I understand your argument correctly to be that if one looks at the primary judge’s judgment at paragraph 49, application book 18 that the question of whether something is obvious is not to be determined by reference to degrees; in fact, it is kind of the flip side of Mr Sexton’s argument?

MR SHELDON:   Yes, your Honour.

KIEFEL J:   It is either obvious or it is not.

MR SHELDON:   Yes, your Honour, with one ‑ ‑ ‑

KIEFEL J:   This is a qualification which detracts from the obviousness of the risk, if one has to say it could possibly have been.

MR SHELDON:  Exactly, your Honour, with respect, and we say that all of the things that I have taken your Honours to show that when one factors in the circumstances so as to determine what a reasonable person in the position of the person, being the plaintiff, as section 5F requires, then one comes to the position that there was a wholly unrealistic requirement that the plaintiff who did not perceive the landing to be wet should perceive that it could be wet because the awning did not completely protect it from rain and this is picked up, in our respectful submission, at page 85 of the application book where her Honour Justice McColl says:

the awning protected the landing by providing cover, and to her observation, the landing was not wet.  Accordingly, in my view, the primary judge’s finding that a reasonable person in the appellant’s position should have appreciated the limitations of the roof protecting the verandah from rain was not open to his Honour.

As I understand what my learned friend says about that, that is putting too much particularity into the equation but, in my respectful submission, that is not right because when one goes back to paragraphs 96 and following, the factual position was that the plaintiff perceived the landing not to be wet, she perceived at worst for her that the landing was covered mostly by the roof and, indeed, Mr McCormack contradicted that and said it was completely covered by the roof but the stairs were uncovered.

So what she had to perceive was that there were some means by which the rain, or water from rain or however it got there, would not be protected by the roof contrary to her observation of the actual condition of the landing and contrary to her observation that the ceiling seemed to cover the landing.

She needed to make all these calculations in order to determine that there was a risk from the slipperiness of the tiles and what the Court of Appeal found, and in our respectful submission it is absolutely correct, is that that put too high a burden on the reasonable person in the plaintiff’s position.

Can I then deal with one matter my learned friend was critical of?  At 85 of the application book, paragraph 104, where her Honour Justice McColl was dealing with the lighting issue, your Honours will see in paragraph 105 that her Honour said that the inquiry was to some extent academic and in the second, third and fourth lines of that paragraph the reason why it was academic was the speed with which the plaintiff lost her footing.  So the issue of whether or not the shadow would have caused any difficulty with perception did not really arise.

To come back to what I apprehend to be the applicant’s principal argument, it is disposed of, in our respectful submission, by the analysis undertaken in paragraph 106 at the top of page 86 of the application book because what really needed to be foreseen, perceived, given that the plaintiff thought the landing was dry, was that in the circumstances that had transpired while she was inside the applicant’s house, the porch had become wet due to wind‑blown rain.

My learned friend is critical of that, as I apprehend it, because he says it introduces too much detail into what is the risk.  It is not doing that at all.  What it is doing is identifying the circumstances in which the plaintiff found herself, including her apparent perception that the roof covered either all or most of the landing and that the landing was dry.

So she really needed, in our respectful submission, to have a reason to apprehend why the rain would have been blown in there in order to perceive what my learned friend says is the obvious risk and, in our respectful submission, there is no error in that approach because those are the circumstances of the plaintiff.

In relation to the breach finding, we have responded to what the applicant has said in writing and the analysis which is undertaken is to show, contrary to the primary judge’s finding, that there was a basis upon which it could be found that the occupiers of the premises knew or ought to have known – and I emphasise the second part of that phrase – by virtue of what Mr Adams had determined about the slipperiness of the surface.

BELL J:   Was Mr Adams’ report tendered without a requirement for him to attend for cross‑examination?

MR SHELDON:   That is correct, your Honour – unchallenged.  We say that his Honour overlooked it, the Court of Appeal corrected that, and that was something within the function of the Court of Appeal by virtue of this Court’s holding, not least in Fox v Percy.  Those are my submissions.

KIEFEL J:    Anything in reply, Mr Sexton?

MR SEXTON:  Just one matter, your Honours, which is in relation to your Honour’s question to my learned friend about paragraph 49 of the primary judge’s reasons. It is not a question of something is obvious or it is not obvious by reason of probability. Section 5F itself answers that in subsection (3) which says that:

A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

In that regard, much of what my learned friend submitted was conflating actual knowledge of the respondent with the objective analysis of what a reasonable person would have perceived and, in our submission, what the primary judge correctly did at paragraph 49 was to assess what a reasonable person objectively would have done.  That does not turn on the subjective evidence that the respondent gave that she did not actually see that the ‑ ‑ ‑

BELL J:   But that is an assessment of what would have been obvious with respect to the steps that she was about to descend being wet and slippery due to previous rainfall as distinct, Mr Sheldon says, from her evidence that the porch was dry.

MR SEXTON:  But his Honour took into account the photograph showing that the edge of the roof did not extend past, as one of the applicants said, and applying commonsense, as lawyers do from time to time, if you have a roof which is just above the edge of a porch and steps, then a reasonable person can perceive, as the primary judge did, that there was a risk, albeit small, of that area being wet, which brings into play section 5F. May it please the Court.

KIEFEL J:   The Court will adjourn for a few moments to consider the question.

AT 2.59 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.01 PM:

KIEFEL J:   In our view, the factual background to this case does not make it an appropriate vehicle for the clarification of questions concerning section 5F(1) of the Civil Liability Act 2002 (NSW). Special leave is refused and is refused with costs.

The Court now adjourns to 10.15 am on Tuesday, 7 June in Canberra.

AT 3.02 PM THE MATTER WAS CONCLUDED