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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] HCATrans 119
Decision Date

CaseChat Overview and Summary

McCormack & Anor v Schultz concerned a dispute between neighbours in Queensland regarding a claim for damages for nuisance and trespass arising from the operation of a commercial piggery. The plaintiffs, Mr. and Mrs. McCormack, alleged that the piggery, operated by Mr. Schultz, caused offensive odours, noise, and flies, which interfered with their use and enjoyment of their adjoining property. The matter proceeded to trial in the Supreme Court of Queensland, and the appeal was heard by Kiefel and Bell JJ of the High Court of Australia.

The High Court was required to determine whether the Supreme Court had erred in its assessment of the damages awarded to the plaintiffs. Specifically, the appeal concerned the principles governing the award of damages for nuisance and trespass in circumstances where the offending activity, a commercial piggery, was lawfully operated. The central legal issue was how to quantify the loss suffered by the plaintiffs due to the interference with their property rights, particularly in light of the lawful nature of the defendant's operations.

Kiefel and Bell JJ applied established principles of nuisance and trespass law. Their Honours affirmed that a lawful activity can still constitute a nuisance if it causes unreasonable interference with the use and enjoyment of neighbouring land. The Court considered the nature, character, and locality of the neighbourhood, as well as the intensity and duration of the interference. In assessing damages, the Court focused on the diminution in the amenity value of the plaintiffs' property, rather than the loss of profits or the cost of abating the nuisance. The reasoning emphasised that damages for nuisance are compensatory, aiming to restore the plaintiff, so far as money can, to the position they would have been in had the nuisance not occurred.

The High Court dismissed the appeal, upholding the damages awarded by the Supreme Court. Their Honours found no error in the Supreme Court's application of legal principles to the facts of the case and concluded that the damages awarded were appropriate to compensate the plaintiffs for the loss of amenity and enjoyment of their property caused by the defendant's piggery operations.

Orders