McLachlan v Purchas

[1999] HCATrans 365

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P5 of 1999

B e t w e e n -

JACQUELINE ANNE McLACHLAN

Applicant

and

ATHOL PURCHAS

First Respondent

PATRICK ARTHUR CARAHER, MARY FRANCES CARAHER, TERENCE CARAHER and VERONICA CARAHER

Second Respondents

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 21 OCTOBER 1999, AT 11.05 AM

Copyright in the High Court of Australia

MR A.C. McINTOSH:   May it please the Court, I appear with my learned friend, MS C.M. CHANG, for the appellant.  (instructed by Murie & Edward)

MR M.H. ZILKO:   May it please the Court, I appear for the first respondent. (instructed by Pullinger Stewart)

MR G.J. PYNT:   May it please your Honour, I appear for the second respondents. (instructed by Pynt McKay)

GAUDRON J:   Yes, Mr McIntosh.

MR McINTOSH:   Your Honour, I would like to put the central issue as I see it.  The main issue, as I see it, is can a defendant deny there is a breach of duty of care owed to the plaintiff simply on the basis that he has encountered an “everyday risk”.  That is a matter of public importance.

GAUDRON J:   Deny the existence of a duty, did you say?

MR McINTOSH:   Yes, a duty of care ‑ ‑ ‑

GAUDRON J:   Does that question go to the existence of a duty or breach of duty?

MR McINTOSH:   The breach of the duty.  In this case we have a novel concept called “everyday risk”.

HAYNE J:   There has been a lot of talk about that in the judgments below.  This case was a very narrow and very simple case, was it not:  was there a breach?  It is not self-evident to me that it is arguable that there was a breach here.  However the judgments below may encrust it with notions of “everyday risk”, not “everyday risk and the like”, this plaintiff was unfortunate enough to get out of her car and slip.

MR McINTOSH:   The case involves a bigger issue than that, your Honour, with respect.  The concept of “everyday risk” is what I want to focus on.  It has been defined to mean the risk that members of the public must avoid by taking care of their own safety.  Now, what kind of standard of care …. with “everyday risk”; so, it is a completely novel concept.  It is a concept which concerns us, it is a nebulous concept of “everyday risk”;  “everyday risk” for who, “everyday risk” for a High Court judge is not the same as someone else.  It involves a standard of care which we do not know about; it is not an issue which is helpful.

To go the thrust of our submissions, we say that this concept is like a juristic black hole, because all attempts to define what it really means goes into this black hole and nothing like this concept illuminates us on principle.  It is an important concept which must be, in our view - the denial of liability must be firmly closed to this Court.  It is a novel concept. It has only been appealed in Western Australia, and it is high authority.  We would like to see the High Court come in and close the door of denial of liability on that basis.  If the Court is not minded to do that, we would like the High Court to define what does this mean.

GAUDRON J:   That may be an interesting concept to deal with, but how do you establish breach?  Is that not essentially the problem with which you are confined?

MR McINTOSH:   Well, in our case, we said the risk was reasonably foreseeable.

GAUDRON J:   Yes, and what was the precise content of the duty of care?

MR McINTOSH:    The duty of an employer to an employee - - -

GAUDRON J:   Yes, but what is it that you say the respondents should have done that they did not do or did that they should not have done?

MR McINTOSH:   There are a number of things they could have done:  one, is a sign that says, no parking on grass; two, fence the area off or three, put a bitumen car park.  But before I mention that, just examine what the risk is.  I think, with great respect to the other courts, they did not see what the hallmark of this case was.  It is not that she stepped on wet grass; that is not what the case is about.  She walked on grass which she did not know to be wet; she discovered it was wet afterwards.  That is a matter of significance.  I can illustrate that by an everyday example.  How many of us have walked along a corridor and encountered an unexpected step?  We get a jolt, because subconsciously we are not prepared for the step.  Now when someone alights from a vehicle and does not know the grass to be wet, then the foreseeable, a serious injury is quite profound.  This woman did not know of the danger she was about to encounter.

In Nagel’s Case, the person in Nagel’s Case knew that there were rocks there and he took a calculated risk that he was going to dive into a spot where no rocks were there.  In my client’s case, she did not know that the grass was wet and perhaps, just perhaps, that if she knew the grass was wet because it was raining, she may not have been injured at all.

GAUDRON J:   Had it been raining?

MR McINTOSH:    There was no evidence that it was raining and it is assumed that the wetness was due to the dampness of the weather conditions, because the time of the year was winter.  Another point to note that this was not grass; there is grass and there is grass – some legal and some illegal – but this grass was bush grass, not couch, not the grass we see in our everyday lawn, our verge on the streets; this was bush grass.  Now that is another point which has not be homed in in this case, but the thrust of my submissions today is not the facts of this case, but the principle of law, which I go back to is the concept of “everyday risk”; it is an unhelpful concept, it is not instructive.  It must be, in my respectful submission, be squashed before it gets root.  It is a concept which insurance companies rub their hands with glee and the word is probably, to state the hyperbole, on the word processors of every insurance lawyer.  This is an area, whenever a plaintiff has a genuine claim ‑ ‑ ‑

HAYNE J:   All that is missing is the floodgates, Mr McIntosh.

MR McINTOSH:    Yes it is.  It would be raised by this as an “everyday risk”; that is what the defendants are going to do now; this is an “everyday risk”.  Can I illustrate it by another example.  If the Nagel Case was re‑heard today and a defence of “everyday risk” was run, Nagel may be decided differently.  Nagel did not take care for his unsafety.  The facts of Nagel are that he knew that there were rocks there.  He dived in the spot.  The findings of fact in that case were that there was glitter on the water and, had he moved his head and saw the rocks, no injury would have occurred.  He did not take due regard for his own safety, and this is what the “everyday risk” definition is.  It has been defined as not taking sufficient regard for your own safety and Nagel did not. 

That important distinction is that in Nagel’s Case we are talking about public law and in this case we are talking about private law; we are talking about employer/employee relationship.  The standard of care has always been held higher for private law litigants.  We would not expect to have the same standard as in other cases.  The standard of care is higher for employees.  It is higher than what is in Nagel’s Case.  There is a special relationship.

That is the interesting feature about this case is that there was a carpark which was locked, under lock and key.  It was some place where they were meant to go; the degree of control of that area of land was very significant, and that is an important matter.  This is an area of private litigation and there is no case, in recent cases of the High Court, which discusses this; there have been recent cases as far as public authority is concerned, but not as far as private law is concerned.  It is a standard which needs to be clarified but, most importantly, I would just like to home in on the real matter of concern to all plaintiff lawyers, it is this unhelpful, useless

fiction of “everyday risk”, where I have no idea of what standard is required.  It is like Russian dolls; we start with the basic concept from Lord Atkin.  Now we find another Russian doll and we open it up and we find that we have a standard of care which is owed to ourselves.  It is a novel concept, it is unhelpful; we do not need that concept in this Court.

GAUDRON J:   Thank you, Mr McIntosh.  We need not trouble you, Mr Zilko and Mr Pynt.

The judgments at first instance and on appeal in this matter contain statements and concepts, including that of everyday risk, which might warrant consideration in an appropriate case.  However, the prospects of the applicant establishing breach of duty by the respondents or either of them are not such as to justify the grant of special leave.  Accordingly, the application is refused.

Do you seek costs?

MR ZILKO:   I do, your Honours, yes.

MR PYNT:   Yes, your Honours.

GAUDRON J:   Did you need two counsel here for this case?

MR ZILKO:   Your Honour, I was going to submit, if called upon, that there were different considerations applicable to my client as compared to the second respondent and certainly ‑ ‑ ‑

GAUDRON J:   Yes, they were different legal issues.  You cannot resist it, can you?

MR McINTOSH:   No.

GAUDRON J:   The application is refused with costs.

AT 11.17 AM THE MATTER WAS CONCLUDED