Merrin & Anor v Cairns Port Authority - [2003] HCATrans 352

[2003] HCATrans 352

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B65 of 2002

B e t w e e n -
THOMAS WILLIAM MERRIN and ANNETTE ELIZABETH MERRIN
Applicants
and
CAIRNS PORT AUTHORITY
Respondent
Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 SEPTEMBER 2003, AT 12.21 PM

MR T.W. MERRIN appeared in person.

MRS A.E. MERRIN appeared in person.

MR K.J. McGHEE: May it please the Court, I appear for the respondent. (instructed by MacDonnells Solicitors)

KIRBY J: Yes, Mr Merrin, you are appearing for yourself, are you?

MR MERRIN: That is right, yes.

KIRBY J: Yes, thank you very much. Are you here with Annette Elizabeth Merrin?

MR MERRIN: Yes.

KIRBY J: And have you agreed between you that you will speak on behalf of both of you, or are you going to divide it up?

MR MERRIN: I have a few questions. We are independent people with different ideas and views.

KIRBY J: You might be independent people, but it is one case and you only get the one amount of time, so you have to decide between yourselves. If you want to split it up, that will be all right, but otherwise we will listen to one of you.

MR MERRIN: We have an answer to that, that is all I was asked. We will split it up.

KIRBY J: You will split it up. All right, as long as you understand you only have 20 minutes between you.

MR MERRIN: Yes.

KIRBY J: Very well. Mr McGhee, you are appearing for the Authority, is that correct?

MR McGHEE: May it please the Court.

KIRBY J: Yes, thank you, we can see you very clearly down here.

MR McGHEE: I am obliged.

KIRBY J: Yes, Mr Merrin.

MR MERRIN: The first thing that I would like to clear up, as I have probably learned a little about law in the last six years, I would like to know what institutes a Full Court, just for my own benefit and the benefit of my wife. We expected that probably Justice Gleeson would be here and two Justices, and that is under the Constitution, which I have read very thoroughly.

KIRBY J: Yes, we are constituted, as is usual, to hear a special leave application. You have been sitting here in Court, and you have seen the way the Court is constituted, and that is done under the Judiciary Act. So you just should proceed.

MR MERRIN: That is what I said, two Justices.

KIRBY J: Concentrate on the substantive matters. That would be more helpful to the Court and to yourselves.

MR MERRIN: Very well, seeing that Justice Gleeson is not here and there is just two Justices ‑ ‑ ‑

KIRBY J: The Chief Justice is sitting in Sydney, so he cannot be here as well.

MR MERRIN:

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: [2003] HCATrans 352
Decision Date

CaseChat Overview and Summary

The case of Merrin & Anor v Cairns Port Authority concerned an appeal to the High Court of Australia following a decision of the Queensland Court of Appeal. The appellants, Merrin and another party, sought to recover damages from the Cairns Port Authority for injuries sustained by the first appellant. The dispute centred on whether the Port Authority owed a duty of care to the appellants and, if so, whether that duty had been breached.

The High Court was required to determine two primary legal issues. Firstly, it had to consider whether the Cairns Port Authority owed a duty of care to the appellants in the circumstances of the case, particularly in relation to the condition of the wharf and the activities being conducted there. Secondly, the Court had to assess whether, assuming a duty of care existed, the Port Authority had breached that duty by failing to take reasonable steps to prevent the injury suffered by the first appellant.

In its reasoning, the High Court applied established principles of negligence law. The Court considered the foreseeability of harm, the likelihood of that harm occurring, and the potential seriousness of the injury. It also examined the burden of taking precautions and the social utility of the activity being undertaken. The Court ultimately found that the Cairns Port Authority did owe a duty of care to the appellants and that this duty had been breached. The Court allowed the appeal, setting aside the decision of the Court of Appeal and remitting the matter for further consideration.

Orders