Mitchell v University of Wollongong

[2004] HCATrans 181

[2004] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S374 of 2003

B e t w e e n -

DIANNE MITCHELL

Applicant

and

THE UNIVERSITY OF WOLLONGONG

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2004, AT 10.25 AM

Copyright in the High Court of Australia

MR B.W. RAYMENT, QC:   May it please, your Honours, I appear with my learned friend, MR S.J. LONGHURST, for the applicant.  (instructed by Russell McLelland Brown)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR A.J. McINERNEY for the respondent.  (instructed by Herbert Geer and Rundle)

GLEESON CJ:   Yes, Mr Rayment.

MR RAYMENT:   Your Honours, in our submission, the judgment of the learned trial judge was clearly expressed and soundly based on the evidence and displayed no error of law.  In particular, the findings of his Honour about foreseeability, which one sees at page 5 of the application book were, in our respectful submission, open to the court and, apparently, soundly based.  His Honour, at the foot of page 5, also adopted what appeared in an expert’s report, paragraph 5.2, and your Honours will see that at page 10 of the supplementary application book, where the author expresses views about foreseeability of this kind of injury in relation to the seating which was in use in the Hope Theatre in Wollongong.  The way in which the accident occurred in this case was regarded by that expert as entirely on the cards having regard to the absence of a warning and to the way in which the seat was constructed.

Your Honours, at page 6 of the application book, his Honour made findings about the need, in the circumstances, for a warning sign to have been erected and commented that the evidence of Dr Adams to that effect had not been, that is to say that it would have been effective, to warn many persons of whom the plaintiff was one to exercise care in resuming their seats. 

GLEESON CJ:   Did he give evidence to that effect?

MR RAYMENT:   Dr Adams did.

GLEESON CJ:   Is he an expert in it?

MR RAYMENT:   He is an ergonomist.

GLEESON CJ:   An expert in the effectiveness of warnings.

MR RAYMENT:   He was an expert in the questions of posture that arose in this case and expressed views to the effect that it was a reasonable response to the difficulties which arose in the case to erect a warning.  His evidence is really in cross‑examination at 199, there is other evidence, too, that I will come to in just a moment.  At 199, at the foot of the page, between numbers 40 and 50 on that page in an answer, he says he would “advise at that stage of the design and installation” of a possible modification to the seat and also, “at the very least putting notices along the top or the back of that parapet” where the plaintiff fell.

GLEESON CJ:   Then he is way outside his expertise in that second respect, is he not?

MR RAYMENT:   It was his job to advise persons, such as the respondent, as to the steps which they should take from the point of view of taking safety precautions in relation to theatres such as this, so, in our submission, no.

GLEESON CJ:   But he does not claim any expert knowledge about the effectiveness of warnings, does he?

MR RAYMENT:   No.

GLEESON CJ:   That, I presume, would be the evidence, if anybody, of a psychiatrist.

MR RAYMENT:   If one is to deal with it in very general terms, perhaps so.  At the top of 201, he expresses a view, and he would certainly have some expertise in this, in our submission, that they are a reasonable response to the risk in a case such as this:

In general warning signs are effective if they are directly relevant to the situation in which they are posted

Your Honours, the same suggestions made by a civil engineer in this case, Mr Jordan, in the supplemental application book again, at page 30, at the foot of the page, Mr Jordan, in a report that was not cross‑examined upon, expresses the view:

that the following factors would have contributed to Mrs Mitchell’s accident.

Over the page, 4.1:

Mrs Mitchell was not familiar with the actions of this type of seating. 

And she gave evidence that she was not.

There were no signs to warn that the seats would self fold when not in use.

GLEESON CJ:   That is just an observation of fact.

MR RAYMENT:   It is.  These are questions of fact, in our submission, and it was open to the learned judge, we would submit, to make a finding of fact that a warning was a reasonable response to the risk which he found was posed by this form of seating.  Your Honour, so far as the plaintiff herself was concerned, his Honour found, and I now go back to the original application book, at page 7, that he:

formed the strong view that she was a person of high motivation and a truthful witness.

He refers to the fact that she gave evidence that she would have attended to a sign and, your Honours, he comments that this is a matter that she would have been alive to for two reasons really.  One is that she was a nursing sister and he says, at page 8:

one might be forgiven for thinking that they are more conscious than most of accidents that befall mankind.

GLEESON CJ:   Had the plaintiff actually sat on this seat?

MR RAYMENT:   Yes, she sat down ‑ ‑ ‑

GLEESON CJ:   How did she manage to sit down if the seat was retractable?

MR RAYMENT:   Presumably, she placed it down.

GLEESON CJ:   Pushed it down.

MR RAYMENT:   Yes. 

GLEESON CJ:   So she did not notice when she did that that the seating would fold when not in use, but the theory is that she would have noticed if there had been a sign somewhere saying that.

MR RAYMENT:   Yes, that is the theory.  She was also a dance teacher which, as it were, may make her conscious of matters of balance.  If she has a sign, she said, when she is in this position, she would have paid attention to it, and his Honour made a finding of fact, in our submission, that was open to the effect that he would accept that evidence.  In our submission, that is a pure question of fact which was open to the learned trial judge and the verdict, in our submission, that the plaintiff obtained from the judge was, therefore, regularly obtained in all respects.  When one looks at the way in which this matter has been dealt with in the Court of Appeal, in our submission, it has been attended by quite a surprising degree of error. 

If I could go please to paragraph 12 of Justice Meagher’s judgment, which is to be found at ‑ ‑ ‑

GLEESON CJ:   At 36.

MR RAYMENT:   Thank you.  His Honour there says that, in effect, there could not be a warning sign put up because, in this multicultural society, you would have to put up hundreds of warning signs in hundreds of different languages and you could not, he refers to “one hundred and fifty languages spoken in Australia”.  That would be a ‑ ‑ ‑

GLEESON CJ:   A warning of hundreds of different risks that we all encounter from the moment we get out of bed in the morning.

MR RAYMENT:   But it is no reason why a simple warning sign cannot be erected in English in Australia, in our respectful submission, what appears in paragraph 12.  Then, when he goes to make findings in paragraph 13, they are findings which are inconsistent with those of the learned trial judge which were based upon questions of credibility having heard witnesses.  To say that his Honour really seems to find that she was a person who knew full well what the danger was and that must have been obvious to her, because his Honour says she “used such seats constantly”, well that was not the evidence at all.  At most she had experienced both kinds of seats in the past and not constantly at all.  She simply was not conscious that this was the kind of seat that came up when she moved away from it.  She stood up, the evidence showed, for the purpose of checking whether she could take a photograph, whether there was a clear line of vision and the like, because her seven‑year‑old son was on the stage in a concert.

GLEESON CJ:   The seat must have been retracted before she sat on it.

MR RAYMENT:   Yes.

GLEESON CJ:   She could not get to sit on it without having to pull it down.

MR RAYMENT:   Unless there was some object on it to retain it, that is obviously so.  Then, his Honour refers, in paragraph 15, to the Opera House about which there was no evidence at all in this case.  There was no suggestion in this case that the Opera House was the same kind of seating and, indeed, if one looks at the photographs of this seat which are contained in the supplementary appeal book, it is a very dangerous-looking seat.  In our submission, it has a prominent metal bar which was liable to cause the very injury that the plaintiff suffered in this case, and, indeed, by the way, it seems to be the same injury that was suffered in a case which this Court otherwise dealt with of Burns, the same kind of seat producing the same kind of injury.

Could I just go back to paragraph 17 of Justice Meagher’s judgment.  He there says that the evidence that the plaintiff gave that she would have paid attention to a warning “invites the customary judicial cynicism”.  In our submission, that is not open to a Court of Appeal with respect to a finding of fact properly made.  That, indeed, was the very point of Burns’ Case that this Court pointed out a whole series of findings such as that were made by the Court of Appeal contrary to reasoned findings of the trial judge as to credibility.

There is another matter which his Honour shares with Justice Giles of fact which is quite important to the departure of his Honour from the trial judge’s judgment, which I will come back to in a moment.  Paragraph 30 of Justice Giles’ judgment appears to join issue with Justice Meagher and disagree with him about the question of what the plaintiff appreciated in this case so his Honour, in paragraph 30, would appear to agree with the submissions that I have just made about Justice Meagher’s judgment being wrong in that respect. 

Your Honours, at paragraph 34 on page 43, his Honour says, at line 30:

Identical seats had been installed in the Hoyts Cinemas chain in 1989-90.  There were 10,604 seats.  The calculated usage of each seat was 1,490,074 times.  There had been only one report of injury.

This is a very critical matter for his Honour.  It is referred to again in paragraph 35 twice, both at line 15 and line 25.  His Honour says “the usage was huge” and describes it as “all but incident-free usage”.  Then, paragraph 38 appears to be about the same matter.  If we may take your Honours to the material upon which this is said to be based it is in the supplementary application book in the report of Dr Nelson, which starts at page 32 and, in particular, at page 36.  When one looks at page 36 that is certainly not a suggestion that there were 1.5 million times that each of 10,000 chairs had been used.  On the contrary, it is an average usage per chair over 11 years of 14,000 times producing the number that was mentioned, 1.49 million for all the chairs.

Your Honours, then over the page, at lines 35 to 40, it becomes clear that what appears to have happened in the Hoyts Theatres, with this

10 years of experience of these seats, is that two people have been injured, not one.

GLEESON CJ:   It is not only Hoyts that use these retractable seats, is it?

MR RAYMENT:   These retractable seats, the evidence was yes. 

GLEESON CJ:   Let me delete the word “these”.

MR RAYMENT:   No, certainly, your Honour, there are other retractable seats but, your Honour, it is not just retractable seats in this matter, it is the propensity of this retractable seat to injure which is the concern.  This lady was not exceptionally small, she was five feet one.  A lot of women might fall into that category.  She happens to have suffered the very same injury on the same sort of seat as the plaintiff in the other case that this Court dealt with, that is in the Hoyts Theatres.

GLEESON CJ:   And Judge Phelan, of course, decided this case at the time when the decision of the Court of Appeal in Burns v Hoyts Pty Ltd was still in effect.

MR RAYMENT:   Yes, it had just been given.  Page 39, your Honours, line 40, again makes it clear that the Hoyts experience has been two persons injured, not one.  You would not have to have any persons injured, in our submission, if the seat is dangerous and a warning sign might help.  It is a very small item of expenditure to erect such a sign.  But if you have an experience with these kinds of seats that two persons have been injured, and this Court happens to have graphic evidence of it in another case, in our submission, the trial judge’s finding that a warning sign should have been erected was not attended by the kind of doubt that was found to exist in the Court of Appeal.

If you go back to Justice Giles’ judgment, his Honour has multiplied by many times the instances.  It was not 1.5 million times each seat was used, it was 1.5 million times that all of the seats were used in all of the theatres over all of the time and two, not one, occasions of injury in those circumstances is quite enough, in our submission, to make one think that it was reasonable to erect a warning sign.  Those, if the Court pleases, are our submissions.

GLEESON CJ:   We do not need to hear you, Mr Jackson.

This case turned on the application of settled principles to the facts and circumstances.  The approach taken by the Court of Appeal to the review of the primary judge’s findings of fact was orthodox and the disagreement in the Court of Appeal was not based on any controversial principle of law, but on a view of the facts.  The case does not raise an issue suitable to a grant of special leave to appeal and we are not persuaded that the interests of justice require such a grant.

The application is refused with costs.

AT 10.42 AM THE MATTER WAS CONCLUDED