Nair-Smith v Perisher Blue Pty Limited

[2015] HCATrans 269

[2015] HCATrans 269

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S89 of 2015

B e t w e e n -

GHITA NAIR‑SMITH

Applicant

and

PERISHER BLUE PTY LIMITED

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2015, AT 2.13 PM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friends, MR E.G. ROMANIUK, SC and MR G.J. SMITH.  (instructed by Lough & Wells)

MR J.E. MACONACHIE, QC:   I appear with my friends, MR R.E. MONTGOMERY and MR A.J. KALINGER, may it please the Court.  (instructed by HBA Legal)

BELL J:   Yes, Mr Toomey.

MR TOOMEY:   Thank you, your Honour.  Your Honours, I showed my learned friend about three hours ago a reproduction from one of the application books which is a diagrammatic representation of the setup of the wheel.  Mr Maconachie objects to me using them so I will tender them so your Honours can decide.  I do not rely on any argumentative material.  It is purely the ‑ ‑ ‑

BELL J:   Were these in evidence below?

MR TOOMEY:   Yes.

MR MACONACHIE:   Well, not in the form in which they are tendered.

MR TOOMEY:   Well, they are pages, reproductions of a page from an expert witness’ report which was in evidence below, your Honour.

GAGELER J:   Whose 20 minutes are we using arguing about admissibility.

MR MACONACHIE:   Can I tell you why I object - it might be simpler. Your Honours should see a position - there is a representation of the position of Mr Lofberg, the lift attendant.  As your Honours know from the Court of Appeal’s reasons for judgment, he was dynamically engaged and not standing in one single spot.  It is misleading.

Secondly, there is a 15 degree segment, or perhaps I should use another word, but a 15 degree angle which is described as being region of probable intervention by operator.  That is not reflected in the evidence.  It is not reflected in the findings of the trial judge or the Court of Appeal.  It is misleading. 

There are handwritten additions to the document which, albeit, that some of them appear in the reasons of the Court of Appeal, we have dealt with that in the three hours we have had, three hours which could have been used to take out the offending material.  The colour scheme that is involved was not before the Court of Appeal and, lastly, the only reason it could possibly be put before your Honour is because my learned friend wants to use you as a 75A Court and that is not what this application is about and I object.

BELL J:   Mr Toomey, I think if it all comes down to whether that diagram gets in or not, you are in trouble.  Mr Toomey, let us not spend more time on it.

MR TOOMEY:   May it please your Honour.  Your Honours, the crux of this case is contained in paragraph 161 of the Court of Appeal judgment, which is to be found at page 247 of the application book.  That paragraph, after the court had considered earlier factual material, said this at line 23:

The evidence does not allow a finding that the respondent moved because of apprehension produced by Mr Lofberg’s inattention at a point at which he could and should have acted (but did not) rather than because of apprehension that began before the chair entered the bullwheel and persisted thereafter.

Mr Lofberg, of course, was the lift attendant.  The Court of Appeal have, in effect, found that the applicant failed because she was unable to prove that at the time she moved, if she did move, it was at a period of the cycle when Mr Lofberg could already have intervened. 

BELL J:   This is in a context in which, as I understand it, there was evidence that at least one member of the group of three had looked across her shoulder, this is before the chair entered the – what does one describe it as?

MR TOOMEY:   The bullwheel, your Honour.

BELL J:   Yes, before the chair entered the bullwheel she had looked over her shoulder, seen that the ‑ ‑ ‑

MR TOOMEY:   Chair ‑ ‑ ‑

BELL J:   ‑ ‑ ‑ safety mechanism was in the wrong position and, indeed, I think the plaintiff was in that position too, is that right, that is, was aware of that problem before it entered the bullwheel?

MR TOOMEY:   Your Honour, I do not want to go back for my hat but the three skiers, one or more of them, looked across as they were about to sit down on a chair which was going uphill across to the chair which was coming downhill into the area of the bullwheel and it was apparent to one of them, and within a very, very short time, to all of them, that the bar was down.

BELL J:   Yes.

MR TOOMEY:   The significance of the bar being down, as your Honours know, is that the wheel would then come into contact with them, without them being able to settle back into the chair.

BELL J:   Yes.

MR TOOMEY:   His Honour made a finding which is not challenged that there was a real prospect of injury, perhaps even serious injury, but the ‑ ‑ ‑

BELL J:   Well, now accepting that the evidence was that one of the three skiers saw that the bar was down before the chair entered the bullwheel - shortly after that the other two were aware of that circumstance ‑ ‑ ‑

MR TOOMEY:   Yes.

BELL J:   ‑ ‑ ‑ and the failure by Mr Lofberg was to detect and remedy the situation as soon as the chair came out of the bullwheel.  Is that right, putting it very generally?

MR TOOMEY:   Pretty well, your Honour, perhaps a little further than that.

BELL J:   Well, what is your complaint concerning the Court of Appeal’s analysis in the passage that you just took us to?

MR TOOMEY:   Well, your Honour, our analysis required us to take you to the court’s finding on breach at paragraph 137 on application book 239 and the court said:

The reasonable care requirement demanded that Mr Lofberg pay reasonable attention to the condition of chairs arriving to load skiers . . . His attention did not focus on the condition of the chair that struck the respondent until after it left the bullwheel.  Because the chair has only a short distance to travel after leaving the bullwheel and before reaching the load line, a lift operator has only a limited time within which to respond to and deal with a down‑bar situation.  If the bar is down after the chair leaves the bullwheel, skiers waiting at the load line are in a vulnerable position and may well panic unless the lift operator responds very promptly to such a situation.  The closer the chair is to them when the operator responds, the greater will be their propensity to panic or react in such a way that physical injury may result.  Reasonable care required Mr Lofberg to direct his attention to the condition of the chair earlier than he in fact did.  His failure to do so constituted a breach of the appellant’s duty of care.

BELL J:   Yes.

MR TOOMEY:   But, your Honours, the finding that the Court of Appeal made on causation we say is inconsistent with that because the court in finding against appellant on causation required the appellant to prove that the moment, assuming that she had moved by reason of panic or some such, that that had occurred at a time when Mr Lofberg could have corrected the bar situation but had not done so and we say that that was a fundamental error because the finding of failure on Mr Lofberg’s part was that he did not pay attention to the chair before it came around the bullwheel and so was unaware that anything had to be done. 

That being so, the three skiers being aware that Mr Lofberg was not responding to calls of bar down, bar down, and calls to him to act, then it was not to be assumed, as the Court of Appeal did, that any movement that occurred through panic or shuffling might have occurred at a time before the lift operator could have got to it.

GAGELER J:   When you look at page 244, paragraph 152 - this is after having made the finding of breach of duty to which you have taken us ‑ ‑ ‑

MR TOOMEY:   Yes, your Honour.

GAGELER J:   In the middle of that paragraph there is a statement of what the Court of Appeal regarded as an essential part of what the plaintiff needed to prove to establish but for causation.  Do you accept that the Court of Appeal framed the issue correctly?

MR TOOMEY:   Pretty well, your Honour.  We would not have expressed it in those terms but it is generally correct but what the Court of Appeal failed to realise, in our respectful submission, is that their finding of breach was a finding that apprehension was caused by the failure of the lift operator to act before he did which meant that apprehension was justified from the time that he ought to have been aware that the bar was down when they were calling out to him, and so on, and did not act.

His lack of attention was demonstrated by the fact that he had to run from behind, according to the finding of the Court of Appeal, to lift the bar by which time he says himself the skiers were panicking and shuffling.  Now, the causation finding, as I have said, appears to turn on the fact that we cannot prove that it was more likely than not that the panic and agitation occurred at a time when Mr Lofberg should have raised the bar.

BELL J:   I think it is a little broader than that, is it not, because this is a case where the primary case was not any suggestion that the applicant had moved out of alignment.  It was that the chair was out of alignment ‑ ‑ ‑

MR TOOMEY:   That is correct, your Honour.

BELL J:   ‑ ‑ ‑ and when one looks at the reasoning of the Court of Appeal at application book 247, 162 and following, it is that there could be a number of reasons why the applicant was out of alignment with the chair and the court points to those various considerations and concludes none of them provide more than competing inferences of equal degrees of probability.

MR TOOMEY:   Yes.

BELL J:   That seems to be the essence of it.

MR TOOMEY:   Yes, well our answer to that, your Honour, is that as Justice Hayne, in a Victorian Court of Appeal case and then this Court in Strong v Woolworths said, what a plaintiff must do is prove a matter on the balance of probabilities.  The existence of any number of other possibilities does not affect it.  What has to be proved is the probability and, in our respectful submission, their Honours in the Court of Appeal simply ignored the probabilities as to the likelihood that they would move in an undisciplined way as the chair was approaching them.

The Court of Appeal have, in effect said, there is no way of knowing whether they got out of the way as soon as they realised the bar was down or at a time at which the lift operator should have moved.  But we say that the lift operator’s own evidence which was that when he finally moved to get the bar the skiers were panicking and were shuffling, which makes it highly likely that any misalignment occurred, as one would expect, as the danger became greater.  Can I take your Honours to page 350 of the application book?  This is Mr Lofberg’s statement on the night of the accident.  The top panel says:

I noticed the safety bar was down.  Took a couple of steps towards chair from load, lifted the bar –

I cannot read the next bit –

I pulled the chair back not to the side.  The chair was ready for a load they seemed to panic but also seemed to be loaded properly.

Then the next panel but one:

Injured Persons Details

nothing but seemed to panic with seat being down.

Then the next panel:

they also [panicked]

Then his evidence, which is reproduced in some material details, starting at 368 of the application book, at line 40:

I’m suggesting to you that you were told by somebody –

The rest of that question does not matter.  The next question:

Q.  “The chair was ready for a load.  They seemed to panic but also seemed to be loaded properly”.  Correct?
A.  Yes.

Q.  What do you remember about the panic?
A.  I just remember vaguely, them sort of shuffling for position.  Maybe they were panicking because the bar was down, worried that they weren’t going to get on the lift properly.

Now, your Honours, this is in a context, as appears from the next page, that Mr Lofberg got to the bar just before it got to them.  That is at the top of 371 and then at line 5 on 371:

Q.  So without being precise in terms of distance or time, you’re certainly conveying the impression there?
A.  The last minute I’ve seen it.

He is talking about the bar being down.  Now, that would suggest, and we would say would suggest to a degree of probability, that his observations of the skiers, in connection with the approach of the chair, must have been made late in the progress of the chair and, accordingly, the Court of Appeal’s analysis in 161 in which they say you cannot say at what time the misalignment happened, that does not give proper weight to that evidence of Mr Lofberg and he is the only person, apart from the witnesses, from the skiers.

GAGELER J:   But to say that they were panicking at that later point in time does not tell you when they started to panic.

MR TOOMEY:   No, your Honour, but your Honour, if indeed they were panicking because they were apprehensive because, as they said in evidence, they could see the liftee paying no attention, then it would not matter when they panicked, because the finding of breach was that his behaviour had allowed this apprehension to occur because of his lack of attention.  So, if it were found that in fact the misalignment had occurred earlier, that was not fatal to our case and that is something the Court of Appeal did not deal with.

GAGELER J:   There seems to be an element of, the way you are putting the case orally, that there is a logical inconsistency between the finding of breach and the finding of lack of causation.  Do you go that far?  Is that the way you put it?

MR TOOMEY:   Absolutely, your Honour.  Furthermore, there is both a factual and a legal inconsistency we say in those matters and it is a matter of law.  May it please your Honours.

BELL J:   We do not need to hear from you, Mr Maconachie.

In our view, there are insufficient prospects, were special leave to be granted, that the appeal would succeed and for that reason special leave is refused with costs.

AT 2.36 PM THE MATTER WAS CONCLUDED