Nair v Health Administration Corp

[1995] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S4 of 1995

B e t w e e n -

JUDITH ELIZABETH NAIR

Applicant

and

HEALTH ADMINISTRATION CORPORATION

First Respondent

and

CORRECTIVE SERVICES COMMISSION

Second Respondent

Application for special leave to appeal

BRENNAN CJ
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 1995, AT 10.51 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR A.P. QUINLIVAN, for the applicant.  (instructed by Harris & Company)

MR J.S. COOMBS, QC:   I appear, if the Court pleases, with my learned friend, MR D.E. ANDREWS,  for the respondent.  (instructed by the Crown Solicitor for New South Wales)

BRENNAN CJ:   Mr Toomey.

MR TOOMEY:   Your Honours, it might be convenient if I were just to take your Honours very quickly through the material in the supplementary book we had filed yesterday because it contains material from the appeal book which is not in the application book and upon which we rely in our submissions.

MR COOMBS:  We are surprised.  We have not seen it, your Honour.

BRENNAN CJ:   I think it contains only extracts from the appeal book.  I presume you are familiar with those.

MR COOMBS:   Certainly, your Honour.

MR TOOMEY:   Your Honours, if I could just key those into the submissions.  On page 34, which is the first page in the supplementary book, your Honours will see the description of the weather at letter G as “Overcast, wet, miserable”.  At letter S and letter U the applicant was carrying, when she came back on the boat from Milson Island:

Parka and your bag?
A.  A large plastic bag with a lot of expired pharmaceuticals

Q.  So you have your Parka and your bag, blood samples, files and a plastic bag -

in two hands.  On page 35 she refers to the photographs which appear later in the supplementary books, your Honours, and they start with the page number - they have not been taken from the appeal book - 136, and the two to which she has referred on page 35 are the two photographs which appear on the supplementary book 139 and 140 showing the pontoon upon which she had to land on leaving the boat.  At letter T she was asked:

Was the water still.....
A.  No.

Q.  What was the condition?
A.  It was quite rough.

She was asked her height.  It was “5 foot 8 and a half inches”.  On page 36:

The jetty, from the photograph, shows a raised steel pontoon?
A.  Yes.

Q.  Was that pontoon still or was it moving?
A.  It was moving.

Q.  Was the boat still or was it moving?
A.  It was moving.

Q.  Were they moving together or were they in contra-activity to one another?
A.  Contra-activity.

Q.  You had both your hands full?

On page 37 the applicant gave evidence that the blow which drew blood from her head was from the top of her head.  On page 36, just going back, the primary evidence as to how the injury occurred is to be found, letter J:

I walked from the seat, I walked to get onto the step to get out of the boat.

Q.  What did you do then?
A.  I banged my head against the canopy and fell back into the boat.

Q.  Did you have your foot on the step?
A.  Yes.

Q.  Did you go to leave the boat?
A.  Yes.

Q.  What was it while you were going to leave the boat, you struck your head on the canopy?
A.  Yes.

Q.  Were you able with the conditions to get a firm footing when you put your foot up on the step?
A.  I could have.  I think because the boat was moving so much, I overbalanced.

Q.  You struck your head?
A.  Yes, I struck my head.

At page 55 at letter G:

Q.  You say it was when you stepped up on a step that you hit your head?
A.  Yes.

Q.  At that stage I take it you felt dazed, is that correct?
A.  That is right.

Q.  And you recollect going back into the boat?
A.  I overbalanced back into the boat.

If I can just take your Honours to the photos.  The photo on page 142, which bears at the top a very dim 7, shows the interior of the boat from which the plaintiff had to exit.

BRENNAN CJ:   Where is all this leading, Mr Toomey?

MR TOOMEY:   Your Honour, it is leading to a submission on perversity and the fact that the Court of Appeal did not deal with the facts which had to be dealt with on perversity.  I will be as short as I can, your Honour, and I assure you I will not be very much longer on this.

If your Honours look at page 142, the photo of the boat there, your Honours will see that the only way to leave the boat was to step up on the locker which is in the form of a step.  And as your Honours will also note from the photo on page 142, the locker is coextensive with the canopy.  So that to leave the boat it was necessary to leave it beneath the canopy.  If your Honours look at page 143, and if I can take you to the material which is reproduced at page 110 at letter M the coxswain of the boat employed by the second respondent was asked:

Q.  What is the distance between the right hand end of that locker as one looks at it, or the top of the locker.....and the cross beam, the white cross member one sees there on the extreme right of the photograph?
A.  Approximately 2 feet.

Q.  Would it be possible to extend the top of that locker without causing any disruption to the operation of the boat?
A.  Yes.

Q.  May we take it that having regard to what is shown in photograph 7 that if one did extend the top of the locker by a foot or so and braced it perhaps with a down strut, that one would be able to leave the boat clear of the canopy?
A.  Yes.

BRENNAN CJ:   Is 142 and 143 taken of the same side of the boat?

MR TOOMEY:   No, one is taken from the starboard side, your Honour, and the other is taken from inside the boat looking to the starboard side.

BRENNAN CJ:   They are both facing the starboard side?

MR TOOMEY:   No, 142 is from the starboard side facing port.

BRENNAN CJ:   From the starboard side, yes.

MR TOOMEY:   The other one is to the starboard side from inside the boat, your Honour.

BRENNAN CJ:   What is the significance of 143 then?

MR TOOMEY:   The significance of 143 is that it established, with the evidence of the coxswain, that there was available a very simple means of obviating the danger of exiting the boat under the canopy, because the evidence was that the canopy, which is most clearly illustrated in 142, was 5 to 5 feet 6, depending on the slope which can be seen, from the top of the locker, and 4 to 4 feet 6 from the top of the gunwale.  The coxswain gave evidence that he had hit his head in leaving the boat on the underside of the canopy hundreds of times, and the red cross on the canopy is where he said he had hit his head.

So there was proved, we would submit, a foreseeable risk of injury, a simple, almost a trivial means of obviating that injury, that is by extending the locker, which the coxswain said could be done without any interference with the operation of the boat at all. 

Dr Peter Kendall, a specialist physician, described the injury which was received and would be received if one hit one’s head on the canopy as being a dreaded injury - this appears at page 96 - because it was forcible flexion and it could lead to paraplegia or quadriplegia.  He said that was old knowledge, had been known at least all this century.

Your Honours, the significance of this evidence is that it was all unchallenged.  No evidence was called by the defendant at all and no cross-examination was directed to the applicant to suggest that any of the facts to which she had deposed, in respect to the manner in which the accident happened, were untrue. 

When the matter can before the Court of Appeal the facts were stated by his Honour Mr Justice Mahoney at pages 90 to 92 and at page 92, after having stated the bare facts, he said:

It was this on which the plaintiff relied.  The accident occurred because, when she stepped onto the locker and was in the course of leaving the boat, she struck her head on the canopy.  She failed to bend so as to avoid her head hitting the canopy.   That was the injury in respect of which she sued.

Now, your Honours, his Honour had not stated - in the first place, there was no evidence that that was the case, that the accident had happened because the plaintiff failed to bend her head.

BRENNAN CJ:   That was the whole issue that the trial judge addressed, was it not?

MR TOOMEY:   No, your Honour, with respect.  What he put he put as an argument of the defendant.  There was no evidence that the plaintiff had failed to duck and all the evidence upon which the plaintiff relied was that the boat was moving, that she had both her hands full and so on.  It was never put to her.  She said, in the passage which appears ‑ ‑ ‑

BRENNAN CJ:   What, that her failure to duck was not an issue at the trial?

MR TOOMEY:   No, your Honour.  It was not failure to duck.

BRENNAN CJ:   And what, there was no application for redirection on the summing up?

MR TOOMEY:   No, because the defendant addressed the jury on the basis that although there was always evidence of the moving boat, the moving pontoon, the considerable difference between the height of the plaintiff, which was 5 feet 8 and the gap through which she had to exit, and that she had both hands full and that she said she overbalanced because of the movement of the boat, the defendant went to the jury on the basis that they would assume that what in fact had happened was that she forgot to duck.  Now, even if that was a perverse argument, his Honour had to put it to the jury and he did put it to them.  I, with respect, could not have asked him not to put it to them.

BRENNAN CJ:   Was your case ever put to the jury?

MR TOOMEY:   Oh yes, your Honour.

BRENNAN CJ:   Whereabouts?

MR TOOMEY:   At page 37, at 5:

But the evidence is that this was a pretty lousy day.  It was a cold miserable day in the middle of the year in June.  The water was rough.  The pontoon was pitching:  and it was not pitching in harmony with the boat.  The boat was an aluminium boat, moving up and down.  But this pontoon, you may think, had a slower action - with the weight of that ramp upon it.  So this lady had to step out from that boat pitching up and down with the pontoon moving but not in harmony with it, underneath this narrow gap and on to that sloping pontoon (if you decide on the evidence it was probably sloping ‑ ‑ ‑

BRENNAN CJ:   But look at line 23:

You might think that she had plenty to occupy her mind apart from watching out whether she is going to bang her head getting out ‑ ‑ ‑

MR TOOMEY:   Yes, your Honour, but her case and her evidence was that she struck her head because of the movement of the boat, not because - see the case the Court of Appeal dealt with was that it was an inadvertent failure to duck.  That was not the plaintiff’s case at all.  The plaintiff’s case was that her striking her head ‑ ‑ ‑

GAUDRON J:   But cannot we assume that because the jury found against your client that the jury found on the case as put by the defendant, that it was an inadvertent ducking and that it was on that basis that one had to test whether the verdict was reasonable or otherwise?

MR TOOMEY:   Your Honour, there are two things to be said about that, we would say:  the first is that there was no evidence which would allow the jury to find that the plaintiff simply inadvertently failed to duck.

GAUDRON J:   But you did not need that.  All that had to be done was for the jury to disregard the plaintiff’s evidence.

MR TOOMEY:   If they disregarded the plaintiff’s evidence, with respect, your Honour, they would be left - it would entitle them, of course, to find against the plaintiff but it would not provide a positive alternative, which is the basis upon which the Court of Appeal attacked the case.  But, your Honour, can I say this:  for the jury to disregard the evidence of the plaintiff where it was unchallenged would have been perverse.

GAUDRON J:   Well, disbelieved it.  You are the onus bearing party.  It is not perverse for a jury to fail to believe the plaintiff.

MR TOOMEY:   It is open to a jury to disbelieve in circumstances where it would not be perverse to do so, but where the defendant, which is in command of what happened on the day to a greater extent, even, than the plaintiff because it commanded the boat and owned the boat, does not challenge the facts of the conditions and so on, it would, in our respectful submission, be perverse for a jury not to accept those facts.  A jury does not have an unlimited right to reject unchallenged facts which are, on the face of them, accepted by both parties in the hearing.  But in any event, if I can deal with your Honour’s second point ‑ ‑ ‑

GAUDRON J:   What, clearly, was not accepted by both parties was the overbalancing rather than the failure to duck.

MR TOOMEY:   I am sorry, I do not ‑ ‑ ‑

GAUDRON J:   If the defendant was putting a  “did not duck” case, then clearly it was not accepting the “overbalancing” case that you were putting.

MR TOOMEY:   But, your Honour, the defendant put that in argument without ever putting it to the plaintiff.  It never put to the plaintiff, “What happened was that you failed to duck”.  It never put any form of words which could amount to that.  It ran the case as an argument, not as a series of facts. 

But can I deal with the second leg of what your Honour puts to me.  Even if the matter were dealt with on the basis that the plaintiff had inadvertently failed to duck, then we say the Court of Appeal erred for this reason:  their Honours dealt with the matter on the basis, which appears most starkly at page 97 line 6:

There are cases in which a risk is plainly foreseeable and is able to be avoided by actions which, on any view, it is reasonable to require the employer to take, yet the employer is not liable if damage results from the risk.

Now, in our respectful submission, that is an incorrect statement of the law.  It appear to elide - and it is not simply a ‑ ‑ ‑

BRENNAN CJ:   It explains what it means by the following passage in the judgment.

MR TOOMEY:   Well your Honour, yes, but - with respect, no, because his Honour restates that proposition four times and each time it is on the basis of the facts of this case.  Now, the only way in which the overall consideration of reasonableness can apply is if there are no practicable means to obviate the risk or if serious injury is not threatened by the risk.  In this case serious injury was threatened.  Dr Kendall’s evidence was unchallenged and Dr Blum gave evidence that the surgical fusion of the plaintiff’s cervical spine which followed from the accident was the foreseeable sort of injury, that it flowed from the injury.  No mention is made in any of the judgments of the means of obviating the risk or of the seriousness of the risk.  Those, in our respectful submission, could have been the only overriding factors in this case once the facts had been proved, once the risk of injury had been proved, which could have allowed a verdict for the defendant.  Because the plaintiff was an employee.  She had to be on the boat.  She had both her hands full.  The boat was pitching.  The risk was known because the coxswain had hit his head on this canopy before.

What we say is that what Mr Justice Mahoney did was to elide the second and the fourth questions which appear - if I could just hand up to your Honours - on page 16 of the second edition of Glass and McHugh.  Foreseeability was not in issue, as I understand it.  There were reasonably practicable means of obviating the risk.  That is the evidence of Mr Shoesmith, you could extend the locker.  The plaintiff’s injury was of a class of injuries to which the risk exposed her.  The defendant’s failure to eliminate the risk showed a want of reasonable care for the plaintiff’s safety, we say, because there was a risk of serious injury to which the Court of Appeal did not refer and there were simple means of totally obviating the risk to which the Court of Appeal also did not refer.  In fact, the President, at page 88 said this:

BRENNAN CJ:   I think your time has expired, Mr Toomey.

MR TOOMEY:   Your Honour, could I just finish this sentence?

BRENNAN CJ:   Very well.

MR TOOMEY:   Thank you.  The President said that it was open to the jury to find:

that some degree of risk was inevitable in alighting from the boat and such risk could only be removed entirely by the adoption of unreasonable alternatives or the unacceptable abolition of the visit altogether.

Which demonstrates that the Court of Appeal, in our respectful submission, simply overlooked the evidence.  They did not refer to it anywhere, of the means of obviating the risk or of the serious nature of the injury which was likely to follow.  The President obviously overlooked the evidence as to the means of obviating the risk. 

In those circumstances it is our respectful submission that the plaintiff’s appeal was never properly heard.  It was heard on a view of the facts which was false.  May it please the Court.

BRENNAN CJ:   Yes, Mr Coombs.

MR COOMBS:   The cross-examination of the plaintiff - and your Honours, I apologise for not having taken it from the original appeal book and produced a smaller book as my friend has done, but we, as I said, did not get it.  At page 55 in the appeal book of the Court of Appeal, the cross-examiner at the foot of page 55 at line W says that:

Q.  This step up business, you had carried on on a number of occasions before this, is that correct?
A.  That is right.

Q.  So you had a fair idea of the height of the cabin?
A.  Yes.

Q.  You had a fair idea of the manoeuvre because of your height and what was required to get off the boat, is that correct? 
A.  ...

Q.  On this occasion I take it you had not bumped your head before this occasion, is that correct? 
A.  .....

Q.  As you stepped up you were aware that the cabin roof was there, is that correct?

MR TOOMEY:   You have missed a question.

MR COOMBS:  

Q.  You say that the weather was inclement.  Was there anything else that made you not see the cabin roof.  (Question disallowed)

Q.  As you stepped up you were aware the cabin roof is there, is that correct?
A.  I had never sort of taken much notice of it.

Q.  Even though you had been in and out of it?
A.  Yes, I had never taken very much notice of it.

I think “any” should read “very”.

Q.  This was over in that few months leading up to the accident on various occasions, most of the time you’d been on this particular boat, is that correct, and you had not taken any particular notice?  On the prior occasions you had got out of the boat you had been able to make the manoeuvre without any problems.

Your Honours, with very great respect, the issue left by the trial judge, without objection from my learned friend, was that the issue at the trial, she had done it many times before, she knew her own height, she knew the height of the cabin.  As a matter of physics you had to duck if you were not going to bump your head.  That is precisely the issue left by the trial judge to the jury, which is set out in our written submissions in the matter, that the trial judge said:

It is, you may think, a scenario with plenty to occupy anyone.

Now, your Honour, the plaintiff appellant could surely not complain that this summing up was in any way unfair to the plaintiff.  The trial judge put the issue.  He said these are the issues:  she has done it eight or ten times before; she knew her own height; she knew the height of the canopy; and he puts the defendants’ case quite clearly and he puts the two side by side and

said, “Those are the two scenarios”.  Why is not the jury entitled to go outside and say, “We like the second scenario”.

Really, your Honours, having regard to what is required by Calin, the decision is a decision on an unusual set of facts.  It is a decision where the jury accepted a direction giving them two alternatives and in any event, your Honours, it was perfectly open to the jury to find that it was entirely her fault.  Small boats are problems, about which everybody knows.  She has done the manoeuvre perfectly safely eight or ten times before and the Court of Appeal correctly recognised the difficulties in the part of an appellant who is seeking to overturn a jury verdict when that party had the onus of proof.  With respect, your Honours, my learned friend’s submissions that the facts were ignored is just misconceived. 

The defendant put in cross-examination all the necessary elements to bring the difference in the lady’s height and the gap to the jury’s mind and perfectly entitled to put to it that she should have ducked or in some way reduced her height to get through adequately, as she had done eight or ten times before.  That issue having been put to the jury without any objection, your Honours, the Court of Appeal’s decision was, in our respectful submission, correct.  I have nothing to add to the written submissions which we have put in other than that, your Honour.

BRENNAN CJ:   Mr Toomey.

MR TOOMEY:   Your Honours, the problem with what my learned friend says is this, that the passage from the charge to the jury which is reproduced was, as we submitted earlier, the high point of the respondents’ case, but there were before the jury all these other facts as to the circumstances: that the boat was pitching; that the plaintiff by reason of her work was required to be on this pitching boat and leave this pitching boat with both her hands occupied; that she was 5 feet 8 inches tall and that the coxswain who was considerably shorter than her had hit his head on the canopy hundreds of times; that the injury which was likely to occur from such an incident, if it occurred, was very serious; that there was an extremely simple means of obviating it.  Now, every one of those facts which I have stated to your Honours in reply is omitted from the judgment of the Court of Appeal.  The Court of Appeal made no reference to the whole of the facts favourable to the appellant which had been before the jury and which were unchallenged.

When my learned friend says that it is notorious that small boats are a problem, she was on this small boat not by choice and not for a Saturday

afternoonouting, but because she was required to be in the course of her duty.  She was 5 feet 8 inches tall, and on a pitching boat, from that ramp to that ramshackle pontoon which is shown in the photographs, she had to get off the boat with both her hands full.  No opportunity to steady herself or to hold the top of the canopy or anything else.  Even, it is respectfully submitted, if the cause of the accident was that she had inadvertently failed to duck, which was the basis upon which the Court of Appeal took it, in our respectful submission their decision had to be wrong because they failed to factor in the two - I am sorry, first Mr Justice Mahoney accepted that that was foreseeable.  The basis of his judgment was that indeed it was foreseeable that she might inadvertently fail to duck, and he then went to the question of reasonableness of obviating the difficulty or not. 

Once one factored in the seriousness of the injury which was likely to, and did in fact occur, because this woman has had two cervical fusions, and the simple nature of obviating the risk, the risk where she had to go, she was bound to go by her employment, in our respectful submission there was only one answer.  But, in any event, at the least the Court of Appeal never dealt with the appellant’s appeal.  They dealt with an argument that had been put by the respondent without dealing with the facts, the evidence, which had been put before them by the appellant.  There is one other question and that was the jury question.  The jury came back and said, “If our decision ‑ ‑ ‑

BRENNAN CJ:   This is not in reply.

MR TOOMEY:   No.  We have dealt with that in our submissions, your Honour.  May it please your Honours.

BRENNAN CJ:   The reasons for dismissal of the appeal against the jury’s verdict must be evaluated in the light of the conduct of the trial.  Having regard to the course of the trial, the prospects of success on appeal to this Court are not sufficient to warrant a grant of special leave.  Special leave is accordingly refused.

MR COOMBS:  I ask for costs, your Honour.

BRENNAN CJ:   Have you anything to say about that?

MR TOOMEY:  I cannot say anything, your Honour.

BRENNAN CJ:   Refused with costs.

AT 11.23 AM THE MATTER WAS CONCLUDED