Nominal Defendant v Habib

[1996] HCATrans 106

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S146 of 1995

B e t w e e n -

THE NOMINAL DEFENDANT

Applicant

and

BADWI HABIB

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 15 APRIL 1996, AT 9.31 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR J.D. McDONALD, for the applicant.  (instructed by Turner Whelan)

MR P.J. CALLAHAN, SC:   May it please the Court, I appear with my learned friend, MR G.H. JOHNSON, for the respondent.  (instructed by Orr & Company)

DAWSON J:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, the ambit of liability and tort changes, of course, incrementally, sometimes one way; sometimes the other, and the issue in the present case is whether the majority in the Court of Appeal by their approach added a new increment to the ambit of foreseeability and, if so, whether they were right in doing so.

Now, your Honours will see I have used the expression “foreseeability”.  Perhaps another description might be as a question of causation, but it is the same question, however one describes it. 

DAWSON J:   Is it?

MR JACKSON:   Well, it is, in our submission, your Honour, because - may I indicate why that is so without seeking to make a particularly major point of it.  Your Honour, why we would say it is the same question is because it ultimately is one which one can say, is this something where the cause was something that, using the approach taken in March v Stramare, should one, as a matter of looking at it in a real world manner in a sense say this was caused by the accident?  On the other hand one can say, could one, looking at a particular thing, regard this in terms of Wyong Shire Council v Shirt as something that was being far‑fetched and fanciful.  Your Honour, I say the question is the same because it is the same facts, and one would, in our submission ‑ ‑ ‑

DAWSON J:   The difficulty is that you can have something that is completely coincidental but also foreseeable.

MR JACKSON:   Your Honour, I am not contesting that ‑ ‑ ‑

DAWSON J:   In which case it is a question of causation, but let us not - you develop your argument.

MR JACKSON:   Your Honour, may I say just one thing about the facts before I go on.  Your Honours will have seen that the accident resulted in both the respondent and the driver of the unidentified vehicle being held to blame to the tune of one‑third and two‑thirds, and your Honours will also have seen the facts which I will not take your Honours to.  May I say, your Honours, that in short what was held to be reasonably foreseeable was that a person seeing the accident would think that he had seen a different accident and that the respondent would then be charged with fraud when he made a claim based on the true accident.  Your Honours, that is fundamentally what the case comes down to.  That was held to be reasonably foreseeable.

Your Honours, may I go then to the law.  As it presently stands, the law recognises that the concept of foreseeability contains within itself some element of value judgment, and in that regard the test is most frequently stated in the form adopted by Justice Mason in Wyong Shire Council v Shirt 146 CLR, the relevant passage being extracted at page 35 of the application book.  May I take your Honours to that.  Your Honours will see the passage there extracted, and particularly the concluding part:

save we are implicitly asserting that the risk is not one which is far fetched or fanciful.

Your Honours, that is, broadly speaking, the test that is stated.  It has a second aspect which is that it is correct also to say that the exact events need not be foreseeable.  It is sufficient that the class of events may be foreseen.  Your Honours will see the extract in that regard at page 37 from Mount Isa Mines Ltd v Pusey between lines 5 and 21, and the passage that is extracted between lines 5 and 12 is what was said by Justice Windeyer in that case.

Your Honours, accepting the second of those propositions ‑ the one from Mount Isa Mines Ltd v Pusey - meaning still has to be given, in our submission, to the qualification to which Justice Mason referred, that is, that the risk is not one which is far‑fetched or fanciful, and they have to be understood, we would submit, by reference ultimately to the particular matters in question, because otherwise the question is one which would provide some difficulties in answering.

TOOHEY J:   Is that not the problem here, Mr Jackson?  One might readily conclude that this is at the outer edges of foreseeability, but what principle would the Court be developing by granting special leave in the present case?

MR JACKSON:   Well, your Honour, one could regard it in two ways.  The first is, if one were just to treat it, in effect, as being a case which turned on the application of existing principle to the particular facts, the approach taken by the Court of Appeal in this case does not appear to have resulted in the majority of the court turning its mind to the question whether the particular facts fell within the last part of the test in Wyong Shire Council v Shirt.  What I mean by that is that if your Honours go to where the issue was dealt with, and that is between pages 35 line 31 and 38 line 26, but really following the passage at page 37 to which I referred, through to the next page, your Honours will see that the court, whilst it refers to the test in Wyong Shire Council v Shirt, does not ever seek to apply that test and simply asks whether the case falls within a particular class.

TOOHEY J:   Except that one might infer from the judgment that the court was accepting that the risk was not one which was far‑fetched or fanciful.

MR JACKSON:   Well, your Honour, one could infer that only really from the conclusion to which the court came.  But the court does not really with it that way, and your Honour will see that when one comes to page 37 line 23, at the bottom of the page, for example, what is applied is purely, in effect, the class test.  The second thing is that your Honour asked is there really an issue of principle involved in the matter.  The issue of principle is this, your Honour:  does the Court in a particular case when dealing with an issue of this kind, notwithstanding that a matter might be regarded as capable of falling within a particular class, yet have to look to the question whether the particular circumstances are ones that are far‑fetched and fanciful.

Now, your Honours, it is always possible, and indeed this case demonstrates it, with respect ‑ it is almost, or perhaps almost always possible to find a foreseeable class of events or a kind of situation, as Justice Kirby put it at page 37, within which ‑ ‑ ‑

DAWSON J:   That is where the problem of causation comes in.  It is always possible to conceive of something, if that is what you mean, and if you say, well, everything that is conceivable is foreseeable, that does not carry you very far, but the passage you refer to on page 37 says that what is foreseeable has to be foreseeable as a consequence; not as something that is coincidental.  That seems to bring in causation, does it not?

MR JACKSON:   Well, your Honour, the two are very close ‑ ‑ ‑

DAWSON J:   Yes, they are.

MR JACKSON:   ‑ ‑ ‑ in that regard, and. your Honour, the ‑ ‑ ‑

DAWSON J:   But it does mean that what you have to foresee is not just something which is conceivable, but something which follows from the events which occurred, and is foreseeable in that context.

MR JACKSON:   Yes.  Your Honour, the expression of foreseeability is really a term to describe a process of the mind, in effect.  It is sometimes expressed as being reasonable foreseeability, but the question of reasonableness of the foreseeability must in the end, one would think, relate back to the question in the concluding part of the passage from Wyong Shire Council v Shirt, to which I referred:  is it something that is far‑fetched, et cetera?

DAWSON J:   Well now, assume that special leave were given and this Court heard an appeal.  What could it say that would add to the learning on the subject?

MR JACKSON:   Well, your Honour, what it could say would be this, that it is not sufficient to say what was said in the passage which is at page 37 lines 5 to 11.  What also has to be examined - and by that I mean the Mount Isa Mines Ltd v Pusey class test ‑ in each case is the question whether the particular risk was one which was far‑fetched or fanciful, even though it might fall within the class, of course, your Honour.

DAWSON J:   That is going back to the facts of the case, is it not?

MR JACKSON:   Well, it is not, your Honour, with respect.  One does inevitably have to go back to the facts of cases of this kind to raise the issue.  The point of complaint, in a sense, that we would make, and the point with which the Court would need to deal, in our submission, if special leave were granted, would be the test; the test being that it is not sufficient to say, as the Court of Appeal did, that it falls within the class.  One has to look to see whether it also satisfies the test from Wyong Shire Council v Shirt.  I mean by that the qualification to it, and that is what the Court of Appeal did not do in this case.  Your Honour, the question whether the Court should do that is not something that, in our submission, has been specifically stated in the cases so far.

TOOHEY J:   Does that mean that you are not seeking to put a gloss on either Wyong or Mount Isa Mines Ltd v Pusey, or that you would be asking the Court to say, in effect, that the Court of Appeal failed to apply the test arising from those two cases?

MR JACKSON:   Yes, your Honour.  We would be asking the Court to say how the two cases are to be read together and applied.

DAWSON J:   Now, applying that to the facts of this case, you would say ‑ correct me if I am wrong ‑ that it is always foreseeable that someone may make a false report to the police, and one may be charged with an offence as a result of it, but one cannot say that that flows as a possible consequence, within the test on page 37, of the particular events that occurred here.  It is no more than a foreseeable possibility in any situation.

MR JACKSON:   Yes.

DAWSON J:   Is that the way you put it?

MR JACKSON:   Yes, your Honour.  We would also, I think, put in a sense what is the other side of the same coin, and that is that a risk of this kind was one that was quite unlikely to occur and it was one which, even if one could imagine it happening, was one that could be properly described as being far‑fetched or fanciful.  Now, your Honour, that perhaps goes to the fact a little more than ‑ ‑ ‑

DAWSON J:   Far‑fetched or fanciful as arising from this particular incident. 

MR JACKSON:   Yes.

DAWSON J:   Yes.

MR JACKSON:   Your Honour, I do not really think I can take the case beyond that.

DAWSON J:   Yes, thank you, Mr Jackson.  Yes, Mr Callahan.

MR CALLAHAN:   Your Honour, if the Court pleases, the law relating to the remoteness of damages and the test of foreseeability is, in our respectful submission, well settled, and what this case involved was an application of well‑settled principle to matters of fact.  But, going straight to the point which your Honour is raising, the Court will appreciate that this was a factual situation in which the driver of the other vehicle decamped from the scene.  It was a claim against the nominal defendant, arising out of those circumstances.  The driver left the scene and left the plaintiff to cope with the circumstances then presenting to himself, to the police and to people who may or may not have witnessed the accident.  His Honour the President, with respect, squarely faced up to the consequences of the particular situation.  He spoke, in terms of page 37 line 27, of the foreseeable consequence.  but, more importantly, if the Court pleases, at line 41:

The very nature of such cases lend themselves to the accusation of falsehood and even criminal fraud.

That is the case where the driver who has caused an accident has decamped from the scene of the accident.  As I said, the plaintiff has to cope with that situation.  Can I emphasise it this way, if the Court pleases.  With respect, the dissenting judge in the Court of Appeal, Mr Justice Powell, notes at application book 54, line 33, that it seemed to him during the course of argument, and indeed he raised it during submissions, that there was a reasonably foreseeable likelihood that the plaintiff would be charged with negligent driving; he had run into a parked car.  If his story were not accepted that he had been forced off by the driver of a truck who had left the scene, there would be, one might think, a reasonably clear case of negligent driving.  But similar to negligent driving is this more serious situation with which this plaintiff was charged, which was evidently in the nature of seeking to obtain money by falsely pretending that a certain situation existed.

GUMMOW J:   There was no clear evidence about that, was there ‑ as to the nature of the criminal offence?

MR CALLAHAN:   As to the precise nature of the criminal offence, but, nevertheless, it was treated in the Court of Appeal ‑ certainly treated at first instance - as involving that.  The most precise ‑ ‑ ‑

GUMMOW J:   Page 54, line 92.

MR CALLAHAN:   Yes, that is Mr Justice Powell.  The President also did cover it but the trial judge at page 11 did refer to the situation.  But the charge against the plaintiff obviously related to the accident.  The observations of the witness who was ultimately discredited and disbelieved totally related to the accident.  The plaintiff had given a version of the facts; the witness had given a version of the facts.  The plaintiff had brought a claim for damages for personal injuries, the subject proceedings, based on the plaintiff’s version of the facts.  The claim for damages arose out of the very accident, as ‑ ‑ ‑

TOOHEY J:   What if the report had been quite mischievous ‑ the report to the police ‑ not based on an honest assessment by a witness, or perhaps by somebody who had not even seen the accident, but decided to create mischief?

MR CALLAHAN:   That is the sort of situation which a negligent driver who persists with his driving to the extent of decamping from the scene ought to be foreseen; that he is leaving; he has created and is leaving behind him a factual situation which could involve all sorts of consequences when those involved, and the authorities, seek to unravel it, without his assistance.

TOOHEY J:   That may be, Mr Callahan, but you are really looking at foreseeability, are you not, from the defendant’s point of view ‑ what the defendant might have foreseen?

MR CALLAHAN:   Yes, indeed.

TOOHEY J:   So that the defendant might have foreseen that someone would report an accident giving a different version to that by the plaintiff.  The plaintiff might thereby be put to criminal proceedings?

MR CALLAHAN:   Yes, indeed; that his failure to remain at the scene would make it difficult of proof for the plaintiff, demonstrating to whatever tribunal that the accident was thus caused.

DAWSON J:   Why should you foresee that someone will come out of the woodwork and say that something happened which did not happen?

MR CALLAHAN:   He should foresee that people ‑ common experience of mankind ‑ people witness a situation; they might think they saw something and are quite confident that they did see it ‑ so that is the botched situation, or the inaccurate witness, and there is also the situation of the mischievous witness.  There might be a busybody at the scene of the accident who ‑ ‑ ‑

TOOHEY J:   What has to be foreseen here, whether in a special or general way, is not that somebody might give a different version to the plaintiff, but that criminal proceedings might result.  That is the head of damage that is an issue in the present case.

MR CALLAHAN:   Yes.  At the risk of repeating myself, your Honour, Mr Justice Powell himself said, “Well, of course, negligent driving, running into a parked car”.  How far does it go?  It is a question of fact.  It is a gradation in point of fact, and it is for that reason that we make the submission that this is simply a situation where there is applied to settled law the facts of a particular case.  Could I emphasise what Mr Justice Kirby the President said in relation to the criminal proceedings at page 37, line 53:

They arose directly out of his claim for the very damages which came for trial before Phelan DCJ.

TOOHEY J:   Yes, because the plaintiff made them as part of his damages.  That does not really carry it much further, does it?

MR CALLAHAN:   It goes back to the accident, your Honour.  It is another way of putting the same point that I have been endeavouring to put, and at line 41 the point that I have already mentioned:

The very nature of such cases ‑

that is the situation of a decamping plaintiff ‑

lend themselves to the accusation of falsehood and even criminal fraud.

The Court will appreciate what we put in relation to any matter of principle.  This case in any event, if the Court pleases, is an inappropriate vehicle to test matters.  It can be looked at in various ways.  It is at the tail end of a personal injuries claim.  It was an increase of $30,000‑odd to a plaintiff who had already had a, with respect, not significant verdict, reduced by one‑third for contributory negligence.  It really is not an appropriate case to be used to put any gloss, if gloss be needed, on the law as contained in, for example, Pusey and Shirt.  So, for those reasons, if the Court pleases, it is our respectful submission that this application for special leave should be refused.

DAWSON J:   Thank you, Mr Callahan.  Mr Jackson.

MR JACKSON:   Your Honours, may we say in relation to the enthusiasm with which the word “decamped” appears in our learned friend’s submissions that the same would apply to every unidentified driver. 

DAWSON J:   Incidentally, I neglected to ask you.  There was this question of the statutory liability of the ‑ ‑ ‑

MR JACKSON:   Your Honour, we take no point about that.

DAWSON J:   Not raised?  Yes.

MR JACKSON:   Your Honours, the second thing is this, that we would submit what was said by Mr Justice Kirby, at page 37:

The very nature of such cases lend themselves to the accusation of falsehood and even criminal fraud -

really is not, with respect, quite right.  What he said could be applied really to almost any human field of endeavour and, if that is the test, then, your Honours, there is really no limit to foreseeability. 

The third thing we would say, your Honours, is this, that so far as the question of foreseeability is concerned, a good test for seeing whether this is something that falls within it is that the existence of the potential damages should, no doubt, have been foreseen by the respondent himself, because he was held to blame for the accident, so he should have foreseen what might have happened to him.  Your Honours, those are our submissions.

DAWSON J:   Thank you, Mr Jackson.

It may well be that it is only with difficulty that the respondent brings himself within the established tests for liability for negligence.  However, it appears to the Court that, in the end, the case involves no more than the application of those established tests to the particular facts of the case and does not raise any new point of principle to engage the attention of this Court.  For those reasons, special leave to appeal is refused with costs.

AT 9.54 AM THE MATTER WAS CONCLUDED