North Sydney Council v Binks

[2008] HCATrans 165

[2008] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S519 of 2007

B e t w e e n -

NORTH SYDNEY COUNCIL

Applicant

and

SIMON JOHN BINKS

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 APRIL 2008, AT 9.46 AM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC:  May it please the Court, I appear with MR N.J. POLIN for the applicant.  (instructed by DLA Phillips Fox)

MR B.J. GROSS, QC:  May it please the Court, I appear with MR R.W.C. ROYLE for the respondent.  (instructed by Levitt Robinson)

GLEESON CJ:   Yes, Mr Maconachie.

MR MACONACHIE:  Your Honours, the nub of the point in this case, we say, is whether or not the formulation of this reduced causation test is that it operates only when the plaintiff is able to demonstrate that the relevant risk came home.  There was no evidence in this case which permitted one to make that finding.  That being the case, the plaintiff could only succeed if demonstrating breach in a more general sense is required.  That the majority in the Court of Appeal took that approach is demonstrated by the fact that Justice Santow spoke of it as being an undemanding test for causation.  We would have thought that that word alone would have rung bells ‑ ‑ ‑

GLEESON CJ:   Well, that is a bequest of a motion by Justice Glass, is it not?

MR MACONACHIE:    I am sorry?

GLEESON CJ:   That is a bequest to the jurisprudence by Justice Glass, is it not?

MR MACONACHIE:   Indeed it is, and one bequest of that kind is enough, we would say.

GLEESON CJ:   Sometimes in the mouths of counsel that word contains an element of wish fulfilment.

MR MACONACHIE:   Yes.  That is the point, your Honours.  The written submissions, the judgment of Justice Ipp in the Flounders Case, which analyses the differences which exist between, we would say, that court, or that constitution of the court in Flounders and the constitution of the court in this case, the differences between that which is said in Flounders v Miller and what is said in the Hannell Case by the majority in Western Australia demonstrates that it is a point of real importance that needs the attention of this Court. 

Secondly, we say, on the miscarriage of justice point, that what really happened in this case, so far as the judgment of the majority is concerned, is that Justice Santow never really analysed the matter as it ought to have been analysed, and as Justice Basten did.  What he did was to conflate breach and causation so that everything became a matter of degree and that, in our respectful submission, is illegitimate, demonstrates error and needs to be corrected.  But that is a secondary consideration to the principal proposition that we have advanced and that is, does the plaintiff have to demonstrate that the risk that caused the harm came home? 

That is not found by the trial judge, Justice Hoeben, nor by the Court of Appeal.  It is just assumed, but that is the very point that needed to be decided before he could engage the appropriate rule.

GLEESON CJ:   The point of departure between Justice Basten and the majority appears in paragraph 97 on page 122, does it not?

MR MACONACHIE:   Yes indeed; that is the very point, your Honour.  Justice Basten identified that there was a factual lacuna.  What we say is that if this case is not dealt with by this Court, it stands as authority for the proposition that a plaintiff can succeed without having to demonstrate anything other than breach in a general sense.  The plaintiff does not have to demonstrate that that risk came home, as Justice Mason has said in a number of cases, as has the Chief Justice of New South Wales, as did Justice McHugh.  That is the critical point.

GLEESON CJ:   What Justice Basten was saying was that in his view of the evidence the negligence, or potential negligence, involved in the arrangements that might have led somebody to believe that the left‑hand lane ended had no causal connection to the damage that was suffered.

MR MACONACHIE:   Yes.

GLEESON CJ:   That is just a proposition of fact, is it not?

MR MACONACHIE:   No, your Honour.  What he is saying is that the analysis of the majority did not identify what it was that was established as having been the breach that connected with the harm.  All that was known was that there was roadworks and some signage and a 25‑metre skid mark.  It was not even known whether that skid mark was caused by braking or by a yaw.  As Justice Basten demonstrated, all that was capable of being established was that there was a loss of control, but what was the cause of the loss of control was unknown and unknowable.  It was just as consistent with excessive speed and a blood alcohol reading of at least 0.125 per cent as it was with confusion caused by inadequate signage.

GLEESON CJ:   Where do we find the majority saying, “If that’s so it doesn’t matter”?

MR MACONACHIE:   They do not say that.  That is because, in my submission, the analysis that was undertaken by Justice Santow obscured any need for that approach because he took the view, right at the commencement of his judgment, that it was all a matter of degree and the finding of 65 per cent contributory negligence sufficiently explained it all.  He did not have to concern himself with what was the cause of the loss of control; was it confusion, was it speed, was it braking?  That was all part of the contributory negligence degree point.  So he never got to the point of analysing the matter in the same way that Justice Basten did.  He never got to the point of having to say, “Do I need to be satisfied that the cause of the loss of control was connected with the breach found?” 

Statements that were relied upon in the judgment of Justice Gaudron in Naxakis and Justice Kirby in Chappel v Hart do not expressly deal with that further element or integer in the causation equation.  Those cases did not call for it.  But this is translated into an ordinary physical injury motor vehicle accident.  It has been demonstrated, we respectfully submit, by what has been said by Justice Mason, by the Chief Justice Spigelman, by Justice McHugh in Bennett and other cases that you have got to show that that risk, that risk which is created by the breach of duty, was more probably than not connected with the injury.  That is not demonstrated in the reasoning of the majority.  It is demonstrated in the reasoning of Justice Basten. 

The majority failed to properly analyse it in accordance with legitimate causal principles and, if this case stands and it gives rise to an undemanding test of causation, error will be perpetuated.  But in any event, we also stand on the miscarriage of justice point.  There is nothing more I can say in support of it.

GLEESON CJ:   Thank you, Mr Maconachie.

MR GROSS:   Your Honours, Justice Santow adopted the reasoning of the trial judge in relation to the causation issue and, although expressed with some brevity, it is plain there is an incorporation by reference of Justice Hoeben’s reasoning.  Very briefly, if your Honours would just go to pages 98 to 99 of the application book under the heading “Application of Causation principles to this case”, if I can just bypass the first 10 lines or so, at line 48:

The trial judge drew such an inference in favour of Mr Binks as plaintiff, though attributing a 65% responsibility in terms of his contributory negligence.  His reasoning evinced such a process of inferential reasoning based on the evidence.

Then further, over on page 99 at line 39 under the heading “Conclusion”:

It was open to the trial judge to conclude as he did that Mr Binks was misled into thinking that the lane was closed, and that the inadequate signage placed too close to the road works (25 metres) left him insufficient time to take evasive action successfully –

Then if we go to Justice Hoeben’s judgment at pages 45 to 47 of the application book, it is fairly evident that Justice Hoeben has not acted upon some mechanical application of some misunderstanding of evidential onus, but rather has taken into account the whole of the evidence, including the expert evidence, and his view of the scene.  Very briefly, at the bottom of page 45, your Honours, Justice Hoeben, in paragraph 133 at line 50, the fourth last line, says:

The Council submits that on those facts, there was insufficient evidence to establish that the configuration of the road works and the inadequacy of the signage and other markings contributed to the accident.  Speed and the plaintiff’s consumption of alcohol, it was submitted, provided a full explanation for the accident.

I agree that the evidence is sparse.  There might be more force in the submissions of the Council had the plaintiff collided directly with the road works or ended up to the East of road works.

That is the left‑hand side of them –

The existence of the skid mark heading towards the West, together with the final resting place of the vehicle does, it seems to me, enable an inference to be drawn that there was some confusion in the plaintiff’s mind as to the correct route through the intersection and that at some point in the decision making process he had intended to travel to the West on the incorrect side of the road.  There seems to me to be a real plausibility in the scenario suggested by Mr Jamieson at [para 103].  The fact that the Council did breach the duty, which it owed to the plaintiff –

and we emphasise these words –

coupled with those considerations, enables me to infer that the configuration of the road works, together with the inadequacy of the signage and other indicia were a cause of the plaintiff’s accident.

I will not take your Honours to what the experts, to whom Justice Hoeben was referring, state other than to point out that at paragraph 103 of Justice Hoeben’s judgment he summarises the aspect that not only will there be confusion but the natural reaction will be to continue with your speed

unabated in a southerly direction and, only belatedly discovering that you can make a left‑hand turn, to then suddenly brake or turn the wheel and that leads to skid marks or it leads to yawing. 

So all of the elements that Justice Basten found difficult to understand were described fully by the experts, who his Honour accepted, and whom, we submit, his Honour correctly accepted.  His Honour also noted that the path that Justice Basten found to be implausible was a path that had been taken by other lay witnesses faced with a similar confusion but not beset by the problems of either higher speed or alcohol.

GLEESON CJ:   Did Justice Basten in his reasons for judgment express any disagreement with the majority on the principles of causation?

MR GROSS:  We would submit not.  There is an extended discussion of the concept of evidential onus in the context of causation, but when one compares Justice Basten’s reasoning in that area with Justice Santow, one does not see any perceptible difference.  Justice Basten does say you do not mechanically apply the evidential onus simply because there is no evidence there.

GUMMOW J:   He may have overstressed the notion of direct evidence.  If you look at page 115, line 5, “there was no direct evidence”.  Do you see that?

MR GROSS:   Yes.

GUMMOW J:   And then line 81, “there was no direct evidence” and then over on page 122, paragraph 97, about line 32, “The only clear inference”.

MR GROSS:   Yes.  We would submit that it is not unusual to have evidence other than direct, it is a circumstantial case, its inference has been drawn and his Honour had sufficient material before him, with the assistance of the experts and, I suppose, we had the view, to draw the most probable inference as being that there was a causal connection in this factual situation.  Once again, we emphasise this was a mundane issue of fact resolved against the defendant and, indeed, now resolved twice against the defendant.  We submit there should not be a third opportunity to review the facts.

GLEESON CJ:   Yes, Mr Maconachie,

MR MACONACHIE:   Page 121, if I could take your Honours there for a moment, where Justice Basten deals with causation not having been established.  He says, at about line 95 to 96:

it is necessary to consider whether the known facts of the accident –

and I take Justice Gummow’s point about his Honour focusing on direct evidence –

in the present case demonstrate that it was an accident of the kind which might be expected in the case of the proven breach.  The Appellant contended that confusion due to a lack of signage was an inference based on speculation, not evidence.  It might equally be inferred that the plaintiff had lost concentration or even had a ‘microsleep’ and swerved at the last moment –

and we would add, and was driving too fast in order to take the left‑hand turn in any event, and that was demonstrated by the evidence of Mr Jamieson which is included in the application book at page 156, see lines 43 to 52.  It was equally consistent with the man travelling too quickly, having seen an obstruction 100 metres beforehand.  There was no doubt the evidence demonstrated the obstruction could be seen 100 metres beforehand.  He did not slow down.  The speed limit was 60.  He was travelling somewhere between 60 and 77 kilometres per hour at the start of the skid mark. 

It was, on the “do you take it from the jury test”, incapable of supporting an inference that it was confusion rather than something equally or more probable, that is to say, failing to keep a proper look out or failing to drive at a speed which was safe and sensible in all of the circumstances when drunk.  Justice Hoeben failed to apply the right test when, at page 46, he said – my learned friend has just read it to you – line 23, “The fact that the Council did breach the duty”, but he does not say how it was, in our respectful submission, that the inadequate signage, which was the breach, connected with the injury or the kind of accident – see page 121.  All he said was, “coupled with those considerations”.  Those considerations are set out a few lines above, “The existence of the skid mark”, “the final resting place”.  They are the two things he relies on. 

He just shuts out of his mind the fact that the plaintiff was demonstrated – it came out of the mouth of his own expert, Mr Jamieson – to be travelling so fast that he could not have taken the left hand turn in any event.  That is just as consistent with confusion caused by inadequate signage as it is with a man drunk, driving too quickly and knowing that he could not take the left‑hand turn, attempting to drive straight ahead and deciding the only way he could do that was to turn right and he lost control.  Possibilities of equal degree of probability cannot support the causal rule that Justice Basten identified as being the appropriate one and it bespeaks error on the part of the majorities.  They claim he did not have that essential requirement in mind.

GLEESON CJ:   Thank you. 

As we read the reasons for judgment of the members of the Court of Appeal and the primary judge in the present case, the point of dissent in the Court of Appeal by Justice Basten turned upon his appreciation of the facts of the case rather than any question of legal principle. 

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 it.  The application is dismissed with costs.

AT 10.08 AM THE MATTER WAS CONCLUDED