Parsons v Randwick Municipal Council

[2004] HCATrans 542

[2004] HCATrans 542

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S12 of 2004

B e t w e e n -

BARRY JOHN PARSONS

Applicant

and

RANDWICK MUNICIPAL COUNCIL

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2004, AT 9.17 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 E.G. ROMANIUK for the applicant.  (instructed by Helliars City)

MR M.J. JOSEPH, SC:  If your Honours please, I appear with MR S.P.W. GLASCOTT for the respondent.  (instructed by Phillips Fox)

McHUGH J:   Yes, Mr Toomey.

MR TOOMEY:   I suppose your Honours do not really need to be reminded about ‑ ‑ ‑

KIRBY J:   We certainly do not.

MR TOOMEY:   - - - Brodie and Ghantous, but can I just say something about the ‑ ‑ ‑

KIRBY J:   I feel as though this is last week being rerun.

MR TOOMEY:   Yes, your Honour.  Yes, there is a certain deja vu about it.  Your Honours, can I ‑ ‑ ‑

KIRBY J:   What was the name of that case, Waterways Authority v ‑ ‑ ‑

MR TOOMEY:   Waterways Authority v Mathews, your Honour.

KIRBY J:   Thank you.

MR TOOMEY:   Your Honours, can I remind you that Brodie and Ghantous fitted into the line of cases in which this Court has rationalised the common law and has removed special rights and duties in favour of a single duty governed by the common law.  In this case, in Zaluzna as explained in Calin, the rights above the ordinary common law right such as the rights of an entrant under contract were preserved.  In this case, because, one assumes, of the special vulnerability of public authorities, there was added the rider that the duty arose for a person taking reasonable care for his own safety.

McHUGH J:   Well, that of course owes it formulation to what Chief Justice Griffith said in Miller v McKeon and that in turn was derived from Indermaur v Dames, as Chief Justice Griffith’s judgment in South Australian Company v Richardson makes plain.  But the statement that the pedestrian or the invitee was required to take reasonable care for his own safety was made in apposition to the obligation of the invitor to guard against unusual dangers.  What the invitee was required to guard against was only usual dangers, and as this Court’s judgment in Commissioner for Railways v Anderson demonstrates, even if you knew of the unusual danger, you could still succeed if by inadvertence you overlooked it on the particular occasion, and at least speaking for myself, the passage at 581 in Brodie needs clarification.  It may be that some of those who were participants in that judgment have a greater knowledge of legal history than is now common, but it certainly seems to have led to a lot of trouble.  I mean, this would have been regarded in my view as an unusual danger in the old days.  Do you have photographs of this ‑ ‑ ‑

MR TOOMEY:   Yes we do, your Honour.  I thought they had been sent up to the Court, but we do have them.  I can hand up the originals.  There was a bundle sent up, your Honour, but these three photographs which were exhibits in the trial amply demonstrate the nature of the danger.  We would, with respect, agree with what your Honour said that that can hardly be said to be a usual danger on a footpath which is used day or night by people of all sorts of firmity and infirmity and, in our respectful submission, of different states of sobriety.  We urge upon the Court that this is an appropriate matter for leave for this reason particularly.  The courts of New South Wales are applying in these cases a narrowing focus on the question of whether the plaintiff has taken reasonable care for his own safety.  In this case ‑ ‑ ‑

McHUGH J:   It seems to me, with great respect to the Court of Appeal in these cases, that no matter how grave the danger is, if somebody should have perceived it, they have no cause of action.

MR TOOMEY:   That is the approach that they have taken, your Honour, and that is clearly the approach they took in this case.

KIRBY J:   Yes, but it is very similar to Mathews last week.  I mean ‑ ‑ ‑

MR TOOMEY:   Well, it does not have the causation problem, your Honour.

KIRBY J:   You say this does not have the causation problem?

MR TOOMEY:   Yes.

KIRBY J:   A man at 1 o’clock in the morning who gets out of the car in the wrong place is urged by his colleagues to get back into the car and be driven off, who is found at hospital to have a blood level of 0.268, who is found by the evidence to be in a condition that would produce extreme intoxication in ordinary people, and you say that there is no problem of causation.  Pull another leg.

MR TOOMEY:   Well, your Honour, can I – no, your Honour.  Can I just correct one part of the statement of facts.  The plaintiff was the person who got out of the car second.  His friend who was more intoxicated than he got out of the car first ‑ ‑ ‑

KIRBY J:   He must have been in a very bad way.

MR TOOMEY:   He was.  He got out of the car and was wandering on the footpath.

KIRBY J:   Wandering?

MR TOOMEY:   Yes, and, your Honour, the plaintiff was concerned for his wellbeing.  The plaintiff had left this club intending to be driven home to walk into his front door.  He had no intention of being anywhere near any footpath anywhere.  He had not left the club to walk a kilometre home, he had left to be driven home, and by reason of a social exigency, he was on that footpath.

KIRBY J:   But the Court of Appeal found that you had not established that the lighting was inadequate, and that the suggestion of the Court of Appeal’s reasons is that, had your client not been so affected by alcohol, he would have seen the impairment in the footpath.

MR TOOMEY:   Well, your Honour, I do not quite read ‑ ‑ ‑

KIRBY J:   We would not want in this Court to be getting into those sorts of issues.  I agree with Justice McHugh.  I agreed last week in Mathews where the wrong things are being said here, and in a proper case, then that would be the occasion for this Court both to correct the general problem of lifting up contributory negligence into the duty issue, which is a serious mistake, I think, and also the fallacy that has got about, about obvious dangers.  Some dangers, though obvious when the accident occurs, have to be the subject of care and protection, and in a sense more so because they are obvious.

MR TOOMEY:   Your Honour, the point we ‑ ‑ ‑

KIRBY J:   But this is not the case, Mr Toomey.

MR TOOMEY:   Well, your Honour says that, but can I at least ‑ ‑ ‑

KIRBY J:   At 1 am.

MR TOOMEY:   Can I elucidate ‑ ‑ ‑

KIRBY J:   Intoxicated.

MR TOOMEY:   Your Honour, the question of what is reasonable care for one’s safety depends upon the circumstances.  The question of whether a person is inadvertent depends on what other matters are pressing upon his attention.  This man did the right thing.  He was concerned for the safety of his friend, he got out of the car, he was actually talking to him, trying to – importuning him to get back in the car where he would be safe.  He turned and fell.  In our respectful submission, there could not be a clearer case of inadvertence caused by another focus for his attention.  A legitimate focus ‑ ‑ ‑

KIRBY J:   Yes, but the suggestion of the Court of Appeal’s reasons is that, had your client been sober, the lighting would have been sufficient to show him the impairment of the footpath, and therefore, you have a real problem of causation. 

MR TOOMEY:   But your Honour, with great respect, that would not be so.  Inadvertence ‑ ‑ ‑

McHUGH J:   You establish causation when you show that there was a danger that should have been guarded against by the Council and has caused your client to fall.

MR TOOMEY:   Well, with respect ‑ ‑ ‑

McHUGH J:   It is up to the defendant to show that his drunkenness was the sole cause of the accident ‑ ‑ ‑

MR TOOMEY:   With respect, your Honour ‑ ‑ ‑

KIRBY J:   But the question is, would he have fallen in the first place if he had not been in this state of insobriety and had been able to see the defect in the footpath caused by the lighting, which the Court of Appeal said had not been shown to have been inadequate for normal people? 

MR TOOMEY:   Your Honours, Mr Pritchard, who was there who was stone cold sober, did not see the hole in the footpath.

CALLINAN J:   Mr Toomey, how long are they?  It is not a hole; it is a subsidence, is it not?  How long had it been there?

MR TOOMEY:   Your Honour, weeks or months.

CALLINAN J:   Any other accidents?

MR TOOMEY:   None known of, but it cannot be said, with respect, that it is not a danger.

CALLINAN J:   Mr Toomey, subsidence on footpaths, irregularities, cracks - no Council could possibly deal with all of them.

MR TOOMEY:   Your Honour, if a Council cannot do ‑ ‑ ‑

CALLINAN J:   Even you would not be able to afford the rates, Mr Toomey, if that were the case.

McHUGH J:   Be that as it may, that was not the ground the case was decided against you on, Mr Toomey.

MR TOOMEY:   No, your Honour, it was not ‑ ‑ ‑

McHUGH J:   And in fact, the Council was across the road working on other sites.

KIRBY J:   I am with Justice McHugh on this, and if it were a proper case, I would certainly grant leave because we have seen – this is about the fourth case where we have seen this issue, but we do not do your client any favour by bringing him up to the High Court where he is going to lose. 

MR TOOMEY:   Well, your Honour says that, but with the greatest respect, what about the inadvertence aspect?  It was not found, in our respectful submission, that he fell because he was drunk.  That was not the finding.

CALLINAN J:   That would not preclude us from finding that. 

MR TOOMEY:   Well ‑ ‑ ‑

CALLINAN J:   What is magic about that?  The basic facts are known, .268 ‑ ‑ ‑

MR TOOMEY:   Yes.

CALLINAN J:    ‑ ‑ ‑so he is almost falling down drunk. The facts are not really in contest, it is the view you take of them.  I do not see any reason why an appeal court could not take the view that it was drunkenness that caused him to fall over.  I do not care what the trial judge found.

MR TOOMEY:   It was not, with respect, the view that the Court of Appeal did that.

CALLINAN J:   It does not matter.  It is not a view that is foreclosed to us on appeal; that is the point I am trying to make.

KIRBY J:   You see what I mean, Mr Toomey ‑ ‑ ‑

MR TOOMEY:   Well, I do see that I am against the wind, your Honour ‑ ‑ ‑

KIRBY J:   I am looking for a case.  I am with Justice McHugh 100 per cent.  Two mistakes have been made; one of them the mistake of lifting up contributory negligence into the duty issue - and I think the joint reasons aided and abetted that in Brodie and Ghantous – and, secondly, the obvious danger point.  These are two issues that are waiting to be dealt with by this Court, but I just do not think this is the case to do it. 

MR TOOMEY:   Well, may I try to persuade your Honour that this is a case which the plaintiff could win.  In the first place, the evidence was that when he got out of the car, he walked nimbly and showed no sign of affectation.  Now, your Honour Justice Callinan laughs, but with your Honour’s rich experience ‑ ‑ ‑

CALLINAN J:   But how could he be nimble?

MR TOOMEY:   With your Honour’s rich experience of life, you would no doubt have met people who were able to be, to use the vernacular, as full as a tick and still able to walk straight and talk straight, and this plaintiff had considerable experience of drinking.  It is, in our respectful submission, not open to say he was 2.68, therefore he was falling down drunk.  The evidence was he was not.

CALLINAN J:   I said almost, Mr Toomey.

MR TOOMEY:   Well, I think you ‑ ‑ ‑

McHUGH J:   And he had to get from the roadway up there.  He would need to be as nimble as a mountain goat to get up that grass embankment and ‑ ‑ ‑

MR TOOMEY:   Yes, well he did, your Honour.  He walked up the sloping grass onto the footpath, he importuned his friend to come back because he was concerned for his safety, and he fell when he turned to go back.  In our respectful submission, it cannot be said that in those circumstances he must fail.  The inadvertence point, I mean, inadvertence

concerns among other things a failure to care for one’s own safety because of attention to something else, and this is the case. 

Can I say this to your Honours.  We have been looking for a formulation of the reasonable care for one’s own safety and we found it last night, too late unfortunately to include it in our book in the second edition of Glass, McHugh and Douglas.  Now, it is in contributory negligence, but the matter is precisely in point and the matter deals with what shows an unreasonable lack of care on the part of the plaintiff.  That sets out, essentially, our argument in this case because it encompasses what happened in this case. 

McHUGH J:   I think you would find better formulations in Chief Justice Griffith’s own judgment in South Australian Company v Richardson and then in Justice Menzies’ and Justice Fullagar’s judgment in Commissioner for Railways v Anderson.

MR TOOMEY:   Yes, your Honour.  This passage does refer to the judgment of Justice Windeyer in Sungravure Pty Limited v Meani, and that of course says:

If the setting in which the plaintiff is acting causes some temporary lapse in attention or the press of affairs produces a need for prompt action, these factors are always relevant to a decision whether the plaintiff has been inadvertent only or guilty of blameworthy want of care.

Now your Honours, this man faced a social crisis.  He was with his mate, he did what we hope an Australian would do:  he got out of the car to help him.  In those circumstances with that pressing concern on his mind in circumstances where his sober friend did not see the hole, where there was an unquestionable serious danger, in our respectful submission, he was entitled to succeed.  May it please your Honours.

McHUGH J:   Thank you, Mr Toomey.  Yes, Mr Joseph.

MR JOSEPH:   If the Court pleases.  Our submissions are these, that the case is not a suitable vehicle.  Firstly, there is no conflict of application of principle in the three judgments in the Court of Appeal.  Justice Beazley, although she dissented, dissented simply on a finding of fact as to whether there was sufficiency of evidence in respect of the lighting that would have allowed a pedestrian acting reasonably to have seen and avoided the defect in the footpath.

McHUGH J:   But Mr Joseph, that seems to me to be the problem of the case.  It seems to regard what might be contributory negligence as a negation of duty. It is almost as though the volenti principle has somehow or rather crept back in by the back door.

MR JOSEPH:   Your Honours, in our submission, the judgments do not reveal such fallacy.  The judgments are clearly aware of the difference of application.  What all judgments, in our submission, correctly identify as a critical issue is to identify the nature of the defect, and there cannot be any dispute that that is a prerequisite to trigger the duty and necessary to consider in terms of breach. 

They considered the question of the defect not so much in terms of whether it was obvious in daylight.  It is clearly an obvious defect in daylight and the judgments below all conceded that.  The question was:  was there any fact in respect of a man at 1 o’clock in the morning - does it change the obviousness of the risk because of the state of lighting at that time?  And the Bench divided on that factual issue.

McHUGH J:   Yes, I know, but that is part of the problem, is it not, that because it was obvious in the daytime, that was the end of the matter.  I mean, I have seen worse footpaths in Cuba, but you would not see many more defective footpaths than that.  I mean, that is just unbelievable.

MR JOSEPH:   The argument was not whether the footpath was defective or not.  There was no dispute that the footpath in that condition is defective.  The argument below is whether a defective footpath in that state gives rise to a duty to a pedestrian from the perspective of the Council, being a public authority.  So, with respect, it is not the defectiveness that triggers the duty, it is the facts as to whether or not a pedestrian acting reasonably would have been able to see and avoid that defect.

McHUGH J:   I think that is the mistake that is being made.  A pedestrian is expected to take reasonable care for his or her own safety in respect of dangers that that person might expect to find.  I do not think many pedestrians in the daytime or night time would expect to find a defect such as this in the road.

MR JOSEPH:   Expect to find or expect to see.  I mean, that, with respect, is the ‑ ‑ ‑

McHUGH J:   Or expect to see.

MR JOSEPH:   We say that was what the court below considered.  Would this pedestrian have been able to see a defect of this nature?  And that is why in some cases the height of the defect is relevant, whilst in other cases the lighting is relevant.  In this case the lighting was one of the critical issues as to whether or not this defect would have been able to be seen by a pedestrian acting reasonably. 

In our submission, the court below was mindful of the fact that in determining the issue of duty, the question was from the perspective of the reasonable person and not necessarily from that of the plaintiff, which of course is the contributory negligence point.  There is no confusion in this judgment, and nor has any been identified, in our submission, that the court was looking at the issue of duty from the perspective of the plaintiff in his state of sobriety as opposed to the state of a reasonable pedestrian walking at night along this road with the lighting as it was found.  In our submission, given the unanimity of approach and given the facts as found below, despite the dissent on the facts, this case does not represent a suitable vehicle. 

The other matter is that matter raised by Justice Kirby, namely this.  The court did not go on and consider the second ground of the notice of contention.  The second ground of the notice of contention was of course the issue of causation, and the issue of causation – and that is obvious from what was said at page 49 of the application ‑ ‑ ‑

KIRBY J:   I think you have said that if the matter came to this Court, you would be raising a notice of contention pressing that issue in this Court.

MR JOSEPH:   Yes, and the court was mindful of this and referred to it at page 49 of the application book at paragraph 44, where Justice Sheller says:

A person in the state of sobriety of Mr Parsons is not one necessarily able to take reasonable care for his own safety when walking along a darkened footpath in the middle of the night.  If it was open to find that Mr Parsons, able to use such reasonable care for his own safety, would have fallen in the way he did because in the light provided he would not have seen the fault, then his state of sobriety would only have had consequences in looking at causation and the question of contribution –

So it is clear from that statement that firstly, the issue of causation was not relevant and not considered, and also the question of contribution was relevant and not considered in terms of the plaintiff’s sobriety.  However, it is also clear, in our submission, from that part of the judgment that the court was not confusing the question of the reasonableness of a plaintiff in this state of lighting in terms of duty, as opposed to contributory negligence which would obviously have regard to the state of the plaintiff’s sobriety which of course the majority did not have to consider because of their finding on duty and breach.

In our submission, the second part of the judgment, however, was not just of course the lighting.  The second part of the judgment was related to when it was that the footpath gave way.  In that regard, one has to turn to the end of the judgment of Justice Sheller at page 50 where he says at paragraph 47:

However this may be that if on the night in question the fault in the footpath and its nature was visible to a user of the footpath taking due care the Council was not in breach of the duty of care it owed to Mr Parsons.  In my opinion, the evidence did not allow the Court to conclude that the Council had failed in its duty of care –

so we are on to breach of this point.

I have referred to the absence of any satisfactory evidence about the state of lighting on the night in question.  Dr Cooke was of opinion that the signs of failure would have been apparent for several months.  It is not possible to say for how long the footpath was in the state it appeared to be at the time Mr Parsons fell.  On the evidence it is not possible to say whether the Council had failed to take reasonable steps to repair the footpath.  In my opinion, Mr Parsons failed to make good his claim and the appeal must be dismissed.

So, in our submission, the second leg of the case, namely when it was that the footpath appeared in the state it did at the time of the fall, was not satisfactorily discharged by the plaintiff to find that the Council had breached its duty of care.  So the case turned on not just lighting, in our submission, but also the fact that despite the obviousness of – assume the court finds the obviousness in the defect, it was not clear on the evidence as to when it was that the footpath culminated in the collapse that it did.

McHUGH J:   Did not Dr Cooke say in his report that signs of the cracking would have been apparent for several months?

MR JOSEPH:   Signs – there is two issues – yes he did, your Honour, that is at the bottom of page 49.  He talks about signs of cracking, but what the Court of Appeal was concerned about is when was the culmination of the collapse that might have appeared from those signs.  And what the Court of Appeal is clearly saying, in our submission, is that whilst there might have been signs of cracking for some months prior to the fall, there was insufficient evidence as to whether the collapse shown in the photographs had been there days or months.  And that being the case, in our submission, Justice Sheller ,with whom Justice Ipp agreed, was not satisfied that the Council had breached its duty of care in any event because he could not be satisfied as to ought the Council have ascertained that state and did they have sufficient time to repair.  They would be our submissions.

McHUGH J:   Thank you, Mr Joseph.  Yes, Mr Toomey.

MR TOOMEY:   Your Honours, this question of whether the, if I can call it, primary negligence on the part of the Council was proved is, we would respectfully submit, really foreclosed by the evidence.  If you look at page 37 of the application book, the second quoted paragraph from the top of the page, this is what Dr Cooke said, unchallenged, not cross-examined:

The signs of failure (cracking, followed by subsidence) would have been apparent for several months.  As the footpath deteriorated over a period of months the signs of severe failure would have become increasingly apparent, culminating in the collapse of the edge of the footpath.”

What my learned friend says is that you have to have the hole in that condition for months before the Council is liable.  Furthermore, your Honours, no evidence of any sort was called from the Council to say whether they would have known, what inspection they had, what ‑ ‑ ‑

McHUGH J:   Was there not evidence that they were doing work on the other side of the road?

MR TOOMEY:   Yes, there was, your Honour, within the three months before the accident.  So, in our respectful submission, that point just has no legs, and of course, Justice Beazley thought it had no legs also.  She found that it was clear that the Council was negligent.

Your Honours, can I just say this.  The question of alcohol, in our respectful submission, is an important one for this reason.  Drinking is a legal activity in this community.  The drinker, even the person who is affected by alcohol, is not yet – to borrow the phrase of Chief Justice Latham in Henwood’s Case, caput lupinum.  He is still entitled to the protection of the law.

Imagine a person who is in his home drinking and who is heavily affected by drink and is driven out of the house by some matter which is beyond his control or which is not blameworthy, and he goes out onto the footpath and he falls.  Is he to lose because he is affected by alcohol?  The circumstances in which he comes to be on the footpath must be foreseeable.

KIRBY J:   The significance of alcohol though, as the Court of Appeal pointed out, was whether or not it impaired your client’s capacity to see what would have been visible to the ordinary person with the artificial lighting in the area.

MR TOOMEY:   But, your Honour, it only had effect in this case if it could be said that that meant that he was not taking reasonable care for his own safety in the context that Justice McHugh has explained.  If it does not have that legal effect, then it is irrelevant.  This man does not, as I said, leave the Australian Golf Club to walk for two kilometres home knowing that he is grossly affected.  He is in a car being driven home to walk in his front door.  He gets out by reason of social exigencies and, in our respectful submission, he is then owed a duty by the Council.

KIRBY J:   I agree he is owed a duty and I think there is a lot of mistaken reasoning in many courts around this country which are telescoping the contributory negligence issue into the duty issue.  But one has to look from this vantage point for the case that will present that in a circumstance where the plaintiff is likely to succeed, not where the plaintiff is doomed to fail.

MR TOOMEY:   Well, your Honour says we are doomed to failure.  We say that on a proper broad view of what is meant by the duty to take reasonable care for one’s safety, the plaintiff is not doomed to failure.  May it please your Honours.

McHUGH J:   I would grant special leave to appeal in this case on the ground that the Court of Appeal has misinterpreted and misapplied the passage in the joint judgment of this Court in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 581 concerning discharge of the duty of care owed by councils to pedestrians. That particular passage in Brodie owes much to the formulation by Chief Justice Griffith in Miller v McKeon (1905) 3 CLR 50 at 60 concerning the duty of care owed by local governments to road users.

The formulation of Chief Justice Griffith was derived from the well‑known formulation of Justice Willes in Indermaur v Dames (1866) LR 1 CP 274 at 288 concerning the duty owed by the occupier of premises to an invitee. That is the historical source of the statement in Brodie concerning users exercising reasonable care for their own safety.  But in the invitee cases the issue of the invitee taking reasonable care for his or her own safety was in apposition to there being an unusual danger which the invitor was required to guard against.

Invitees were required to take reasonable care only in respect of the usual dangers that they could expect to encounter on the premises.  They were not expected to guard against dangers that were unusual.  Indeed, as this Court’s decision in Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42 shows, even knowledge of an unusual danger would not defeat the invitee’s cause of action if, through inadvertence, the invitee overlooked that unusual danger. The judgment of Chief Justice Griffith in South Australian Co v Richardson (1915) 20 CLR 181 at 186 and 187 shows that in Miller v McKeon he saw no distinction between the care required of an invitee and the care owed by a road user.

In the present case the danger to pedestrians was not of a kind that pedestrians usually encounter.  Arguably, the Council was in breach of the duty it owed to pedestrians.  Mr Parsons’ intoxication, gross though it was, and his failure to perceive the danger, could go to no more than the issue of contributory negligence.

I would grant special leave in this case because it is necessary for this Court to clarify the oft‑cited passage at page 581 in the joint judgment in Brodie and because, in my view, the Court of Appeal has misinterpreted and misapplied that passage.  Arguably, as a result, this applicant has been deprived of a verdict that he should have obtained against the Council.  I would grant special leave.

KIRBY J:   The applicant’s claim at trial was for damages for negligence on the part of a local authority based on the application of this Court’s holding in Brodie v Singleton Shire Council (2001) 206 CLR 512 and the associated case of Ghantous. 

He lost at trial before Judge Sorby in the District Court of New South Wales and in the Court of Appeal where a majority dismissed his appeal.  His case in this Court is that the majority in the Court of Appeal erred in concluding that the judgment at trial should be confirmed because of an alleged confusion between the scope of the duty issue (assuming that the pedestrian exercised reasonable care for his own safety) and the defence of contributory negligence (upon which the Council bears the onus of proof).  He has other complaints addressed to the treatment by the Court of Appeal of the suggested obviousness of the defects that allegedly led to his injuries.

These questions are recurring ones.  In a somewhat similar case, they were raised last week in the special leave application in Waterways Authority v Mathews.  I would repeat what was said on that occasion by Justice McHugh, with whom I agreed.  In a proper case, it might be suitable to grant special leave to allow the propounded issues to be reconsidered and clarified.  There is, in my opinion, much force in what Justice McHugh has said in his reasons in the present application.  Some of the reasoning in the joint reasons in this Court in Brodie, at 581 in particular, may need to be re‑expressed or clarified.

However, I do not believe that this case calls for such consideration, or that the applicant would have reasonable prospects of success were special leave granted.  In particular, the uncontested facts and the factual findings make this case one where ultimate success would be most unlikely.  The applicant’s injuries occurred at 1.00 am in a suburban street of Sydney.  The applicant had drunk a substantial quantity of alcohol before his mishap occurred.  He was found at hospital, after the accident, to have a blood alcohol reading of 0.268, a level that, according to the evidence adduced at trial, “would produce extreme intoxication in most people”.

The issue in the case was the lighting provided by the Council and the condition of the footpath which the applicant blamed for his injuries.  However, the majority of the Court of Appeal found that the applicant had failed to prove that the artificial lighting was inadequate.  That finding was open.  In these circumstances, the grave problems faced by the applicant in establishing that any defect of lighting caused his injuries are obvious.

Thus, even if the applicant could make out his criticisms of some of the reasoning of the majority of the Court of Appeal on self‑care and obviousness of risk, as I think he might, I am not convinced that a grant of special leave is warranted.  Special leave should be refused with costs.

CALLINAN J:   I would refuse special leave, both on the basis of the findings made at first instance and further findings which I think are not foreclosed, even in this Court.  In my opinion, the applicant, if he were given special leave to appeal, would be bound to lose the appeal.  I would refuse special leave with costs.

McHUGH J:   Accordingly, the order of the Court is special leave is refused with costs.

AT 9.55 AM THE MATTER WAS CONCLUDED