Perisher Blue Limited and James Anthony Harris and Trustees Of the Roman Catholic Church for the Archdiocese Of Sydney

[2013] HCATrans 252

[2013] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S54 of 2013

B e t w e e n -

PERISHER BLUE LIMITED

Applicant

and

JAMES ANTHONY HARRIS

First Respondent

TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF SYDNEY

Second Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 OCTOBER 2013, AT 2.24 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR R.E. MONTGOMERY and MR B.K. KOCH, for the applicant.  (instructed by Hunt & Hunt Lawyers)

MR R.S. SHELDON, SC:   May it please the Court, I appear with my learned friend, MR M.J. MAXWELL, for the first respondent.  (instructed by Brydens Law Office)

MR J.E. SEXTON, SC:   May it please the Court, I appear with my learned friend, MR J. KEESING, for the second respondent.  (instructed by Makinson & d'Apice)

BELL J:   Yes, Mr Walker.

MR WALKER:   Your Honours, may I take you in the application book please to page 80 to pick up a passage of the reasoning in the judgment of Justice Young, agreed in by Justice Beazley, where his Honour, it can be seen in the relevant portion of his reasons, leaps, if I can use that expression - a skiing case - immediately to questions of negligence, that is, of reasonable precaution?  It was an issue at trial, described as the main defence run, that under section 5L of the Civil Liability Act and giving appropriate meaning to the expressions in that provision of “dangerous recreational activity” and “obvious risk” that negligence would not be got to at all as an issue.  That point was pressed to the Court of Appeal.

BELL J:   Well, can I just take that up with you?  At paragraph 76 in his Honour’s reasons on application book 77 Justice Young sets out the way Mr Maconochie approached the matter in oral address as causation, damages and costs.

MR WALKER:   Your Honour, that, with great respect, does not do honour to a very proper form of advocacy which was explicitly carried out in this case where Mr Maconochie said - after he had addressed those matters referred to in that paragraph – “and as to obvious risk and dangerous recreational activity we rely on our written submissions, I have nothing to add to it” - and Mr Seton in opposition addressed on that issue.  Then Mr Maconochie - for my friends’ benefit it is page 62 of the Court of Appeal transcript, not in the application book - took up that in address.  It was pressed in the Court of Appeal.

His Honour is, with great respect, egregiously wrong to have said ‑ if that is how one should read that reference ‑ that Mr Maconochie had by silence abandoned the point and, in our submission, it would be a dangerous and untoward development if, when counsel in the interests of economy, says “I have nothing to add to what I have written by way of advocacy on this point” that that is then taken as the point being abandoned.  In our submission, we are all at great peril if some species of “but faintly pressed” is said to be available as a means of saying this is not really an issue.

Now, the point can be put briefly, and was put briefly by Mr Maconochie in reply to Mr Seton, who had equally briefly addressed it himself in address, and that is because it had been succinctly put in the written submission to the Court of Appeal.  If that paragraph of Justice Young’s reasons and the silence on the matter in Justice Sackville’s reasons could or should be understood as suggesting that dangerous recreational activity and obvious risk were not issues in the Court of Appeal then that is, I regret to say, an egregious error by their Honours.  Now, it may not ‑ ‑ ‑

BELL J:   I would not read it as an egregious error.  I would read that Justice Young said that Mr Maconochie’s oral address covered the three matters that were said.

MR WALKER:   Quite so.  In fact, it covered more than that because in his oral address he said he relied specifically in relation to obvious risk of a dangerous recreational activity on his written submissions.  But, your Honour, quite so, we would not read it this way and, insofar as the written submissions against us here suggest that this is a point that vanished in the Court of Appeal, they are, with respect, wrong and his Honour was not saying that. 

Now, his Honour chose to organise the reasons so that it was under the heading, perhaps strangely, of causation that matters both of negligence and of the nature of the risk were comprehended.  That is a small matter that is not a special leave point.  The substance of the matter is that he went straight to the question of negligence, and there is no consideration given to the matter of the nature of the risk, that was done under the rubric of section 5B – see page 81 of the application book, paragraph 101 – and if I could draw your Honours’ attention in particular to subsection (2) because that was the nub of his Honour’s reasoning on the point to say, notwithstanding a failure of the trial judge explicitly to go through – if I may call it this way, checklist style ‑ 5B(2), it had been, in substance, achieved.  That is not a point we wish to ventilate.

The point is that if one goes to paragraph (d) of 5B(2) one sees there immediately the reason why there has to be a consideration in this kind of case, snow skiing, a beginners class, on a natural surface rather than inside a warehouse, that one has to take account of 5L.  Why is that?  Because this notion of social utility of an activity clashes, conflicts or needs to intersect with this idea of a recreational activity, that is, any sport, then the judgment as to whether it is dangerous – surely not gainsaid in this case – and then the question of obvious risk, and that, in our submission, is what these pages, 80 and 81, show was a complete failure in the Court of Appeal to examine the question whether the risk in question defined an appropriate level of generality, so it is going to have to be more specific than merely snow skiing but it is certainly not going to be as specific as snow skiing into an unseen and so‑called ditch that is this environmental or natural depression caused in one way or another by the lying of snow upon the terrain.

KEANE J:   Would it be properly described as being instructed in skiing?

MR WALKER:   No, it is the encountering when out of control of unevenness in surface throwing one off balance.  That is the essence of the whole of the matter in relation to both dangerousness and obvious risk, because it is to be recalled something which, with respect, gets little or no attention – I think no attention in the Court of Appeal reasons – that a risk can be obvious though it not be physically observable.  Now, the unevenness in the surface of snow‑covered terrain is that which, we would submit, is – to use the dispositive words of section 5F(1) – “obvious to a reasonable person in the position of” the person in question, that plaintiff.

It is for those reasons that because it is obvious that the surface may not be entirely level, because it is obvious that you may lose control, extremely obvious in relation to a beginner, that is why they had been warned when you do so, sit down, so that was all explicit, not merely obvious in the nature of the things.  In our submission, the Court of Appeal has failed to regard the immunising effect of 5L by jumping straight to negligence.  They have failed to give meaning to what one sees in 5L of the Act, the simple straightforward prescription that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff, and it applies whether or not the plaintiff was aware of the risk.

In this case there is evidence, as I say, in relation to the plaintiff’s later description of sitting down but, alas, too late, that he had heard the warning administered to him, that if out of control you should sit down; that is, you are a beginner, you will not be able to steer away.  That is why, both at trial and in the Court of Appeal, earnest consideration of the precautions that might have been taken and how they may have affected either discharge of a reasonable standard of care or causation in the event that they were not carried out, was quite beside the point.  First, in relation to warnings to avoid something it is, with respect, bordering on the absurd to propose that an out‑of‑control beginner is going to be able to steer away, but leave that aside the whole discourse, the whole inquiry as to what reasonable precaution should be taken, is expelled by 5L.

Section 5L does not come to be applied only after some degree of care has been exercised.  Section 5L says, if you, the prospective plaintiff, engage in a dangerous recreational activity, then as to obvious risks ‑ a defined term perhaps departing under the statute from what might otherwise be its ordinary English meaning – the obvious risks – perhaps it really means inherent risks – will be those apportioned by law to you contrary to what the common law of negligence would have imposed.

BELL J:   The trial judge approached it on the basis that skiing into a ditch on a beginners’ slope was, as he put it, “quite different”.  It was the “materialisation of a risk that is far from obvious” ‑ application book 37, paragraph 145.

MR WALKER:   Quite, that is because – and that formulation is what I had in mind when I talked about level of generality, your Honours – that is because his Honour has defined the activity and the risk at far too specific a level.  It is the engaging in an activity which triggers the application of 5L, and it is the risks which are obvious about that activity ‑ ‑ ‑

BELL J:   That activity is, relevantly, skiing on a beginners’ slope.

MR WALKER:   On a beginners’ slope involves going off where the beginners are, as he did, because of the obvious risk of being out of control; that is why they were told, sit down.  In other words, there is great obviousness in the fact that if you are out of control you will go, if you like, out of bounds, either hit a fence, hit a pylon, hit another skier or not be able to maintain your balance at a speed greatly in excess of your skills with the irregularities which are to be expected.  Now, that is when you can see the irregularity, that is the point in the definition of obvious risk, that it does not have to be visually perceptible – indeed, it is obvious that there will be things you do not know ‑ ‑ ‑

BELL J:   I do not understand his Honour to have – this is at first instance – based his finding upon consideration of whether or not you could see it.

MR WALKER:   No, I am not suggesting that.  There are suggestions of that, I think, in the argument against us, that it was obscured behind a lump, a hump; that is in the nature of dips and falls in terrain, that some will obscure others.  With great respect, his Honour did not approach it on that basis, but his Honour’s error in relation to 5L was to define the activity in such a way, as it were, to render utterly benign that which was inherently dangerous.  Beginner ski lessons do not cease to be dangerous because they are beginners.

To the contrary, going out of control is an obvious risk of being a beginner – I repeat, that is no doubt why the instructor says, please sit down when you feel yourself out of control, which I do not understand to be a skilled manoeuvre in skiing ordinarily – and for those reasons, in our submission, it is a very important question concerning the level of specificity being at the level of the activity in question, which is skiing, his Honour has added to that skiing where there are ditches behind lumps.

Now, in our submission, your Honour, for a start, if that is the dangerous activity then there is an obvious risk of losing control and falling over and 5L would apply all the more, but if his Honour’s reasoning is adopted then, with respect, so that that becomes something of which that is not an obvious risk but some kind of hidden trap, then the vice in his Honour’s reasoning quite simply is that he has defined the activity in a way that the statute evidently does not intend.  The statute does not intend that the specific circumstances of the way the accident occurred, such as a binding breaking just before you make a turn, should be part of the dangerous recreational activity description so as to elevate the possibility of something ceasing to be an obvious risk.

Unknown things happening in the general activity which involves, under the laws of physics and the frailty of the human body, speed at impact, that is, snow skiing, is, in our submission, exactly what these provisions, in this State 5L of the Civil Liability Act, were designed to affect, designed to reverse what might otherwise be the common law outcome. 

Here, with respect, the Court of Appeal has not undertaken the task which the learned trial judge did undertake of defining the activity so as to understand the risk, steps which have to be taken before you can answer the 5L question, that being a necessary antecedent step before you can go on to examine the question of reasonable precaution and thus negligence under 5B.

It is for those reasons, in our submission, that this is a case which like all cases in negligence or immunity from negligence depending upon its own facts, no doubt, but facts of a kind which call usefully for intervention by this Court so as to examine the important question of the level of generality at which the activity in question with its concomitant obvious risks set this very important immunity from liability and negligence.  May it please the Court.

BELL J:   Mr Sheldon.

MR SHELDON:   Thank you, your Honour.  Your Honours, the insurmountable problem lying in the way of success in any appeal the result of special leave being granted is that his Honour the trial judge found that the risk that came home was not obvious.  Could I take your Honours to page 36 of the application book at about line 60, which is the indented subparagraph (b) of 143, where his Honour says that:

More importantly, the ditch was located in a beginners’ slope.  In my view a reasonable person in the position of the plaintiff would not regard the presence of the ditch in an area dedicated to beginners to be obvious.

Contrary to the implication at least of my learned friend’s submissions about whether the ditch being able to be seen or not was significant in this case, it is clear in my respectful submission that his Honour is there dealing with, as it were, not what the first respondent might or did see, but what one would appreciate would be the type of risk one might encounter on a beginner’s slope.

That finding was based on some evidence which your Honours will find discussed at page 22 of the application book at about paragraph 82, where his Honour is there reciting some evidence from an expert who gave evidence and who said that:

one of the fundamentals for teaching a beginners’ class was for the instructor to be satisfied that the area upon which the students would ski, was safe.

That evidence was added to in paragraph 89, which your Honours will find on page 24 of the application book where his Honour records, as it were, an agreement:

There was no dispute that in the area where the lesson took place the slopes were graded as “Green” which indicates the most benign classification.  Mr Feakes said that the classification took into account both the gradient of the slope and the absence of obstacles.  It is against this background that the presence of a “ditch” has to be considered.

Mr Feakes, to whom his Honour there refers, was an expert qualified by the first respondent.  But if your Honours go to paragraph 96, which is at page 25 of the application book, your Honours will see reference to a Mr Gow, who was the applicant’s qualified expert, and he said that:

it was not unusual for there to be a mogul on a beginners’ slope but he would not have expected there to be a ditch near the mogul.

In our submission, what those pieces of evidence entitled his Honour to do in the terms of the Civil Liability Act was to look at the definition of “obvious risk” in section 5F and to say that these men who were experts in relation to the issues to which I am addressing myself were able to say that the type of obstacle, the ditch, was not something that one would expect to encounter on a beginners’ slope.

From that, it follows, in my respectful submission, that it is entirely uncontroversial to find in those circumstances that a reasonable person in the position of the first respondent, to pick up the wording of section 5F which is at page 229 of the authorities book, a reasonable person in the position of the first respondent would not have thought that a ditch in this location was something that was obvious.  From that consideration of the particular fabric underlying this case, his Honour then moved at 37 of the application book in paragraph 145, in the second‑last line of that paragraph:

But skiing into a ditch on a beginners’ slope is quite different –

and his Honour is there saying it is quite different to the very things that my learned friend suggests are the risks that might be involved in skiing generally, where his Honour says –

the plaintiff had lost control and fallen over, or fallen due to an undulation . . . or even simply fallen over, and been injured, that would have been the materialisation of an obvious risk –

and with respect, that is common sense in one sense, having taken your Honours through the statutory provision, and he then says –

But skiing into a ditch on a beginners’ slope is quite different.  This is the materialisation of a risk that is far from obvious.

In our submission, having identified the evidence upon which his Honour based that conclusion, the statement is, in my respectful submission, uncontroversial.  There is no doubt that it was the ditch that precipitated the fall, and so all of those hypotheticals that his Honour is talking about in the first part of paragraph 145 do not arise.  If they had happened, it might be a different case, but that is not what caused the accident in this case.

In our respectful submission, whatever may be the substance in what my learned friend has put about the way the case was conducted in the Court of Appeal, none of that overcomes the problem that on a factual level, his Honour, as he was entitled to do on the evidence, found that the risk was not obvious, so that none of the provisions that my learned friend has spoken about are engaged.  May it please the Court.

BELL J:   Thank you, Mr Sheldon.  Mr Sexton.

MR SEXTON:   May it please the Court, one short submission.  Your Honours, the definition of “obvious risk” in section 5F, although, as my learned friend for the applicant said, it may not be a definition that would equate to ordinary English, nevertheless it does not preclude or exclude expectations being a factor to be considered when determining whether a risk is obvious.  For the reasons forwarded by my learned friend Mr Sheldon, because of the factual findings in this case, it is not an appropriate vehicle.  May it please the Court.

BELL J:   Mr Walker.

MR WALKER:   Your Honours, in relation to the questions raised by my learned friend about the hopelessness of an appeal in light of the finding of fact, the passages at pages 22 and 24, paragraphs 82, 89 and I can add 91, at trial are with respect passages which concern as much, if not more, the issue of negligence as of obvious risk.  It is not to the point that Mr Feakes thought that something ought not to be there – that means as a matter of reasonable care or reasonable precaution.  The question is whether it being there, it was an obvious risk of the activity defined at the proper level of generality.

It is for those reasons, in our submission, that the trial judge findings on those two pages do not render an appeal hopeless.  I accept, of course, that the conclusions which are dispositive in his Honour’s reasons that you see at application book pages 36 and 37, paragraphs 143 and 145, are the ones I have to confront, and with the conclusion that follows in paragraph 144, those are the ones that I do need to reply on.

In our submission, the simple proposition is this, that the key to the activity being dangerous is out‑of‑control skiing.  I do not mean that skiing cannot be dangerous when conducted with utter control, but that all those by definition, an accident will be either somebody else’s fault for them being out of control, or you have got out of control notwithstanding your great skill.

So it is the out‑of‑control skiing, and it is for those reasons, in our submission, that there is behind this idea in paragraphs 143 and 145 the unmaintainable proposition that an out‑of‑control skier would not have as an obvious risk – that is, the reasonable figure out‑of‑control skier – within the meaning of 5F the encountering of an untoward irregularity in the surface ‑ ‑ ‑

BELL J:   On a beginners’ slope.

MR WALKER:   On or near.  I do not mean on a beginners’ slope in terms of where the beginners are actually – he was not, shall I say, in what I will call the lesson area.  That was the whole point.  To use an expression metaphorical usually nowadays, given avalanches, he was off piste.  The notion had been raised and rejected, and again this is a negligence issue as to whether in effect the whole thing should have been perfectly tailored – that is, do not have beginners’ lessons unless it is perfectly tailored – was presumably unrealistically padded boundary fences, who knows?  Those were raised and rejected, and in any event, they are negligence questions. 

The question is, it being there, is its existence with the impact it may have upon an out‑of‑control skier an obvious risk?  In our submission, a moment’s thought would supply that the obvious risk of being out of control is that you will hit or encounter something you cannot handle, and that is exactly what happened in this case.  May it please the Court.

BELL J:   We are of the opinion that there are insufficient prospects of success in the event that special leave to appeal were granted.  Special leave is refused with costs.

The Court will adjourn until 10.15 on Tuesday, 29 October in Canberra.

AT 2.53 PM THE MATTER WAS CONCLUDED