Pester v Marsland

[1998] HCATrans 88

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H3 of 1997

B e t w e e n -

KEITH PESTER for and on behalf of himself and the members of the family of the late PATRICIA ANN PESTER

Applicant

and

HELEN PATRICIA MARSLAND as Executor of the Estate of ANTHONY RICHARD CRAWFORD

First Respondent

THE HYDRO ELECTRIC CORPORATION

Second Respondent

Application for special leave to appeal

BRENNAN CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON MONDAY, 30 MARCH 1998, AT 2.15 PM

Copyright in the High Court of Australia

MR C.H. HOBBS:  May it please your Honour, I appear for the applicant.  (instructed by C.H. Hobbs)

MR J.E. BARNARD, QC:  May it please the Court, I appear with my learned friend, MR J.K. LEVIS, for the second-named respondent.  (instructed by J.K. Levis Co)

BRENNAN CJ:   Yes, Mr Hobbs.

MR HOBBS:   Thank you, your Honour.  The basis of this application for special leave is twofold.  Firstly, of course, we seek the intervention of this Court for the purposes of error correction.  The more compelling basis is that we say within the process of error correction, a question of law of public importance relating to the law of negligence governing the relationship between occupier and trespasser will arise which requires deliberation and clarification.  With regard to error correction it is submitted there were errors in the approach taken by the learned trial judge in the majority in the Full Court to a lesser extent in applying established principles of law to the facts of this case ‑ ‑ ‑

BRENNAN CJ:   That is not usually a sufficient ground for special leave.

MR HOBBS:   I accept that, your Honour.

BRENNAN CJ:   What is the special point that you wish to make?

MR HOBBS:   The special point that arises from the facts of this case and that will arise from a consideration of the issue of error correction relates essentially to the third issue that arises in this case.  There were three essential issues for the purposes of this application for special leave.  The first of those is that, given the incidence of aerial activity in the vicinity of the relevant transmission lines prior to 9 January 1991, which essentially consisted of parasail activity, seaplane activity and agricultural aircraft activity, whether as a result of that activity there was a reasonably foreseeable risk of injury to the class of person delineated by reference to those activities posed by the subject transmission lines in their unmarked state.  By “unmarked” I mean ‑ ‑ ‑

BRENNAN CJ:   If you look at page 12 of the application book at lines 30 to 40, is there any error of law appearing there?

MR HOBBS:   We would contest that the passengers in the aircraft were trespassers and if they were categorised as trespassers, we would submit that the conclusion reached by his Honour the trial judge, that for proximity to be established in the present case the plaintiffs must show either knowledge on the part of the second-named defendant of the actual or likely presence of the first defendant’s aircraft or reasonable foreseeability of a real risk of such presence, and his Honour’s conclusion as to that point, were incorrect.  We would submit ‑ ‑ ‑

BRENNAN CJ:   Leave aside his Honour’s conclusion to start with.  What is the error of law in requiring that as a pre-condition of the arising of a duty of care, there must be knowledge of an actual or likely presence?

MR HOBBS:   We would submit that that is only one aspect arising from Justice Deane’s judgment in Hackshaw v Shaw.  The other aspect is that if the passengers in the aircraft were able to establish that they fell within a class of person to whom the duty of care was owed, then the requisite proximity of relationship would arise.

BRENNAN CJ:   What gives rise to the duty of care to those who are passengers in an aircraft flying over this area?

MR HOBBS:   We say that because of the aerial activities that were being conducted in the vicinity of Lake Meadowbank prior to 9 January 1991, there was clearly a foreseeable risk of injury to participants in those activities, that the passengers in the aircraft involved in this accident fell within the same class of person as those persons who were conducting those activities.  There can be no ‑ ‑ ‑

McHUGH J:   But your problem is that the trial judge held as a fact that there was no foreseeable risk even to the class of persons, because he took the view that you would not expect a pilot to be flying as low as this pilot did when he struck the wire.

MR HOBBS:   I accept that.  I do not accept that conclusion.  I accept that that poses a difficulty for us.  We would submit that there was a foreseeable risk of injury to those persons conducting those pre-9 January 1991 activities, for the reasons raised by the minority judge in the Full Court, Justice Wright.

McHUGH J:   That only means that there is a division of opinion as to the facts of the case.

MR HOBBS:   Yes.

McHUGH J:   Well, that is not a special leave point, is it?

MR HOBBS:   I understand that.  The special leave point is that the delineation of the class of person as to whom a duty of care may have been owed, in the event that this Court were satisfied that there was a foreseeable risk of injury to persons conducting aerial activities in the vicinity of those unmarked transmission lines, and secondly, if this Court were satisfied that, given that foreseeable risk of injury, the Hydro Electric Corporation had a duty, as a reasonable person, to take appropriate measures to either eliminate, or at least minimise, that risk of injury to the persons conducting those activities.

McHUGH J:   But when you talk about delineating the class, did not the learned trial judge do that?  He took into account parasailers, did he not, seaplanes and agricultural aircraft, as he described them?

MR HOBBS:   His Honour looked at those activities by reference ‑ ‑ ‑

McHUGH J:   As part of a class?

MR HOBBS:   Yes, by reference to the issue of foreseeability.  As far as ascertaining whether the passengers in the aircraft that was involved in this accident were concerned, his Honour concluded that the passengers in the aircraft did not fall within the same class of visitors.  On that basis his Honour therefore excluded the passengers in the aircraft from the class of person to whom we say a duty of care was owed because they were classified, firstly, as trespassers and therefore they did not fall within the same class of visitors as those persons who were conducting activities prior to 9 January 1991.

BRENNAN CJ:   That is a question of fact, is it not?  I mean, it is one thing to say that you have parasailers, then you have passengers in an aircraft; they are both in the air, if you like.  Is that what makes them a class?

MR HOBBS:   That would be my submission.

BRENNAN CJ:   Well, that is a question of fact, is it not?

MR HOBBS:   It is a question of fact based on an application of principle of law.

BRENNAN CJ:   What is the principle of law?

MR HOBBS:   The general delineation of the class of person by reference to the foreseeable event, that is, the risk of impact with the transmission lines in their unmarked state.

BRENNAN CJ:   That is going around in a circle, is it not?  That is saying you fix your class by reference to the risk that is involved, whereas the reality is that you have to have a look at the class to see whether or not there is a duty of care owed to that class and then to see whether or not, having regard to the foreseeability of the class, there is something which ought to have been done.

MR HOBBS:   I would see the issues as being reasonably foreseeable anticipation of collision with these power lines by a class of person delineated by reference to aerial activity generally.  We say that the passengers in the aircraft were participating in aerial activity.  They therefore fell within the class of person who was foreseeably at risk.

McHUGH J:   But even if you make good that proposition, you then have to surmount another hurdle, do you not, which is again a question of fact?  That is that the learned trial judge held that even if the risk of injury was reasonably foreseeable, then the risk was so small that, in accordance with the principles laid down in Bolton v Stone applied by a majority of this Court in Romeo, a reasonable person was entitled to disregard it.

MR HOBBS:   We say the risk was not so small.  The risk, in view of those activities that were being conducted prior to 9 January 1991, was something more than being fanciful or far-fetched ‑ ‑ ‑

McHUGH J:    The hypothesis is that you have made that out.  If it is not far-fetched or fanciful, then it is a real risk but, nevertheless, there are real risks and real risks, and Bolton v Stone says some real risks are nevertheless so small that a reasonable man might disregard them or disregard it.

MR HOBBS:   Yes.  We would submit that the risk in this case, given the incidence of that activity prior to 9 January, was really quite significant.

BRENNAN CJ:   The finding of fact is against you at page 14 line 25, and in order to get to first base you have to overcome that finding of fact, do you not?

MR HOBBS:   Yes.

BRENNAN CJ:   Well, it seems to me that that is where your great obstacle lies.  In other words, you are not likely to get special leave to challenge a finding of fact.

MR HOBBS:   I accept that there are difficulties with - there are three essential issues.  One, we have to establish reasonable foreseeability of risk of injury to a class of person.  Two, that there was an appropriate response to be made by the Hydro Electric Corporation in view of that foreseeable risk, which we say was to mark the relevant transmission lines with a hazard warning device.  The third issue, which is the special leave issue essentially, is the delineation of the class of person.  If we were trespassers, are we nevertheless to be excluded from the class of person to whom a duty of care may have been owed by reference to those pre-accident aerial activities conducted in the vicinity of those powerlines?

McHUGH J:   I am not sure I am quite understanding that proposition.  Do you say that even if you are a trespasser, you are owed the same measure of duty as other entrants who are not trespassers?

MR HOBBS:   In this case, I would say - not as a general rule, I accept that as a general proposition trespassers, the manner of entry and so on has to be considered very carefully.  In this case, the passengers in the aircraft were trespassers at the lowest possible end of the scale.  They were innocent, they had no control over their entry into the air space that ultimately led to this aircraft colliding with the powerlines, and it is, in our submission, inappropriate to place any distinction upon them on the basis of the categorisation of them being trespassers and then excluding them from the potential class of person to whom a duty of care is owed, on the basis that they did not fall within the same class of visitors.

McHUGH J:   Mr Hobbs, I do not want to take up your time, but this case was never run on the basis that Chief Justice Dixon and others referred to in the Bankstown City Council Case in 87 CLR about it is a question of how you categorise the relevant category here, as to whether it is land or whether it is a dangerous activity.  Was it ever run on that?

MR HOBBS:   The basis that we ran our case, and the pleadings were always clear about this, was that we were relying on the application of the general principles of negligence.  We were submitting that the passengers in the aircraft were participating in aerial activity, that there was ample aerial activity prior to 9 January 1991 to suggest that a duty of care was owed to any persons conducting aerial activity in the vicinity of those transmission lines and hence the lines should have been marked.  The failure by the Hydro Electric Corporation to mark those lines amounted to a failure to take due care and, as a result, we ran the case on the basis that the passengers in the aircraft, or their families - the plaintiffs - were entitled to redress.

So the case was always run on the basis that we fell within a class of person to whom a duty of care was owed, that there was a foreseeable risk of injury to any person conducting aerial activity in the vicinity of the relevant transmission lines in their unmarked state, that had they been marked, this accident would not have occurred.  The fact that we were trespassers and the fact that we were excluded effectively from the class of person, delineated by reference to those pre-accident aerial activities conducted in the vicinity of the transmission lines, suggests, in our submission, an error.  We should not have been excluded on that technical categorisation as being trespassers.

BRENNAN CJ:   It seems to me the difficulty does not lie so much in the “trespassers” argument, it is simply that you have no finding which would support a view either of foreseeability of the presence of passengers in an aircraft or, if there was any foreseeability of that, that there was any failure to take reasonable care which ought to have been taken by a person in the defendants’ position.  Those are two pretty critical elements in any claim for damages for negligence, and to overcome them it seems to me you have to mount a case challenging the findings of fact.

MR HOBBS:   Well, certainly we challenge the findings of fact ‑ ‑ ‑

BRENNAN CJ:   No doubt you do, but to get special leave it is no good simply saying that you challenge the findings of fact.  It is only if you successfully do that that you can get to a point in which there may be special leave for consideration.

MR HOBBS:   Yes.  Well, it is the delineation of the class of person that is the legal issue that we submit ‑ ‑ ‑

BRENNAN CJ:   It is not a legal issue to say that passengers in a plane are a class.  What you are wanting to say is that those who are engaged in aerial activity of any kind are a class.

MR HOBBS:   Yes.

BRENNAN CJ:   Whether that is right or whether that is wrong is a question of fact, depending upon all the circumstances.

MR HOBBS:   I accept that, your Honour.  The legal issue is whether you should be excluded from that class on the basis of a technical categorisation that you are a trespasser.

BRENNAN CJ:   Well, it seems to me that you can forget that proposition -the worry that you have about being a trespasser - and simply focus on the question of whether there is anything to indicate passengers in a plane are a class for whom a duty of care is owed by a defendant in this position.

MR HOBBS:   Yes.

BRENNAN CJ:   And that is a finding of fact.

MR HOBBS:   Well, there was certainly ample evidence that there would have been passengers potentially in seaplanes, agricultural aircraft on the basis of those activities that occurred prior to 9 January 1991.  There was evidence, for example, that agricultural aircraft from time to time have passengers aboard, or a passenger aboard, assisting a pilot.  Clearly, seaplanes carry passengers, so there was always that potential for passengers to be present in an aircraft flying in close proximity to those unmarked transmission lines.  The fact that in this case the passengers were categorised as trespassers was the basis upon which the trial judge excluded them from the class of person to whom the duty of care may have been owed.

BRENNAN CJ:   I am not sure that that is literally correct.  His Honour seems to me to have approached it on the basis that aircraft and aircraft personnel were not to be reasonably foreseen as being likely to be in the vicinity of this line.

MR HOBBS:   That was the first basis on which we were unsuccessful.

BRENNAN CJ:   Then if that is right, you do not have a case.  If it is wrong, you have to overcome that view of the facts.  That seems to be an insuperable difficulty in your way of getting special leave.

McHUGH J:   Do you not also have another problem in that although the trial judge said you were not within the class, he made no relevant findings that you would have succeeded even if you were in the class, would you, because, first of all, he said no duty would be owed to parasailers, and in respect of the other two categories upon which you relied, namely, seaplanes and agricultural aircraft, he seems to have made no findings as to whether they would have been owed a duty.  Or am I wrong in that?

MR HOBBS:   His Honour found that there was no foreseeable risk of injury posed to any of those activities.  He regarded the prospect of a collision by an aircraft with the powerlines as far-fetched and fanciful.  That is in stark contrast to the conclusions reached by Justice Wright in the Full Court, the minority judge in the Full Court.  Justice Wright concluded that there was a foreseeable risk of injury to participants in aerial activity in the vicinity of the powerlines, that the Hydro Electric Corporation therefore had a duty to those persons to take appropriate action to minimise or eliminate that risk by marking the powerlines with a hazard warning device, and that, thirdly, the passengers in the aircraft fell within the same class of person to whom that duty of care was owed.  There were very strong findings in

favour of the plaintiff, that is the applicant, to ground an entitlement to redress by Justice Wright.

As I have said, the special leave point relates to whether, in the event that there was on the basis of Justice Wright’s findings, for example, an appropriate exclusion of the passengers in the aircraft on the basis that they were trespassers, I have dealt with that in detail and particularly the reply that has been filed and included in the application book.

BRENNAN CJ:   Yes, thank you, Mr Hobbs.

We need not trouble you, Mr Barnard.  Although Mr Hobbs has directed his submission to each proposition that might be arguable, the question is essentially one of fact.  The prospects of success on appeal are insufficient to warrant a grant of special leave.  For those reasons, special leave will be refused.

MR BARNARD:   We seek an order for costs, if the Court pleases.

BRENNAN CJ:   Do you have anything to say to that, Mr Hobbs?

MR HOBBS:   I cannot oppose it, your Honour.

BRENNAN CJ:   It will be refused with costs.

AT 2.38 PM THE MATTER WAS CONCLUDED