Pitman v Eaton

[1991] HCATrans 252

•

.

~

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al0 of 1991

B e t w e e n -

STEVEN CHARLES PITMAN

Applicant

and

DIANNE JUNE EATON

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 4 SEPTEMBER 1991, AT 12.38 PM

Copyright in ~he High Court of Australia

Pitman 1 4/9/91

MR R. EVANS: If the Court pleases, I appear for the

applicant. (instructed by Ross & McCarthy)

MR T.A. WORTHINGTON, QC:  May it please the Court, I appear

with my learned friend, MR D.J. JERVIS, for the

respondent. (instructed by Jervis Smith & Thomas)

MR EVANS:  I have for Your Honours an outline of the

applicant's submissions.

BRENNAN J: Yes, Mr Evans.

MR EVANS:  If the Court pleases, it is submitted that this

application raises for clarification some important

issues affecting the principles of remoteness of

damage. If I could take Your Honours to the facts

as found by the learned trial judge which appear at

page 9 of the appeal book, essentially they were

these: that the respondent, who was a nurse,
coming across an accident, rendered assistance to

the victim by kneeling beside him for a period of

about 10 or 15 minutes and, unknown to her, or for

that matter to anyone else, her low back was
particularly vulnerable to injury to the extent

that damage would be suffered due to the slightest

provocation.

His Honour, at page 12 of the application

book, drew his conclusions as to the law, and I

refer in particular to the passage starting at

about line 17 on page 12 where he says:

The question remains however whether a

reasonable person should have foreseen that

the person going to the assistance of the boy

should have a congenital condition of the

spine which was in such a state due both to

the congenital defect and the period of

avoiding lifting that it was susceptible to

damage from an activity which in the ordinary

course would cause no damage.

In my opinion the answer to the last question

must be that such a sequence of events was not

reasonably foreseeable -

and accordingly he dismissed the claim. He

proceeded by way of examining the sequence of

events and weighed those against what was

reasonably foreseeable.

The Full Court came to the opposite result,

and the reasoning of the learned Chief Justice who

delivered the main judgment of the court is found

at pages 17 and 18 of the application book. After

referring to Wyong v Shirt, and Chapman v Hearse,

at about line 25 His Honour there said:

Pitman 2 4/9/91

It is not necessary for the existence of

the duty that it should be reasonably
foreseeable that the plaintiff would suffer
physical injury of the type which was in fact
suffered nor in the manner in which the injury

was in fact sustained. It is sufficient if it

was reasonably foreseeable that some person

might come to the assistance of the injured

person and might suffer bodily injury in

consequence of rendering that assistance.

Then His Honour quotes from a passage in Chapman v

Hearse which is set out at the top of the following

page. That, incidentally, was the same dictum that

the learned trial judge relied upon in coming to an

entirely different conclusion.

It is submitted that that passage from Chapman

v Hearse was taken out of context in that the court
there was addressing the inquiry as to duty of

care, not as to remoteness of damage. This has

been explained subsequently in the San Sebastian

case in the Court of Appeal in New South Wales.

DEANE J: Take the circumstances a bit further and assume

that the plaintiff had known that holding the boy
could lead to a back injury. Could you then really
cavil with the proposition that if somebody, by his

negligence, creates a crisis situation in which

people are going to act in a way which they

otherwise might not, is liable for the injury

sustained by such actions?

MR EVANS:  It is my submission, Your Honour, that to accept

that doctrine would be to revert to the pre-Wagon

Mound situation, where the wrongdoer would become

responsible for all damage that actually flowed

from his breach - in other words, for all matters

of causation. As I understand the position, the

test of remoteness is separate from any

considerations of causation, and indeed, until the

injury is causally connected with the wrongdoing
the question of remoteness does not arise.	As the
High Court enunciated in Chapman v Hearse,

remoteness is a matter of deciding where the limits

are for tortious responsibility, even though the

wrongdoer has clearly caused the injury.

But if I could take Your Honours to the dictum

of His Honour Justice Glass in the Court of Appeal,

which is reproduced in the materials book at
page 28, and I read from the bottom of page 28

where His Honour said:

Coupled with this a recognition has emerged

that the foreseeability inquiry at the duty,

breach and remoteness stages raises different

Pitman 4/9/91

issues which progressively decline from the

general to the particular. The proximity upon

which a Donoghue type duty rests depends upon

proof that the defendant and plaintiff are so
placed in relation to each other that it is

reasonably foreseeable as a possibility that

careless conduct of any kind on the part of

the former may result in damage of some kind

to the person or property of the latter.

And His Honour, in support of that proposition,

draws again on the same dictum from Chapman v

Hearse, and in my submission, that supports my

contention that the Full Court have taken that

dictum out of context in that the tests of

foreseeability in relation to duty and remoteness

are quite different, the remoteness test being a

much more particular test, as His Honour goes on to

say. I will ignore what he says about breach, as

that is not relevant to the submission, but he goes

on to say, opposite marginal note B:

Of course, it must additionally be proved that

a means of obviating that possibility was

available and would have been adopted by a

reasonable defendant. The remoteness test is

only passed if the plaintiff proves that the

kind of damage suffered by him was foreseeable
as a possible outcome of the kind of

carelessness charged against the defendant.

BRENNAN J:  I must say that passage comes to me as somewhat

of a novelty, but in this case, whether it be

novelty or not, your problem is not one of

remoteness, is it? It is a question of duty. It

is not a question of your being liable for some

damage but not for all. It is a question of your

having no duty to avoid the damage that occurred.

MR EVANS:  In my submission, Your Honour, it is not a duty

question. We concede the duty question, but - - -

BRENNAN J:	What is the duty?
MR EVANS:	The duty is to avoid injuring any person within one's reasonable contemplation.
BRENNAN J:	Of course, but in the facts of this case, what

is the duty that was owed by your client to the

plaintiff?

MR EVANS:  Not to injure a rescuer going to the assistance

of the boy where that rescuer may suffer injury

that would occur in a foreseeable way. In other

words, on the facts in Chapman v Hearse, given the

conditions prevailing at the time, of darkness and

rain, it was reasonably foreseeable that someone

Pitman 4/9/91

crouching on the roadway may be run down by a

negligent driver.

DEANE J:  What about somebody trying to get the boy out of

danger, carrying him, and thereby injuring her

back?

MR EVANS: That, of course, is another factual hypothetical.

Accepting that as what it is, in my submission,

there was nothing to show that lifting the 13-year-

old boy would necessarily cause any injury to the

back of a person with normal disposition.

DEANE J: Well, that is a matter of factual judgment, is it

not, rather than law? And that is really what I

was asking you about. On one approach, when one

reads the judgments in the Full Court, whether

one's inclination is to agree or disagree, with

what the Chief Justice says anyway, one is left

with a feeling that it is a question of factual

judgment rather than of principle that has carried

the day.

MR EVANS: Well, it has been said in one of the cases,

Your Honour, and I will come to it in due course,

that whilst it is a question of fact, that question

has to be determined in a legal fabric and

framework. And obviously, if this doctrine is

established on a case-by-case basis every set of

facts which become embodied in a decision go to

make up the law on the matter.

But following up what Your Honour Justice

Deane has put to me, if I could take another

analogy, and I refer Your Honours to page 48 of the

material book which is an extract from an article

entitled, The Risk Principle. The author is

Professor Glanville Williams, and that is in

77 LQR.	I read at page 182, the last paragraph on
that page.	The author there refers to Muir's case,

and Your Honours will recall that that involved

school children who were crammed into a passage,

along the passage. Lord Romer in that case	and other persons were carrying urns of hot tea
postulated that whilst it would be foreseeable, in
relation to the principles applying to remoteness,
that the number of children in the passage may jostle the urn-carriers resulting in injury to the children, it was not foreseeable that the ceiling
could fall in and cause the same kind of damage.

I hope to take Your Honours to some dictum of

Justice McHugh when he was sitting on the New South

Wales Court of Appeal, that indicates that the key

to the test is the manner in which the damage was
sustained, the manner in which it occurred, rather

than looking in abstract at the particular damage.

Pitman 4/9/91

Returning to San Sebastian at pages 28 and 29,

His Honour there cites the judgment of this Court in Pusey's case at page 390. This submission also relies on certain dicta of Sir Victor Windeyer in

that case at pages 402 and following - that is set

out at page 11 of the materials book - in the top

third of that page, that is 402, where His Honour,

reviewing the Wagon Mound decision, said:

Foreseeability does not mean foresight of the particular course of events causing the harm.

Nor does it suppose foresight of the

particular harm which occurred, but only of

some harm of a like kind. That is well

established by many cases, including Chapman v

Hearse and Hughes v Lord Advocate.

He goes on to say that -

that doctrine, however, has the obvious

difficulty that it leaves the criterion for

classification of kinds or types of harm

undefined and at large.

And it would seem, with respect, that this Court

since Pusey's case has not had the opportunity to

further develop the doctrine, although that is

somewhat surprising.

BRENNAN J:	What doctrine is that?
MR EVANS:	As to how one defines the same kind of harm.

His Honour in Pusey commented that whilst that was

the test for foreseeability in relation to

remoteness, it is a very wide concept and that it

really requires further definition to make it work.

And it would seem that His Honour, having left it at large, as he says in that case, it has not been

picked up since except in - - -

BRENNAN J: It did not escape attention in Jaensch v Coffey.

MR EVANS:  Yes, I would like to come to that decision. It

is my contention that it was not necessary to

consider questions of remoteness on the facts of

that case.

BRENNAN J:	No, it is a question of the kind of damage.
MR EVANS:	Yes, again on its own facts the kind of damage was a mental condition that was suffered by a
person who was held on the facts not to have any
particular disposition to mental injury.

But the Court of Appeal, in a line of cases,

have pursued what Sir Victor Windeyer left at large

Pitman 6 4/9/91

in Pusey's case, and I would like to take

Your Honours briefly to those cases.

BRENNAN J: Before you go to those cases, the passage that

you have drawn attention to from

Sir Victor Windeyer's judgment in Pusey's case is the very fallacy which the trial judge fell into in

this case, is it not, by asking would it have been

foreseeable that somebody would have had a
defective spine and in that way have suffered the

injury?

MR EVANS:  With respect, Your Honour, it is my contention

that that is the correct test, that one has to

consider whether the circumstances, the sequence of

events, or the chain of causation as it has been

described elsewhere, were foreseeable in a general

way, and not something exceptional that would take

the case out of contemplation. It is a

distinction, in my respectful submission, not

necessarily a subtle distinction, that has to be

considered in each case.

BRENNAN J:  We will consider that matter further at 2.15 pm.

AT 12.58 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

BRENNAN J: Yes, Mr Evans.

MR EVANS:  If the Court pleases, the Full Court judgment

relies on the proposition that any bodily injury is

recoverable if it was, in fact, caused by the

respondent going to the boy's assistance.	It is my
principle.
submission that that is too broad an expression of
May I take Your Honours to Nader's case which

is extracted at page 38 of the materials book, in
the reasons of His Honour Justice McHugh commencing

at the beginning of the second paragraph on that

page about the letter E:

When the plaintiff depends upon proof of

some damage to complete his cause of action,

his case may fail for one of two reasons.

First, the damage suffered may not be of the

same kind as that which could be reasonably

foreseen as a possible result of the

defendant's careless act or omission. Damage

Pitman 4/9/91

by the ignition of furnace oil is not the same

as damage by fouling by furnace oil.

The Wagon Mound.

Secondly, according to the decision in

Doughty, even when the damage is of the same

kind as that which was reasonably foreseeable
as a result of the defendant's negligence, the

action may still fail. It will fail if the manner in which the damage occurred was not reasonably foreseeable in a general way. This

is because the damage which occurred is not

within the ambit of the risk of harm arising

from the defendant's careless act or omission. That elsewhere has been referred to as the "scope

of the risk" principle. In my submission, in
relation to these particular facts, the scope of
the risk was that the respondent may be in danger
of being struck down by a passing car, not being

struck by a falling tree branch or the victim of

her own vulnerability. And indeed, it was the

unusual disposition that the respondent was

suffering from that put the consequences out of the

bounds of foreseeability, and in that respect I refer Your Honours to the case of Benson v Lee, which is at page 17. It is a judgment of

Mr Justice Lush in Victoria. At line 15 on that

page he refers to the dictum of Sir Victor Windeyer

that I referred to this morning, and goes on to

say:

There may, however, be cases in which an

unusual susceptibility is such as to take the

consequences suffered by the plaintiff outside

the boundaries of reasonable foresight -

and he cites the English decision of Chadwick.

That was a rescuer who went to a train disaster and

suffered nervous shock.

If I could also refer Your Honours to some

passages in the Jaensch decision, first of all at

page 32 of the materials book in the judgment of

the Chief Justice Sir Harry Gibbs, where he said:

It may be assumed (without deciding) that
injury for nervous shock is not recoverable

un~ess an ordinary person of normal fortitude

in the position of the plaintiff would have

suffered some shock.

And in the reasons of Your Honour the presiding

Judge at page 34 in the same case, about 20 lines from the foot of that page, Your Honour said:

Pitman 4/9/91

Some general guidelines apply. The first

guideline is this: the question ''whether
there is duty owing to members of the public
who come within the ambit of the act, must

generally depend on a normal standard of

susceptibility". Unless a plaintiff's

extraordinary susceptibility to psychiatric

illness induced by shock is known to the

defendant, the existence of a duty of care

owed to the plaintiff is to be determined upon the assumption that he is of a normal standard of susceptibility -

in my submission, a fortiori, in relation to

principles of remoteness.

And it is for those reasons that I would ask

Your Honours to grant the application for special leave.

BRENNAN J:  Mr Evans, is it right to say that your

application is really founded upon the facts of the
case as found and the principles that, in your
submission, apply to it rather than on any error of

principle manifest in the judgments in the courts

below?

MR EVANS:  Not exactly, if Your Honour pleases. I referred

to the proposition that where principles are built

up upon particular facts on a case-by-case basis,

although they are essentially decisions on facts,

the cases in themselves establish the principles.

And if I could refer Your Honour to the decision of

the Court of Appeal again in New South Wales in

Rowe v McCartney, which is also in the materials
book at pages 18 to 21. In the judgment of

His Honour Mr Justice Samuels on page 21 he adverts

to that very situation, opposite the marginal

note C -

that "the question whether an injury was of

the same class or kind as that which was

foreseeable" was one of fact. I respectfully

agree. But questions of fact are ordinarily

to be considered within the framework of legal

principle. In a case such as the present no
greater guidance can be got than that provided

by Professor Street -

in his book. But the message is that although the

cases ostensibly turn on their own facts and the

final question is one of fact, it is in a framework

of legal principle, and if wrong decisions are made

on their particular facts, they are perpetuated in

other cases. And it would seem, with respect, that

this Court has not had the opportunity to pronounce

on these questions since Pusey's case when it was

Pitman 9 4/9/91

left open as to whether the concept of any kind of

harm or the same kind of harm was capable, and

indeed whether it was desirable, to more accurately

define what was meant by the principle and how it

should be applied in cases of this kind. It has,

with respect, resulted in confusion and in

inconsistencies in the decided cases. And the

special facts in the case at Bar provide this Court

with an opportunity to indicate whether the test is

to be left deliberately as a broad one to

accommodate matters of principle and matters of
policy, perhaps with the emphasis being on matters

of policy, although of course, Sir Victor Windeyer

in Pusey tended to eschew the courts being given

the role of policy makers. That was at page 420.

It is because of the imprecise nature of the

test that the learned primary judge and the learned

judges of the Full Court have purported to apply

the same dictum from Chapman's case to, of course,

the same facts and have come to entirely opposite

results. In my submission, it would be desirable

for this Court to pronounce upon the matter.	If
the Court pleases.

BRENNAN J:  We need not trouble you, Mr Worthington.

Although the facts of this case place it at

the margin of actions in which damages might be

recovered, we perceive no error of principle

expressed in the reasoning of the Full Court. The

particular facts do not require the definition of

any further legal principle. Accordingly, the case

is not one in which special leave should be

granted. Special leave is therefore refused.

MR WORTHINGTON:  I make application for costs, if the Court

pleases.

MR EVANS:	I do not oppose the application.
BRENNAN J: It will be refused with costs.

AT 2.31 PM THE MATTER WAS ADJOURNED SINE DIE

Pitman 10 4/9/91