Public Trustee as Administrator of the Estate of the late Peter Saroukos v Sutherland Shire Council

[1992] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S33 of 1992

B e t w e e n -

THE PUBLIC TRUSTEE as

Administrator of the Estate of

the late PETER SAROUKOS

Applicant

and

SUTHERLAND SHIRE COUNCIL

Respondent

Application for special leave

to appeal

MASON CJ
.-BRENNAN J

McHUGH J

Saroukos 1 3/8/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 AUGUST 1992, AT 12.32 PM

Copyright in the High Court of Australia

MR D.R. JACKSON, QC:  Your Honour, I appear with my learned

friends, MR A.J. BELLANTO, QC and MR A.S. MORRISON,
for the applicant. (instructed by Michell Sillar

McPhee Meyer)

MR J.E. MACONACHIE, QC: If the Court pleases, I appear with

my learned friend, MR M.T. McCULLOCH, for the

respondent. (instructed by Ebsworth & Ebsworth)

MASON CJ: Yes, Mr Maconachie. Mr Jackson.

MR JACKSON:  Our submission in this case is that this is a

case in which special leave should be granted in

the interests of the administration of justice in

a particular case and, Your Honours, the aspect of

the case which merits the grant of special leave

concerns the course taken by the Court of Appeal in

refusing to accept, as in our submission the court

did, the primary judge's ,finding on causation.

Now, Your Honours, as the Court may recall,

the case was one where the deceased had been

rendered - the plaintiff died pending the hearing

in the hearing in the Court of Appeal and the

decision in that court - quadriplegic in

consequence of diving into Gunnamatta Bay from a

walkway erected on the outside of a tidal swimming

pool which was controlled by the respondent, and he

dived in to recover a thong which had dropped into

the water. Your Honours, the base findings in

relation to the events which happened appear at

page 4 lines 1 to 27.

Now, Your Honours, you will also see - and

perhaps I might say in passing - that the
plaintiff's brother-in-law gave evidence also that

the water looked deeper than it was in fact. I

mention that, Your Honours, in relation to page 4

between lines 15 and 25. The relevant part of his

brother-in-law's evidence has been extracted in the

affidavit in support of the application at page 84,

paragraph 27, and there was no cross-examination on

the evidence there extracted. The primary judge

found th~t the council had been negligent in

failing to erect a pictorial sign indicating that
it was dangerous to dive into the water in the area

in question and the need for a pictorial sign was

brought about by the fact that the area was one

popular with ethnic groups, some members of whom,
like the deceased, might not be able to read

English.

Your Honours, there are two references in that

regard in the reasons for judgment of the primary

judge. Page 6 lines 5 to 26, where he is quoting a

Saroukos 3/8/92

report which had been given to the council by

consultants ~o it, and I would refer particularly

to lines 19 to 22 and, at page 11, lines 24 to 27.

Your Honours, a need for a warning at all was brought about by the fact that the walkway on its outside simply had a railing around it and it was

obvious that objects, or perhaps indeed children,

might fall from it, and it was also an obvious

place from which people might dive or jump or

whatever, into the bay.

The trial judge's finding was that both

parties were to blame; he apportioned

responsibility at 15 per cent against the

respondent and 85 per cent against the deceased.

Now, Your Honours, the critical feature of the

primary judge's finding against the respondent

commences at page 21, line 1 in a passage which

goes through to page 23, line 16. Your Honours,

may I refer to a couple of matters on the way

through that. The first is at the top of page 21

where Your Honours will see that he said that he

found himself:

unable to eliminate the possibility that a
pictogram sign may have caught the eye, and

then caused the plaintiff to pause and

consider his position more carefully. I thus

do not find that his knowledge was sufficient

to impute performance of the duty in the

circumstances- of this case.

He then goes on to discuss the need for signs a

little more. Could I invite Your Honours to note a

finding of fact which appears at page 21 between

lines 8 and 11, namely that the plaintiff did not

read English. Your Honours, then one sees, at

page 22, about line 16, that His Honour was

conscious of the reliance placed by the defendant

on the fact that the plaintiff had not given

evidence:

as to what he would have done if he had seen a

warning sign and submits that he therefore

cannot succeed.

But His Honour, correctly in my submission, said

that one is entitled to draw inferences and, Your

Honours, if I could just pause at that point, there

are many types of cases, not just negligence ones, but fraud ones, actions under the Trade Practices Act and so on, where it is necessary to establish

reliance upon particular matters or particular

conduct. Now, no doubt it is desirable in cases -

or in some cases at least - for evidence directly

to be given of a person to the effect of what that

person would have done or did do in reliance upon

Saroukos 3/8/92

particular matters, but sometimes plaintiffs have

died; sometimes plaintiffs are incapable of saying;

and sometimes inevitably it is a question of

inference that must be drawn.

Now, Your Honours, one goes then to page 23

and to what are the critical two paragraphs of His Honour's reasons. It is the first two new

paragraphs on page 23 and Your Honours will see

that he says in the second sentence at about

line 7:

I would not lightly assume that a proper

warning sign, if seen, would have been

completely ignored by the plaintiff, or that

it would have played no part in his decision

to act as he did. His lack of evidence on the

point is not decisive, as it would of

necessity be speculation and reconstruction.

Then His Honour proceeded to say - putting it in positive terms, and to make the finding - in the

next paragraph:

Taking all of these factors into

consideration, I am satisfied that the

plaintiff has established that the failure to

erect an appropriate set of warning signs

contributed-to this particular accident.

Now, Your Honours,. if I might pause at that point,

that finding by His Honour, particularly in the

light of what he had said at the top of page 21 and

then in the discussion at page 22 between lines 16

and 21, and his particular references in the

first new paragraph on page 23 must, we would

submit with respect, be taken as His Honour finding

that he is satisfied on all the aspects necessary

to establish the causation by reason of the matters

to which he refers, including, Your Honours,

forming a view on the question whether the

plaintiff would have been likely to have seen the

sign in question.

BRENNAN J: And how does that accord with the language in

which His Honour expressed himself at the start of

page 21?

MR JACKSON: Well, Your Honour, what he is doing there -

which he is there speaking, what he is there saying	could I just say that if one takes the context in
is that he is dealing with the submission, which appears on the preceding couple of pages, that in
fact the plaintiff had sufficient knowledge in any
event, and that a pictogram sign would have made no
difference. So why he speaks, in effect, in the
negative there, is that he is saying that is not

Saroukos 3/8/92

right and he cannot eliminate the possibility that

a pictogram sign may have caught the eye and he

says, "I thus do not find" - he decides to put it

in a kind of positive way - "that his knowledge was sufficient to impute performance of the duty in the

circumstance in this case".

Now, Your Honour, His Honour then goes on to

express it in a slightly different way at page 23

in the first new paragraph:

I would not lightly assume that -

and then he comes to decide the question, and

Your Honours, it is difficult we would submit, with
respect, to take the view, in the light of what he

has recited and the fact and the submission that he

has dealt with, that he was doing other than

finding against the present respondent in relation

to all the aspects which would defeat the

plaintiff's case on that issue. Your Honours, that

is the first thing, we would submit, and

Your Honours, that decision at page 23 is one which

must have been made in the light of his observation

of the witnesses, including the plaintiff whose

evidence he had accepted specifically, as appears

at page 5, lines 3 to 5; he regarded him:

as a reliable witness.

That finding,. however, was the finding that was set aside by the Court of Appeal and, in our

submission, for reasons which should not be

sustained. Your Honours, I will come to those

passages in just a moment, but may I ask the Court

to note two things: the first is that, if one looks

at the Court of Appeal's reasons for judgment at

page 49 at about line 23, in the paragraph

commencing there, there is a reference to there

being:

English but His Honour, of course, had said at	in relation to the plaintiff's ability to read no specific finding of the trial judge -
page 21 line 7, that he was not able to read
English or -

able to recognise the word "danger".

That is at about line 10 on page 21.

The second thing is that at page 50 lines 8 to

20, and particular around line 16, the court, in

effect, doubted his evidence about his reason for

not seeing the existing signs, but of course, the

trial judge found him to be a reliable witness and

Saroukos 5 3/8/92

there really was not a basis for the court taking

that view.

Your Honours, those factors might not have

mattered directly. They did rather set a tone for

the approach taken by the court. And,

Your Honours, the observations of the court on the
critical issue commence at page 52 at about

line 25. Your Honours, they go through the whole

of the next page and then refer, at the bottom of

page 53 and at the top of page 54, to the

deceased's own evidence, and Your Honours will see

on page 53, between lines 14 and 20, that reference

is made to the deliberateness of his actions but,

Your Honours, that evidence was considered by the primary judge who said there was a qualification in relation to it, which appears at page 20 lines 14

to 17. He said that:

Whether the exercise was quite as deliberate

as the plaintiff's account would suggest is

highly questionable -

and Your Honours, at page 55 Their Honours quote

the passage at the top of page 21, that is at the

bottom of page 55, and then proceed, at page 56

line 14, to say, that:

the 1a·nguage used by His Honour in making

those findings points to the existence of a
real problem,-relevant to the issue of

causation, arising out of the deceased's own

knowledge and understanding,

Your Honours, the nature of the problem to which

Their Honours there refer, appears at the bottom of

page 57 about line 22, where Their Honours say:

What His Honour found was that he could not

eliminate the possibility that a pictogram

sign might have caught the deceased's eye and

caused him to hesitate longer.

And that passage goes on, Your Honours, to page 58

at about line 9. Your Honours, I will come back to

that in j.ust a moment, if I may, but it is referred

to again at page 62 lines 8 to 18.

Now, Your Honours, the court then discusses

over the next several pages the question of
causation at some length, and the critical part of

its reasoning then appears at page 69 line 14 in the passage which goes through to about line 25,

and the part of importance for present purposes is

that Their Honours say, between lines 20 and 25:

Saroukos 3/8/92

Nowhere, for example, does His Honour make a

positive finding that the deceased would have

seen a proper warning sign or would have taken

notice of it.

Now, Your Honours, that, in our submission, is

something which really cannot stand too well with

the conclusion arrived at by the primary judge at

page 23 lines 13 to 16 where, Your Honours, having

considered the very issues on which the court was

speaking in the Court of Appeal, he says:

Taking all of these factors into

consideration, I am satisfied that the

plaintiff has established that the failure to

erect an appropriate set of warning signs

contributed to this particular accident.

BRENNAN J: The components of that finding start at about

page 20, do they not?

MR JACKSON: Yes, Your Honour, yes.

BRENNAN J: Perhaps more at page 21. In other words,

His Honour is concerned with the Council's

performance of its duty. He is concerned with what

might have happened if the Council had performed

its duty and then he compares it with what did

happen, and putting those things together he comes

to the conclusion.that you have drawn our attention

to at page 23. But the relevant component of that

finding is the one at the top of page 21; it is the

only one, is it not? I mean, when he gets on to

page 23, for example, he is back again to the.

question of the Council's failure to do what it

ought to have done.

MR JACKSON: Well, Your Honour, could I just say that if one

·looks, for example, at page 20, what he is saying

at line 10, for example, a related point is whether

a pictogram sign would have caught his eye more

easily, and I would refer Your Honour to the

sentence immediately above that as well, and he is

discussing that in the context to which I earlier

referred. But when one goes through to page 23,
Your Honour, what is apparent is, in our

very question, "Would it have had an effect? 11 , and	submission, that he is giving consideration to the
Your Honours, he, in effect, in our submission, says that it would have.

McHUGH J: What about the passage on page 34, at the top of

the page?

MR JACKSON: Well, Your Honour, could I just say, that

relates back to an earlier passage, and may I come

to that in just a moment, because what he is there

Saroukos 3/8/92

doing, of course, is considering the question, it

is not of negligence but of contributory

negligence.

McHUGH J:  I know, but he is still talking about:

I am not prepared to eliminate the possibility

that a pictogram sign •.••. may have influenced

the conduct of the plaintiff - - -

MR JACKSON: Well, Your Honour, that is what he says, but he

is saying it in a context where he said other

things before, and if one is looking to see what he

was deciding, well, Your Honour, one should, I

suppose, really go to the place where he is

deciding the point and that is at page 23.

Your Honour, at page 34, what he was dealing with, as I was submitting a moment ago, is of

course contributory negligence. The observation

that he is making in the second two lines of that

paragraph, seems to relate back to page 20, where

he says between lines 15 to 20:

I must also, as a tribunal of fact, decide

what I make of the plaintiff's poor assessment

of depth because of his expectation that if

the water was shallow -

and so on. And that is the part which relates back

to the plaintiff being substantially the author of his own misfortune, but his observation at the top

of page 34, Your Honour, is one which has to be

read in the context of what he said earlier at

page 23.

Your Honours, could I return for just a moment

to the Court of Appeal's reasons at page 70.	One
matter that seemed to be relied on by the

Court of Appeal, commencing at the top of the page and going through to line 11, is that is was said:

It is very difficult to reconcile a conclusion

that the erection of an appropriate warning
sign would have averted the injury to the

deceased with the statement that the deceased

was·· "very substantially the author of his own

misfortune" .

Well, Your Honours, that is really, with respect,

what the contribution legislation is for, to allow

there to be an apportionment where there is more

than one cause and the contributory negligence

finding was based on the passage to which I

referred at page 20.

Saroukos 3/8/92

Your Honours, could I go finally to page 71 commencing at line 13 and going through to to

page 72 at about line 22, where - those are the

conclusions arrived at by the court. Your Honours

will see, in particular, at page 72 line 20, where

His Honour says:

I am not persuaded that if there had been a

pictogram at the beginning of the walkway the

appellant probably would not have died.

Now, Your Honours, that, with respect, is the

opposite of the conclusion arrived at at page 23, a
conclusion arrived at in the light of the primary

judge's observation of the witnesses.

Your Honours, we would submit that the case is

one where the Court of Appeal should not have

interfered and that there was no basis for setting

aside the decision of the primary judge.

MASON CJ: The Court need not trouble you, Mr Maconachie.

The Court is not persuaded that the decision of the

Court of Appeal is attended with sufficient doubt

to justify the grant of special leave to appeal.

The application is therefore refused.

MR MACONACHIE:  We ask for costs.

MASON CJ: You do not oppose that, Mr Jackson? The

application is refused, with costs.

MR MACONACHIE:  May it please the Court.

AT 12.58 PM THE MATTER WAS ADJOURNED SINE DIE

Saroukos 9 3/8/92