Roads and Traffic Authority v Royal & Anor

[2007] HCATrans 596

[2007] HCATrans 596

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S202 of 2007

B e t w e e n -

ROADS AND TRAFFIC AUTHORITY

Appellant

and

GRANT ROYAL

First Respondent

GEORGE SMURTHWAITE

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 OCTOBER 2007, AT 10.40 AM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC:   I appear with MR P.D.A. MALLON for the applicant.  (instructed by McCabe Terrill Lawyers)

MR S.J. HARBEN, SC:   May it please the Court, I appear for the first respondent together with my learned friend, MR S.B. LOWE.  (instructed by Rankin & Nathan Lawyers)

GUMMOW J:   There is a submitting appearance for the second respondent.  Yes, Mr Maconachie.

MR MACONACHIE:   This application calls in aid the visitorial jurisdiction of the Court and does so unambiguously.  The principle and, we say, determining fact which calls that in aid is to be found at page 143 of the application book, that is at lines 22, 23 or 24.  The plaintiff and the defendant had a reasonably unrestricted sightline ‑ ‑ ‑

GUMMOW J:   Where are you reading from, Mr Maconachie?

MR MACONACHIE:   Page 143 at about line 24:

(v)Royal and Smurthwaite had a reasonably unrestricted sightline of one another of about 280 metres . . . 

(p)Accordingly, Smurthwaite could see Royal.

In fact, one could see the other.  That is a fact.  That is not in issue.  My learned friend at page 149, lines 5 to 20 does not take issue with that fact.  The factual issues in contention are set out.

GUMMOW J:   Yes, I see.

MR MACONACHIE:   My learned friend is right.  The plaintiff, Mr Smurthwaite, was travelling from west to east, not east to west.

GUMMOW J:   Then you say it jumps into the RTA’s situation and it does not deal with what you have referred us to at 143?

MR MACONACHIE:   No.  The fact of the matter is ‑ ‑ ‑

GUMMOW J:   How did Justice Santow deal with what you say is the critical factual matter?

MR MACONACHIE:   What Justice Santow did was to find, as it were, a paucity of reasons and he did so – I will have that found for your Honours.  It is in our written submissions – and then analyse expert opinion based on, to some extent, a large extent, what the plaintiff had said had happened.  But it was a case which involved ‑ ‑ ‑

GUMMOW J:   He talked about “statistical inevitability”, did he, at the bottom of page 89 there?

MR MACONACHIE:   It could have been done a different way.  At page 70, paragraph 29 where the trial judge’s reasons for judgment on the RTA claim – the claim against the RTA is set out.

HEYDON J:   Your basic position is this, is it not, that RTA owed a duty and RTA breached that duty but it simply did not cause this particular accident?  This accident was caused by the failure of the drivers to see what could easily be seen, or if they could see things, their failure to drive carefully.

MR MACONACHIE:   We would put it slightly differently.  If there was a breach by the defendant, by the RTA ‑ ‑ ‑

GUMMOW J:   I am sure you do.  Yes, go on, Mr Maconachie.

MR MACONACHIE:   If there was a breach, the trial judge expressed himself in very truncated terms, there is no question about that, but that is after he had dealt, at considerable length, with the question of who was where, who could see what, who did what as between the plaintiff and the defendant, demonstrating beyond argument based on the eyewitness evidence of people who were behind each of the dramatis personae that the makeup of the roadway, the design of the roadway, had nothing whatsoever to do with it.

HEYDON J:   Your amended draft notice of appeal boils down to what I said, does it not?

MR MACONACHIE:   It does, but we would say the question of breach was determined by the trial judge in our favour, but it does not matter.  The causation issue decides it. 

HEYDON J:   Yes.  I mean, we do not have to worry about whether Justice Santow was right about whether you were in breach.  What does matter is whether Justice Basten is right.

MR MACONACHIE:   Absolutely, 155 and 156, your Honour.

GUMMOW J:   Wait a minute, did Justice Santow consider this question of causation?  That is what I was trying to get at.

MR MACONACHIE:   He did at pages 79 and following, but he dealt with the question of causation ‑ ‑ ‑

HEYDON J:   At pages 94 and 95.

MR MACONACHIE:   Yes.  He deals with foreseeability ‑ ‑ ‑

GUMMOW J:   He talked about supervening conduct, did he not?

MR MACONACHIE:   Yes.  He jumped from breach to a finding of causation, an unexpressed finding of causation, and then attempted, we say unsuccessfully, to consider the question of whether the RTA had demonstrated that there was a supervening cause.  But he never really decided the question of causation.

HEYDON J:   You would put it as not really being whether a supervening event breaks a chain of causation, but just what was the cause of this accident.  The cause of this accident had nothing to do with any negligent design.

MR MACONACHIE:   It is as simple as that, your Honour, as set out in our written submissions.  Justice Basten at 155 and 156 makes the point crisply, we would respectfully submit, particularly when you recognise that the trial judge’s reasons for judgment proceeded over 30‑odd pages examining with great care what Mr Smurthwaite did, what Mr Royal did, what they could have done, what they could have seen, determines that they were each at fault, turns to the question of whether the defendant has been able to persuade him that the RTA had anything to do with it.  Yes, he described or set out his reasons in extremely cursory terms but, as this Court said in Moltoni, it did not require elaborate reasons.  It was as plain as day, plain as day what the trial judge found, at least no causal connection because each could see the other and it was just a straightforward intersection.

GUMMOW J:   Your amended draft notice of appeal at 136 is – I am not saying this critically, but it is a bit over‑sophisticated, on one view of looking at it.

MR MACONACHIE:   I do not know whether to be complimented or not, your Honour.

GUMMOW J:   In other words, it does not actually say in terse terms the point Justice Heydon is putting to you, does it?

MR MACONACHIE:   It attempts to in paragraph 2, your Honour.

GUMMOW J:   In paragraph 2?

MR MACONACHIE:   Yes, that is they had no basis whatsoever for interfering with the factual findings of the trial judge when he had had a view, when he relied on eyewitness evidence ‑ ‑ ‑

GUMMOW J:   There was a complaint about adequacy of reasons.

MR MACONACHIE:   Yes, your Honour.

GUMMOW J:   Just assume the reasons were inadequate and that the Court of Appeal got into it, your complaint is they then got it wrong?

MR MACONACHIE:   Absolutely.

GUMMOW J:   Well, where does it say they got it wrong?  Paragraph 3 talks about liability to contribution.

MR MACONACHIE:   At 3(i) and (ii), 3(i) in particular.

GUMMOW J:   Yes.

MR MACONACHIE:   Our real complaint to engage the attention of this Court is that they never had any real right to interfere with a carefully reasoned judgment, albeit that the reasons RTA v Royal were short.  They only needed to be short because he had already found what was the cause of the problem.  It was as plain as day what the trial judge found and that is all we want to say.

GUMMOW J:   Yes.  I think we will be assisted if we heard now from Mr Harben, Mr Maconachie.

MR HARBEN:   Your Honour, not only were the trial judge’s reasons as to the liability of the RTA short ‑ ‑ ‑

GUMMOW J:   But assume that for the moment, assume that, and assume the Court of Appeal was correct to get into it as they did, what is the answer to the question that the majority then did not deal adequately with this causation question?

MR HARBEN:   Precisely as set out in Mr Justice Santow’s judgment which commences, in relation to causation, at page 94 of the application book.  He makes the point about this question of breaking the chain of causation, but simply because there is another act, negligent, that does not have the consequence that the initial breach or the initial negligent act in this case by the RTA simply goes out the window.  What the RTA did in this case when it, for unknown reasons, selected the crossing intersection was to provide the circumstance whereby this very accident was probably going to happen.

GUMMOW J:   What is the chain of causation being spoken of in 95?

MR HARBEN:   In paragraph 95, your Honour?

GUMMOW J:   Yes.

MR HARBEN:   What was suggested was that the act alone of Mr Royal, as the first respondent, had broken the link between the negligent design and construction of the intersection and the consequence and Justice Santow said the fact that Mr Royal had been found to be liable and negligent did not have that effect at all.  The RTA simply cannot construct and design a road with this foreseeable consequence and then when somebody commits the very act of negligence, which is likely to happen, be off the hook, as it were.

GUMMOW J:   Well, that may raise a question of principle.

MR HARBEN:   Your Honour, this is a very ordinary case.  Causation principles referred to on those two pages of the application ‑ ‑ ‑

GUMMOW J:   In particular, the force to be given by the statement of Justice Gaudron in Bennett 176 CLR 408 at 421.

MR HARBEN:   Yes, where her Honour referred to the “omission or a failure to perform a positive duty”?

GUMMOW J:   Bennett was a very different sort of case, of course.

MR HARBEN:   That was a different case.  In this case we actually had the performance of an act.  We had the decision to select an intersection and we had the construction of that intersection in circumstances where, as Justice Santow found, the RTA must have known of the statistical inevitability of this very type of accident.  I think his Honour’s words at paragraph – “was pregnant with foreseeable risk” says it all in terms of this intersection and whilst it is not particularly relevant, that is the very thing that happened and it is the very thing that happened in this case, the very accident that this intersection was likely to produce occurred to Mr Smurthwaite and Mr Royal in this case.

His Honour dealt with it by saying that so far as is relevant in terms of the test set out in Bennett’s Case by describing what would have happened had there been a staggered intersection was a very different traffic manoeuvre to what was required by the intersection as designed and

constructed.  Therein lay the fault.  The fault continued through to the time of this accident and the causative link was maintained.  That is as we see that point, your Honour.

GUMMOW J:   Thank you.  Now, is there anything else you want to say for the respondent?

MR HARBEN:   No, thank you.

GUMMOW J:   Yes, Mr Maconachie.

MR MACONACHIE:   Paragraph 92 on page 93, your Honour, demonstrates the failure on the part of Justice Santow to deal properly with the causation question.  That is what I want to say.

GUMMOW J:   Just let us have a look at that.

MR MACONACHIE:   Yes, your Honour.

GUMMOW J:   You point to the third sentence, do you, in paragraph 92, “The remaining question”?

MR MACONACHIE:   Yes, your Honour, he just does not deal with that question.

GUMMOW J:   You say that is a jump.

MR MACONACHIE:   Yes, he does not deal with the question of causation.  He assumes that we have to establish a supervening cause.

GUMMOW J:   Thank you.  Now, at the moment we are tending to a grant in your favour, Mr Maconachie, but just a little one.

MR MACONACHIE:   Just a little one, your Honour, right. 

GUMMOW J:   Yes.

MR MACONACHIE:   Better than none at all.

GUMMOW J:   Yes.  Now, Justice Heydon asked you earlier about the question of breach of duty by the RTA.  You were not as full and frank as you might have been in response to that.

MR MACONACHIE:   Well, I had hoped I was frank.  Whether I was persuasive is another matter.

GUMMOW J:   Well, it is now crunch time, Mr Maconachie.  My grant of special leave will extend to a disputation as to that point.

MR MACONACHIE:   Very well, your Honour.  If it is the causation point, then we will stand and fall on that.

GUMMOW J:   Very well, and the amended draft notice of appeal I think could usefully be revised, both to make it clear that it is not asserting any reagitation of the breach of duty points and that it is asserting the causation point.

MR MACONACHIE:   If your Honour pleases.  We will tender that in the next seven days if we may.

GUMMOW J:   Very well.  There will be a grant of leave upon a revised notice of appeal as indicated and the case will be a half‑day case, I would think.

MR MACONACHIE:   I would think so, your Honour.

GUMMOW J:   Do you agree with that?

MR HARBEN:   Yes, your Honour.

AT 10.56 AM THE MATTER WAS CONCLUDED