Romeo v Conservation Commission of the Northern Territory

[1996] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D8 of 1995

B e t w e e n -

NADIA ANNE ROMEO

Applicant

and

CONSERVATION COMMISSION OF THE NORTHERN TERRITORY

Respondent

Application for special leave to appeal

DAWSON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON MONDAY, 4 NOVEMBER 1996, AT 10.33 AM

Copyright in the High Court of Australia

MR J.B. WATERS:   If your Honours please, I appear for the appellant.  (instructed by Waters James McCormack)

MR T.I. PAULING, QC,  Solicitor-General for the Northern Territory:  I appear with MS R.J. WEBB for the Conservation Commission.  (instructed by the Solicitor for the Northern Territory)

MR WATERS:   If your Honours please, I seek leave, firstly, to place before the Court a bundle of photographs which I had forwarded to the Court but after the outline of argument, and also an additional case which I would seek to refer to.  The photographs, if your Honours please, are important.  The first of those is P1 and it was actually taken a fortnight before the event arising in the injury and shows quite graphically the path-like structure that forms such a critical part of the trial judge’s determination.  It identifies the car park, its close proximity to the cliffs, and the other photographs from other angles show the path to the gap in the vegetation which formed a critical part of his Honour’s determination.  Do I have that leave, if your Honours’ please?

DAWSON J:   To tender the photographs?  Is there any objection, Mr Pauling?

MR PAULING:   No, your Honour.

DAWSON J:   Yes, you do have leave.

MR WATERS:   I am grateful.  If your Honour pleases.  The decision of his Honour Mr Justice Angel made findings as to the precise spot where the appellant fell and then made a critical determination which we say should have governed his consideration to principles thereafter at page 16 of the trial judge’s reasons.  He says there, and it is in each of the materials that have been referred to, referred to in all the judgments, the:

The plaintiff and Jacinta were affected by alcohol.  The plaintiff and Jacinta wandered off from the group of friends who were congregating on the sea-side of the log fence.  This group of friends were approximately three metres from the cliffs’ edge.  It is apparent and I infer that the plaintiff and Jacinta did not realise the location of the cliff edge and walked off and over the cliff edge at the point where there is a gap in the vegetation, some distance from the log fence. 

That is graphically indicated in P1, if your Honours please, and the log fence is P3 in those photographs.  You can see where she wandered.  The path like earth area is in the centre of P3 and where she wandered to is also graphically illustrated by P5 and the edge of that in P6, the gap in the vegetation:

Leading to that gap was an area of light coloured bare earth naturally created by surface water running off the cliff.....In the gloom it had the deceptive appearance to the girls of a foot path leading to the gap in the vegetation. 

It would not have appeared in daylight:

Nor would it have so appeared to a sober alert person on the night in question.  It did not appear so to Mr Henry -

he says, and goes on:

I infer that the plaintiff and Jacinta were deceived to follow that path to and over the cliff edge.  They literally walked over the edge with their heads in the air. 

That finding of deception is, we say, no less profound in this case than it should be, for example, in Nagle where Mr Nagle was deceived by the light on the water.  Having made that critical finding and later on adopted it, his Honour then, however, we say, fell into error in the test that he applied.  He did find that there was a clear duty of care, that the element of proximity was established and that can be seen at the foot of page 19, and this, like Nagle, one might think, or not, like the South Australian case of Wilmot does not have to deal with the question of proximity. 

Over the page, however, is where we say his Honour made the first error, and that is he refers to Kingborough and in two places identifies that as what he later calls the scope of the duty of care and, of course, the Kingborough test from 1939 and preceded by Lipmann v Clendinnen, which he also refers to, is really a case which, of course, embraces the old occupier test and when he talks about the right of access vested, which is in the quote on page 20, and later talks about the other test which used to apply, that is, the obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or conditions of the premises which are not apparent or are not avoided by the exercise of ordinary care.  That is the old test.

McHUGH J:   That is the concealed danger test, which has been abolished.

MR WATERS:   Yes.  Yes, if your Honours please, and somewhat reluctantly in some cases.  But all of the modern authorities and judges and appeals have clearly identified that.  Perhaps as clear as any of them is both your Honour Justice Kirby and Justice McHugh in Curry and Lutz both identify that and, perhaps as a very succinct identification of it is the decision of his Honour Mr Justice Mahoney in Phyllis v Daly, a decision upon which your Honour Justice McHugh was also of that same view, but at the top of page 73 he makes it clear.

Your Honours, that case is useful, because it does properly set out in Mr Justice Mahoney’s judgment the principles that should have been applied.  Firstly, he quotes from Zaluzna Mr Justice Deane’s statement in Hackshaw v Shaw as to how the tests should be applied and, most importantly of course, he says:

The touchstone of its existence -

that is, of the liability -

is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member.

In this case, we say the class of visitor was a 16-year-old girl, relatively inexperienced with alcohol, not knowing the area - affected by alcohol certainly - but it is a consideration of that class of visitor that his Honour should have turned his mind to, and then he should have looked at the Wyong v Shirt test and, just as in those other authorities I touched on, perhaps looked at the three items his Honour Justice Mahoney did in Phyllis at 72: what actually caused the injury, was the risk from injury far fetched or fanciful and, then, what would a reasonable man have done to avoid it.  If your Honours please, instead of applying ‑ ‑ ‑

KIRBY J:   You assert in your submissions that the respondent knew, or ought to have known, that this was a place to which young people, including intoxicated young people, had resort.  But that seems to be disputed.

MR WATERS:   It is referred to in Chief Justice Martin’s judgment.  He identified that as one of the facts which did form the body of evidence that came before the court.  It is not so much disputed, we say, as not touched upon by his Honour Mr Justice Angel in his judgment at first instance.  We say that there is ample evidence.  I did seek also to put before the Court at least one passage of evidence from a witness, Mr Kanaris, which establishes that, but I would simply content myself at this stage in saying that there was evidence, as Chief Justice Martin said in his judgment, that they well knew of the use for which that area was put.

KIRBY J:   That may not be unimportant because the prospect of having to fence the whole of the headlands of this continental country and deface the headlands by fencing is not a terribly attractive consequence of the principle that you are urging.  On the other hand, if, in fact, it is known that a particular headland is a place to which young people go and who are intoxicated, then that might give rise to different considerations. 

MR WATERS:   Yes.  We say this is a case just like Nagle or in the case of Miletic that your Honours dealt with recently where we are not dealing with that rather difficult thing to swallow that has come up in Heyman and that your Honour Justice McHugh has referred to in Cekan v Haines.  We say this is a very limited duty related to a particular limited problem, and the photograph, we say, should make ‑ ‑ ‑

McHUGH J:   Your first point, I suppose, is that the judge at first instance just completely misapplied the law; that you never had a trial at all, according to law, because he dealt with it as though it was a concealed danger case under occupier liability; not only did he refer to Aiken, but he referred to Lipmann v Clendinnen.  I would have thought Lipmann v Clendinnen was well and truly buried by now.

MR WATERS:   That is my primary submission, and if one goes to the other leg that he refers to, he invokes another test ‑ it may not have been a test, at page 23, where he says, “the plaintiff has the difficulty” ‑ this is after having once again referred ‑ he refers on three occasions to Aiken and to Lipmann v Clendinnen, and he says, “In the present case”, at page 23, “given the scope of the defendant’s duty”, that is going back, as your Honour Justice McHugh just said, to the old test, which he says seem applied:

the plaintiff has the difficulty that any risk of injury reasonably foreseeable to the defendant was equally foreseeable to the plaintiff and other members of the public who visited the cliff area.

Well, that is not the test either, if indeed what he is purporting to do is apply a test.  So, there is an error there, and we say also ‑ ‑ ‑

DAWSON J:   But where did the Full Court go wrong?

MR WATERS:   The Full Court went wrong, his Honour pleases, in two ways.  If I could just, first ‑ his Honour Mr Justice Martin did look at the Kingborough argument and said well, he really did not mean that, and conceded that if he had reimported the Aiken v Municipality of Kingborough test he would have been wrong.  He patently did however, and at page 20 he referred to Aiken, at page 23 ‑ take the passage I just referred to, he referred once again ‑ ‑ ‑

McHUGH J:   I am sorry, I am having trouble with the numbers.  Would you refer to the numbers at the top of the application book, please, Mr Waters.

KIRBY J:   Do you have the application book, or do you want us to look at the numbers at the bottom?

MR WATERS:   The only ones that I have are the ‑ ‑ ‑

KIRBY J:   You are referring to the pages of the judgment.

MR WATERS:    ‑ ‑ ‑ in the appeal book before the Chief Justice ‑ yes.  I can refer to that, if your Honours please, but perhaps it would be more efficient ‑ ‑ ‑

McHUGH J:   Do what is most convenient to yourself.

MR WATERS:   If your Honours please, can your Honours pick up the page number at the foot of the page of Mr Justice Angel’s judgment?

McHUGH J:   Yes.

MR WATERS:   At page 25 is where I was there, and the page where we say Mr Justice Martin started to get it wrong was at page 7, which is at the bottom ‑ I am sorry, your Honours, I did not realise that the appeal book to the Full Court was in fact in front of  ‑ ‑ ‑

McHUGH J:   Your point is that the Full Court went wrong, as the trial judge went wrong, at page 61 at line 10 where the Chief Justice says:

It is plain from his Honour’s reasons that if the plaintiff had been taking care of herself she would not have been so deceived -

that is the old concealed trap test -

and, further, she would not have proceeded to walk off the cliff tops.  His Honour was not wrong to so infer nor was he in error in holding that the duty of care owed by the respondent was discharged by the failure of the appellant to exercise ordinary care for her own safety.

That is 1930s stuff.

MR WATERS:   Yes.  His Honour is clearly unhappy about Aiken but went on and really adopted that test without regard to the modern principles, though the modern principles are recited further back in the judgment.  Certainly we say he was in error there.  Neither of them dealt with the policy issue which crops up later in his Honour Justice Angel’s judgment; just simply ignored that.  But we say there are serious flaws in that as well.  His Honour Mr Justice Mildren seemed to take a view that what was being argued was something which involved a far more difficult task for the authority:  that is the blocking off of the cliffs, as was suggested to me a minute ago.

If your Honours please, we say that such a conclusion of course would invoke anxious consideration of policy issues but is hardly relevant in a case of this sort.  This is no different than a very limited and isolated risk and that risk posed by the very thing which the trial judge identified, that is the deceptive character of the earth running to that gap in the cliff.  This is not an argument which requires me to suggest some indigestibly expensive cliff‑lining process, which is what we say his Honour Mr Justice Mildren seemed to consider, and so we say he fell into error in that way as well.  He also says at page 50 of his judgment, which is at page 78, that the appellant knew the risk and that the risk was obvious and easily avoided.

Once again the obvious notion brings up the old test but it just flies in the face of the evidence.  We say his Honour Mr Justice Mildren on a reading of his judgment was very unhappy, it would seem, with the findings that Mr Justice Angel made but ultimately he accepted them but then fell into error by making a finding notwithstanding that the appellant knew the risks.  She did not; she was deceived.  She was deceived by the character of the foreshore in the gloom, and it was that deception which, just as the deception in Nagle, caused the problem.

If I can deal with the policy issue in the briefest terms because there also appears to be a fundamental error in the approach taken by his Honour Mr Justice Angel there, although the others did not deal with it.  That can be found at pages 25, 26 and 27 of his judgment where he really invokes the broad issues of the sort that were canvassed by Chief Justice Mason in Heyman rather than to simply look at the matter in the way we say should attach to the cases like this.  That is simply to look at what was a reasonable

and an economic way of resolving it.  In this case the simplest of barriers would have disabused the appellant of the danger.

It was the deception that caused the danger and what was deceptive was the path.  She thought she was on a path.  Put something in front of it to disabuse her of the fact that it is a path like some vegetation or simple construction, she no longer thinks there is a path, she is no longer deceived.  The character of the deception, we say, is amply made clear from the photographs which are before you. 

But if your Honours please, his Honour did fall into error in invoking the broader policy considerations.  This is really a case more like Miletic or Nagle where the simplest and reasonable approach from the local authority would have cured the problem.  It does not involve the sort of consideration that your Honour Justice McHugh had to wrestle with in Cekan v Haines, an area which is, of course, as your Honour has said, still to be developed.  This is a case on a far more limited scale.  However, his Honour, of course, has invoked the broader policy issues and we say he is clearly in error in doing so.

DAWSON J:   Thank you, Mr Waters.  Mr Solicitor.

MR PAULING:   Your Honours have our written response to the submissions of the applicant in this case.  Can I start by saying, though, that there is no evidence or finding of actual or constructive knowledge in the particular area where the applicant fell constituted any particular danger.  It is a point taken up, not only by Justice Angel at first instance, but in the Court of Appeal by both the Chief Justice and Justice Mildren.

McHUGH J:   But danger is not the test and that harks back to the old laws.  The question is was there a reasonably foreseeable risk of injury.  I notice that the Chief Justice said that there was not a reasonably foreseeable risk of injury that somebody, even in an intoxicated state, might fall over this cliff.  That strikes me as arguably, at least, erroneous.

MR PAULING:   The question is not whether there is a risk of injury from falling off cliffs per se, but whether there was a risk of injury falling off the cliff in this particular point, because the argument that is put forward by my learned friend is a limited argument, and that is, that as I understand it, two star pickets and a strand of wire in the very spot where she fell from was all that needed to be done, and that is to identify that very spot as being the danger.  Not the cliffs ‑ ‑ ‑

McHUGH J:   Not danger, but was there a reasonably foreseeable risk of injury that somebody might step through this and fall off the cliff.  Why is not that reasonably foreseeable?

MR PAULING:   Why is it not reasonably foreseeable?

McHUGH J:   Yes; particularly at night; particularly when it is an attractive place, the sort of place where cars are going to park, it is as natural as anything that people are going to get out of their cars at night and wander over there.  Why is that reasonably foreseeable?

MR PAULING:   The proposition has to be, as I understand it, that the cliffs themselves, in the vicinity of the car park, that is limited to that.  In the proximity of the car park themselves constituted ‑ ‑ ‑

McHUGH J:   It is not a question whether she was taking care for herself, as the judgment seemed to suggest, that only goes to the issue of contributory negligence.

KIRBY J:   Justice McHugh’s principle might mean that in every headland in Australia where councils put a car park, you have to put fencing and wire or other impediments.  That may or may not be a consideration relevant.  I think danger as such is not the test but it may be relevant to what is reasonably foreseeable and the steps that should be taken.  But, it does seem that a mistake has occurred here.  This is a serious case.  A mistake has occurred in the primary judge and it seems as though it has occurred in the Full Court and not been corrected adequately, so that it may be a matter which we ought to look at.

MR PAULING:   Well that would depend upon whether you took the view that the Court of Appeal itself applied a wrong test, assuming for a moment ‑ and this is not the conclusion the Court of Appeal came to - that the trial judge did apply Aiken as the appropriate test in relation to an area to which the public has a right of access, as is the case here, that is not the test that at least the Court of Appeal stated they applied.  They recited correctly, in our respectful submission, what the law is, as developed in Papatonakis and Hackhaw v Shaw and ‑ ‑ ‑

KIRBY J:   But what do you say about the point that Justice McHugh raised on page 61, the word “deceived”, which does seem to hearken back to the old test?  This is page 61 at about line 12.

MR PAULING:   Yes, I see the point on the page.

KIRBY J:   Do you see the point that his Honour has made.

MR PAULING:   Oh yes, your Honour, I understand the point.  There are two things to be said, I suppose, that in a case of this sort, in order to decide whether it is the proper vehicle for a grant of special leave in relation to this, we have to look at what the decision in the case involved, and it involved three steps.  It involved a finding, at the far end if you like, that there was no causation; that even if something had been done, as suggested on behalf of the applicant, it still would not have been causative, and the decision in a case called Saroukas was called in aid of that, so that, whatever test the judge applied, the test that he applied in relation to causation was the right test, but coming back from that his Honour then said the matter was not justiciable because it involved a matter of policy with multifarious aspects to be considered and that it was for ‑ ‑ ‑

McHUGH J:   That is a special leave point itself; it seems far removed from the sort of matters that were referred to in Heyman’s Case by Chief Justice Mason, to which I referred to in Lutz’s Case in the New South Wales Court of Appeal.  It seems to suggest councils are entitled to look at financial situations and their own budgetary considerations in determining what steps they should take when there is a foreseeable risk of injury which could be foreseen and avoided.

MR PAULING:   Well, that would accord with what Justice Mason said in Heyman; that the factors included, for example, political matters.

McHUGH J:   But he was talking there about a general duty of reliance, a totally different context here.  This is a case where the council is the occupier of the land and they invite members of the public to come on it and they owe a duty of reasonable care.  Why should they then say, oh, well we cannot, sorry, our budget considerations do not allow us to eliminate the risk of injury.

KIRBY J:   It will allow a party to decide itself out of liability; that cannot be the law.  I mean the consideration is obviously relevant, but it cannot be left to the council to decide these matters.

MR PAULING:  It is not, but there comes a point when certain facts will emerge that would make the issue non-justiciable, in the sense that the court would not be competent in that limited sense.  It is referred to by Justice ‑ ‑ ‑

KIRBY J:   But what do you say to Justice McHugh’s point that this is clearly another reason because it is a matter of some importance.

MR PAULING:   Yes.  I merely raise the fact in a particular context, and that is, the case went off on three individual bases.  One was, there was no relevant breach of any duty of care owed to the plaintiff.  The second was, even if there was, it was not causative in the sense that whatever it was that the plaintiff at trial suggested ought to have been done would not have prevented the coming to fruition of the risk identified in this particular case.

McHUGH J:   No, but the more you talk about it in this case, the more it seems to me that there may be some very important questions of principle all around in this case; a standard of care owed by councils and other bodies in relation of public parks; what precautions they can or ought to take having regard to budgetary consideration.

MR PAULING:   Then the Court needs to ‑ ‑ ‑

McHUGH J:   The economics and aesthetics of what is urged as the preventative measure.  I mean, it is not an unimportant question.  Then we go back to the fact that this is a woman profoundly injured, a very serious case from her point of view, and a case in which the primary judge clearly made a mistake and the Court of Appeal appears, at least arguably, to have not entirely renounced the old law.  An English Law Lord said it generally takes about 10 years for lawyers to catch up to important developments in the law.

MR PAULING:   All right.  Really, it does not finish there because the Court would need to be satisfied that the factual basis is soundly laid so that the Court is not drawn to speculation or hypothesis about, you know, that we are really dealing with a real case.  An example is that it is put - and your Honour Justice Kirby picked it up - that the defendant, or respondent in this case, knew that persons of the class we are said to be dealing with, that is 16-year-old girls and not used to drinking, knew of this fact and they gathered - there is no evidence and there is certainly no finding to that effect, although it is asserted.

McHUGH J:   I am not sure that it matters much about whether there is a finding to that effect.  Mr Pauling, if you would go out there one night with some friends and had a few too many drinks - I know you would not - and you had wandered over the cliff, why would it not be reasonably foreseeable it could happen even to somebody as esteemed as yourself?  You are there in the dark ‑ ‑ ‑

MR PAULING:   I am sure if your Honour was there, you would give me certain advice about the matter.  Your Honour, the answer to that question, I think, is this.  Let us take two situations, one in which a natural run of cliffs is placed by an authority under the control or body like the Conservation Commission to manage it according to its natural beauty and so on and a similar run of cliffs is simply there as unalienated Crown land, and you would ask yourself, “Why it is if I fall off one set of cliffs I may be able to sue the Conservation Commission, but if I fall off the other, I can’t sue because nobody’s really in control?”

KIRBY J:   But where is this cliff in relation to Darwin?  Where is it in relation to the city?

MR PAULING:   Your Honour, it is on the sea, obviously, but it is in what is called the northern suburbs of Darwin.  It is in close proximity at the edge.

KIRBY J:   I see, thank you.

MR PAULING:   What we are dealing with is a situation where you have natural cliffs, as you can see from P1, coming along as part of a lengthy 8 kilometre coastal reserve.

KIRBY J:   May that not be a relevant fact that you do not have to take precautions miles away, or kilometres away, but if it is close to built‑up areas where citizens are likely to go and if you put car spaces, then it is at least arguable that steps have to be taken especially if the lay of the land may give an appearance that it is walkway?

MR PAULING:   There is no finding of that when you see that - that, again, is a proposition that is put but refuted and denied in the judgments.

KIRBY J:   We have the photos.

MR PAULING:   Photos taken six years and four months after the event, and with a particular purpose in mind.  Take the situation of Kings Canyon, which is a tremendously popular place in the Northern Territory for people to go.  It is the fact of the sheer cliffs and other things that is attractive to people and, whilst there are warning signs there, the idea that one should put barrier fencing to prevent people getting close enough to possibly be blown off or falling off the cliffs is an appalling proposition.

McHUGH J:   I am not sure that that is so, for instance, back in Sydney some years ago the son of a judge was playing by cliffs not dissimilar to this with a number of other children, over the side they go, killed.

KIRBY J:   Echo Point in the Blue Mountains near Sydney is fenced.  It depends a bit on how many people go there.  If people go there then, unfortunately, aesthetics have to take second place to its safety.

MR PAULING:   I mean, that might be right if aesthetics were the only other factor, the only countervailing factor one was taking into account, but those are matters that if your Honours were inclined to accede to the application for special leave would be debated in full on another occasion.  The point we are putting about the case at hand is that, let us assume the Court found that the judge at first instance was in error because he applied an old test and the Court of Appeal did not fix it up, you still get the situation at the end of the day that there is a finding adverse to the applicant plaintiff as to causation and when you analyse the way in which the whole question of causation was dealt with‑ ‑ ‑

McHUGH J:   How do you mean on causation there is a finding adverse to it?

MR PAULING:   I am saying that at the end of the judgment at first instance, commencing at page 70, sorry, that is in the Court of Appeal - sorry, in Justice Angel’s judgment.

McHUGH J:   Yes, you are talking about 29 in the application book at line 24?

MR PAULING:   I do not know that I am being that specific, your Honour.  No, that is only one instance.  That is only one instance.  We are talking about pages 28 to 30.

KIRBY J:   The Court of Appeal did not find it necessary to deal with that point.

MR PAULING:   The Chief Justice did mention it.

KIRBY J:   He mentioned it, but he said in view of the other reasons it is not necessary to deal with it.

MR PAULING:   That is true, but your Honour Justice McHugh has drawn my attention to one instance only.  I will not go into what the evidence was.

KIRBY J:   Is this the notion, that if there had been a wire she still would have got over it or gone over anyway because of her intoxicated state?

MR PAULING:   Or it could have made the situation worse.  I mean, it is mere speculation.  It is a theory advanced at the end of the case as to what - you know, to say, “Well, this is the exact spot where the person fell over, therefore, put a star pick at this side, a star pick at this side and a string of wire,” and the person would have become aware that there was a cliff there.  I mean, with respect, it is an absurd proposition.  It requires a remarkable amount of foresight, relying upon an alleged fact which is not a found fact, and that is that there was a deceptive appearance of a path.

McHUGH J:   I would have thought people in the Northern Territory had long vision.  It does not seem to me that this is outside the range of reasonable foresight.

MR PAULING:   Well, it depends again whether your Honours ‑ ‑ ‑

DAWSON J:   It seems to me reasonable foresight is not the question, because you can reasonably foresee someone who is drunk will fall off a cliff.  That is not difficult to foresee.

MR PAULING:   No, it is not, but that does not get you ‑ ‑ ‑

DAWSON J:   But what is important is the standard of care which is required, and what you are saying is, well, even if they had adopted a proper standard of care - which may only involve putting a notice or something like that there - the accident still would have happened.

MR PAULING:   Yes.

McHUGH J:   That is your point.

MR PAULING:   That is the point, and I make the point because, if the Court goes through the exercise of analysing, in this case, the way in which in the Northern Territory they seem to have dealt with the law - assuming that Aiken has been followed, and that could be the subject of some interesting discussion in the Court - nonetheless, at the end of the day you say, “Well, all right, we find that the court should have found this sort of duty of care was owed to the applicant plaintiff, but we are still left with a finding by the trial judge, undisturbed on appeal, that any such failure was not causative of her injuries.”

McHUGH J:   It might not last long if you take the view that reasonable precautions might have required a three strand wire fence up to three feet high around this area.  I mean, what is required depends upon the magnitude of the risk.

MR PAULING:   That is one of the factors.

McHUGH J:   Exactly.  The likelihood of the risk, plus the magnitude.  The magnitude of the risk here is enormous; one false step and you end up a quadriplegic.  So, that undoubtedly requires a much higher standard of care and greater precautions than if you are dealing with somebody who might fall over and skin his or her knees.  I mean, we are looking at potential death or quadriplegia here as possibilities.

MR PAULING:   I understand that.  I am not trying to down play that.

McHUGH J:   No, no.  But, I mean, they are debatable questions, and you may succeed on an appeal arguably.

DAWSON J:   But are they really just questions of fact?

MR PAULING:   Well, that is rather the point here, that what we seem to be arguing about - I do not mean your Honours and myself, but rather the applicant’s counsel and myself - seem to be entirely that; questions of fact.

KIRBY J:   Yes, but there is an error of law in the primary judge, and it is not entirely corrected, as it seems to me, in the Court of Appeal.  This is a very profoundly injured person and she has not had a trial according to law, at least arguably.  And there are, in the background, some important questions of general principle concerning public authorities, so that it seems to have the smell of a case that might be worth having a look at.

MR PAULING:   I am entirely in your Honours’ hands as usual, but I have pointed out that there are problems at the end of the trail that it may be that any victory in the case might be pyrrhic.

KIRBY J:   Often the way of that principle.

DAWSON J:   What would happen if leave were given and there was a successful appeal?  It would go back?

MR PAULING:   It would have to be retried.

McHUGH J:   But why?  Not necessarily.  We might make the findings of fact ourselves.  We have done it in the past.

MR PAULING:   It would depend on whether there was evidence upon which your Honours could make the findings.

McHUGH J:   Of course, yes.

MR PAULING:   That is one of the primary points I was making.

McHUGH J:   But if there was not evidence, then it may be that you would not disturb the judgments below - that is, the actual decision itself.

MR PAULING:   Anyway, I have put both in writing and orally all I want to put before the Court.

KIRBY J:   Also there is from the point of view of the Court a point, if judges are continuing to apply the old law in Australia, for the Court once again to say, “This is 1930’s stuff”.

MR PAULING:   Yes, a sort of corrective, as it were.

KIRBY J:   Well, that is part of our function.

MR PAULING:   I am in your Honours’ hands.

DAWSON J:   Thank you, Mr Solicitor.

Mr Waters, the Court need not trouble you.  There will be a grant of special leave in this case.

AT 11.12 AM THE MATTER WAS CONCLUDED