Ross v Owners of Strata Plan 63477

[2005] HCATrans 841

[2005] HCATrans 841

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S283 of 2005

B e t w e e n -

JEANETTE ROSE ROSS

Applicant

and

THE OWNERS OF STRATA PLAN 63477

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2005, AT 9.42 AM

Copyright in the High Court of Australia

MR J. P. GORMLY, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR A.R. LAKEMAN.  (instructed by Mackintoshs)

MR J. E. MACHONACHIE, QC:   I appear with my learned friend, MR P.N. KHANDHAR, if your Honours please.  (instructed by Wotton & Kearney)

McHUGH J:   Yes, Mr Gormly.

MR GORMLY:   Under recent consideration, your Honours, has been the question of how “obviousness” fits into the ordinary analysis of a defendant’s conduct and in particular how it relates to the question of breach.  This case looks at the plaintiff’s side of the ledger.  “Obviousness”, we say, can have a role in assessing a plaintiff’s conduct, which in turn is relevant to contributory negligence inadvertence the defence of volenti, but in this clean and simple set of facts it is demonstrated, we say, that the two assessments - that is obviousness of the defendant’s side and obviousness on the plaintiff’s side - have to be kept apart.

We say, your Honours, that the leakage of the assessment of conduct from the plaintiff’s side of the ledger to the defendant’s side produces error.  A plaintiff’s conduct, for example, in relation to obvious risk cannot be used to assess a defendant’s breach because it would frustrate section 9 of the Law Reform (Miscellaneous Provisions) Act and that provides, almost expressly, that the unreasonable conduct of a plaintiff does not exclude him from the proper exercise of a defendant’s duty.  Each has to be assessed separately and in fact that Act in section 11 says that the verdict which would flow from a breach of the defendant assessed first must be recorded separately and only then does one move on to a reduction brought about by the plaintiff’s conduct.  So we say that that Act of the New South Wales Parliament enshrines a process for the sequential analysis of breach and duty which separates the plaintiff’s conduct from the defendant’s, and it is therefore inappropriate to be looking at reasonableness on the part of a plaintiff at any stage when assessing a defendant’s breach. 

In this case, Mrs Ross was found by Judge Garling in the District Court to be “taking care for her safety”.  He actually says that at page 9, line 15.  She was not hurrying at the time, she was not drunk, she was not stoned, she was not playing a dangerous or risky sport; she was walking through a doorway at the age of 52, having just left a chiropractor in a commercial building to which the public had access during all business hours, and passed into an area that to her appeared flat - no steps.  In fact it had a single isolated step in it that, firstly, the two defendants said was a hazard, and in particular the defendants’ expert thought was a hazard, and Judge Garling, the trial judge, thought that it was a hazard and he did so because he thought that the step was not that easy to see or not readily visible, even without the glare that Mrs Ross said, and was accepted as saying, having caused her not to see the step.

McHUGH J:   But the Court of Appeal said that the learned District Court judge had failed to properly examine whether the respondent had breached its duty of care, which is to take such care as is as reasonable in the circumstances, and nowhere in the reasons of his Honour’s judgement was the question of reasonableness addressed.

MR GORMLY:    Yes, they do.

McHUGH J:   Well, what is your answer to that?

MR GORMLY:    Firstly, your Honour, there is no special formula of words that a judge must tick off, as though a tick a box, to address the question of whether a defendant need reasonably respond to a particular risk.  It is true, it is completely correct, that Judge Garling did not use some formula of words, but what he has done is to cover all of the factors that would go to that issue and we say that, having covered all of those, he has dealt with the question of reasonableness.  Let me just be specific about that, your Honours.  The sort of factors that he specifically covered were that the premises were a multilevel building with foyers and lifts, accessed by the public, occupied by a chiropractor, so in all likelihood the range of people who were going to be exposed to the risk was the full range of the public.  He considered that the step was a hazard to the public because it was not readily visible.  These are all factors that would go to a defendant’s assessment.  He did not, for example, say that somebody would fall on a step of that type, but we would submit it is not really required of a District Court judge that he articulate the fact that if someone does not see a step they will fall.

KIRBY J:   No, but this is a well-known problem that there is a jump without consideration or sufficient consideration of whether or not the duty attaches or a breach is shown without due attention to whether there was negligence or carelessness on the part of the defendant.  Now, I myself have some concern with Justice Stein’s statement at the end of his reasons taking into account in his determination whether there is a duty that you should been looking away, or averting your gaze, or stopping until your eyes were adjusted to the glare.  I can see an argument that that is really bringing up contributory negligence into the breach of duty question, but it is our function to consider whether, if we look at all the facts of the case, the result of the Court of Appeal is wrong, the order, the judgment, is wrong. 

The problem that I have is that I am not really convinced that we would be doing your client a favour by bringing the matter up to the Court.  The general principle, this question of bringing the contributory negligence up into the duty, has I am sure been the subject of a grant of special leave in another case.  I think that general issue is going to be looked at by the Court, but that was in very promising facts.  These facts are not very promising.

MR GORMLY:    Your Honour, a step, generally speaking, is in front of a person.  They can see where they are going. 

KIRBY J:   She had been there many times herself.  She knew of the fountain, she knew of the glare, and this is not something particularly hazardous.  It is just a single step.

MR GORMLY:    It is hazardous.  If you cannot see the step, it is a hazard.  You cannot expect of a person walking into a commercial building, even if it has been six times, to remember that a step is in a foyer on the second floor at some point in the trip.  It is an unreasonable expectation.

McHUGH J:   But your client had noticed the step on previous occasions and had had no trouble with it.  The Court of Appeal held in the circumstances that there was no breach of duty.  It just raises a fact question, does it not?

MR GORMLY:    This case was decided as though the risk to the plaintiff was obvious.  The plaintiff could see the step on the way in and Judge Garling said that the step was visible on the way in.  Whether one actually notices a step that one has to step up in any event is probably a real question, but it does not matter.  She came in on each of the six occasions and stepped up the step because it is perfectly visible, but on the way out it is not visible.  Judge Garling finds:  (a) it is not visible; (b) it is isolated; and (c) in accordance with the defendants’ own expert, an isolated step is a hazard. 

Those were the three things.  If one has those three factors in mind it becomes, I would submit, impossible to say that Mrs Ross somehow or another ought to have remember there was a step there.  If she did not see it, she cannot remember it.

KIRBY J:   Yes, all right, what ought the owners of the strata plan to have done?  Pulled the building down or started again or move the fountain?

MR GORMLY:   There were very many options. No, I think that the fountain was just a red herring in this case in the end, your Honour.  It was just a cause for her not seeing the step on the way out.  The options ‑ ‑ ‑

KIRBY J:   You are not going to suggest a sign.  Justice McHugh and I had our views in Woods.  We were in the minority, as we often were.

MR GORMLY:    No, no signs, your Honour.  A sign would be a disaster. There are three options your Honour.  One was to paint the edges of the step.  Another was to ramp it, just as had been done on other floors.  A third was to erect a railing or some pot plants or any visual cue that would have ‑ ‑ ‑

KIRBY J:   But there is a suggestion that there was some modification of the edge of the step.

MR GORMLY:    No, what that was about, your Honour, is that the tiling was a consistent type from the door all the way out, but there was a strip along the edge of the step that was different in texture and colour, so that one could see a strip if one saw it ‑ ‑ ‑

KIRBY J:   The High Court of Australia would be sitting there hearing an argument as to whether there should have been an extra row of tiles or something extra to this indication.

MR GORMLY:    No more should your Honours have had to do that than the Court of Appeal should have done it.  It was found by Judge Garling at the time that there were some visual cues there, but on the way out it was not sufficient for someone to see it.

McHUGH J:   But, Mr Gormly, error on the part of intermediate courts has never been regarded by this Court as itself a sufficient reason to grant special leave.  We can only grant special leave in 50 or 60 cases a year.  That is all we can hear and we have to take on cases that affect the nation.  We cannot be dealing with cases concerning questions of fact.  They have to stop in the intermediate courts of appeal except in very exceptional circumstances.

MR GORMLY:    Your Honour, the application that we bring here is not one that relates to whether or not the step was marked or whether it was visible.  The application that we bring is based on the fact that the Court of Appeal resorted at almost every point in its analysis to the conduct of Mrs Ross in determining whether or not the defendant had breached its duty.  They said the step could have been visible through the doors.  Mrs Ross says, “I didn’t see the step because of the glare in my eyes”.  Now, your Honours, that was analysed by the Court of Appeal as being a case of obvious risk that emerged from some failure on the part of the plaintiff.  In our respectful submission, your Honours, even in a time of change in this area of the law, that is not a possible or permissible analysis of a defendant’s breach.

McHUGH J:   I hold the view that defendants have to look forward, not backwards.  So the particular facts of the case usually provide no guidance on whether there was a duty or a breach of a duty.  The question is, what should have been reasonably foreseen.  “Foreseen” is the operative word.  But accepting that, Mr Gormly, the fact is that in the end for you to succeed you would have to persuade this Court that the defendant was negligent.

MR GORMLY:    Well, your Honours ‑ ‑ ‑

KIRBY J:   We would be sitting there listening to a long argument about an extra strip.  It is not very promising.

MR GORMLY:    Your Honours would not have to do that because in this case the defendant bought along its own expert, having served a report that said exactly the same thing, and in that report was a concession that the step was hazardous.  That, I would submit, your Honours, is the end of that.  That was the way Judge Garling looked at it.  He looked at the surrounding facts.

McHUGH J:   But the fact that it is hazardous is only the first step in the inquiry.  As I said in Dovuro’s Case, and other judges have said in other cases, doing nothing is sometimes a reasonable response to the existence of a risk.

MR GORMLY:    That must be, I respectfully say from here, correct, but in this case one follows through the steps.  It was impossible, we would submit, to accept the view that a step that could not easily be seen in an area accessed by the public on a regular basis did not call for action by the defendant.  Judge Garling at first instance considered all of those factors and thought the same thing.

KIRBY J:   Well, I understand that you have struck some blows both in your oral argument and in the written submissions.  If I were sitting in the Court of Appeal I am not sure that I would have taken the same view but, as Justice McHugh has said, we have to be prudent in the choice of the cases.  We have to be prudent in the cases that tender an issue of general importance and this seems to be just an issue about whether some line or extra mark should have been on this particular step.  I can see the argument for it but it is not a general issue of importance.

MR GORMLY:   Your Honours, if we just set the step aside for the moment and look at what the Court of Appeal did.  Here, your Honours

have Vairy and Mulligan still outstanding, but the question of the role of a plaintiff in a breach of duty is a live issue at the moment.

KIRBY J:   It is, and I am sure we have granted special leave in a case – there is an article by Mr Mellard that says this is a growing problem of lifting up the contributory negligence into the duty and we are very conscious of that and that has to be knocked on the head.  Unfortunately, some of it started in some observations that I made in Romeo.  I wish I had never said them, but we will have our chance to deal with that in a case where it can lead to a different result.  I am not convinced that that is so here.

MR GORMLY:    Even that question, which I accept we have actively raised in our submissions, even if we put the question of contributory negligence aside - and we do look at the comments that your Honour made, but not just your Honour, New South Wales Parliament as well in the Civil Liability Act - if we look at the question of what conduct is to be addressed on the plaintiff’s side before assessing breach, there is unquestionably a rising view that there must be some degree of reasonableness on the part of a plaintiff.  Now, we say, your Honour, that this case is extremely useful for dealing with that question because, first of all, they are very good facts but, secondly, the Court of Appeal have, we say, marched into that area in an unequivocal way and they have said you have to look at the plaintiff’s conduct - nothing to do with contributory negligence here - for the question of breach.  We say that that (a) must be permissible at common law; but (b) it undermines section 9 of the Law Reform (Miscellaneous Provisions) Act.  It stops it operating.

KIRBY J:   Well, historically it came from those words of Justice Willis in Indermaur v Dames, as Justice McHugh pointed out the other day, “that he, taking due care for his own safety,” and that has led to this.  There is a sort of qualification on the duty of the defendant but we have moved beyond Indermaur v Dames now.

MR GORMLY:    But we have not moved beyond express words that speak of the unreasonableness of a plaintiff in a statute of the New South Wales Parliament.  That Act says that the court must take into account the unreasonable behaviour of the plaintiff in the assessment of breach.  We say that is a very important point, your Honours.

KIRBY J:   According to New South Wales.

McHUGH J:   Thank you, Mr Gormly.  We need not hear you, Mr Maconachie.

We have said before that it is necessary to be careful of confusing issues of duty and breach in negligence law and the issue of a plaintiff’s suggested contributory negligence, particularly by the use of expressions such as “obvious risks”.  Other cases may afford the Court an opportunity of elaborating on these issues.  However, we are not convinced that there are reasonable prospects of success on the facts of this case to warrant a grant of special leave to appeal from the judgment of the Court of Appeal of the Supreme Court of New South Wales.

The appeal is against the order of the court, not against its reasons as such.  We are not satisfied that a grant of special leave in this case is warranted.  Accordingly, special leave must be refused and refused with costs.

AT 10.01 AM THE MATTER WAS CONCLUDED