Swincer v Robertson

[1989] HCATrans 278

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A41 of 1989

B e t w e e n -

JOSIE SWINCER

Applicant

and

JOHN PHILLIP ROBERTSON and

JENNIFER ANN ROBERTSON

Respondent

Application for special
leave to appeal

MASON CJ DAWSON J TOOHEY J

Swincer

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 NOVfilfBER 1989, AT 2.34 PM

Copyright in the High Court of Australia

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MR K.R. McCARTHY, QC:  May it please th~ Court, I appear with

my learned friend, MR M.P. JANUS, for the applicant.

(instructed by Ross & McCarthy)

MR D.A. TRIM: May it please the Court, I appear with my

learned friend, MR D.H. GREENWELL, for the respondent.

(instructed by Andersons)

MASON CJ: Yes, Mr McCarthy.

MR McCARTHY: If the Court pleases, the application for the

grant of special leave arises out of the question of the

parents' liability for an injury to a child. The facts

which bring the matter before the Court are set out in

paragraph 3 of the affidavit in support of the

application, page 66.

MASON CJ: Yes.

MR McCARTHY:  And the findings of the learned trial judge, if I

can take the Court to them at page 20, line 23:

There is no doubt, as Mr. McCarthy pointed

out, that Mr. and Mrs. Robertson had assumed

complete control over Anthony whilst they

were at the home of their friends -

and further, at pages 22 and 23 of the application book,

where His Honour, after having found that the test of

reasonable foreseeability was the critical issue in
the trial, about line 28, 30, then made these findings

at the top of page 23:

But that is not the end of the matter; was it

reasonably foreseeable that Anthony would

leave the front garden and go out onto the

footpath, leave his little friends on the
footpath and cross Hardys Road, and having
crossed the road, turn around and attempt to

return? They are the findings of fact that

I have made - were all those facts reasonably
foreseeable?	I think not.

Now, the problem has arisen, if the Court pleases,

because there was no discussion in the reasons of the
learned trial judge as to whether there was, in the
circumstances, the requisite degree of proximity between
parent and child required for determining if this type

of case was in the category of cases in which the

common law of negligence recognizes the existence of

a duty to take care, to avoid reasonably foreseeable

harm or real risk of injury to another. And that was

so because of the position taken by the respondents,

as outlined at page 20 in the learned trial judge's

reasons. His Honour said, at line 10:

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Fortunately, the difficulties inherent in

any discussion of extended liability have been

avoided in this case. Mr. McCarthy Q.C. was

content to argue that the facts and circumstances

immediately preceding the accident disclosed

that Mr. and Mrs. Robertson had a duty of care

to their infant son: they disclosed, so he

said, the existence of that duty and they

disclosed that the Robertsons were in breach

of the duty. For his part, Mr. Trim, counsel

for Mr. and Mrs. Robertson, was prepared to

accept, as his first argument, that such a duty

existed but, he argued, there had been no breach

of that duty.

So that indeed the point upon which special leave is

sought did not at any stage come before the learned

trial judge. The Full Court, however, decided that it

was not ever a question of whether or not the parents had taken reasonable care because, in fact, there was
no duty, in the circumstance$, upon the parents to

take care at that stage. That point, of course, was

that they were under - it was accepted that they were under a positive duty but not under the, if I can put

it this way, the negative duty. They could not
positively commit negligence but they were not obliged

on policy grounds to omit matters which may have

prevented harm.

If the Court pleases, I have put before you

three authorities, and if I can refer very briefly,

first of all, to a case in the South Australian Full

Court, POSTHUMA AND POSTHUMA V CAMPBELL, (1984)

37 SASR 321 at page 322. I do that to briefly discuss

the decision of this Court in HAHN V CONLEY which was

decided in 1971, and His Honour the Chief Justice then

discussing that case analysed very briefly, but

in my submission correctly,the reasons of the members

of this Court on that occasion.	I take up at about
point 5:

Barwick C.J. was quite clear that the

relationship does not of itself give rise to

a legal duty of care towards the child.

And perhaps I should say the facts of HAHN V CONLEY

were these, namely that a little girl had wandered

away from her home or from her grandparents' home

through a vineyard in the Barossa Valley and called out

to her grandfather, who was the other side of the road.
He acknowledged her presence and the child then, as it

were, wandered across the road and was struck by the driver of a car. The Chief Justice continued, and I

am back to point 5:

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I think, a'lthough it is not entirely clear,

that McTiernan J. must have taken the same

view because he seemed to be of opinion that

the existence of a duty of care on the part
of a de facto custodian would depend upon

the existence of circumstances giving rise to

that duty and, by implication, not upon the

mere fact that the child was in the care of

the custodian. Menzies J., who dissented, and

Walsh J., who agreed with the reasons of

Menzies J., were of opinion that the fact that
a child is in a person's care gives rise to

a legal duty to exercise care of the child's

safety. The judgment of Windeyer J. could be

interpreted as supporting the view of

Barwick C.J. but Windeyer J. focussed on the

content·: rather than the existence of the duty

and took the view that there was no carelessness.

So that His Honour then concluded that although the

case of HAHN V CONLEY, of course, destroyed the

authority of that same case :in the Full Court, the matter

was still open.

If the Court pleases, it is our submission that

this is a most important point and calls for

consideration or, indeed, perhaps reconsideration by

this Court so that the law can be clarified.

MASON CJ: When you say reconsidered, reconsideration of what?

MR McCARTHY: Reconsidered, I suppose, if the Court pleases,

in relation to the more recent decisions of this Court,

particularly those dealing with the question of

proximity. Now, Mr Justice Windeyer mentioned that

in his judgment. His was the only discussion on the

topic - his was the only discussion which seemed to

touch upon the topic and, indeed, there was obviously

a conflict between at least four of the Judges in

HAHN V CONLEY and another of the Judges there did not

indeed actually come to the point in issue, namely

the extent of the duty of care.

MASON CJ: Let us assume for the moment that the matter were

reconsidered by this Court and the Court took, as

it were, a view that there was a general duty of care

owed by parents to their children. Why do the facts

in this case establish that there has been any breach

of the standard of care? You can look at this in two

ways: you can look at it either as a question of

existence and of duty or as a breach of a generally

existing duty.

MR McCARTHY:  If Your Honour pleases, if I can answer that in

two ways: first of all, it is not suggested that there

is no duty or never in any circumstances is there a duty,

but what has been decided here is that on grounds of

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policy parents can be liable only for acts of commission

rather than acts of omission. So my first answer to

Your Honour is this, that that is a demonstrably wrong

conclusion, with respect to the Full Court, and ought

to be corrected by this Court.

I come then to answer Your Honour's question on

the facts and as I have already put before the Court,

on the facts the parents had, and had assumed, complete control of the child on that day. They were there with him; he was in their presence; they were standing at

the door of a house with no front fence, with no view

of the somewhat busy roadway in suburban Adelaide; and

the child escaped or was allowed to go past them and

in their presence, within their sight, he wandered into

danger.

Now, in those circumstances, our submission is

that there was a clear duty on the parents to have been
aware of the child's activity and kept him away from

that danger. They failed in that duty and, in our

submission, were clearly guilty of negligence.

MASON CJ: It sounds almost like an absolute duty, a strict

liability, the way you put it.

MR McCARTHY:  I do not suggest that for one minute, if Your Honour

pleases. I mean I do not suggest that parents must be in control at all times; I do not suggest that parents are always negligent, if the circumstances are such

that they have other things they have to be doing or

could be doing, but in the very circumstances of this

case, where they are present with the child, where the

child goes past them into danger, then those

circumstances call for positive action on the part of

the parents.

MASON CJ: Yes.

MR McCARTHY: Now, the judges in the court below, as I have said,

took the position that this was a question of policy

within the second limb of ANNS' case and in my

submission they were clearly wrong in that view.

MASON CJ:  I can appreciate that part of your argument,

Mr McCarthy, because one would have thought that

Their Honours would rather have focused on the more

recent decisions in this Court instead of harking back

to ANNS' case. But still the difficulty as I see it

is the difficulty I have already mentioned to you.

MR McCARTHY:  I understand Your Honour's comment there dealing

as it were with facts, and I can indeed say no more in

relation to those facts, and of course if I can go to

that so oft quoted from Your Honour the Chief Justice

in WYONG SHIRE V SHIRT -

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MASON CJ: Yes, I am always reminded of that.

MR McCARTHY:	Dare I read it again, Your Honour.
MASON CJ:	I do not think there is any occasion to, Mr McCarthy.
MR McCARTHY:	If I may simply remind the Court of Your Honour's

words, "The perception of the reasonable man's response

calls for consideration of the magnitude of risk -

colossal risk with a young child". An unfenced yard,

abutting a busy suburban street, the degree of

probability of its occurrence, children will do anything

and stand in need of care, along with the expense,

difficulty, inconvenience of taking alleviating action.

Now, all they had to say was, "Come back, Anthony".

They were there, the child went past them and in their

sight went down the path on to the road outside.

The other conflicting responsibilities which the

defendant had, they had none. All I can say again is

that then when those matters are balanced out that in

my submission it is clear that the parents were in

breach of the duty that they owed.

If I can just then add one or two observations

on the question discussed in relation to policy by
Their Honours in the court below and take the Court,

if I may, to the question of loss distribution

referred to by the Chief Justice at pages 35 and 37.

Line 21 on page 35:

In considering whether it is justified in erecting a duty of care arising out of a

particular relationship, a Court cannot

ignore the considerations of loss distribution
in the community which lies at the heart of the

law of Torts. One is, I suppose, permitted to know that the Public Risk policy commonly used by insurance companies excludes indemnity for

legal liability to members of the insured's
family residing with him. The threat to the

financial wellbeing of parents -

et cetera. His Honour took it up again at page 37

at line 18:

I consider, however, for the policy reasons

stated above, that the duty should not be

enlarged by the Courts into a general duty to
exercise care in supervision for the protection

of the child from harm. If consideration

of such an enlargement of the duty is thought

to be desirable it should be undertaken by

parliament -

and His Honour Mr Justice Legoe, at pages 55 and 56,

and that is paragraph 2 which I will not weary the

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c.ou:rt with, of course took the opposite and, in my

submission, correct view because, indeed, in my

submission, the law is accurately set out in the

joint judgment of this Court in COOK V COOK,

(1986) 162 CLR 376 at page 385. There, in the joint

judgment, the Court referred to Lord Denning's comments

in NETTLESHIP V WESTON and concluded, about point 7,

point 8:

It is debatable whether the imposition of

legal liability upon the learner driver

would advance the purposes of the social
policy it was intended to serve in a case
where the learner driver himself sustained

injury as a consequence of the instructor

presuming that the learner driver possessed

the degree of experience and skill which the

law falsely attributed to him. Be that as

it may, the approach which those comments

depict is not one which should be adopted

by courts in this country where it has long

been accepted that it is for the legislature,

and not the courts, to decide whether

considerations of social policy make it
desirable that the traditional standards of
the law of negligence should be abandoned in

favour of a system of liability without fault.

In my submission, the learned Chief Justice in the

court below has, as it were, inverted the situation.

I should add, if the Court pleases, that indeed

my learned friend has referred me to it, the Full Court

gave judgment as it were affirming this decision on

31 October, of course there are three weeks before an

application for leave to appeal has to be made but I

mention that merely because it is a matter that is and

has been frequently litigated before the courts; it is

a matter of importance in the community and in those

circumstances my submission is that the Court ought to

grant special leave to appeal. I should have added,

in relation to the judgment of the learned trial judge -

I do not know whether I need to do that - but the trouble

to which the little boy went to put himself into danger

is not to the point in the question of foreseeability

and I will not weary the Court by referring again to

WYONG SHIRE V SHIRT.

For those reasons, if the Court pleases, I submit

there should be a grant of special leave.

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

you, Mr Trim.

The existence and scope of the parents' duty

of care towards their child is an important question.

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In an appropriate case it might well warrant a grant of special leave to appeal, notwithstanding the

decision of this Court in HAHN V CONLEY, (1971) 126 CLR 276.

But in view of the facts found in the present case, we

do not consider that there is sufficient doubt about
the correctness of the actual decision of the Full Court
of the Supreme Court to warrant the grant of special

leave.

The application is therefore refused.

MR TRIM:  We seek an order for costs, if the Court pleases.

MASON CJ: You cannot oppose that, can you, Mr McCarthy?

MR McCARTHY:	No, Your Honours.
MASON CJ:	The application is refused with costs.

AT 2.57 PM THE MATTER WAS ADJOURNED SINE DIE

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