Tait v Town of Mosman Park

[2006] HCATrans 255

[2006] HCATrans 255

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P34 of 2005

B e t w e e n -

DIANE TAIT

Applicant

and

TOWN OF MOSMAN PARK

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 MAY 2006, AT 12.26 PM

Copyright in the High Court of Australia

MR A.C. McINTOSH   If the Court pleases, I appear for the applicant.  (instructed by the applicant)

MR J. ELLER:   If the Court pleases, I appear for the respondent.  (instructed by John Eller)

KIRBY J:   Yes.  Thank you.

MR McINTOSH:   I wonder if the Court has the proposed supplementary submissions?

HAYNE J:   Yes.

KIRBY J:  Yes.

MR McINTOSH:   The proposed supplementary submissions were filed because a new point of importance has arisen, that is, the special leave point is resolving the differences in the Court of Appeal in New South Wales and the West Australian Court of Appeal.  Now, the starting point are the facts.  On the first page of the submissions we would refer to the hole in the ground.  The Court will notice that the dimensions are very, very similar.  The Court of Appeal, when looking at those measurements, considered that was a trap.  The West Australian court considered it was unevenness.

How the court saw the problem – the West Australian Court of Appeal - was the problem.  Those dimensions are a perfect trap for a foot on a playing field.  It is the right size for a trap, in our view.  The error of law of this new grounds of appeal can be expressed this way, that the Court of Appeal failed to assess the applicant’s ability to “appreciate the danger”.  The words I use refer to the Occupiers’ Liability Act, section 5(4)(f).  Quite deliberately I have chosen those words.  The word “trap” is probably not the best descriptive word to use but, as I said, they were the words of the New South Wales Court of Appeal.

KIRBY J:   Yes, but it is a hole in the middle of a park area.  It is not, as it were, a hole that is in a domestic dwelling or some place of regular human resort.  It is just in the middle of a local suburban park, as I understand it.

MR McINTOSH:   Yes, but, the second ‑ ‑ ‑

KIRBY J:   I realise you say that you were paying money to use the park and that you were doing that regularly.

MR McINTOSH:   Yes, a contractual liability.  This is a point which the Court of Appeal overlooked quite strikingly.  There was no mention ‑ ‑ ‑

KIRBY J:   What is the point you say the court overlooked, that you were paying the money?

MR McINTOSH:   The circumstances of the entry – the circumstances of the entry being the paying of the money.  Now, we can appreciate how they overlooked the point because Justice McLure referred to the fact that why single out 11 October.  The reason for singling out 11 October was that was the start of the implied contract.  Justice McLure said ‑ ‑ ‑

KIRBY J:   In Justice Wheeler’s reasons on page 38 there is a summary of the Commissioner’s findings that:

the T‑ball club pays the defendant about $880 a year for the use of the oval.

MR McINTOSH:   I am sorry, your Honour, it is not ‑ ‑ ‑

KIRBY J:   So, it is not true that the Court of Appeal did not know of that fact or did not refer to it.

MR McINTOSH:   I am sorry, your Honour, it is a bit more refined than that.  It was not the use of the oval.  It was a specified area on part of the oval at a specified time and date.  Now, there is nowhere the Court of Appeal had appreciated that point.  It was lost in the Court of Appeal.  They did not appreciate that a contractual liability arose.

KIRBY J:   It sounds like a factual point of distinction and maybe if I were in the District Court I would take the point and in fact the District Court judge accepted your arguments, but we are here to consider whether the Court of Appeal of Western Australia erred in the approach that it took to the case, so we are not here to retry the facts as such.

MR McINTOSH:   Certainly not, but where this sort of problem was that it did not appreciate that the applicant could not assess the danger.  It was a trap.  This is the key point of the appeal is that the Court of Appeal described it as unevenness but it was a trap.  Why it was a trap was because of dimensions but also because it could not have been seen from afar, it only can be seen from atop.  Now, that is the starting point of a difference of opinion with the New South Wales Court of Appeal and the West Australian Court of Appeal, the way they characterise ‑ ‑ ‑

KIRBY J:   If Justice McHugh were here he would say to you that you cannot build the law of negligence on comparison of the facts of individual cases.

MR McINTOSH:   No, but how you see the problem was the problem.  They did not appreciate that the applicant could not see the danger.  That is a requirement specified in the Occupiers’ Liability Act.  The Court of Appeal did not address its mind to that statutory requirement.  It did not refer to section (4)(f) at all.  That is an error of law.  The starting point has to be to look at the statute.  There is nowhere has the court looked at that section.  The second error of law is it did not look at section (4)(b),“the circumstances of the entry”.  They are the two big errors of law in this matter.

KIRBY J:   Where is the ground of appeal addressed to the alleged failure to refer to the statutory provision?

MR McINTOSH:   Your Honour, the original submissions need to be amended in that this point only emerged upon reading your decision in Neindorf and the correct approach.  The correct approach is looking at the statute first.

KIRBY J:   That means it has not really been raised in the trial court, nor in the Court of Appeal.

MR McINTOSH:   No, but it is a point of law which arises from the arguments from below.

KIRBY J:   It might be a point of law but points of law can often raise issues of evidence and fact that have to be considered by the court at trial.

MR McINTOSH:   This does not.  The facts are not in dispute.  The facts have been clearly confirmed and found.  There was a finding that the hole was a certain dimension.

KIRBY J:   Yes.

MR McINTOSH:   The second point I raise is looking at the end result.  In the New South Wales case there is a clear commitment to the notion of accident prevention in this sense, is that in that court what was required was a square metre by square metre inspection of the oval.  They said it could take two hours.  In our submission, that is a serious commitment to the…..notion of accident prevention.  The West Australian court does not have that same commitment in this sense.  Prior to the T‑ballers playing the game the lawns are mowed once a week.  When the T‑ballers came along they were told where to go, when to go and paid money and then at that point of time the city could have made decision about the cost burden and other factors when setting the fee of $880.

When it received the $880, the response to the risk of accident prevention was not responded to.  It was mowing the lawn once a week. They received the money, they knew exactly where and when these people were playing but did not respond to the risk.  That is the error they make, for failing to appreciate that, the conditions of entry.

The next point of difference between the New South Wales court and the West Australian court is how they deal with the probability of risk.  In both cases there was no prior accident and it was said in the New South Wales Court of Appeal that is well established that this is not determinative of the duty of care.  Now, what is well established in the court of New South Wales does not rank a mention in the West Australian Court of Appeal.  They considered ‑ ‑ ‑

KIRBY J:   Maybe it was not put to them.  Maybe their Honours did not have their attention drawn to what Justice McHugh said in Brady v Girvan and in other cases.  You have to put these arguments up so that the court can deal with them and that then tenders a sharp issue for consideration in this Court.  I am very flattered that you have referred to my reasons in Neindorf, but the fact is those reasons were written in dissent.

MR McINTOSH:   This is a better vehicle, your Honour.  In that case there was a suburban backyard.  The financial gain was indirect.  This is a case where there is direct contractual relationship and this is a situation when it should have – could have turned their minds to accident prevention when setting the terms and conditions of entry.

KIRBY J:   Yes.  We understand the facts of the case.

MR McINTOSH:   Yes.  In relation to the costs burden, the approach is different in Western Australia.  There is more of a cost sensitivity than the approach in the New South Wales Court of Appeal.  The West Australian court did not appreciate the fact that the cost burden – that this should actually be addressed when setting the fee.  Your Honours, they are the best points I have.  I will not take any more of your time.

KIRBY J:   Thank you very much, Mr McIntosh.  The Court does not need your assistance, Mr Eller.

This application concerns the application of settled principles of law to the particular facts.  The relevant law was recently reviewed by this Court in Neindorf v Junkovic [2005] HCA 75. We appreciate the points that have been made in favour of the applicant. Those points convinced the judge of the District Court of Western Australia to find a judgment in her favour. However, that judgment was set aside by the Court of Appeal of Western Australia which was unanimous in its conclusion. We can detect no error in the approach of the Court of Appeal in the discharge of its functions. We do not believe that the application enjoys reasonable prospects of success were special leave granted.

We were referred in the course of argument to the recent decision of the Court of Appeal of New South Wales in Bujnowicz v Trustees of the Roman Catholic Church [2005] NSWCA 457. However, as was said during argument, the law of negligence cannot be built on factual similarities and differences between cases. There is therefore no occasion for us to consider, in this application, the decision of the Court of Appeal of New South Wales in that case.

Special leave is refused.  It must be refused with costs.

The Court will now be reconstituted for matters Nos 6, 7 and 8.

AT 12.38 PM THE MATTER WAS CONCLUDED