The State of South Australia v Flavel

[2009] HCATrans 80

[2009] HCATrans 080

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A1 of 2009

B e t w e e n -

THE STATE OF SOUTH AUSTRALIA

Applicant

and

JOANNE MAREE FLAVEL

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 1 MAY 2009, AT 1.02 PM

Copyright in the High Court of Australia

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR M.R. PENHALE for the applicant. (instructed by Crown Solicitors Office (SA))

MR R.A. CAMERON:   If the Court pleases, I appear with my learned friend, MR J.B. TEAGUE, for the respondent.  (instructed by Jeffrey D Vigar)

HAYNE J:   Yes, Mr Solicitor.

MR HINTON:   The primary complaint made in this matter is that the Full Court, and in particular Justice Vanstone, erred, with respect, in its application of the Shirt calculus.  There are two subsidiary complaints set out in our written submissions - one with respect to causation, the second with respect to the interference with factual findings of the judge at first instance.  I am content to rely upon our written submissions in relation to the two subsidiary complaints.  On my feet I intend to deal only with the primary submission, namely the failure to correctly apply the Shirt calculus.  At the outset in our written submissions, we have made clear that, with respect, or conceded that there is no question of law of general importance arising in this case, nor is there a requirement to resolve differences between dealings with the Shirt calculus.  We say, in effect, that the Full Court got it wrong and that the administration of justice - the catch‑all in section 35A of the Judiciary Act - justifies this Court taking the matter so as to overturn that error.

HAYNE J:   Can I just then understand the essence of the point?  We have here pupils at a school engaged in windsurfing.  It is found in the courts below, is it not, that it was negligent to set beginners of this age in a race in the water where they were?  Is that it?

MR HINTON:   In a nutshell, yes.

HAYNE J:   Why was it not open to find that that is negligent?

MR HINTON:   The error, in our submission, arises in the course of identifying the risk.  What we had, in effect, was two windsurfing lessons.  There was no suggestion that the reasonableness of the precautions taken by the defendant to alleviate the risk of spinal injury in the first was inadequate.  So it was a matter then ‑ ‑ ‑

KIEFEL J:   Was it not critical to the Full Court’s decision that the expert evidence of Mr Todd about risk was accepted?  He was a person experienced in windsurfing and in the instruction of windsurfing and he identified the risks which the court applied.

MR HINTON:   It was critical, yes.  What he identified in effect was by introducing a competitive element there would be on the part of the windsurfer a tendency to disregard their own safety.  So the question ‑ ‑ ‑

KIEFEL J:   That is right because what he identified was something approaching racing, which he said was not for beginners and not to be undertaken in shallow water.

MR HINTON:   If your Honour pleases, her Honour Justice Vanstone does not go that far in her dealings with Mr Todd’s evidence because his understanding of racing was drawn from his position as an expert coach of – as I recall – Olympians and the like.  When it came to the characterisation of what was actually occurring on the River Murray on that day it was significantly different, and in being significantly ‑ ‑ ‑

HAYNE J:   But you put a group of schoolchildren together and you tell them it is a race – is that not what happened?

MR HINTON:   We put a group of schoolchildren together, told them it was a race, but then commenced an exercise that did not reflect, in truth, something that would allow you to effectively compete.  Justice Bleby’s characterisation of the race – and one must recall that in actual fact the windsurfers all start, not across an even line, but one after the other, so you cannot take off until the person in front of you has given you sufficient clearance.

So if you are number eight you have, in effect, no chance of catching number one unless you just stay on your windsurfer - and we are sailing in a straight line.  The only difference between the windsurfing lesson on the Tuesday and the race was just the word “race” was used and it introduced that competitive element.  So we then are required, in my submission, to look at the way in which her Honour Justice Vanstone dealt with that difference.  We concede the element of competition; we concede that that would change the risk.

HAYNE J:   Where do we most conveniently find what you say is the critical error made in the Full Court?

MR HINTON:   Application book page 54, commencing at line 10.  We have the identification by her Honour of supposedly the change in risk.  At application book 55, over the page, at about line 4, the error that she says the trial judge – interestingly, the second sentence of that paragraph of course proceeds immediately to the language of prevention, as opposed to having identified the risk which, in our submission, with respect, her Honour never actually truly does.  Having identified the risk she should then have gone on to characterise whether or not the response was reasonable to that risk.

Of course, as your Honour Justice Hayne was at pains to point out in Vairy’s Case, that was to be judged prospectively.  What was there now about the risk of falling that was not there in the first lesson that meant that the precautions which were adequate, which were reasonable for the first lesson, were no longer reasonable?  Her Honour never tells us.

He does not, in my submission, approach the task in accordance with the Shirt calculus.  This Court has been at pains to point out the duty of care is discharged by the exercise of reasonable care, not prevention, and you will see again at paragraph 57, application book 55, her Honour moves immediately to the language of prevention, at about point 5 of that paragraph:

the obvious response to the increased risk was to obviate it by not instructing the students to race.

That is true, but what she was required to do in applying the Shirt calculus was to determine whether or not the response that the State had made was reasonable, judged prospectively against ‑ ‑ ‑

KIEFEL J:   But there was not any response, was there?

MR HINTON:   There was, if your Honour pleases, in that – there was no difference, I am sorry, your Honour, between the first lesson and the second but sometimes, as this Court again has pointed out, the reasonable response is simply to do nothing and the question was ‑ ‑ ‑

KIEFEL J:   But is it not to be inferred from the expert’s evidence that the only reasonable response was not to do the very thing that they were undertaking?  That was the only reasonable response.  Therefore, it is understandable that Justice Vanstone did not feel it necessary to state the obvious.

MR HINTON:   With respect, when one takes into account, or one accurately characterises the risk and considers the magnitude of the risk – because again we are talking about a risk of a spinal injury, and the evidence as to spinal injuries in windsurfing disclosed that there had only been one in 20 years and the circumstances in which it occurred was unknown.  There had been many injuries in windsurfing but they were predominantly lower leg or shoulder injuries and there were precautions taken against those injuries.

So we come back to introducing that element of competition in the context of that race.  Was it such that the precautions already taken were inadequate?  Her Honour, in my submission, never asked herself that question, never applied the Shirt calculus correctly.  It is on that basis, and in particular impugning paragraph 57 of her judgment, that the applicant seeks special leave in this case.

If the Court pleases, had her Honour followed the course of action prescribed in the authorities since Shirt, such as Fahy, Vairy and Dederer, then in our submission she would arrive at a position where the precautions were reasonable, having regard in particular to the magnitude of the risk viewed prospectively.  If the Court pleases, those are my submissions.

HAYNE J:   Thank you, Mr Solicitor.  We will not trouble you, Mr Cameron.

The respondent was seriously injured whilst participating in windsurfing lessons organised by her school.  On appeal to the Full Court of the Supreme Court of South Australia she obtained a judgment for damages to be assessed.  The applicant for special leave challenges the Full Court’s findings as to breach of duty and causation.  No question of law of general importance is raised.  The grounds for special leave are directed to challenges to the Full Court’s assessment of the facts and the expert evidence about those facts and the application of settled principle.

In our opinion, there is no basis shown for a grant of special leave.  Special leave, accordingly, is refused.  It must be refused with costs.

The Court will adjourn briefly to reconstitute.

AT 1.13 PM THE MATTER WAS CONCLUDED