Thomas, Cameron Brock BHT Doreen Thomas v Shaw

[2010] HCATrans 340

[2010] HCATrans 340

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S181 of 2010

B e t w e e n -

CAMERON BROCK THOMAS BHT DOREEN THOMAS

Applicant

and

WILLIAM SHAW

First Respondent

SUSAN SHAW

Second Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2010, AT 12.29 AM

Copyright in the High Court of Australia

MR A.S. MORRISON, SC:   May it please the Court, I appear with my learned friend, MS R. GRAYCAR, for the applicant.  (instructed by Slater & Gordon Lawyers)

MR P.H. GREENWOOD, SC:   May it please the Court, I appear with MS E.C. KENNEDY for the respondents.  (instructed by Moray & Agnew Solicitors)

HAYNE J:   Yes, Mr Morrison.

MR MORRISON:   Your Honours, the principal error of which we complain is the use of hindsight to determine the content of the duty of care in tort by reference to the individual who was injured and not to the class of persons who may be injured.  What a reasonable person would do by way of precautions to comply with section 5B(1)(c) of the Civil Liability Act must be considered by reference to the reasonableness of the conduct in relation to the class of which the plaintiff was a member and not, we say with the benefit of hindsight, by reference to the particular injured individual.

HAYNE J:   What is the class that you say was to be taken into account in this matter?

MR MORRISON:   Your Honours, the evidence accepted by his Honour Justice Kirby at first instance was, and which was left undisturbed in the Court of Appeal, that there was clear evidence of many children of varying ages visiting the home, up to 10 young people most afternoons, and they would sit up there on the top bunk.  Mrs Shaw was aware there was a degree of risk involved and in her evidence she indicated that one of the reasons for removing the ladder mandated under the Australian standard was to prevent young children from climbing up and she was aware that children would slide or jump off the bed. 

The trial judge accepted that this child was too scared to jump and try to improvise a safe means of descent and that that was a foreseeable consequence.  So that was the class of children, up to 10 each afternoon, younger and older, some of greater, some of lesser ability.  Can I take your Honours then back to what Justice Macfarlan said in the Court of Appeal on this issue.  This appears in the application book commencing at page 152.  Justice Macfarlan said in answer to a submission that the duty of care was owed to a class of persons, children who visited the home of the defendants of whom the plaintiff was one, that he did not accept the submission.  This appears in paragraph 40.  He said:

a relevant duty of care is owed to a plaintiff or to a class.  The concept of a duty being owed to a class of persons is relevant where the identity of the plaintiff is unknown to the defendant.  It is not in my view relevant where, as here, the plaintiff is well known to the defendant and a reasonable person in the defendant’s position would have foreseen a risk of injury to the particular plaintiff.

The remainder of his words in that paragraph are relevant, but he then comes back to it at 41:

Accordingly in this case the extent of the appellants’ duty is to be determined by reference to their relationship with and knowledge of Cameron.  The matters to be considered do not include the capabilities or likely conduct of other children falling within the class referred to in the respondent’s submissions.  Such other children may, for example, have been younger or less agile than Cameron.

Then his Honour returns to it at application book 157 in paragraph 54:

The question of what precautions would have been appropriate to take to guard against any risk of harm if Cameron had been asked to sleep on the top bunk, if Cameron had been younger than 10 or if the top bunk had been higher does not arise in this case.  Consideration of the magnitude of the risk and whether precautions would have been taken by reasonable people to deal with such risk must of necessity occur by reference to the particular circumstances of this case, including what the appellants knew of Cameron.

Your Honours, we say that this approach to the determination of duty and breach raises a matter of general importance for the law of torts.  His Honour’s interpretation of what was said in the well‑known words of Justice Mason in Wyong Shire Council v Shirt as to foreseeability of the risk of injury to the plaintiff or to a class of persons, including the plaintiff, we say is idiosyncratic.  To the best of our research, those well‑known words have never been used to identify reduced content of the duty of care with the benefit of hindsight in respect of an individual that is different to the content of duty to a class of which the individual plaintiff is a member.

HEYDON J:   Judge Cardozo and the Palsgraf Case say, in effect, that all duties in negligence are owed to particular plaintiffs, not to classes.

MR MORRISON:   But how that duty is to be fulfilled takes into account the risks in relation to others because otherwise, and if his Honour were correct, if, in the same instant, both Cameron and a younger child had fallen at the same time in identical circumstances there would have been a breach of duty in respect of one and not in respect of the other.

HEYDON J:   Nothing idiosyncratic or artificial about that.

MR MORRISON:   Except that we have a finding upheld in the Court of Appeal that it was a not insignificant risk, that there was causation and that finding of causation was upheld.

HAYNE J:   The findings are inevitable.  There has been an accident.  A child has been badly injured as a result.  The findings about foreseeability judged in – when you look back at what happened, of course it was foreseeable.  But what is the duty which a parent owes to a visiting child in these circumstances?

MR MORRISON:   We would say it is the duty that his Honour Justice Kirby found at first instance, a duty to take reasonable care in fulfilment of the responsibility as set out in section 5B of the Civil Liability Act.

HAYNE J:   In the circumstances of this case that entailed doing what?

MR MORRISON:   That entailed either not taking away or putting back the safety rail and the ladder required under the Australian standard with which the bunk bed had originally been fitted and in respect of which the defendant, Mrs Shaw, said one of the reasons for taking it away was to try and discourage younger children from climbing up obviously in respect of a fear for their safety.  That was the very basis of why we say it is not simply a matter of saying what was the need of this particular child, what was the degree of risk for this child?  The fulfilment of the duty depended upon looking at the risk to the class, to all the children. 

Having regard to that, rather than saying with the benefit of hindsight we know what the particular risk to this particular child was, it has got to be determined prospectively.  After all, that was the very thing that was referred to by your Honour in Vairy, by your Honour and others in Mulligan and again in New South Wales v Fahy.  It has to be determined prospectively, not retrospectively, and the use of the characteristics of the particular child rather than the risk to the class of whom the child is one makes it a retrospective application of giving content to the duty of care.

We say that is what is impermissible.  We say that it is a breach of what was said by this Court in Imbree in which the Court made clear that consistency and coherence of tort law required that a single standard of care be owed arising from the same behaviour and not a variable standard of care depending upon the circumstances of the individual plaintiff and that person’s relationship with the defendant.  The state of knowledge and abilities of the individual go only to contributory negligence and we know in this case that although the respondent ran a case at first instance that it was an obvious risk and there was a high level of contributory negligence on the part of the 10‑year‑old child, that stands ill with the position ultimately taken by the Court of Appeal in finding that the risk was so slight that although it was not insignificant within the meaning of the Act, nonetheless it did not justify action. 

What had to determine what was required of the householder in this case was not whether the risk was low or high for this particular child but rather, what was appropriate to the class of children, the 10 children a day of whom this child was one.  Given that we have causation, given that we have a not insignificant risk, we say it was a duty determined by the class and not a duty determined by the idiosyncrasies of a particular child.  Your Honours, I should say in that respect that the approach of the New South Wales Court of Appeal stands in contrast to the views expressed in the Queensland Court of Appeal in Leyden v Caboolture.  That was the BMX case. 

It ultimately failed on a volens basis, but, most relevantly, Justice Jerrard in the Queensland Court of Appeal in Leyden v Caboolture said that if two BMX riders had arrived at the track at the same time it was simply a nonsense to say that there was a differential duty of care dependent upon whether or not one of them knew about the modifications to the jumps and the other did not.  That was a matter which went to issues such as contributory negligence.  It may go to an issue of volens, but it had nothing to do with the manner in which the duty of care had to be met.  We say the Queensland Court of Appeal is correct.  We say this bench of the New South Wales Court of Appeal got it wrong and it is a matter which is quite fundamental to the way in which the duty of care is to be fulfilled in tort.  Does one look at the individual characteristics, and it can only be with the benefit of hindsight, or do we look at the class prospectively, as we say, in principle you should?

Your Honours, there are two other grounds of appeal.  We say that in respect of the Australian standard and the ACCC document in relation to the extent of the evidence, as we point out in our written submissions, in relation to 5B and 5B(2)(b), in particular, the likely seriousness or the harm is clearly an objective test.  In those circumstances, that evidence which was admitted at trial was relevant to the degree of risk of injury and the fact that there is a large number of children of varying ages who are injured by falling out of bunk beds and that that was the very reason for having an Australian standard in relation to ladders and safety rails, was admissible and was relevant then for all purposes in the case.  We say in that respect the Court of Appeal erred.  It should have informed the decision of the Court of Appeal instead of being rejected by it.

The third and final matter, your Honours, is the question of whether a mere statement by Justice Macfarlan of respectfully disagree with the primary judge’s conclusion is a sufficient and appropriate basis for appellate intervention, but ultimately the matter which we say calls for this Court to intervene is whether the issue of hindsight by focusing on the characteristics of a particular individual can be used in a way contrary to what has been said by this Court on many occasions, but particularly in Vairy, to determine how the duty of care is fulfilled.  We say that is an issue of tort law which calls out for this Court’s intervention.

HAYNE J:   Thank you, Mr Morrison.  We will not trouble you, Mr Greenwood.

An appeal to this Court would not enjoy sufficient prospects of success disturbing the orders made by the Court of Appeal to warrant a grant of special leave to appeal.  Special leave to appeal must be refused.

MR MORRISON:   May it please the Court.

MR GREENWOOD:   Your Honour has not made an order in relation to costs.

HAYNE J:   No.

HEYDON J:   We were not asked to.

HAYNE J:   Do you seek costs?

MR GREENWOOD:   I do not have instructions not to, your Honours.

HAYNE J:   Yes.  What do you say, Mr Morrison?

MR MORRISON:   There is nothing I can say about that, your Honour.

HAYNE J:   With costs.

The Court will adjourn to Wednesday, 15 December at 2.15 pm in Canberra.

AT 12.43 PM THE MATTER WAS CONCLUDED