Tombleson v Cafest Holdings Pty Ltd

[2004] HCATrans 225

[2004] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S467 of 2003

B e t w e e n -

JULIANNE TOMBLESON

Applicant

and

CAFEST HOLDINGS PTY LIMITED T/AS SKATEPLUS

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 JUNE 2004, AT 12.30 PM

Copyright in the High Court of Australia

MR G.T.W. MILLER, QC:   May it please the Court, I appear with my learned friends, MR C.M. COOK and MR T.T. TO, for the applicant.  (instructed by Lyons & Lyons)

MR C.R.R. HOEBEN, SC:   May it please the Court, I appear for the respondent with my learned friend, MR M.J. HEATH.  (instructed by Colin Biggers & Paisley)

KIRBY J:   Yes, Mr Miller.

MR MILLER:   Before I commence, your Honour, I shall not be that long because we have put in written submissions including submissions in reply.  Might I just inquire, respectfully, whether your Honours have the submissions in reply and also an extract of trial transcript which hopefully is with that?

KIRBY J:   We received some additional material, I am not sure that I have the submissions in reply.

MR MILLER:   My learned friend graciously permitted us to file them somewhat out of time.  They were filed on 14 May 2004.

KIRBY J:   Just excuse me.  We will stop the clock for a moment.  I do not think I received these or if I did I have not read them.  This is the Whisprun and Fox v Percy and so on point.

MR MILLER:   It does that in the first part.  It then ‑ ‑ ‑

KIRBY J:   We are very familiar with those cases.  Justice Callinan and I are the most sceptical in this Court about the so‑called ability of judges to tell truth from falsehood by appearance.

MR MILLER:   We had to bring them up to date with one additional aspect.  There appears to be some error in some of the dates of the reports, but I will develop that ‑ ‑ ‑

KIRBY J:   Do not worry about that.  We are dealing here with an issue of principle.

MR MILLER:   At page 3 and following we address the respondent’s submissions and critically, at paragraphs 17 and following, we address what we submit are the critical findings in the majority judgment of Mr Justice Meagher at the application book 56, paragraph 18.

KIRBY J:   We will start the clock again now.

MR MILLER:   Your Honours, therefore, appreciate that in general our contention is that there are matters of general and public importance, firstly relating to the role of intermediate appellate courts ‑ ‑ ‑

KIRBY J:   On that point it seems hardly likely, after all we have said in all these cases when ultimately there is nothing much that you can say except that they must discharge their Warren v Coombes obligation, but they must do it in a way that is respectful of the right of the trial judge to prefer particular witnesses against others, especially when that is the only way of resolving a factual contest.  So I do not think you are going to get yet another - I think we have had about seven of the cases in the last two years.

MR MILLER:   I apologise for that, your Honour.  Your Honour will appreciate that when these submissions, the principal submissions, were written Shorey was decided in March 2003.  At the time the Court of Appeal gave its judgment, Fox v Percy had, on the dates of the judgments, been apparently delivered in which Justice Callinan had expressed doubts about Devries.

KIRBY J:   Yes, I have the same doubts as Justice Callinan, but in the end you have to acknowledge a trial judge plays an important role and an appeal court plays an important role and an appeal court is not, in relation to a trial judge, in the same mode as it is in relation to a jury.  It has reasons, it has the logic of the case, the detailed facts and it has its own duty to fulfil, vide Warren v Coombes. 

MR MILLER:   No dispute about that, your Honour.

KIRBY J:   There is nothing really new in this.  It has been a thing that has been said, as I pointed out, in SRA since the middle of the 19^th century, so I do not think you are going to get up on that ground.  I think you are going to have to show that there are some – I must say, with all respect, I do not think Justice Meagher should have said that the trial judge obdurately refused to address himself to Woods v Multi-Sport.  He may have got it wrong, but I do not think that is a ‑ ‑ ‑

MR MILLER:   We address that, in brief, with the utmost respect to his Honour, at paragraphs 21 to 24 in those submissions I have just taken your Honour to.  Woods v Multi-Sport had just been decided and I appeared at trial.  We drew the trial judge’s attention to it and, with respect, we submit that his Honour, the trial judge, directed himself to it in some detail.  That is a matter for your Honours.  There are two remaining issues then.  One is the role of what I will refer to as disclaimer signs and then the justice of the particular case.

Your Honours, on the question of disclaimer signs, and I can do no more than point to anecdotal evidence, this judgment of the Court of Appeal has attracted particular interest amongst members of the District Court of New South Wales as one could appreciate that it would ‑ ‑ ‑

CALLINAN J:   I am surprised.

MR MILLER:   Because they circulate their judgments and we would submit that this was a detailed, reasoned judgment ‑ ‑ ‑

KIRBY J:   I hope your survey will circulate my comment that I think it is unfortunate that that statement was made.

MR MILLER:   And, indeed, additionally, a synopsis of the judgment was reported in the New South Wales judgments bulletin - your Honour will recall that little book that comes around.

KIRBY J:   Yes, I read it.

MR MILLER:   It is our submission, in general terms, that if the decision of the Court of Appeal on this question of what I will refer to as signs - and I will come back briefly – I appreciate your Honour’s time ‑ ‑ ‑

CALLINAN J:   It was not just signs, was it?  It was the most obvious risk of all.  A three‑year‑old child knows that if you go skating and you are a beginner you are at risk.  Life is full of risks, but this is a risky recreational activity to be undertaken by a woman for the first time.  How old was she?

MR MILLER:   She was in her thirties.  We are not suggesting that she was not aware of the fact that someone could fall over, and that was so found by the trial judge, but she did not appreciate that if you did not have protective equipment and you fell over you could be damaged in such a severe way as she was.  The risk of such a serious injury was well known to Ms Weber, the proprietor, not known to the plaintiff.  So much was found by his Honour.  His Honour found both witnesses to be truthful and he ‑ ‑ ‑

KIRBY J:   See, the problem is in Woods there was a suggested hidden problem that the porous nature of the ball in indoor cricket had a risk of moulding itself to the eye of the player.  That convinced Justice McHugh and myself to the view that that hidden danger should have been drawn to notice, but here there is nothing hidden about the risk of falling over from skating in this way.  It is a very clear risk.

MR MILLER:   What one can do to guard against the risk of serious injury that can follow if one falls over as was found here, if one is a woman skater, and they particularly have a propensity to fall backwards, when they do they put their hand out, and they can sustain such serious wrist injury and the very items that can be used to guard against that, in effect, are kept under the counter and not displayed.  Justice Meagher, in his judgment, said that, in effect, the finding by the trial judge that there had been secreted – can I take your Honours back to that passage, AB 55, line 40.  After referring to evidence which had been given by Dr Kuah in which he, Dr Kuah, had said:

injuries are inherent in in-line skating (which is the apparently fashionable term to describe what the plaintiff was doing);  that this is so because of the way in which skaters fall -

Then the next paragraph, paragraph 13:

His Honour’s reasons for finding for the plaintiff are, I think, best encapsulated by the following passage -

and then that is quoted.  Then his Honour Mr Justice Meagher in his judgment said this:

This rather scrambled passage really is no substitute for a considered legal analysis of the facts in question.  It contains a false assertion about the concealment of the wrist guards. 

With respect to his Honour Mr Justice Meagher, it did not.  There was no suggestion by the trial judge that no assertion, and certainly no false assertion about the concealment of the wrist guards.

CALLINAN J:   There was a sign, was there not, “Wrist guards available”?  Is that right?

KIRBY J:   Available for hire, I think.

MR MILLER:   “Protective equipment available”.

CALLINAN J:   What would protective equipment be available for if it were not available to guard against inherent risk?

MR MILLER:   Your Honour, and I say this with the utmost and greatest respect, that is profound hindsight. 

CALLINAN J:   No.  Why would you have a sign “protective” unless there was something, a risk, to be protected against?  It is a risk guard, is it not, to protect against an injury to the wrist.  There is the inherent risk.  With all due respect to the learned trial judge, to say that the existence of the sign says nothing about the inherent risk of the injury is nonsense.  It has to be for a purpose and the purpose is to warn or advise or at least to make known that there is something to be protected against.

MR MILLER:   That is the very thing that the trial judge found that the displayed signs did not specify, namely, what were the ‑ ‑ ‑

CALLINAN J:   I disagree.  It is a matter of interpretation of the sign.  It is not as if it is a factual question.  I can read the sign just like anybody else can and give it meaning. 

MR MILLER:   Your Honour, and I am assisted by my learned junior, it says nothing about the special risks to women skaters which were acknowledge by Ms Weber, namely, that they have a propensity when they fall over to fall over backwards and put their arm out.  It may well be that they did not engage in rugby.  It may well be that they did not know how to fall.

CALLINAN J:   I have fallen over, too, on my back and I have put my arm out.

MR MILLER:   I have done a lot of it, too, your Honour.

CALLINAN J:   Really, this is kindergarten stuff, Mr Miller, to suggest that there is something remarkable or unforeseeable and that a person would not know about it, I find very unconvincing.

KIRBY J:   Even I, who are the most sympathetic to this view ‑ ‑ ‑

MR MILLER:   Your Honour is renowned for your sympathy.

KIRBY J:   I once, and only once, went skating in the Glacierium in the old days when it existed and never again.

MR MILLER:   But, when your Honour fell over there ‑ ‑ ‑

KIRBY J:   Constantly, repeatedly, uncomfortably.

MR MILLER:    ‑ ‑ ‑ your Honour had, with respect, one would thought a soft landing and a landing on a different surface.

CALLINAN J:   Mr Miller, we would all be better off if we went on the skating rink dressed up like American gridiron players.

MR MILLER:   This was a woman who had a background in safety.  She went and declared - your Honour, if they had done what they did after the event we could not be hurt.  After the event they erected signs to point out that there was a beginners’ area.

CALLINAN J:   If I had been before the District Court of New South Wales I would be taking extra precautions too, afterwards, I must say.

MR MILLER:   Indeed, your Honour, having practised in Queensland, you would want to do the same too.

CALLINAN J:   I have practised here too, Mr Miller.

MR MILLER:   I have practised there, too, your Honour so it is not ‑ ‑ ‑

KIRBY J:   His Honour appeared before me on a famous occasion here.

MR MILLER:   It is not confined to New South Wales, your Honour.

CALLINAN J:   The District Court of New South Wales seems to me to be very sympathetic to plaintiffs, Mr Miller.

KIRBY J:   Some other courts are less sympathetic.

MR MILLER:   Well, this particular judge, with respect, should not be given that appellation.

CALLINAN J:   We see cases from every District Court or County Court in Australia.

MR MILLER:   Could I just say what they could have done, namely, what they did afterwards.  They drew attention to the fact that there was a beginners’ rink and they did that by a sign.  The beginners’ rink had a carpet on it.  It did not have a cement floor.  They had a system, according to Ms Weber, which was not in place, namely, that persons who declared themselves to be beginners could be advised that they could undergo lessons, they should be assisted.  This lady went up and said, “I have no familiarity with it.  I am a beginner.  What do I need to know?”  With respect, there is nothing that should be held against her for so declaring, it was quite right and proper that she did, and what she was told was, “You will need in-line skates, that is all you need”, and she was accepted on that.  The persons who were the attendants at the time, Ms Weber admitted, were known to her.  They were not called, therefore, the plaintiff’s version, quite properly was accepted.  Since this event those particular signs to which I have made reference were employed and, in addition ‑ ‑ ‑

KIRBY J:   We all know, and I know it is very helpful forensically and used to be tremendously helpful before juries, but care and new procedures after an accident does not mean negligence before an accident.  It means that the matter has come to light.

MR MILLER:   Your Honours, if this judgment is not revisited, what it means is, in effect, that a person who is an operator for commercial purposes of a sporting venture such as this, who is in a position of knowing what the risks are, need do no more than erect a disclaimer sign in general terms that it is a risky business and that is it.

KIRBY J:   Well, that may follow from Woods.

MR MILLER:   But it does not, with respect.

KIRBY J:   I mean, I said what I said in Woods, but the Court has spoken on this.

MR MILLER:   In New South Wales, of course, most injured persons now are left to their own devices.

CALLINAN J:   Unfortunately, that might be a consequence of over generosity by the courts over a long period of time.  It may not have done the community any favour.

MR MILLER:   Will your Honours hear me in this regard and I will be very brief.  Can I take your Honours to the central issue of Mr Justice Meagher’s judgment at AB 56, line 45.  Each of those matters, we submit, when the trial judge’s judgment is examined, do not stand up. 

KIRBY J:   Which paragraph?

MR MILLER:   The four items at paragraph 18:

The defendant, by its notices, told all its patrons that there were risks involved in the activities it promoted -

Yes, it did, in general terms.  We pause there.  The trial judge accepted as a fact that the applicant before this Court did not see those notices and the reason for not seeing them was accepted by his Honour as being reasonable under the circumstances.  Secondly, it:

provided protective clothing which was available on request to deal with those risks –

Pause there, she asked the attendant was there anything else she needed to know.  The attendant, representing the hirer who hires equipment out for reward, was in the best position of saying, “Yes, you can hire some wrist guards”, et cetera, and her evidence was that had she known of them, that they were available for hire, she would have hired them.  Thirdly, that it had a beginners’ rink.  The trial judge accepted her evidence that she did not know that the area in question was a beginners’ rink and, indeed, that is not surprising.  Can we take your Honours to the extract of trial transcript.  On that particular question the plaintiff was cross‑examined, transcript 61 at paragraph H:

Q.       You didn’t take the opportunity to go to the enclosed area on the right‑hand side of exhibit A -

that was a plan -

marked beginners’ area, did you?
A.       No, because I didn’t know it was a beginners’ area.

Q.       Well that was the assumption you made, isn’t that correct?
A.       Right, right.

Q.       There was nothing to say that you couldn’t go in that area?
A.       There was nothing to say it was a beginners’ rink.  There was no signage.

I will come back to the signage in a moment.  We see from this transcript over a couple of pages, signage was subsequently erected.  Then there was an argument about the relevance of this material.  Down at the bottom at paragraph T:

Mrs Tombleson, you could have gone down to that area, the area marked beginners’ area on exhibit A, couldn’t you. 
A.       Now I believe I could.  At the time I thought it was for small children.

Q.       That was an assumption you made?
A.       That’s right.

Q.       There was nothing saying that you could not go into that area, was there?
A.       There was no signage, no.

I can take your Honours to the other finding where it was, as I say, carpeted.  There was further cross‑examination on the next page and down at R:

Q.       I understand you say that, but you’ve gone in – I’m talking about the area marked beginners’ rink area?
A.       Right, yes.

Q.       It’s a more confined area?
A.       Yes.

Q.       You could have gone to that area to get [your] skate legs, if I can put it that way.
A.       I understand that now, yes.

Q.       Well you could have gone then?
A.       I understand that now but I didn’t realise at the time.  I thought it was for small children.

Next page where Ms Weber was being cross‑examined, at the top of 119E:

Q.       As at 13 March 1999, there was nothing by way of signage to indicate that was a beginners’ rink, was there?
A.       No. 

Q.       Since then, I think, there has been a sign put up to indicate that it is a beginner’s rink, is that correct?

. . . 

Q.       Amongst other rules, yes.

And then there was further debate.   His Honour observed, down at paragraph T, that Ms Weber - there was a flurry of objections and we put why we were putting it, that:

there is signage which indicate that the beginner’s rink is a beginner’s rink and she said, or words to the effect, yes, that is now the position.

She accepted it now.  And then further questioning after debate on this matter on the following page, 120:

No ma’am I asked this question of you or words to this effect, that since 13 March 1999, the beginner’s rink is so designated by a sign that is shown there and I think to that you answered yes, is that correct?
A.       That’s not the only thing on the sign, but yes.

Q.       There is some other information on the sign?
A.       That’s right.

Q.       Can I take you back to the 13 March 1999.  The beginner’s rink, what was the surface of the beginner’s rink?
A.       Painted concrete.

I thought it was carpet but, indeed, it was a smaller area not given over to – and this question, the next page, 128, H to L:

And I draw your attention to a sign which reads, “Are you a beginner skater, assistance available during all public skating times, please ask at the counter”.  That’s a new sign, isn’t it?
A.       Yes.

KIRBY J:   I can only repeat the fact that people do things after accidents happen.  It does not prove that they were negligent in not having done them before.

MR MILLER:   I appreciate that, your Honour.  If I can go back to what ‑ ‑ ‑

KIRBY J:   I am afraid your time has expired.  Is there anything important that you want to add to what you have said?

MR MILLER:   All that I want to say, your Honour, is that each of the other findings of fact, so found by his Honour Mr Justice Meagher, the remaining ones at AB 56, line 45 and following, are in conflict, and in direct conflict, with the findings of fact made by the trial judge.

CALLINAN J:   They are inferences, a lot of them. 

KIRBY J:   Mr Hoeben, the Court does not need your assistance.

The applicant presented this case as one involving a departure by the New South Wales Court of Appeal from settled principles governing that Court in appeals from the judgments of judges sitting without a jury, in this case, a judge of the District Court of New South Wales.  We do not consider that there was any such departure.  The principles governing such appeals have been stated and restated in many recent decisions of this Court:  see, for example, Fox v Percy (2003) 77 ALJR 989; Shorey v PT Ltd (2003) 77 ALJR 1104; Joslyn v Berryman (2003) 77 ALJR 1233; and Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598.

No occasion arises for this Court to return to that well‑ploughed field.  In the application of those principles, we do not see any departure in the substance of what the Court of Appeal said in this appeal.

In Agar v Hyde (2000) 201 CLR 552 and Woods v Multi‑Sport Holdings Pty Ltd (2002) 208 CLR 460, this Court has examined closely the duty of care owed in law to participants who engage in sporting activities that, of their nature, involve certain clear risks. Again, no ground is shown to warrant revisiting those principles, including (as Woods involved) the relevance of warnings to potential newcomers to a sport.

The primary thrust of the argument for the applicant was related to the disclaimer signs that were available in this case and to the review by the Court of Appeal of the findings of fact made by the trial judge.  The risks of falling in rollerskating were clear risks.  It was open to the Court of Appeal in the discharge of its appellate functions to find, within the authorities that have been mentioned, that the provision of a different, better, more specific or more detailed sign was not needed to avoid liability in negligence. 

As the respondent points out, in its written submissions to this Court, the more information that a party places on the sign, the less likely it is that the sign will be read.  We leave aside the question of whether wearing wrist guards (of the need for which the applicant says she should have been warned) would, in any case, have prevented the injury to the applicant.  This was a matter which the respondent wished to contest.

The objections to the findings of fact made in the Court of Appeal are not convincing.  Most of the matters which were found were inferences drawn from the facts on the record.  They were available to the Court of Appeal in performing its appellate function under the Supreme Court Act 1970 (NSW).

What I have so far said is the opinion of the Court.  I wish, however, to indicate that in my view it was inappropriate for the learned Judge of Appeal, who gave the reasons of the Court of Appeal, to refer to his Honour the trial judge having “obdurately refused to address himself” to the decisions of this Court in Agar and Woods.  I have closely examined the trial judge’s reasons.  His Honour referred at some length to the decision in Woods.  I see no indication that he refused to address himself to what this Court said there. 

Judges can err, as we all have done from time to time, in the application of the legal principles established by this Court.  That is not a reason for appellate judges to accuse other judges of “refusing” to address themselves to those principles.  I would say the same about the comment in the judgment of the Court of Appeal about the “scrambled” reasons of the trial judge.  I do not believe that that was a justified comment.

The order of the Court is that the application is dismissed.  It must be dismissed with costs.

MR MILLER:   If it please the Court.

KIRBY J:   The Court will now adjourn until 2.15.

AT 12.58 PM THE MATTER WAS CONCLUDED