Tremeer v City of Sterling

[2006] HCATrans 583

[2006] HCATrans 583

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P12 of 2006

B e t w e e n -

GAVIN JOHN TREMEER

Applicant

and

CITY OF STERLING

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 26 OCTOBER 2006, AT 9.31 AM

Copyright in the High Court of Australia

MR B.W. WALKER, QC:   May it please the Court, I appear with my learned friend, MR K.J. BRADFORD, for the applicant.  (instructed by Bradford & Co)

MR J. GILMOUR, QC:   If it please the Court, I appear for the respondent together with MR D.M. McKENNA.  (instructed by Jarman McKenna)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, the Chief Judge of the District Court reviewed a deal of expert evidence, both medical, engineering and so‑called bioengineering, in relation to the quadriplegia suffered by our client for which he was ordered to be paid substantial damages at trial.

That outcome was reversed on appeal because of findings not about negligence, nor about the contribution to the risk constituted by the defendant’s conceded failure to carry out warranted precautions, but rather because it was held that the defendant had, upon the appellate review of the material considered by the trial judge, discharged the onus of showing that on the balance of probabilities the outcome was no worse as actually suffered by the plaintiff than it would have been had the defendant carried out that which was required by the duty of care.

GLEESON CJ:   The key paragraph in the Chief Judge’s reasoning appears to be paragraph 170 on page 38.

MR WALKER:   Yes, there is, of course, a context to that.  There are conclusions in there and they are necessarily only as exact or precise as the material before her Honour permitted.  Particularly the last sentence of paragraph 170 indicates that.

GLEESON CJ:   I am just wondering how you can reconcile what she said in the last sentence on paragraph 170 with what appears about Mr Scull in the second sentence on page 78, paragraph 61, and in paragraph 66 on page 79, which, according to Justice McLure, was unchallenged evidence.  I am just wondering how the Chief Judge dealt with that.

MR WALKER:   The Chief Judge in particular dealt with that – if one goes back to page 36 of the application book, paragraphs 163 and following, there are passages quoted by her Honour.  The last sentence of the first passage says that which common sense would probably have informed the court in any event:

factors such as the quality and composition of the sand, its compaction and its moisture content –

et cetera.  Then in the next passage, paragraph 164, there is the second sentence, “One cannot exclude the possibility”.  That is a possibility, of course, which showed that there was a range.  The first sentence shows it might have been better; the second sentence showed it might have been worse.  They are obviously equivocal possibilities rather than possibilities showing that a balance of probabilities has been satisfied for what actually did occur.  Then there is the passage that follows in that extract about line 28 on page 36, after which her Honour turns – and this is in answer to the Chief Justice’s question – in paragraph 167 to the oral evidence‑in‑chief. 

Now, that picks up what the Chief Justice has referred to in paragraph 61 of Justice McLure’s reasons and this is how the trial judge dealt with it.  There is then a quotation which repeats that you cannot exclude either end of the range of possibilities.  I emphasise that range of possibilities includes that things may have ended up better or may have ended up worse.  That says nothing about what the balance of probabilities was concerning about ending up as you did. 

Then in cross‑examination there was an exchange took place – and of course the cross‑examination is not referred to in any real detail in the passage from Justice McLure’s reasons to which the Chief Justice has taken me.  That is a cross‑examination which turns to the question of the position or posture in which the impact took place.  It ends up with the passage at the foot of paragraph 169 on page 38. 

That rather tends to suggest that the odds were moving by reason of that contribution in cross‑examination in favour of it would have been better rather than worse or the same had the duty of care been carried out, bearing in mind that paragraph 171 showed that the trial was conducted on the basis at this stage – that is, once this issue was reached – that the defendant was accepting it had – Watts v Rake, Purkess v Crittenden – an evidentiary burden to show that the prima facie contribution of the negligence to the injury, which of course is held in the Court of Appeal as well, that prima facie contribution could be displaced on the balance of probabilities.

Now, the trial judge dealt with Mr Scull’s material therefore by holding, and appropriately holding, that the material was not capable of tipping the balance.  It held open possibilities; it was not capable of tipping the balance.  Coupled with the prima facie position that, for the purposes of this issue, the assumed breach of duty contributed to the risk of injury, the prima facie case that it had materially contributed not simply to a theoretical risk but the actual outcome, in our submission, the trial judge had proceeded impeccably on the basis of the material which is necessarily reconstructive and inexact.

GLEESON CJ:   I understand the last sentence of paragraph 170 to be a finding by the trial judge that the evidence showed that on the balance of probabilities a foot or more of loose beach sand would probably have prevented this injury.

MR WALKER:   There is no other way of reading that, your Honour.

GLEESON CJ:   And that is the point of departure, as I understand it, between the decision of the Full Court and the decision of the primary judge.

MR WALKER:   In our submission, whatever criticism there may have been of the trial judge doing the best she could with the necessarily – and I stress necessarily – inexact material, exactness would not have been a sign of reliability in such reconstructive material, whatever criticisms may have been expressed of that, that is in the nature of the factual issue upon which the defendant bore a burden.  When it comes to the Court of Appeal, there is no greater precision possible from the material that their Honours assemble that Justice McLure considers.  There is no extra scientific calibration or numerical quantification of the forces and moments, et cetera, which would show that there ought to have been a balance of probabilities held by her Honour.

HAYNE J:   Does that say that the critical point from your end of the argument is the factual point?

MR WALKER:   There is no avoiding the fact that our complaint, our grievance, is that for a terrible injury with very sizeable damages, that is, the compensation required for my client’s injury is very large, in a case where for the purpose of this issue it is to be taken as beyond challenge that there was negligence, the trial judge held that in terms which could not be more graphic:

it well knew that there was a substantial risk of injury from falls and had had warnings from its own legal advisers.

That is the quote, paragraph 171.  So factually, yes, we say that when it came to the appellate review of that – we do not have to worry about credibility findings or anything like that – when it came to an appellate review of that there is, in our submission, not merely insufficient finding of error – leave that aside at the moment – there is insufficient material assembled by the Court of Appeal to have held that there was a discharge by the defendant of the disentangling onus which was imposed upon them.

HAYNE J:   But can I understand this from this angle?  Are you saying then that this is not, or at least not primarily, a case about exacerbation, Fairchild and those issues?

MR WALKER:   No, it is a case ‑ ‑ ‑

HAYNE J:   Well, why, because it seems to have been fought as an all or nothing case.

MR WALKER:   Your Honour, that is said as if quadriplegia is all and the only alternative to quadriplegia is nothing.

HAYNE J:   Exactly so, and that is an unusual proposition to find, but that is the way in which the case is said to have been fought.

MR WALKER:   Well, your Honours, the best way of answering that is to go to the material that we have extracted from the record of the argument, application book 101.  Paragraph 23 at the foot of that page shows that the case simply was not seen as a case where quadriplegia was, as it were, a monolithic condition which would always result in, as it were, a set tariff for a particular plaintiff in a particular plaintiff’s compensatory requirements.  It was seen to be a graded matter.  In other words, exacerbation or additional severity was of course an issue, and that is why the disentangling was put as it was during argument.

Was quadriplegia the condition for which compensation was required?  Well, of course, that describes in one word all the gruesome physical and other aspects that required financial conversion.  There is no doubt about that.  Were we seeking damages, as it were, for the intermediate stages of severity, which did not describe our condition because our condition was of what the evidence showed it was?  Of course not.

GLEESON CJ:   This is a problem because a plaintiff who fights a case like this on an all or nothing basis is ultimately on a hiding to nothing, because to fall on the crown or near the crown of your head from a height of seven feet is so consistent with the possibility of quadriplegia that it is difficult to see how any expert could say, “If there had been some sand there instead of a hard surface, there wouldn’t have been quadriplegia resulting”.  You can become a quadriplegic by falling off a chair if you do it in the wrong angle.

MR WALKER:   Quite.  What was clear from the evidence was that there was no straightforward set of figures that could be applied in a reliably reconstructive way in order to disentangle that which was prima facie shown – and the Court of Appeal holds that without any doubt – to have been caused or contributed to by the negligence.  Now, of course, with respect, the Chief Justice is describing the nature of the scientific knowledge in this area, imperfect as it must be, and always imperfect in the application to a now long gone event in personal histories which were not recorded carefully at the time.  So there is going to be inexactitude. 

The common law court has to do the best it can and the device of onus recognised in Watts v Rake, Purkess v Crittenden, the device of onus is a practical way of doing justice between the innocent victim and the held wrongdoer when it comes to the position in their dispute having been reached that there is prima facie causation of the injury by the defendant’s negligence.  Now, in that practical common law exercise, one does not look for the evidence to produce an outcome alien to the evidence’s nature, which is of necessity approximate, estimate, and there will always be a range of possibilities which will embrace victory or defeat for either party:  see Mr Scull’s evidence in this case.

That is why when it comes to an appeal from such material there has to be, in our submission, something shown which as a matter of evidence and the rational capacity of evidence to produce one rather than another outcome, a tipping of the scales, and the Court of Appeal’s material does not do that.  What it shows is that there was material simply preferred by the Court of Appeal without showing why that tipped the scale.

HAYNE J:   Can you help me by identifying in the draft notice the shortest encapsulation of the point you are just making?  It is just a rather discursive notice of appeal.

MR WALKER:   It is page 96, No 10 and the other one is No 4 on page 95.  Now, in our submission, the particular characteristics of how the case was fought included something which is inescapably particular but nonetheless is worthy of attention in this Court.  The expert reconstructive or experimental protocols that your Honours have heard about did not include as a revealed or disclosed part of the method of setting up those experiments, which were defendant’s experiments, any information as to the depth of the sand in question used in the experimental protocol.

Now, the adverse comment is made against us in the Court of Appeal that there was not cross‑examination on that.  With respect, there scarcely needed to be, given the fact that a conceded position between the parties recorded at trial and in the Court of Appeal was that there should have been by an unexplored analogy with what was required for junior children, there should have been 300 millimetres – query alternatively at least 300 millimetres, perhaps substantially more, says the trial judge.  So that depth was at the heart of the forensic contest between the parties. 

It is not for the plaintiff to explore the manifest incapacity of the defendant’s evidence to answer a complaint about the fact that they had none and that their own material and their own concession involved a depth, in other words, things were relative, and when it came to reasonable care, a particular depth – 300 millimetres at least – was appropriate.  That is scarcely the forensic stance of a party who can say, in effect, “Well, it wouldn’t have mattered how much we had, you still would have suffered the quadriplegia”.  That rather indicates the dangerousness of having the openly available device which the defendant had, rather than of course giving the defendant a causation defence.

HAYNE J:   Well, is that not what Mr Scull is recorded as having said in paragraph 61 of Justice McLure’s reasons?  Is that not the burden of the evidence given by Mr Scull?

MR WALKER:   No, your Honour.  I have already taken your Honours to the way in which the trial judge dealt with the range of possibilities embracing both better and worse as well as just the same that he had referred to and, in our submission, there cannot be, by what might be called a cherry‑picking approach to aspects of one expert, a sufficient demonstration of the overturning of a case which, as I say, on the point that we now present for this Court is a point against a defendant whose negligence is clear and the contribution of which to the injury is equally clear in the prima facie sense required by the authorities in this Court.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Gilmour.

MR GILMOUR:   Your Honours, the difficulty as we apprehend it for the applicant is the fact that the evidence relied upon by the trial judge on the question of causation, particularly the evidence adduced by the so‑called ETRS reports – that is the engineering reports – in that case those reports were admitted into evidence by consent and the author or authors were not required by agreement between the parties to be called for cross‑examination.  The conclusion of the relevant ETRS report is found at paragraph 52, pages 74 and 75 of the application book.  That is the second report which concluded that:

with such a large margin over the injury threshold, the substitution of sand for grass under the track ride would not have substantially reduced the injuries to the respondent’s neck.

GLEESON CJ:   I may have misunderstood this, but I thought it was only the first ETRS report that was ultimately relevant.

MR GILMOUR:   Yes, that may be an error in the reasons.  I think it was the first, but that was the conclusion relied upon by the Court of Appeal.  I should say at paragraph 34 of Justice McLure’s reasons, that is where you find the reference to the reports going in by consent without the authors ‑ ‑ ‑

GLEESON CJ:   Where is the reference to one report rather than the other being the relevant one?  It was based on some assumptions that were made.  Maybe I am imagining that.

MR GILMOUR:   Yes, at paragraph 96 there is reference to the dismissal of the ETRS reports by the trial judge.  But your Honour’s question is going to reliance upon one rather than the other.  Paragraph 88 I think deals with that.

GLEESON CJ:   Yes, paragraph 88 is what I was thinking of.  If it is only the first ETRS report that is relevant, why are we concerned with the matter that you just took us to in the second ETRS report?

MR GILMOUR:   Well, I must say, your Honour, I had not picked up that difference and I do not have the reports with me and I do not know whether that is an error in her Honour’s reasons, but certainly that was the thrust of the evidence put by ETRS and whether as against the first report or the second report, there was no cross‑examination because the authors were not called.  But equally importantly we have the evidence of Mr Scull, the biomechanical engineer, with considerable experience in this area.  His conclusions can be found at paragraph 61, to which the Court has already alluded, namely, that there is:

a high probability that there would have been a similar injury to the spinal cord resulting in quadriplegia even if the respondent had fallen onto soft sand.

He was not challenged on that, although he was called to give evidence.  He was cross‑examined on different questions.  Her Honour Justice McLure also deals with that evidence ‑ ‑ ‑

GLEESON CJ:   But there was also a witness, Mr Batalin, is there not, who is referred to on page 79?

MR GILMOUR:   Yes, there is a Mr Batalin who is an orthopaedic surgeon, as there was a Mr Hardcastle.

GLEESON CJ:   What he is recorded in paragraph 66 as having said is on the same point, is it not?

MR GILMOUR:   That there would have been no difference?

GLEESON CJ:   Yes.

MR GILMOUR:   Quite so.  I think in the end though the view was taken that in coming to that view he really had placed a lot of emphasis upon the evidence of Mr Scull and that therefore the dominant witnesses, as it were, on the question of causation were the ETRS reports and Mr Scull.  But it is correct, Chief Justice, that Batalin and Hardcastle were in the same vein.  Nor were they cross‑examined on that central point.

GLEESON CJ:   Look, I am sorry to nag away at this point, but Justice McLure criticises the reasoning of the primary judge.  Those criticisms include the criticism that she failed to take account or take proper account of certain evidence.  In that context I am interested to know whether it is offered as a criticism of the reasoning of the primary judge that she failed to take account of the evidence referred to in paragraph 52 on pages 74 to 75.

MR GILMOUR:   The difficulty with the primary judge’s approach is really that she failed to deal with that evidence.

GLEESON CJ:   Yes, but I have a reason for asking this question.  If it is put as a criticism of the primary judge that she failed to take account of the evidence referred to in paragraph 52, I just want to know what we are supposed to make of paragraph 88 and, in particular, the last sentence of paragraph 88.  It is just a puzzle to me at the moment, that is all.

MR GILMOUR:   I think, with respect, that that was a matter which Justice McLure took up, as it were, of her own motion in considering the two reports, because it did not emerge from the reasons of the primary judge that she was considering that matter.  It was simply that her Honour Justice McLure, obviously having considered the two reports, considered that the second report was not relevant because it proceeded upon premises which were inconsistent with the medical evidence.  I do not know, with respect, Chief Justice, that it really advances the question on causation, which is the issue on the special leave application.

So the position adopted by the Court of Appeal was that, having failed to cross‑examine, having failed to even require the attendance of the authors of the ETRS report, it was not open to the present applicant, the respondent in the court below, to put by way of submission matters which ought to have been put to the authors of the reports on the central question of causation of quadriplegia arising from the factual premises concerning the height of the fall, the nature of the fall, and the injuries suffered as a result.  That position cannot be undone.

GLEESON CJ:   Well, it is now the central question, but it might have been far from the central question at trial.  If you read the whole of the judgment of the Chief Judge at first instance, it is evident that there were multiple allegations of negligence.

MR GILMOUR:   I think there were 10 or 11.

GLEESON CJ:   Yes, and it may be doubted that at the trial the issue on which we are now concentrating, the issue that emerged as decisive in the Full Court, was given quite the same attention as it later came to have.

MR GILMOUR:   Certainly the clarity and the focus that occurs in the evolution of litigation often has that result and it certainly, I do not doubt, had that result here.  The trial judge dealt with each allegation of negligence and in the end dismissed all of the allegations other than the question of the required surface being of the order of 300 millimetres of soft sand under the track ride.  But on the question of causation her Honour – and I think it is at paragraph 170 your Honour the Chief Justice took my friend to that – really concluded that she had no material to assist her with the question but nonetheless concluded that had there been sand, then it is likely – she does not identify the injuries but one presumes it is quadriplegia – would not have occurred.  Well, that is simply glaringly in contradiction of unchallenged evidence from admitted experts, ETRS and Scull, not to mention Batalin and Hardcastle.

GLEESON CJ:   Well, as I understand it, it was the reversal of that finding of fact that brought the applicant undone in the Court of Appeal.

MR GILMOUR:   That is correct.  The Court of Appeal concluded that the evidentiary burden so‑called or the burden of introducing evidence in Watts v Rake, Purkess v Crittenden was plainly discharged by the present respondent, the appellant in the court below. 

To pick up a point that Justice Hayne raised with my friend, this is not a Fairchild v Glenhaven case or the more recent case of Barker v Corus where there were multiple tortfeasors and there is a question of trying to apportion responsibility where there is an increase in risk across the various tortfeasors.  Nor is it, as was suggested by my friend, a case where there was any issue of unravelling or disentangling of injury as between injury caused by tortious conduct as opposed to injury caused by non‑tortious conduct.  This was, to adopt the phrase of the Court, an all or nothing case, and that is the way the case was run. 

Justice McLure at paragraph 82 in her detailed reasons on the issue of causation really aptly summarises the position when she says on the question of identifying the relevant injury:

The appellant contends that the case was fought by the parties on the basis that the injury was the respondent’s quadriplegia, not the individual fractures and other damage or indeed, the severity of the quadriplegia.

Because there was some incidental evidence – I put it no higher than that – that had there been soft sand, in other words, if the duty had been discharged, that although quadriplegia would have followed that there might have been some additional fractures which would not have occurred.  Damages were agreed during the running of the trial on an all or nothing basis.  There is no attempt to divide the injuries or divide damages attributable to particular injuries but not others.  It was an all or nothing case.  The injury Justice McLure correctly identifies as quadriplegia.  Paragraph 82 continues:

The respondent did not challenge that assertion and it is justified by the record.  That is, the  matter was approached on the basis that the relevant injury was the respondent’s quadriplegia and that it was indivisible.

In her penultimate paragraph at 97 she visits the question of apportionment and concludes that it simply was not open by reference to the way the case was run.  Those are our submissions, if it please.

GLEESON CJ:   Thank you, Mr Gilmour.  Yes, Mr Walker.

MR WALKER:   No plaintiff could be expected to run a case when he or she is quadriplegic on the basis of visiting by way of alternative claims in damages intermediate steps which may reflect the inexactness of accident reconstruction and the effect upon their spinal column.  The all or nothing merely reflects the fact that the plaintiff claims damages for what the law provides a remedy, namely, the position they are in, not some other position.

It is not the case that, as my friend very fairly conceded, there was material to show that there are degrees, not only of the immediate trauma which produces quadriplegia, but also of the sequelae.  Paragraph 97, application book pages 88 and 89, in our submission, contains an essential contradiction of a kind which has worked an outcome that ought to be open to reversal in this Court.  At about line 35 Justice McLure says:

In this sense –

and that is referring to grades or degrees of the number and seriousness of immediate injury, trauma –

the City’s omission worsened the injuries he would have suffered in any event.  In ordinary circumstances –

and this case is ordinary circumstances –

that may justify a finding that the City’s breach aggravated the injuries and thereby materially contributed to the harm.

Quite so, and for the very reasons that my learned friend has highlighted.  That is why the salutary common law rule – Watts v Rake, Purkess v Crittenden – requires the defendant to disentangle.  If they do not wish to shoulder the entire financial burden, it is for them to show that what they have materially contributed to ought to be apportioned, to use the word my learned friend has raised. 

The Court of Appeal, in our submission, provides no explanation as to why that very important common law approach which recognises problems of science, it recognises the inherent inexactitude of the reconstructive exercise, and places the burden forensically on the defendant.  Nowhere does the Court of Appeal describe either why factually that was discharged in this case or how that could be avoided by characterising it, as has now been put, as all or nothing.  Of course we do not say that if it is a choice between all or nothing, and you cannot have all, we should have nothing.  That is precisely why the argument was run below in relation to where the burden lay – Watts v Rake, Purkess v Crittenden.

GLEESON CJ:   Am I right in thinking that of all the particulars of negligence that were relied on at trial and are dealt with seriatim by Chief Judge Kennedy, this was the only one that raised the problem of causation?

MR WALKER:   I think so, certainly in this, what I will call, allocative way between no negligence and negligence.

GLEESON CJ:   If the plaintiff had got up on any other particular of negligence, you would not have had this problem of causation?

MR WALKER:   I think that is right, your Honour, but, in our submission, that does not reduce the appropriateness of this case as a vehicle.  The facts are in fact in a short compass.  They are typical in the inexactness that they must bear and, in our submission, there is nothing whatever in the point that my learned friend raises, namely, that there was no challenge.  It is absurd to require a plaintiff to say of an expert report where the trial judge had little difficulty in pointing out the obvious, namely, the protocol does not include

anything about depth of sand, it is absolutely not for the plaintiff to save the defendant from the consequences of that tender. 

For those reasons, in our submission, the interests of justice both in the particular case and in relation to the importance of the application of those principles of shifting a burden when the nature of the evidence is of the kind it must be in such cases makes this an appropriate case for a grant of special leave.

GLEESON CJ:   Yes, Mr Gilmour.

MR GILMOUR:   I am sorry, Chief Justice, could I just for your assistance on the question of the two ETRS reports mention that at page 74 of the application book in paragraph 48 you will find that the same conclusion concerning the result is found in the first report as is in the second.

GLEESON CJ:   That explains the mystery, thank you.  We will adjourn for a short time to consider the course we will take.

AT 10.07 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.11 AM:

GLEESON CJ:   Many issues were contested at the trial of this action but that which was ultimately decisive in the Court of Appeal was an issue of causation related to one of a number of particulars of negligence, that being the only particular on which the plaintiff succeeded at trial.  In relation to that issue, the outcome in the Court of Appeal turned upon the reversal of a finding of fact made by the primary judge and expressed in paragraph 170 of her reasons for judgment. 

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave, and the application is dismissed with costs.

AT 10.12 AM THE MATTER WAS CONCLUDED