Tsekouras v NSW Insurance Ministerial Corporation

[1995] HCATrans 25

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney           No S115 of 1994

B e t w e e n -

CON TSEKOURAS

Applicant

and

NSW INSURANCE MINISTERIAL
CORPORATION (formerly GIO of New South Wales)

Respondent

Application for special leave
to appeal

MASON CJ
BRENNAN J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 FEBRUARY 1995, AT 12.15 PM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC:   If your Honours please, I appear with my learned friend, MR H.J. MARSHALL, for the applicant.  (instructed by Uther Webster & Evans)

MR D.F. JACKSON, QC:  If the Court pleases, I appear with MR P.D. RYAN for the respondent.  (instructed by G.M. Meadows, Solicitor for NSW Insurance Ministerial Corporation)

MASON CJ:   Mr Maconachie.

MR MACONACHIE:   Your Honours, the point in respect of which special leave is sought is, we submit, one of general importance.

MASON CJ:   What is that, the difference between the Australian Club and the Mandarin Club?

MR MACONACHIE:   No, your Honours.  The question of the standard of care to be applied to the conduct of an injured person.  The frequency with which the issue is litigated, we submit, makes it self evident that the matter is of importance.  Your Honours, we see as central to the question of whether or not a grant of leave should go whether or not the cases of Pennington v Norris, Podrebeserk v AI&S and Bankstown Foundry v Braistina do decide the issue.  We submit they do not.  What they do - and if I can hand your Honours copies of the Pennington Case which was not on the list but we appended it to our written submissions - what those three cases do is focus on the proper test to be applied in determining how one determines the question of just and equitable allocation of responsibility, not the question of the standard of care to be expected of a person for his own safety.

This Court, in those three cases, determined that what was required was a comparison of degrees of culpability and causation.  In considering the culpability issue, the standard of care to be expected of the plaintiff in each case is stated to be an objective one, but we submit that that was assumed rather than decided.  It was not a vital issue in any of those cases.  The elements relevant to comparison and not the content of those elements was what was the point of decision in each case.

Here, the Court is asked to decide the question of standard in a case in which the plaintiff, a pedestrian, was suffering from relevantly two categories of disability.  One was a self-induced transient state of intoxication and we do not suggest for a moment that the Court would regard that as relevantly attaching to the standard of care to be expected of a pedestrian.  But the other category of disability then suffered by the pedestrian was one of cerebral degeneration and an orthopaedic injury which affected his mobility.

BRENNAN J:   Now, taking that division as you have made it, what do you say about the proposition in Mr Justice Meagher’s judgment that for a man who had difficulty in walking at the best of times, to get himself half drunk and then wander on to the middle of the main road on a dark night is hardly taking care of himself.

MR MACONACHIE:   The capacity of the man to make that judgment is something that is relevant to be considered in determining whether, according to, firstly, current notion of fairness and justice and, secondly, what is just and equitable require that the Court look at that man’s capacity to be able to determine the manner in which he should conduct himself.

BRENNAN J:   In that case, stopping just a little earlier than Mr Justice Meagher put it, for a man who had difficulty in knowing what he should do, was it taking care of himself to get half drunk to deprive himself completely of that capacity?

MR MACONACHIE:   Your Honour, the extent of his capacity to know what he should do governs the question of the conduct that Mr Justice Meagher raises against him.  And what the learned trial judge and the Court of Appeal have done, we submit, is to fail to have regard to the fact that a man suffering from a cerebella dysfunction could take that degree of care for himself.  Mr Justice Menzies, in McHale v Watson, where the question did not directly arise - that is the question of the standard of care to be expected of a person for his or her own safety - it was used to test the proposition of whether or not it was an objective standard of care for primary negligence.  Mr Justice Menzies was of the view that it was and should be a subjective test.  Mr Justice Kitto was of the view that it should be an objective test.  Mr Justice Owen, it might be said, could be read both ways, but we submit on a proper reading of his judgment would accept a subjective component in the test for determining contributory negligence.

And so it should be, we would submit, because otherwise it imposes a penalty on those least able to look after themselves: the blind man, the Downs Syndrome child, is to be judged in the manner in which he conducts himself as if he were a man or woman without that underlying intellectual incapacity.

TOOHEY J:   Mr Maconachie, do you accept that the applicant was contributorily negligent?

MR MACONACHIE:   That was not contested at the trial and, accordingly, I do not put a submission that he was not guilty of contributory negligence.  The submission we put is that when the trial judge and the Court of Appeal came to determine the question of apportionment of responsibility, it was a necessary ingredient, according to Pennington’s Case, Braistina and Podrebeserk to determine the extent to which the plaintiff had departed from the standard of care to be expected of him.

TOOHEY J:   I appreciate that, but it does mean that we are in the area of percentages or degrees of contributory negligence.

MR MACONACHIE:   It is, indeed, but in exercising the discretion the trial judge plainly had to exercise, and that the Court of Appeal had to review, a wrong legal test, we say, was applied and accordingly that discretion miscarried.  It is of importance, and only just, that this important issue ought to have been determined against the background of a proper legal test.  That was not done.  The plaintiff suffering from a cerebral and orthopaedic incapacity was judged by the trial judge according to what was to be expected of someone who was not suffering from those incapacities.  He was judged against a standard which we say, on the facts found by his Honour, he could not have achieved.  That, we submit, denies a just and equitable allocation of responsibility for the damage suffered by the plaintiff.  Had the trial judge properly directed himself, according to the tests for which we would contend, he would have taken into account the cerebral and orthopaedic incapacities suffered by the plaintiff in determining the extent to which he had failed to take reasonable care for his own safety and we submit that would have driven his Honour to allocate a lesser degree of responsibility to the plaintiff than that which he did.

TOOHEY J:   I can see that his drunkenness was not a factor, but once it intrudes, as it does, and you do not seek to challenge what is said in regard to the drunkenness, it does become very much a question of degree.

MR MACONACHIE:   Indeed it does, your Honour, but the question of degree has to be determined according to the application of a proper legal test.

TOOHEY J:   True, but it makes this a rather inappropriate case in which to review that area of principle.

MR MACONACHIE:   We submit not.  We would submit that quite the contrary is the case.  It gives the Court the opportunity to determine the question of whether or not a subjective test or a test with subjective elements ought to be declared when, in the one applicant, there is both considerations of a transient self-induced disability on the one hand and a chronic state of cerebral degeneration on the other.  So that it is an appropriate case, we would submit, rather than an inappropriate one because it permits the questions of a transient condition on the one hand and a chronic non-self-induced condition on the other hand to be considered and weighed in determining whether or not a test that we concede has been commonly employed for a long time ought to remain the law.

Your Honours, the question of whether or not this is an appropriate case is perhaps brought into sharpest focus by the findings of fact made by the trial judge at page 8 of the application book.  His Honour directs himself as to the test to be applied at line 22 or 23.  He says:

In determining the relative responsibility of the parties, it is necessary to consider the extent to which each -

plaintiff and defendant -

fell short of the standard of care of the reasonable man and the causative potency of the negligence -

That is the formulation approved by this Court in Pennington’s Case and Podrebeserk and then Braistina.  His Honour then goes on at line 35 to say this:

The fault -

that is the departure from that objective standard in respect of which he has just directed himself -

of the plaintiff which occasioned his injury was his going onto the roadway, a busy roadway with heavy traffic at night when visibility is reduced, when he was by reason of his prior disabilities and his current intoxication significantly reduced in agility and, by reason of his current intoxication, severely reduced in his ability to perceive and respond to danger.

His Honour takes the objective standard of care and then finds facts, that is an incapacity by reason of his prior disabilities, to meet that standard.  We say that that demonstrates that in applying the facts found by his Honour to the law he applied to this man a standard of care that he could never have achieved because of his prior disabilities, and he did so in the context of allocating to him a degree of responsibility for the damage suffered by him when comparing it with that of the defendant.  We would submit that that demonstrates that this case is an appropriate one for consideration of the proper test to be applied.

Your Honours, it is a case, therefore, we submit which throws up for the first time for determination the question of what is the proper standard of care.  In the Pennington Case and the Braistina Case and the Podrebeserk Case the focus was on the comparative nature of the apportionment question, not on the content of the elements which made up that comparison. 

In McHale v Watson the case was directed towards the question of primary negligence, the standard to be expected of a child, whether knowledge or immaturity was a factor to be taken into account, and the question of contributory negligence was only discussed, and indeed divided upon, in the context of testing the question for decision before the court.

So we submit that it being an important matter, this being a case in which there are both qualifying and disqualifying factors for the application of a subjective test, and the importance with which the matter can be viewed because of the frequency with which the question of contributory negligence and apportionment comes before the courts, is an appropriate matter for special leave.

The State courts, as is set out in the written submissions, particularly in New South Wales, have relied on McHale v Watson and Braistina and the like as stating the law but in circumstances, we submit, where this Court did not determine the test but rather assumed it for the purpose of determining the real issue then before the Court, and that is the question of comparison of culpability and causation.  For those reasons we would submit special leave should be granted.

MASON CJ: Thank you, Mr Maconachie.  The Court need not trouble you, Mr Jackson.

There is no reason to doubt the correctness of the actual decision of the Court of Appeal.  For that reason, the application is refused.

MR JACKSON:   I ask for costs, your Honour?

MASON CJ:   You do not oppose that, Mr Maconachie?

MR MACONACHIE:   No, your Honour.

MASON CJ:   The application is refused with costs.

AT 12.32 PM THE MATTER WAS CONCLUDED