Upper Lachlan Shire Council v Rodgers

[2013] HCATrans 31

[2013] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S264 of 2012

B e t w e e n -

UPPER LACHLAN SHIRE COUNCIL

Applicant

and

TERRY RODGERS

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 2013, AT 11.51 AM

Copyright in the High Court of Australia

MR J.E. SEXTON, SC:   May it please the Court, in that matter I appear for the applicant.  (instructed by DLA Piper Australia)

MR D.R. CAMPBELL, SC:   If the Court pleases, I appear with MR A.G.J. FOEL, for the respondent.  (instructed by Galland Elder Lulham Solicitors)

HEYDON J:   Yes, Mr Sexton.

MR SEXTON:   Thank you, your Honour.  Your Honours, the special leave question in this matter involves the issue of whether the words “a risk of harm” in the chapeau of section 5B of the Civil Liability Act mean that a plaintiff can take advantage of a breach of duty, or what would be a breach of duty to another person in different circumstances, to the circumstances relevant to the particular plaintiff.  I accept that that issue is implicit rather than explicit from the reasons of the Court of Appeal and of the primary judge, but it is an important issue because of the way in which the Court of Appeal decided this case.

Before I take your Honours to the reasons of the Court of Appeal which throw up this issue, can I first take your Honours to three important factual findings, which are briefly found firstly on page 29 of the application book, paragraph 2, of the President’s reasons?  It is in the second sentence of paragraph 2, namely that:

Visible at that time, and to Mr Rodgers –

that is, the respondent –

was a wooden pole or log lying horizontally –

and identification of where it was.  Then in paragraph 3 on the same page, there is a finding that:

with adequate light . . . either course was perfectly safe.

What the President was there referring to was the choice between going where Mr Rodgers did go, which led him to trip over this log, or going through the vehicular entrance, which was a couple of metres further.  But implicit in that finding must be the proposition that with adequate lighting, the log was perfectly safe, and therefore did not require any precaution to be taken within the meaning of section 5B.

The third factual finding is at paragraph 24, but before I take your Honours to that, can I note what is said in the first sentence of paragraph 5 on page 29 of the application book, namely that:

Mr Rodgers recognised the potential hazard of the darkness –

That is a rather curious way of expressing what the hazard was.  It was not the darkness which was the hazard.  The hazard was encountering something in the darkness, and relevantly in this case, the log.  At paragraph 24, which is on application book page 38 at about line 40 – and this part of the reasons is in the context of contributory negligence – there is a finding which repeats a finding of the primary judge that the respondent was walking:

knowing that the log was in the vicinity –

That is a finding of actual knowledge at the time of the incident, and because the respondent had seen the log earlier, the knowledge that it was in the vicinity was not that it might be movable.  It was clearly something which was fixed in position.  It was in the vicinity of where he was.  He may not have known precisely where he was, but he knew because he had seen it before, where the log was, importantly in relation to the wall of the car park, and more importantly, in relation to where his car was.  I will come back to the relevance of that in a moment.

The error in the Court of Appeal’s reasoning is its failure to give any consideration to the respondent’s actual knowledge, in the way that I have just identified, in considering both primary liability and contributory negligence.  So it infected the reasoning both in relation to the application of section 5B of the Civil Liability Act and also 5R.

The reasoning in relation to primary liability, and thus section 5B, is found in paragraphs 17 and 18 on application book 34 and 35.  Your Honours will see, without me reading all of paragraphs 17 and 18, that the reasoning proceeds not on the basis of somebody with Mr Rodgers’ actual knowledge, but proceeds on the basis of other people who did not have that actual knowledge, and who might, because they did not know the log was there, firstly take the route which Mr Rodgers took which involved going through a small gap between the wall of the car park and a bus shelter, and also proceeding to walk in darkness in an area in which he had actual knowledge of the fixed location of the log.

BELL J:   The court’s failure, you say, was under 5B(1)(c), dealing with the general principles of negligence in not considering the application of the circumstances for the purposes of that subparagraph by reference to the particular knowledge of the plaintiff.

MR SEXTON:   Yes, your Honour.

BELL J:   That is the point that was not agitated before Judge Murrell, and it was not agitated before the Court of Appeal, is that ‑ ‑ ‑

MR SEXTON:   Well, I do not know that it is correct to say it was not agitated before the Court of Appeal in that context, because I did not appear in the Court of Appeal ‑ ‑ ‑

BELL J:   I see.

MR SEXTON:   ‑ ‑ ‑but it was certainly put to – and this is picked up by what is recorded in the Court of Appeal reasons in paragraph 14 at application book 33, the very last paragraph on that page.  This records the submission of counsel at first instance:

Your Honour, the question is really whether the council owed a duty to a person in Mr Rodgers’ position who knew that there was a log in the darkened passageway which was not a walkway and proceeded to choose that passageway over the open ‑ the wider passageway.

I accept, of course, that that is a proposition put by reference to duty, but questions of duty and breach overlap, and the proposition that actual knowledge was a relevant consideration, in my respectful submission, was open or thrown up by that submission.

Now, as this Court said most recently probably in Modbury Triangle, all occupiers owe a duty of care.  The question may, in certain circumstances, be the scope or the content of the duty, but once one starts looking at occupier’s liability, concepts of breach and duty, as I say, naturally overlap, and for the purposes of section 5B – in particular, subsection (1)(c) – in the circumstances, it must always be relevant when one is looking at a hazard case to consider the actual knowledge of the injured person.

HEYDON J:   The problem I have got, Mr Sexton, is this; contrary to what the respondent says there was actual knowledge, findings and so on, but the question of distance is very important.  You can only be wrong by a matter of a few centimetres as to the location of the thing which you knew to suffer an accident.  I do not believe there is any finding that the respondent had a sufficiently precise recollection of actuality to assist him in that regard. 

I mean, if you are looking at it in terms of contributory negligence, and if you accept what Justice Allsop says in paragraph 18 on page 35, perhaps there was contributory negligence in that Mr Rodgers should have gone back into the hotel and tried to borrow a torch or something.  Subject to that, the mere fact one knows one has left a suitcase lying in one’s front hall, when one gets up in the dark early in the morning it is quite easy to fall over it if, in fact, you know it is there.

MR SEXTON:   There are two answers to that in the factual circumstances of this case, your Honour.  One was that whether Mr Rodgers, the respondent, could remember within a matter of inches where the log was, does not matter because what he did know was that the log was between his car and the wall.  The second thing is that after Mr Rodgers suffered his fall, his wife who had been in the street outside, went through the vehicular access, went to the car and turned on the headlights in order to locate him.  That is a factual finding that was made in relation to how dark it was. 

So, the fundamental error so far as contributory negligence is concerned is to ignore the very significant difference between choosing the route Mr Rodgers did choose and going the way his wife later went which was that the log was located in the path of the first route.  He could not come to it if he took the second route without going past his car.

HEYDON J:   Are you challenging Justice Allsop’s statement, whether there was a better route is very debatable?

MR SEXTON:   Yes, your Honour, I fundamentally challenge that, and the factual matter which was not adverted to there was that the better route was better because there was almost no risk.  One would have to pass the car in order to get to the log.

BELL J:   Putting to one side contributory negligence for the moment and just addressing primary liability, the analysis of section 5B at paragraph 17 on application book 34, as I read it, proceeds upon a view that 5B(1)(c) directs attention to whether, in the circumstances, a reasonable person in the position of the defendant would have taken the precautions.  The answer to that question, not involving consideration of whether the reasonable person would have thought I need take precautions against a person who does not know there is a log there but I need not take precautions for the benefit of those who do.

MR SEXTON:   Yes, your Honour, that is the error.

BELL J:   What is wrong with the Court of Appeal’s analysis?

MR SEXTON:   What is wrong with it is that it proceeds on the basis that it is only – picking up the sentence at about line 41 or 42 on application book 34:

There was a reasonable probability that harm would occur.

There is not a reasonable probability that harm would occur in relation to a log which is perfectly safe if there is adequate lighting if the person who is coming in in darkness knows it is there and takes reasonable care for their own safety. 

It may not be far‑fetched and fanciful that somebody who knows something is there and does not take adequate care for their own safety, or even if they do may encounter the log, but that is not the test which 5B or for that matter the common law required to be applied, for the same reasons that in Phillis v Daly a log outside a hotel in rural New South Wales was found by majority not to have required any precaution to be taken.  In this case, on a proper analysis, when actual knowledge is fed into the calculus, then there is no reasonable probability that harm would occur.  That is why it fundamentally infects the reasoning and the finding of the Court of Appeal.

BELL J:   But Phillis v Daly did not turn on this actual knowledge question, did it?

MR SEXTON:   Yes, your Honour, because there was actual knowledge in Phillis v Daly of the protuberances on the log from where the branches had been cut off which was the basis on which a primary judge had found that there was negligence, and in his dissenting judgment Justice McHugh, as he then was, said that a log without protuberances would have been safe because there was not the risk that somebody stepping, as the plaintiff in that case did on a protuberance, would twist her ankle, which is what happened.  So, that actual knowledge ‑ ‑ ‑

BELL J:   Would that reasoning apply to anyone?  Did not that reasoning apply, as it were, across the board?

MR SEXTON:   Yes, it would, your Honour, but the circumstances of this case call for different reasoning, but in the context where there is a finding that the route past this log was perfectly safe if there was adequate lighting, the complaint cannot be and the finding cannot be about the existence of the log itself as being dangerous.  So that if we factor into the calculus, as I said, the actual knowledge of the existence of the log, then it is a completely different calculation and, in our submission, it is a completely different answer, conformably with the type of reasoning in Phillis v Daly but also in cases like Romeo and so on where actual knowledge is not determinative but fundamentally important.  Your Honour, those are my submissions.

HEYDON J:   Yes, thank you, Mr Sexton.  We need not trouble you, Mr Campbell.

Despite the skill of Mr Sexton’s submissions, we are of opinion that if special leave were granted the appeal would not be attended by sufficient prospects of success.  Accordingly, the application for special leave should be dismissed with costs.

We will adjourn briefly to reconstitute.

AT 12.09 PM THE MATTER WAS CONCLUDED