Upper Lachlan Shire Council v Rodgers

[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…