Uzabeaga v Town of Cottesloe

[2005] HCATrans 16

[2005] HCATrans 016

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P33 of 2004

B e t w e e n -

LUIS ALBERTO UZABEAGA

Applicant

and

TOWN OF COTTESLOE

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 FEBRUARY 2005, AT 2.48 PM

Copyright in the High Court of Australia

MR M.J. BUSS, QC:   May it please the Court, I appear with my learned friend, MR M.E. HERRON, for the applicant.  (instructed by Gibson & Gibson)

MR P. MENDELOW:   May it please the Court, I appear with my learned friend, MR C.C. RIMMER, for the respondent.  (instructed by Jarman McKenna)

KIRBY J:   Yes, Mr Buss.

MR BUSS:   Thank you, your Honour.  Your Honours, in our submission, the trial judge and the Full Court made an error of principle in holding that the respondent did not breach its duty of care to the appellant.  This error, we submit, is apparent from paragraph 208 of the trial judge’s reasons at page 65 of the application book.  Your Honour, I will not read paragraph 208 aloud, but it is our submission that upon an examination of that paragraph the learned trial judge, in determining what the law required of the respondent, set a standard which amalgamated what was required of the respondent in relation to children with what was required of it in relation to adults.  In other words, we submit that the learned trial judge failed to distinguish adequately between the standard of care required in relation to children and the standard of care required in relation to adults, although plainly ‑ ‑ ‑

KIRBY J:   The trial judge did make an observation that your client was nearly 15 and in her opinion was an intelligent person.  So he is a child but he is not a baby.

MR BUSS:   No.  With respect, I appreciate that.  The point of our submission is that the focus of the trial judge should have been solely upon what was required of the respondent, discharge its duty of care in relation to people in the position of the applicant, that is, young teenagers whom the respondent knew used the groyne for diving.

The learned trial judge appears to have determined a standard, the observance of which would discharge the respondent’s duty of care to beachgoers generally, some of whom would or would not use the groyne for diving.  We submit that this error of principle was replicated in the Full Court, in essence, by each of the judges on appeal adopting as correct the learned judge’s reasons at paragraph 208 of her judgment, and this can be seen from the judgment of Justice Murray at pages 105 to 106 of the application book, in particular in paragraph 36 of his Honour’s reasons, also in the judgment of Justice Steytler at pages 114 to 115 of the application book, in particular at paragraph 69.

KIRBY J:   You have no case that the building of the groyne was itself negligent.

MR BUSS:   No.

KIRBY J:   I mean the groyne was necessary for the purpose of preserving the state of the beach, as I understand it.

MR BUSS:   That is right.  There was no allegation ‑ ‑ ‑

KIRBY J:   It is many years since I have been to a beach, but Justice Hayne has explained what groynes are for, and they are to prevent the tide washing away the beach.

MR BUSS:   Yes, that is right, particularly during winter months, your Honour.

KIRBY J:   Cottlesloe is, I think, a very popular public beach.

MR BUSS:   It is.

KIRBY J:   And beach surfing is a very popular recreation in Australia.  So you have these groynes and you have people who clamber on them, and the question is what the council can then do, consistent with the preservation of a groyne and thereby the preservation of a beach, and not becoming a sort of policeman for everybody that interferes with their ordinary recreations.

MR BUSS:   Yes.  Undoubtedly, that is the judgment that needs to be made, but it is our submission that in this case the error of principle which we sought to identify caused their Honours to fail adequately to appreciate the significance of five key factors in this case.  Briefly, and in summary, they are first that the danger was caused by the action of the respondent and was not a naturally occurring danger.

KIRBY J:   That does not go far, given that you concede that the respondent had acted reasonably in creating the groyne for the purpose of preserving the beach.

MR BUSS:   That may be so, your Honour, but it is really a factor which, in our submission, is significant in the context of the five matters that we will briefly allude to, considered as a whole.

KIRBY J:   You say it distinguishes it from a case like Romeo where it was an elevated cliff caused naturally.

MR BUSS:   Yes, indeed, your Honour.

KIRBY J:   All right.  Well, that is the first one.  What is the second?

MR BUSS:   The second one was the respondent’s awareness of the use of the dive rock for jumping and diving, over many years, especially by teenagers.  Thirdly, the respondent encouraged members of the public to use the beach and the groyne, and it so encouraged it by the construction of very substantial improvements upon the beach, which are referred to in the reasons of the trial judge.

HAYNE J:   And how did that encourage use of the groyne, as distinct from use of the beach?

MR BUSS:   Well, it encouraged the use of the groyne by the construction of concrete steps leading onto the groyne, the construction of a pathway along the groyne which would otherwise, as your Honour knows, simply be a collection of rocks, and also the installation of lighting along the groyne.  Fourthly, there is the risk of serious injury in consequence of diving from the groyne being plainly reasonably foreseeable.  Fifthly, and importantly, in our submission, the practice of teenagers diving from the groyne could have been substantially eradicated at a reasonable cost by the respondent increasing the number of beach inspectors.  There, as your Honours will know, is an important finding of causation in favour of the applicant in relation to what we say the respondent should have done in order to discharge its duty of care.  Your Honours will know that the learned judge made a finding in relation to causation in her reasons at page 72 of the application book.

KIRBY J:   Was this about the signs?

MR BUSS:   No.  Her Honour’s finding of causation about the signs was adverse to us, but on the point of doubling the roster of beach inspectors her Honour, at page 72, line 1, had this to say:

In these circumstances I am satisfied that the defendant’s failure to double its roster of beach inspectors so that a beach inspector remained in sight of the groyne at all times directed to stop anyone from diving did cause or contribute to the accident.  With that level of supervision the plaintiff would not have seen others diving and – if he had tried it – he would have been warned one ach occasion. While the plaintiff, on his own admission may well have ignored one warning, I believe the full time attention of a beach inspector would have stopped him or, he may never have started diving from the groyne knowing the beach inspector was there watching.

Now, that causation finding, favourable to our client, did not result in a verdict for our client because her Honour found that the discharge of the respondent’s duty of care did not require a doubling of the roster of beach inspectors.  But, importantly, her finding on that point of causation was accepted in the Full Court, in particular in the judgment of Justice Murray at page 106 in paragraph 38.

KIRBY J:   Yes, but what is the High Court of Australia going to become, a sort of supervisor of local government authority employment policies?  It seems a very unlikely prospect that we would want to get into that.

MR BUSS:   No.

KIRBY J:   You would be aware there has been discussion – in Canada and in this country – about the limitations on courts substituting themselves for the budgetary authorities of local councils.

MR BUSS:   We appreciate that.  The key point that we rely upon to a grant of special leave is, we say, the point of principle that the trial judge and the Full Court failed adequately to distinguish between the respondent’s duty of care and the standard required of it in relation to children, in particular young teenagers, in the circumstances of this case compared with the position of people who are adults.  We say that intervention of this Court is required in order to make plain, in our submission, that the focus of attention must always be upon the particular standard to be expected of a local authority in relation to the particular applicant or a reasonable person in the position, or the particular applicant, and there should not be a conflation of the particular duty owed by the local authority in relation to all categories of persons.

In other words, one can properly expect that there will be a different standard which is required of a local authority in relation to persons in different circumstances, be they the elderly, be they adults otherwise able to care for themselves, and children, including young teenagers, importantly where the local authority knows of the existence of a dangerous practice and where there is readily available at a reasonable cost a means of substantially eradicating it. 

So we are not suggesting to your Honours that your Honours are in any sense to be a regulatory organisation in relation to the behaviour of local authorities, but rather to state a principle which the courts ought to apply and to bear in mind in relation to distinguishing the position of a particular plaintiff, especially a child, from that of an adult.  We say that against the background of what Justice Steytler referred to as a trend of authorities where what is to be expected of public authorities in relation to plaintiffs is to be viewed in the light of greater emphasis being given to the acceptance of personal responsibility by plaintiffs for their own conduct in a way greater than has previously been the case.

Now, plainly there is an important point of principle as to how that greater emphasis is to be applied in the case of children and although I accept your Honour the presiding judge’s observation that the applicant was 14 and nearly 15 years of age but, of course, different issues ‑ ‑ ‑

KIRBY J:   And lively and intelligent.

MR BUSS:   All of that is true but, in our respectful submission, in the case ‑ ‑ ‑

KIRBY J:   I am not suggesting he is to be punished for that.  I am saying that the assessment of the trial judge of such matters is very much a matter for her.

MR BUSS:   No doubt it is, and that is one of the things to be brought to account along with every other circumstance including, for example, the fact that it is well known that children, even young teenagers, engage thoughtlessly in particular activities, and there is almost at that age an absence of any emotional understanding of the reality of one’s own mortality.  I mean that is something which is learnt eventually by adults, but it is certainly not something which exists as a matter of emotional understanding in the case of a child, even a young teenager.  All of those matters needed to be ‑ ‑ ‑

KIRBY J:   I understand that.  You put that with force, and it is a fair point to be considered.  The trial judge did find, did she not, that there was a breach in respect of the signs, that there should have been more signage but that she did not believe, having regard to (a) her assessment of your client and (b) the difficulty in fact of preventing people from cavorting on a beach, that that would have prevented the accident that occurred.  Is that correct?

MR BUSS:   That is so, your Honour.  That is correct.  The key finding in favour of our client was the causation finding in relation to the doubling of beach inspectors.

KIRBY J:   Yes.

MR BUSS:   But, in relation to that, her Honour found that that was a standard which was not necessary as a matter of law for the respondent to observe.  Now, we do not say ‑ ‑ ‑

KIRBY J:   Now, Justice Steytler’s statement, which I think also refers to articles by Justice Ipp, and Justice Ipp has said it many times in the Court of Appeal of New South Wales, reflects things that have happened in the legislature, at least in some States; in New South Wales, I do not know about Western Australia, legislation has been enacted to reduce recoveries against local authorities in recreational injuries.  Has that happened in Western Australia or not?

MR BUSS:   Yes, it has, your Honour and earlier this week we filed a supplementary list of authorities in which we referred to the case of Wyong Shire Council v Vairy which has been the subject of a ground of special leave and also Swain’s Case where the appeal was heard ‑ ‑ ‑

KIRBY J:   We are very familiar with Swain.

MR BUSS:   Yes, and we have also referred to the Civil Liability Act 2002 (WA) and the Civil Liability Amendment Act 2003 (WA) ‑ ‑ ‑

KIRBY J:   How does any of that help you?

MR BUSS:   Well, it does not hinder us.  That is really the point of bringing those statutes to your Honours’ attention.  They are in similar terms to the New South Wales legislation and the importance of drawing those statutes to Your Honours’ attention is in support of our submission that the reasons why special leave should be granted have not been materially diminished by the enactment of these provisions.  For example, there is provision in section 5H that a defendant will not be liable for injury suffered by a person who engages in what is called a “dangerous recreational activity” if the harm that could result is obvious.  Now, there is an important limitation on this principle in that, under section 5I(13):

A defendant is not entitled to rely on –

what is called a warning in relation to a risk in relation “to an incompetent person” and an incompetent person relevantly means a person who is under the age of 18.  The limitation does apply in the case of a person who engages in a recreational activity if that risk was one that ought reasonably to have been obvious to that person. 

KIRBY J:   It does, however, cut down the significance and application of any principle that would be established by this case, given that around Australia, Parliaments, responding to what they thought to be the excess of the courts, have really cut back entitlement to recover for recreational injuries.

MR BUSS:   Certainly, with respect, that has been the policy decision by Parliaments, but the important thing is that the limitation in relation to risk warnings does not apply to this plaintiff because it does not apply to people under the age of 18, so that is not something which is an obstacle which would make a determination by this Court of minimal utility in other cases.  The other point is that in the case of engaging in a dangerous recreational activity, that has to be determined by reference to what would have been obvious to a reasonable person in the position of that person, so the relevant reasonable person would be someone in the position of the present applicant and that is not materially different from the common law principles which are applicable in any event. 

The only other relevant aspect of the Civil Liability Amendment Act is Part 1C which limits the liability of a public body or officer, which relevantly would include a local government, in relation to claims for damages for negligence.  In particular, under section 5X:

a policy decision cannot be used to support a finding that the defendant was at fault unless the decision was so unreasonable that no reasonable public body . . .  could have made it. 

Now, in our submission, the applicant does not seek to use any policy decision of the respondent to support a finding that the respondent was at fault.  Certainly, there was a decision made ‑ ‑ ‑

KIRBY J:   My recollection of the Canadian authorities is that they have said that decisions of the kind that you seek to challenge, namely the number of beach inspectors, are policy decisions to be made by local authorities.  I think that is how it has been described in Canada, I may be wrong, but I think that is correct.

MR BUSS:   Yes.  Well, although in one sense the decision to have beach inspectors there for a particular period of time can be regarded as a policy decision but, in our submission ‑ ‑ ‑

KIRBY J:   It is the deployment of the local authority’s funds.  Ratepayers have to pay, so they have to choose between different deployment of funds, collecting more garbage, picking up garbage on more frequent occasions, having clearances of rubbish and providing beach inspectors.  It is a policy matter.

MR BUSS:   If the nature of a policy decision was given that breadth of application, then it would appear on the face of it that any decision made by a local authority in relation to questions of supervision in relation to whether or not to install some safety device at a playground, any of those decisions would appear to be beyond challenge.

KIRBY J:   No, I do not think so.  That is not how I read it.  It merely means that courts have to show a degree of circumspection, and where you have a decision of the primary judge here, confirmed by three judges of the Full Court, it is a big hurdle to get over that for this Court to become involved in it, and particularly because there is the intervention of new legislation that makes it of a very limited application anything we said.

MR BUSS:   Can I just say on that point that, in relation to the question of policy decisions, the issue is that a policy decision cannot be used to support a finding that the defendant was at fault.  Well, we are not seeking to use a policy decision of the respondent to support a finding that the defendant was at fault.  We are referring to the extent of the danger that existed, what could reasonably have been required and at what cost to replace it, simply as going to the reasonableness of the respondent’s conduct.  We are not referring to any decision of the respondent and using that decision as a basis for a finding of fault.

KIRBY J:   I realise that, but anything we said would then apply to every beach on the enormous coastline of Australia.  Of course, it would vary according to the usage of the beach, and Cottlesloe is a very greatly used beach, but it could not just be confined to Cottlesloe Beach in Perth, Western Australia.

MR BUSS:   Well, it would only apply where there are beaches under the control of a local authority which have been subject to the creation of a specific danger, not a naturally occurring one, where there was encouragement by the local authority for people to attend the beach where it was known that there was a serious problem in terms of a foreseeable risk of injury, where it was known that there was a dangerous practice amongst children, including young teenagers, and where it was known that there was a strategy available which, if properly implemented and at a reasonable cost, would eradicate the practice.

So, with respect, it is not a matter where it can be said, in effect, in terrorem of the applicant this would somehow open a floodgate’s argument in relation to each and every mile of beach in Australia.  It most certainly would not.  One would need all of these other issues to be present ‑ ‑ ‑

KIRBY J:   I do not think you have a deep belief in the time limits of the Court.  Earlier today you went a little over time.  Now, I realise that this is a very important matter for your client and family, but we have read the written submissions and we are grateful to you for your assistance, Mr Buss.

MR BUSS:   I apologise, your Honour.  I was only endeavouring to deal with what I thought were your Honour’s questions.

KIRBY J:   Of course you were, yes.

MR BUSS:   Thank you.  Those are our submissions.

KIRBY J:   The Court does not need your assistance, Mr Mendelow. 

MR MENDELOW:   Thank you, your Honour. 

KIRBY J:   The applicant became a tetraplegic when, on 1 March 1993, he dived from a groyne at Cottesloe Beach in Western Australia, built by the respondent.  He was then aged 14 years, nearly 15.  He sued the respondent for negligence.  The trial judge, Judge Yeats, in the District Court of Western Australia, found that the respondent could have prevented or reduced the risk of injury to the applicant by doubling the number of beach inspectors, but that the failure to do so did not constitute negligence.  There is no reasonable prospect of disturbance of that conclusion, which was confirmed by the Full Court of the Supreme Court of Western Australia 

The trial judge found that the Council had breached its duty of care to the applicant by failing to erect signs warning of the dangers of diving from the groyne, but that this failure did not cause or contribute to the injuries.  She rejected other claims to a breach of the duty of care, and also the defence of voluntary assumption of risk.  Her conclusions led her to enter judgment for the respondent.  An appeal to the Full Court of the Supreme Court of Western Australia failed.  The applicant now seeks to appeal to this Court. 

The conclusion reached by the trial judge on the issue of breach rested in part on her assessment of the applicant’s personality and conduct.  It would be immune from appellate disturbance in this Court:  see Fox vPercy (2003) 214 CLR 118 at 125 to 128. The Full Court approached its appellate functions in a correct way. There is no ground for our intervention. There are no prospects that an appeal to this Court would succeed. Special leave must therefore be refused with costs.

Mr Buss, in saying what I did as to time, I was not being critical of you.  You were putting forward a case very properly for your client, and we have been greatly assisted by what you have said and by the written submissions. 

MR BUSS:   Thank you, your Honour. 

AT 3.14 PM THE MATTER WAS CONCLUDED