Vetter v Lake Macquarie City Council

[2000] HCATrans 39

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S70 of 1999

B e t w e e n -

NATALIE JANE VETTER

Applicant

and

LAKE MACQUARIE CITY COUNCIL

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2000, AT 9.29 AM

Copyright in the High Court of Australia

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR I.G. ROBERTS, for the applicant. (instructed by Hunt & Hunt)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR H.G. SHORE, for the respondent. (instructed by Palmieri Lawyers)

GAUDRON J:   Yes, Mr Hislop.

MR HISLOP:   Your Honours, the central premise is that the majority in the Court of Appeal, in overturning the trial judge’s finding that the applicant was on a single journey when injured, were upholding the appeal on a question of fact when the only right of appeal was one in point of law.  If I could take the Court to the application book to demonstrate that.  The court, of course, divided.  The judgment of the majority is Justice Handley and essentially Justice Powell agreed with him; Justice Priestley dissented.

GAUDRON J:   Well, what is the test for whether it is a question of fact or law?

MR HISLOP:   The test, we would submit, is that which was laid out in Australian Gas Light Co v Valuer-General, which is, in part, to be found at page 40 of the application book.  At line 30 there is there quoted:

“...if the facts inferred...from the evidence...are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law”.

But what is not quoted by his Honour there is the remainder of the paragraph in Australian Gas Light Case, where it is said:

If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law.

GAUDRON J:   And you say that is a correct statement of principle?

MR HISLOP:   We would accept that as being a correct statement.

GAUDRON J:   And you say it was not applied in this case?

MR HISLOP:   That is so, your Honour.

GAUDRON J:   Or by the majority at least?

MR HISLOP:   That is so.

GAUDRON J:   Yes, well perhaps we could hear what Mr Jackson has to say on the matter.

MR HISLOP:   Yes, may it please the Court.

MR JACKSON:   Your Honour, may I say three things:  the first is in relation to the test; there does not seem to be any dispute about what the test is for relevant purposes and your Honours will see, of course, the word “necessarily” does appear in the quotation from Australian Gas Light, which appears at page 40 of the application book and the words that my learned friend referred to after that are really to the same effect, explaining ‑ ‑ ‑

GAUDRON J:   Well, are they?

MR JACKSON:   Our submission is that they are, that what is being said is, if it is necessarily within or without, as the case may be, then that is a question of law.  If there is a debate about it ‑ ‑ ‑

GAUDRON J:   And then the passage Mr Hislop relies on:

if they are capable of being regarded as either within or without the description –

MR JACKSON:   Yes, your Honour, that really says no more than to say “necessarily”, of course.

GAUDRON J:   But is that not the question here?  Could it be regarded as one journey?

MR JACKSON:   Your Honour, I accept that - I was just dealing with what the test is; I am going on to the application of the test, the second aspect of it is this:  the central part of the majority’s reasoning in the Court of Appeal appears at page 42 paragraph 17.  Your Honours, what we would seek to say is that whatever be the manner of expression of it, the decision arrived at was, with respect, in a very sad case, plainly the right one.  What I mean by that, your Honours, is that the trip was in the opposite direction from a journey home – I will show your Honours a little more elaborately why that was; it involved an extra 20 kilometres, the break in the journey was a break of some two hours.

Could I just give your Honours a diagram showing what was involved.  It was part of the record, but the colours have been put on it.  You will see the pink or red description shows what would have been the ordinary route from the council offices to home, home being a little above the top of the small diagram.  You will see the grandparents’ home – or the blue indicates the trip actually engaged upon from the council offices to the grandparents’ home, there was a break of a couple of hours, the accident site, then going further north and the trip back home; your Honours, however one cares to describe it, the deviation is obviously a very considerable significance in terms of time, distance and location.

Your Honours, what we would seek to say is that if one looked at the bare objective facts, and that was really all there was to look at, the decision was one on which really no other view could, we would say with respect, reasonably be taken, and may I say two further things about it?

GAUDRON J:   Why not?  Why could you not say, usually she went home via Wallsend, other times she went home via Charlestown, stopping off at her grandparents’ home on the way?  I mean, there would be deviations of this kind that would be taken every day by motorists in Sydney, simply because of traffic conditions.

MR JACKSON:   Yes.  Well, I suppose, your Honour, one really would not go home to a place on the southern beaches by virtue of the northern beaches, in effect, to put it shortly; I do not want to elaborate upon examples, or vice versa.  It is easy to say, I suppose, in relation to Victoria, that you would not go to the western peninsula by way of the east.  But, your Honours, the point I would seek to make about it is that if what your Honour was putting to me is right, that it really means that the test simply is, are you in one way or other on your way home.

GAUDRON J:   No, that is not the question; the question is, whether or not the Court of Appeal can set aside a decision by a trial judge that she was making one journey, which was another periodic journey that she took regularly every Friday or every second Friday.

MR JACKSON:   Your Honour, I appreciate that is the issue, but what I am seeking to say about it is first this:  if one looks at what actually took place, our submission is that in terms of direction, time, distance and, broadly speaking, location, the only view reasonably open is that which the majority took.  The second point we would seek to make about it is that undoubtedly there will be cases where, for example, there is a dissent, as in this case, of an issue like that in the Court of Appeal.  It does not follow that the majority must be wrong.  The third thing we would say, your Honours ‑ ‑ ‑

GAUDRON J:   But it does follow, in your submission, that the dissent was not reasonably open?

MR JACKSON:   Of course, your Honour, yes.  Your Honours, the third thing we would seek to say is that our learned friend’s written submissions refer to a passage that appears in paragraph 17 at pages 42 and 43, where Justice Handley says at the top of page 43, “Not without doubt”, and it rather seize upon that.  What we would seek to say about that, your Honours, is that really it is saying no more than in the context ‑ and the context, of course, is to be seen from the first few lines of that paragraph, where he speaks about the sadness of the case ‑ it is no more than a reflection of the fact that he has given due consideration to the question.  Your Honours, before going on, I would say one further thing about it.  It does not follow, of course, that special leave is to be given every time the Court may take a different view of a case like this from that of the court below.

GAUDRON J:   How do you say this relates to the decision of The Old Spaghetti Factory v Oughtred?

MR JACKSON:   Well, your Honour, what I would seek to say about it is that there are really cases involving different factual circumstances, there are simply cases where views are taken about the application of the statutory tests to particular facts.  The Old Spaghetti Factory might go a long way, one way ‑ ‑ ‑

GAUDRON J:   Is that a Court of Appeal decision?

MR JACKSON:   Yes, your Honour.

GUMMOW J:   Is section 10 still in the same form?

MR JACKSON:   The reference to fault, your Honour, section 10(1A) has gone, but it remains for this case.  Your Honour, that is the only change of relevance, I think, for present purposes.  Your Honours, if I could just say then that the ‑ ‑ ‑

GAUDRON J:   Can we just go back to The Old Spaghetti Factory – this was a trip to Dundas via Vaucluse?

MR JACKSON:   Yes, your Honour; that is why, your Honour, what we would seek to say about it is that if the Court were to give special leave in every case where, …..factual ones, there would be a lot of interesting cases and no doubt one could have some amusement about whether particular facts were or were not within the test, but in the end, your Honour, it is not a matter for the Court, in our submission.

Could I say, your Honours, that one does, of course, have another aspect to it, and that is what I would call the fault question.  Your Honours, this was a case where section 10(1A) was applicable ‑ ‑ ‑

GAUDRON J:   Yes, well that would have to go back to the Commission, if you were ultimately unsuccessful, would it not?

MR JACKSON:   Well, your Honour, the point we would seek to make about it is this, however:  the Court of Appeal had the power to deal with this aspect of the case itself.  It had power to deal with it under the terms of the section which your Honours will see in the applicant’s bundle of authorities at the bottom of page 2.  Section 32(1) gave the right to appeal and then, at the top of page 3, on the hearing of the appeal, the Court of Appeal could remit the matter to the Compensation Court:

and may make such other order in relation to the appeal as the Court of Appeal sees fit.

Now, your Honours, this was a case where, under section 10(1A), which you will see at page 36 of the application book:

Subsection (1) –

that is the entitlement to compensation –

does not apply if the personal injury was caused partly or wholly by the fault of the worker.

Your Honours, the case is one of utmost simplicity on the evidence.  The evidence was that the applicant’s car did not take a left-hand curve, ran off the road to the left and hit a vehicle which was stationary, parked five metres off the road.  If I could take your Honours to what was said about that in the Court of Appeal at page 50, paragraph 36 – it looks like 16, but in fact it is 36 – at the bottom of the page, where – I will not go through the detail of it – but it is clear that the Court of Appeal or the majority was of the view that it was a plain case of prima facie negligence.  Your Honours, that is a case where, in our submission, the Court of Appeal should have ‑ ‑ ‑

GAUDRON J:   Where is section 10(1)?

MR JACKSON:   Your Honour, section 10(1) can be seen at page 36 of the application book and then section 10(1A) is the provision to which I am referring.  Your Honours, if one took the simplest - let us say that the person who owned the parked vehicle, I think it was a truck, sued the applicant,

and the evidence stayed as it was, it would have to be a case of negligence.  Let us say the vehicle she was driving was owned by someone else and they sued the driver, again, it would have to be a case of negligence.  The point we would seek to make is that if this matter were to go to the court, it is ultimately one which would end up with the same ultimate result and we would seek, as our written submissions say, to file a notice of contention raising that issue in this Court and submitting either the case should be dismissed in the end or that the Court of Appeal should have adopted that course.  Your Honours, I am speaking in that regard about the utility of the matter being the subject of the successful application.  Your Honours, those are our submissions.

GAUDRON J:   Mr Hislop, we would like to hear you on section 10(1A), if you would not mind.

MR HISLOP:   Yes, thank you, your Honours.  My friend’s contention is that if the matter went back to the Compensation Court, the result must be that fault would be found.  Of course, the basis on which the Court of Appeal overturned the finding of fault was purely on a legal, what might be said to be a technicality, as to the construction or manner in the way the judge had worded his judgment.  The trial judge had no difficulty in coming to the conclusion that fault had not been shown, the need to establish fault resting upon the respondent.

GAUDRON J:   But the process by which he came to that conclusion was said to be wrong and, prima facie, it looks to be wrong.

MR HISLOP:   Well, certainly the way he expressed himself left something to be desired, but that is not to say that, on the facts of this case, a Compensation Court judge, re-hearing the matter, could not reach the same conclusion as the trial judge, namely that fault was not established by the respondent and indeed, as regards the judgment, firstly, his Honour Mr Justice Powell made no finding on the fault question at all; he expressly did not agree with the ‑ ‑ ‑

GUMMOW J:   Have we got the text of section 10(6)?

MR HISLOP:   In the bundle of documents lodged on behalf of the applicant, page 4 has the section and page 7 has subsection (6), your Honour, and about point 8 or 9 on the page you will find the definition of “fault”.

GUMMOW J:   Thank you.

MR HISLOP:   So Mr Justice Powell at page 56 of the application book expressly does not make a finding as to fault.  He refrained from dealing with that matter.

GUMMOW J:   Who bears the onus with respect to section 10(1A)?

MR HISLOP:   That is borne by the respondent employer as was conceded at the trial and is in accordance with authority, but the point I was seeking to make was that, firstly, Mr Justice Powell refrained from deciding the matter.  Secondly, Mr Justice Priestley did not consider that the matter was a foregone conclusion.  At page 55 at line 50 he says:

It will be necessary, in my opinion, for there to be a new trial so that the evidence may be considered by reference to the appropriate legal test.  In applying that test I think it will be proper for the trial judge to consider, along with the other matters that must be considered, the possibility of inadvertence or error of judgment on the part of the appellant.  Error of judgment –

GAUDRON J:   Why would that not constitute fault, in this context?

MR HISLOP:   Because of the longstanding authority in this Court in Sungravure Pty Limited v Meani, your Honour, which is set out by the trial judge at page 19, at some length, where the court there drew the distinction between:

some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure –

GUMMOW J:   What were they construing in Sungravure?  What section were they construing?

MR HISLOP:   I think that was in relation to a question of negligence or contributary negligence at common law, your Honour, rather than a statutory provision, but one will see at about line ‑ ‑ ‑

GAUDRON J:   See, because here you have only got to have partial fault.  Negligence does not have to be established, in the ordinary way.  You have only got to establish fault in some respect.

MR HISLOP:   Contributory negligence.

GAUDRON J:   Well not necessarily.

MR HISLOP:   It would have to be causative, one would think, or the fault would have to ‑ ‑ ‑

GAUDRON J:   Yes, it would have to be causative.

MR HISLOP:   And the point that, I think, Mr Justice Priestley was making was ‑ ‑ ‑

GAUDRON J:   It would have to be a contributing cause.

MR HISLOP:   Yes.  And one will see that at page 19, the material extracted there by the trial judge, the principle applies “upon a highway or anywhere else” – that is at about line 40,41 – and, of course, as they point out, it is always a question of fact.  And the very principle of res ipsa is one which would entitle a jury to make a finding of negligence, but it certainly does not require that they do so.

GAUDRON J:   And there is no explanation offered, no contrary explanation, such as brake failure or mechanical failure – there is no evidence of that, is that?

MR HISLOP:   There is no evidence of brake failure, but there was ‑ ‑ ‑

GAUDRON J:   Or any other mechanical failure?

MR HISLOP:   Not of mechanical failure, no, but there was evidence that there was a sheet of water across this section of the road, that it was near an intersection and the police gave evidence that a vehicle suddenly coming out of the right could cause the events that occurred, there was some police evidence that the surface of the road was such as could throw the tail of a vehicle off line, in the course of its passage, and so on.  So that there are many factors, and it could not be said to be a foregone conclusion, by any means, that a Compensation Court judge re-hearing this matter would be bound to find fault.

The other aspect of the matter is that the Court of Appeal, in our submission, had no power to determine the question of fault for itself.  That was an issue of fact and that is something which is within the exclusive jurisdiction of the Compensation Court.  The section 32, to which Mr Jackson took the Court, has been held by the Court of Appeal not to invest it with any power to make findings of fact.  So, as I think your Honour Justice Gaudron said, that issue of necessity would have to go back to the Compensation Court.  It would be a question of fact upon which the respondent would carry the onus and one could certainly not say, on the totality of the evidence in this case, that fault must be found against the applicant.  It was not found by the trial judge.  Justice Priestley, in his judgment, makes it clear that he would have thought it was well and truly arguable.  Justice Powell did not decide the issue and Justice Handley,

although it does not appear in the judgment, in the course of the argument in the Court of Appeal made it clear that he thought there were factors which could lead to, properly, a finding that there was no fault on the part of the applicant.

So, in our submission, that remains a question of fact which properly should go back to the Compensation Court to be determined as that court sees fit upon the evidence before it.

GAUDRON J:   Yes, thank you, Mr Hislop.  Mr Jackson, did you wish to answer any of that, because in a sense some of it is new.

MR JACKSON:   Only to say this, that our learned friend’s argument seems to involve the proposition that if the evidence remained as it was, a finding would be open that there was no negligence, but that really is entirely contrary, with respect, to the authorities that I referred to in Mr Justice Handley’s reasons and that is the reason why the difference of view occurred between the primary judge and his Honour on that point, and, your Honours, I will not go to the detail of them, but your Honours will see that from page 49 line 35 ‑ ‑ ‑

GAUDRON J:   That is an interesting question in itself, is it not?

MR JACKSON:   Well, your Honour, many questions partake of that nature, but it would be a busy Court if that were the case in granting special leave, but it is an interesting question, one really settled quite a while ago, because if you have the ordinary situation, where the evidence is, as recited in paragraph 33, then the cases seem to demonstrate that the ‑ ‑ ‑

GAUDRON J:   I am just wondering if that is, in fact, a correct statement.  Why must the cause be explained?  Why would it not be sufficient, having regard to what was there said, until other explanations, or possible explanations, are proffered?

MR JACKSON:   Well, your Honour, could I just say, that is really what his Honour is saying, because he goes on to quote from Justice Dixon in Davis v Bunn, and that is what his Honour says in the first sentence of that passage ‑ ‑ ‑

GAUDRON J:   No, it says:

until the cause.....was explained.

What I am putting to you, by way of consideration, is that the correct test is really until possible explanations are proffered, because ultimately it is a

question of inference and if there are competing hypotheses, competing inferences ‑ ‑ ‑

MR JACKSON:   Well, your Honour, certainly – cars sometimes run off roads and there are a variety of causes for it, but in the ordinary course of events a vehicle is being driven under control and the thing that most often in human experience - and one sees Davis v Bunn is now 64 years old, and nothing really has changed in that regard - one sees that unless some other inference appears from the material, the prima facie inference is that the car runs off the road because of the negligence of the driver; there is sufficient evidence of negligence, if I could use Justice Dixon’s observation.  Now it may be the other explanations are made.

GAUDRON J:   But it is not an inference that must be drawn, is it, according to the authorities?

MR JACKSON:   Well, your Honour, it is the inference that would be drawn – and we would submit it would be wrong not to – in the absence of other evidence.  Your Honour, if I could just go back to the example I gave when I was submitting earlier, assume that an action were brought by the owner of the stationary vehicle against the applicant.  Now, if the evidence remained as it stood and the case was dismissed because it had not been proven - other possible causes had not been excluded, there being no evidence to demonstrate what the cause was, other than the basic running off the road, our submission is that an appeal by the plaintiff in that case would have to succeed.

GAUDRON J:   But is not the law that an inference does not have to be drawn; it can be drawn, but does not have to be?  An inference of negligence, when you have this sort of situation, may be, but it is not necessarily to be drawn.

MR JACKSON:   Well, your Honour, generalising yes, but, however, if one looks at particular circumstances where a vehicle on the road runs into a stationary vehicle off the road, one only is speaking about the balance of probabilities and in relation to that the balance of probabilities would, except perhaps in some bizarre case, require the inference to be drawn.  I do not know that I can advance it beyond that, but that is our submission.

GAUDRON J:   Yes, thank you, Mr Jackson. Yes, there will be a grant of special leave in this matter.

MR HISLOP:   We would seek costs.

GAUDRON J:   That will depend.

GUMMOW J:   You had better wait and see.

GAUDRON J:   Usually costs of the appeal.  You will be filing a notice of contention will you, Mr Jackson?

MR JACKSON:   Yes, your Honour.

GAUDRON J:   But it would, nonetheless, I take it, still be a one day case; the parties would ‑ ‑ ‑

MR JACKSON:   Your Honour, I would have thought so, yes.

GAUDRON J:   Yes, thank you.

AT 9.57 AM THE MATTER WAS CONCLUDED