Wagga Truck Towing Pty Limited v O'Toole & Anor

[2011] HCATrans 343

[2011] HCATrans 343

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S266 of 2011

B e t w e e n -

WAGGA TRUCK TOWING PTY LIMITED

Applicant

and

DEAN O’TOOLE

First Respondent

RHETT RUSSELL/IAG LIMITED TRADING AS NRMA INSURANCE & WAGGA TRUCK PTY LIMITED

Second Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 DECEMBER 2011, AT 1.41 PM

Copyright in the High Court of Australia

MR J.E. SEXTON, SC:   May it please the Court, I appear with my learned friend, MR S.E. TORRINGTON, for the applicant.  (instructed by Lee & Lyons Lawyers)

MR C.T. BARRY, QC:   May it please the Court, I appear with my learned friend, MR N. KULKARNI, for the first respondent.  (instructed by Taylor & Scott Lawyers)

MR P.J. DEAKIN, QC:   If the Court pleases, I appear for the second respondent with MR A.J. STONE.  (instructed by Sparke Helmore Lawyers)

FRENCH CJ:   Yes, Mr Sexton.

MR SEXTON: Your Honours, the point which underlies the special leave question in this case involves the legal issue of duty, not the factual issue of breach and that is because section 5H of the Civil Liability Act provides that a defendant does not owe a duty of care to another person to warn of an obvious risk to the plaintiff and section 5F provides that an obvious risk is a risk of which the plaintiff ought to have known, not only a risk of which the plaintiff had actual knowledge. The words of 5F(1) are ‑ ‑ ‑

FRENCH CJ:   These provisions were not raised at trial, were they?

MR SEXTON:   They were pleaded, your Honour, and it appears that there was some reference to the Civil Liability Act at the trial.  The primary judge did refer ‑ ‑ ‑

GUMMOW J:   It was not raised in the Court of Appeal though, was it?

MR SEXTON:   The sections themselves, your Honour?  Sections were not expressly, but, in our submission ‑ ‑ ‑

GUMMOW J:   All I am saying is we would not have the benefit of any considerations in the reasons of the Court of Appeal on important questions of construction you say arise for New South Wales.

MR SEXTON:   That is so, your Honour.  We accept that.  But, your Honour, if I could digress briefly from what I was saying to take your Honours to the way in which the reasons developed.  All the findings about breach by the applicant are at pages 12 and 13 of the application book and the specific findings at line 40:

They –

meaning the tow truck operators –

breached that duty of care by providing advice to carry out preliminary work without warning Mr Russell of the dangers in removing the tail shaft. 

It is that finding that was the subject of appeal, but when the matter got to the Court of Appeal, consideration was given not only to that finding but also to the question of whether there should have been a warning which went beyond that to the question of the risk that the parking brake would be disabled.  That is apparent from the reasons of Justice Hodgson at page 47.  There was a finding at paragraph 31 of the judgment of the Court of Appeal, again at page 47 of the application book:

In these circumstances, in my opinion Mr Cool did owe a duty of care to Mr Russell and to Mr O’Toole –

Mr Cool, of course, being the representative of the applicant.  Our point there is that if a finding about duty of care to warn is to be made, then one has to have regard to the provisions of the Civil Liability Act. They cannot be ignored. I was taking your Honours to the provisions in section 5F(1) which provides that ‑ ‑ ‑

FRENCH CJ:   Just to be clear on this, you say that those provisions were mentioned in the pleading.

MR SEXTON:   Yes, your Honour.

FRENCH CJ:   Where, if anywhere, are they referred to in the trial judge’s judgment?

MR SEXTON:   Only, your Honour, where the primary judge at page 12 of the application book says:

I simply turn to the Civil Liability Act and section 5 –

Section 5 is a definition section, so it may be inferred that his Honour intended to refer to more than section 5.  It may only have been section 5B which deals with ‑ ‑ ‑

FRENCH CJ:   He just equates that to common law, he says.

MR SEXTON:   He does, your Honour, but nevertheless, as I have already said, one cannot ignore the provisions of ‑ ‑ ‑

FRENCH CJ:   That is as far as his treatment of ‑ ‑ ‑

MR SEXTON: Yes, your Honour. We come back to section 5F(1) which provides that an “obvious risk”:

is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. 

In subsection (2):

Obvious risks include risks that are patent or a matter of common knowledge. 

In our submission, the obvious risk was that a vehicle might move if someone who was underneath it, working on it – or rather that somebody who was underneath it, working on it, could be injured if the wheels were not chocked.  That is a relevant risk, firstly, because it was the movement of the truck which caused the injury and any warning only to the effect that removing the drive shaft, which is what the primary judge had concentrated on, might cause the parking brake to become ineffective would have either only have been half a warning or would have been ineffective without the critical additional warning about chocking the wheels.  In other words, the risk of the parking brake becoming ineffective would be obviated by chocking the wheels and it was not only the risk that the drive shaft might cause a problem which had to be taken into account.  As a matter of common sense, there are a number of things that can go wrong when somebody gets under a vehicle and common sense dictates that that risk requires the wheels to be chocked. 

The relevant risk, in our submission, is that identified by the Court of Appeal at page 51 of the application book when, again in the reasons of Justice Hodgson, at the end of the first part of paragraph 42, the risk was identified as being:

to undo bolts under the truck, on an incline, without chocking the wheels, was a risky undertaking.

That is the relevant risk. Without, hopefully, labouring the point, that is the one that we say is a matter of common knowledge within the meaning of section 5F(2). In that regard, the Court of Appeal found, firstly – and this is at page 50 of the application book – that Mr Russell, who was the owner/driver, had no particular mechanical expertise. The way that finding was developed was firstly to note that the primary judge had made a finding that Mr O’Toole, that was the plaintiff, had no particular mechanical expertise and then to agree with the submission made by my learned friend, Mr Deakin, for the NRMA that there was no basis for the primary judge to

conclude that Mr Russell had greater mechanical expertise than Mr O’Toole. 

So it is in the context of their being no particular expertise from Mr Russell but that absence of expertise being the equivalent of the plaintiff’s position, that the Court of Appeal then, at page 51 at line 25, said that “a reasonable person in Mr Russell’s position” – that is somebody without any particular expertise –“would have appreciated” the relevant risk, that is, to undo bolts under the truck on an incline without chocking the wheels was a risky undertaking.  Then in paragraph 43 Justice Hodgson went on to observe that:

It may be said that much the same considerations apply to Mr O’Toole –

that is, that Mr O’Toole was in exactly the same position as Mr Russell, it is a matter of common sense and so for those reasons the findings at paragraphs 30 and 31, which I directed your Honours’ attention to earlier, which is a finding that neither Mr Russell nor Mr O’Toole was in a class of persons who might reasonably be expected to be aware of the risks that the parking brake would be disabled, that may be so, but they were both in a class of persons who might reasonably be expected to be aware of the risk that if something went wrong when Mr O’Toole was under an un‑chocked vehicle, then there was a risk of injury.  That is the obvious risk in respect of which no duty was owed by the applicant.  That is a point, your Honours, which underpin what we said in our written submissions about this being an appropriate vehicle for special leave.  They are the oral submissions which supplement the written submissions.  May it please the Court.

FRENCH CJ:   Thank you, Mr Sexton.  We will not need to trouble you, Mr Barry and Mr Deakin.

The applicant, a tow truck company, seeks special leave to appeal against a finding in the District Court of New South Wales, upheld in the Court of Appeal of the Supreme Court of New South Wales, that it breached a duty of care to the first respondent.  The breach was said to have occurred in the course of a telephone request for towing assistance from the second respondent whose truck, in which the first respondent was a passenger, had broken down on the Hume Highway.

The applicant asked the second respondent to remove the bumper bar and tail shaft from the truck to facilitate towing when the tow truck arrived.  The first respondent went under the truck and uncoupled the tail shaft.  This had the effect of releasing the brake.  The truck, which was parked on an incline, rolled forward and caused serious injury to the first respondent.

The applicant contested the finding that its failure to warn the second respondent of a possible hazard associated with removing the tail shaft constituted a breach of duty of care to the first respondent. It invokes, in this application, the provisions of sections 5F, 5G and 5H of the Civil Liability Act 2002 (NSW) relating to obvious risks.

In our opinion, the case turns on findings of fact involving the application of settled principles of general law. The question whether sections 5F, 5G and 5H applied, not having been raised before the Court of Appeal, this Court does not have the benefit of the Court of Appeal’s consideration of the construction of those provisions in their application to the facts of the case.

In our opinion, this is not a suitable vehicle for the grant of special leave.  Special leave will be refused with costs.

AT 1.53 PM THE MATTER WAS CONCLUDED