Walker v Carter & Ors

[2011] HCATrans 250

[2011] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M4 of 2011

B e t w e e n -

MARCUS T WALKER

Applicant

and

GRAEME CARTER

First Respondent

STATE OF VICTORIA

Second Respondent

DONALD S WALKER

Third Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 SEPTEMBER 2011, AT 12.20 PM

Copyright in the High Court of Australia

MR R.K.J. MELDRUM, QC:   If the Court pleases, I appear with my learned friend, MR P.A. CLARKE, on behalf of the applicant.  (instructed by Allan McMonnies)

MR N.J. YOUNG, QC:   I appear with MR R.S. WOTHERSPOON for the first and second respondents.  (instructed by Victorian Government Solicitor)

HAYNE J:   There is no appearance for the third?

MR WOTHERSPOON:   That is right.

HAYNE J:   Yes, Mr Meldrum.

MR MELDRUM:   The events led to this matter are quite ancient; they were in August of 1993.  The claim that was brought on behalf of Marcus Walker related to the battery that was inflicted, as the learned trial judge found and the Court of Appeal confirmed, upon his sole brother and his mother in his home.  The judge at first instance accepted that Battista v Cooper was good law and followed that as extending the deliberate tort of battery as covering a close relative injured as a consequence of the battery in the circumstances of this case.  The Court of Appeal said that the forms of action that had determined what were the elements of a battery had been set in such substantial and long living concrete that because the injury to the applicant was not a direct injury, he had no right. 

We say that it is unfortunate but understandable that the Judicature Act having abolished the forms of action in the United Kingdom in 1873, that in this country the last of the States to do so was New South Wales and not until 1970.  The consequence of that is that a lot of judicial thinking has been formulated on the basis that the hangover from the forms of action which had many aspects of artificiality set in concrete the rights of injured parties to remedies.  As the Court well knows, the forms of action in trespass really were developed by the early courts as part of their warrant to keep the Queen’s peace or the King’s peace and put what probably initially were allegations that were factual, that the assault was accompanied by force of arms and similar allegations, all of which became formulistic and in the same way, until trespass on the case led to the development of negligence, the sole rights to recover damages in respect of personal injuries were related to people directly injured. 

The development of the law of negligence, which was at first understandably reluctant to recognise and to give in limited form people suffering recognisable psychiatric injuries, has moved miles down the track as Tame and Annetts illustrate, and the circumstances are, we say, that the law did have, and we say still does have, a thesis that the range of responsibility for a tort in part depends upon the conduct that led to the damage.

HAYNE J:   Does this not bring you to a difficulty in this case?  You seek to extend the ambit of the law of battery.

MR MELDRUM:   We do directly, your Honour, yes.

HAYNE J:   Why is this case a case appropriate to consider that where the question of extension would present at its root a question about coherence of the law?  Is not the difficulty for you in this case that we do not have negligence pleaded, we do not have Wilkinson v Downton pleaded and we are left to consider an allegation that battery should be extended without the direct engagement of those questions that would present the issue of coherence?

MR MELDRUM:   No, your Honour, with respect, we say it makes it a purer case that deals with that issue alone and it does so in circumstances where we say any plea of negligence, given the conduct of Constables Carter and Sesin, as was found by the learned trial judge and the Court of Appeal, would result in an artificiality to a negligence claim that would be equal to the artificiality of a plea in trespass today that it was vi et armis because the evidence established that they had no knowledge of the existence or even the possible existence of any relatives of the two people who were the subject of the battery and how one would plead that they were negligent or deliberate in intending to injure another party of whom they had they knowledge is, we say, in the clearest and the most.....form of this challenge.

HAYNE J:   Does that not present exquisitely the difficulty in your case, that there being no action for negligence because the plaintiff’s presence was not known, why should one extend the law of battery to cope, you would say, with a case of that kind?

MR MELDRUM:   Well, for a start, the Full Court of the South Australian Supreme Court said in Battista v Cooper that it did extend there.  This Court has differed from an existing Full Court decision.  Secondly, it is not uncommon that in circumstances of batteries that the deliberate act is not just the act to touch, as is the element of the law in terms of it, the trespass, but is in fact capable of being construed given what occurred in the course of it as saying that there was the intention to do serious harm, and the extent of the injuries, the extent of the battery in this case would indicate that this would be a case where the courts could say that there is a gap in the law relating to injuries that occur as a consequence of unlawful conduct, not being negligent, but being a conduct of battery and ‑ ‑ ‑

BELL J:   The Court of Appeal, I think, acknowledged that it might have been that a case in negligence could have been mounted on the part of your client, Marcus Walker, but that would have required consideration of the duty owed, not impossible to imagine a view that a person intentionally doing violence to another might owe a duty to those likely to suffer harm in consequence of that conduct.  That was a view that the Court of Appeal left open.  The difficulty is in the way the case was run, you really need to make good the proposition that you set out in paragraph 4 of your submissions at page 689 of the application book that:

it was sufficient for the applicant to succeed that there was an intentional battery of the applicant’s brother and elderly mother and that the mental harm he suffered was a natural and probable consequence of that battery.

MR MELDRUM:   Yes, your Honour.  Because we say that there is no longer a rational reason in Australia for us to consider that the only victim of a battery who is entitled to compensation is a direct victim, because the thrust of the Court’s reasoning was not just that the cause of action was in battery, but that what in fact occurred was a battery and we say there would be an artificiality to plead a duty of care because the duty is not, if one puts it as high as duty, but that the wrong is the application of force to the bodies of the mother and brother and in those circumstances, it is our case that this is, with due respect, a.....case to consider what are the limits of trespass. 

Is it confined to the granting of a remedy solely to the party directly injured or is it a gap in the law that is an irrational gap that if similar injuries had occurred by the police to these two people in the course of driving to the premises to make inquiries, there would have been no debate that Marcus Walker would have had a claim and yet, in circumstances where the law ordinarily has put a wider range of the damages which may be claimed to direct victims in the sense that you are not talking about foreseeability but you are talking about the consequences that flow from what was done without an intermediate test of foreseeability, that it makes it, we say, a case for the courts to again look at this, as they have in almost every area of tort law in this country, where it has been rationalised, narrowed down, it has been – most of the old rules Rylands v Fletcher and the occupier’s liability and all the old rules have gone on the basis that they were consequences of the forms of action. 

HAYNE J:   And as part of the imperial march of the tort of negligence you would seek to have the cohorts of the legion of battery march forward a little further I think.

MR MELDRUM:   We say there is no logical reason, with respect, our case is there is no logical reason why, if somebody deliberately batters in a severe way two parties resulting in an injury to an independent, non‑present party who is closely connected with the two parties that are the subject of the battery, we say that it is a clear gap in the law and our case is that we differ from the United Kingdom in the sense of allowing trespass and negligence for the same events as the English courts do.  In those circumstances, this is an illogical gap, is our case, in the law of dealing with injuries arising out of batteries.

The case that was pleaded, we say, if were to plead a duty of care which would have to be the way it would be pleaded in terms of the claim by the applicant, that that is completely artificial because the wrong that was done was not a breach of the duty of care but the wrong that was done was a trespass.

BELL J:   It was a trespass to the brother and the mother.  The issue is what is the characterisation of any wrong if wrong have been done, what is the characterisation of that vis-à-vis the applicant?

MR MELDRUM:   It is, but to get to negligence there has to be a duty of care and we say it would be artificial to say of this that the duty of care is to this applicant.  In Annetts and other cases, it is not put on the basis that there is a duty of care in the employer to see that one is not injured, that as a consequence of injury to one there are not injuries to the other.  It flows, we say, as a result of the breach of duty of care leads right to – the injured stockman or the injured person who was run into by the forklift, leads to a cause of action arising out of that breach of duty to another party, and we say that there is no separate breach of duty to that party. 

What the law says is the limits of the liability are the foreseeable damage and it is foreseeable that there will be damage to that party, that is the relative.  Our case is and our formulation is that there is no need for the artificiality of the imperial march of negligence to be brought into trespass.  What is needed is to say that trespass no longer ought carry the limit, that it is only direct injuries which can be met under trespass.

HAYNE J:   The only limit would be a limit of but for causation.

MR MELDRUM:   No, your Honour, it would be natural and probable consequences which would be less than but for, significantly short of but for, and not grossly different from, in most cases, foreseeable damages.  So that it does not create, we say, an axe that is too large to meet a small problem.  It would, if properly put, would leave a remedy that reflects that the direct tort created with the intent that is necessary, albeit the intent in this case was to touch, but the way in which it was carried out would entitle

the court to say that the intent became one to injure, and to injure severely, that it is not appropriate to draw the line short of saying that Marcus can recover merely because he was not directly injured.

As to the question concerning whether this case is not an appropriate vehicle which my friends raise, the Court of Appeal did consider all the respondent’s arguments concerning the central event.  They divided the events, as the trial judge did in a careful judgment, into preliminary events which were up to the stage that they came through the door and separated Ms Ham from Donald Walker, and the Court of Appeal said that the apprehension of the violence or the breach of the peace had not continued.  They relied upon such central issues as Mr Carter’s reason for taking the baton out and belting Donald Walker was that the said that a punch had been thrown by Donald Walker at Constable Sesin and Sesin said no such thing.

Sesin said he was concerned that the plaintiff was going for Carter and that is why he intervened, whereas Carter said that he had intervened because there had been an assault of a policeman in the course of his duty and he was thereafter keeping the peace.  There were many examples which the Court of Appeal summarised between paragraphs 147 and 159 in the application book between 616 and 618 for why the suggestion that this case is imperfect as a vehicle on the basis that there was a failure by the intermediate court to deal with the central issues in the central event is not an appropriate argument.  Unless the Court has some further questions.

HAYNE J:   Thank you, Mr Meldrum.  The Court will adjourn for a time to consider the course it will take in this matter.

AT 12.40 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.45 PM:

HAYNE J:   We will not trouble you, Mr Young.

The central proposition for which the applicant would contend on appeal is that the defendants are liable in the tort of battery, not only to the person against whom the battery was committed, but also to a person who suffers mental harm as a natural and probable consequence of the battery.

Having regard to the way in which the case was pleaded and conducted at trial, there was no exploration of the relationships between the parties of a kind that would have been necessary in determining whether the defendants were liable to the applicant in negligence.  That being so, this is not a suitable case in which to explore whether some extension can or should be made to the principles governing the tort of battery.  Further, we are not persuaded that the applicant would enjoy sufficient prospects of succeeding in establishing the wide proposition which he advances as would warrant a grant of special leave.  Special leave, accordingly, is refused and must be refused with costs.

AT 12.46 PM THE MATTER WAS CONCLUDED