Wiegold v State Rail Authority of New South Wales

[1992] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S9 of 1992

B e t w e e n -

LESLIE JAMES WIEGOLD

Applicant

and

STATE RAIL AUTHORITY OF NEW

SOUTH WALES

Respondent

Application for special

leave to appeal

MASON CJ
TOOHEY J

MCHUGH J

Wiegold 1 5/6/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 JUNE 1992, AT 11.34 AM

Copyright in the High Court of Australia

MR J.A. CRUMPTON. QC:  May it please the Court, I appear

with my learned friend, MR I.D. CULLEN, for the

applicant. (instructed by G.J. Sharah Hanville &

Co)

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR R.F. WILKINS, for the

respondent. (instructed by Dexter Healey & Co)

MASON CJ: Yes, Mr Crumpton?

MR CRUMPTON:  Your Honour, the questions which we seek to

obtain special leave to raise are those set out on

pages 97 and 98 of the application book in the

affidavit of the solicitor for the applicant. The

causation point of course really relates to March v

Stramare, Your Honours' decision in that.

MASON CJ:  So far as causation is concerned, in view of the

finding that the applicant engaged in this activity

as a voluntary and intentional act or decision, how

can it be said that the loss was caused by the

respondent's negligence?

MR CRUMPTON:  Your Honour, we would respectfully submit that

the conduct of the applicant which was after the

wrongful termination of workers' compensation

rights to him was one which can, and was indeed

properly stated by Mr Justice Mcinerney, as having
been caused by the events, both the accident and

the consequent injuries to him, and following that,

the wrongful termination of workers' compensation

rights so that his family was then impoverished.

It is true that they did not seek social services

because they simply did not know, but we would

submit that - - -

MASON CJ: But is the point not this: is it not well

accepted as a general principle that a personal

decision undertaken voluntarily and intentionally

to do something, with full understanding and

appreciation, breaks the chain of causation?

MR CRUMPTON:  That certainly is so, Your Honour. we would

submit here that on the evidence, it was left in

the situation where the applicant was in such a

desperate situation that when he was offered

premises and had moved into cheaper premises and

subsequently made an arrangement with the person

who planted the marihuana trees or seeds, that he
was not in fact involved in the actual planting or

the cultivation of the plants, as does appear in

the evidence, but was limited to doing some minor

matters of watering.

Wiegold 2 5/6/92

we would submit, Your Honour, that there was

not any real evidence here of a voluntary and

clear-minded decision on his part. We would

submit, therefore, that the course of events would

have been foreseeable and were, we submit, properly

categorized by His Honour.

MASON CJ: Would you refer us to the specific finding on

this point.

MR CRUMPTON:  Yes, Your Honour. His Honour

Mr Justice Mcinerney dealt with the matter on

page 40, where at line 14 he refers to his

involvement. Indeed, Your Honour, the passages

which deal with it really commence on page 39 at

line 4 where His Honour says:

The question then arises, how do I assess

past and future economic loss?

He refers then to the problem of criminal conduct,

which we would respectfully submit is one which

comes frequently before the courts in relation to a

large number of personal injuries claims.

His Honour Mr Justice Mcinerney at page 39,

line 20, says:

I am satisfied on the balance of probabilities

that the plaintiff was induced into this

criminal enterprise by his impecuniosity which

resulted from the accident. At the time this

incident occurred he was nearly 30 years of

age and had been a hard-working person who had

made a success of his life, given the fact

that his education was minimal -

he left school at 13 and a half years -

Prior to this offence, as far as I am aware,

he had not committed any other offences and he

was a married man who was accepting his

responsibilities and working overtime in order

to have adequate money to finance his family.

I accept, therefore, that he succumbed to the

temptation because of these financial problems

which were brought about as a result of his

injury.

MASON CJ: The trial judge does not seem to have faced up to

this issue. On the other hand, the passage that

you have read does seem to imply in a general way

that the applicant decided to undertake this

activity for the reasons stated, but it does not

suggest that any decision to do so was involuntary

or lacked intent or understanding.

Wiegold 3 5/6/92

McHUGH J:  He could not have been convicted unless it was a

voluntary act, could he?

MR CRUMPTON:  Certainly he pleaded guilty to the charges.

There were three charges under the Poisons Act in

relation to - - -

McHUGH J:  If it is a voluntary act, that is the end of the

case.

MR CRUMPTON:  Your Honour, we would submit that His Honour's

findi~gs do not carry the importation that he had,
as a rational and voluntary decision, been

caught, been determined.

MASON CJ: It does not have to be rational.

MR CRUMPTON:  No, certainly, but we would submit that

His Honour was correct in saying that it was the

circumstances of his impoverishment and seeking to

get some money for his family that, as His Honour
said, he yielded to temptation when it was offered

to him by others. There is in the evidence no

suggestion that he was actively involved in the

planting or raising of the seeds.

TOOHEY J: But your difficulty, Mr Crumpton, is that you do

not have the sort of positive finding that you

really need to sustain the argument. If the Court

is left in the air as to precisely what his state

of mind was at the time, can it do other than

accept that it was a voluntary action?

MR CRUMPTON:  Your Honour, there is evidence, or was

evidence at the trial -

TOOHEY J~ I was not speaking of evidence; I was speaking

of findings.

MR CRUMPTON: Certainly I have to accept the findings of

His Honour.

TOOHEY J: And the reason for that is that His Honour seems

to have thought it sufficient to say if it had not

been for the injury, he would not have been

involved in this situation. If that is not the

appropriate test in these circumstances, then it is

difficult to see what substance there is in the

application.

MR CRUMPTON:  Your Honour, the only other matter that I

would put in relation to causation is that there
was evidence that he was depressed and although

His Honour made a finding that he was not satisfied

that there was brain damage, there was evidence

before the court of his depression and his

indulging, during a period which included this

Wiegold 5/6/92

period, in drinking, partly because of his problems

and partly because of the fact that he was a very

substantially injured person with grave problems.

I appreciate what Your Honour says about voluntary,

but there is not -

MASON CJ:  Do you challenge what I put to you as a matter of

principle?

MR CRUMPTON:  I do not think I can, Your Honour. The

plaintiff had severe back and neck injuries and

subsequently underwent two operations on his back.

That was done about a year after he had been

released from prison. So that at the time that he

was engaged to such extent as he was, the plaintiff

was both physically extremely handicapped and

financially without any money at all to feed

himself or his family. His Honour

Mr Justice Mcinerney then finds that he was, as a

result of those matters, tempted and was involved

in the marihuana offence under the Poisons Act.

Those are the matters that we would put to the

Court, Your Honour.

MASON CJ: Thank you, Mr Crumpton. The Court need not

trouble you, Mr Jackson.

In the absence of relevant findings of fact by

the trial judge, this case is not an appropriate vehicle for the determination of any question of

general principle. The application is therefore

refused.

MR JACKSON:	May I ask for costs of the application?
MASON CJ:	You do not oppose that, Mr Crumpton?
MR CRUMPTON:	I cannot say anything about that, Your Honour.

MASON CJ: The application is refused with costs.

AT 11.46 AM THE MATTER WAS ADJOURNED SINE DIE
Wiegold	5/6/92