Wilkins v Council of City of Broken Hill

[2006] HCATrans 524

[2006] HCATrans 524

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S74 of 2006

B e t w e e n -

PAUL JONATHON KEITH WILKINS

Applicant

and

COUNCIL OF THE CITY OF BROKEN HILL

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 SEPTEMBER 2006, AT 9.30 AM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:   May it please the Court, I appear with MR D.J. WILLIAMS for the applicant.  (instructed by Doyle Kingston Swift)

MR J.E. MACONACHIE, QC:   May it please your Honours, I appear with MR J.C. SHELLER for the respondent.  (instructed by TressCox Lawyers)

GLEESON CJ:   Yes, Mr Gross.

MR GROSS:   Your Honours, we submit this is a case involving miscarriage of justice.  We also assert that there are legal principles which could be helpfully explored as part of resolving that miscarriage of justice.  Your Honours, the trial judge, Justice Bell, found negligent breach of duty both in tort and contract and that if the applicant succeeded on causation, there would be a 50 per cent reduction for contributory negligence.  The only issue between the parties in the Court of Appeal and in this proposed appeal is the factual causation issue.

Your Honours, there are a number of key findings which were made by the trial judge and accepted by the Court of Appeal.  First, it was common for pool users to dive in the shallow end without reprimand from the pool attendants in the years up to January 1996 when the accident happened and the plaintiff had been swimming there with other children since he was aged seven, some seven years before.

Secondly, despite the prohibition contained in sign 1, it was common for children to dive into the shallow end of the pool.  Thirdly, more consistent enforcement of the prohibition on diving conveyed by sign 1 would have brought to the attention of persons such as the applicant that diving into the shallow end was conduct which if detected would not be tolerated.  Fourthly, this failure to take steps to ensure more consistent enforcement of the prohibition on diving in sign 1 with respect to young pool users was a breach of duty both in tort and contract.

Fifthly, the effectiveness of the prohibition on diving conveyed by sign 1 was significantly weakened.  Sixthly, more consistent enforcement by the pool attendants would have brought to the plaintiff’s attention that this conduct, that is diving into the shallow end of the pool, if detected would not be tolerated.  Seventhly, as a child, the plaintiff did not appreciate he risked permanent injury and his ability to appreciate the risk was reduced because of his immaturity.

Your Honours, the reasons given by the trial judge for finding against the applicant were that – and this is at pages 61 and 62 of the book – I can summarise them as being four reasons.  Firstly, the repeated failure to enforce the prohibition on diving did not lead him to believe it was safe for him to dive.  Secondly, at age 14 he understood that sign 1, that is the “No Diving” sign, meant diving was prohibited.  Thirdly, on other occasions at the pool he had engaged in prohibited activities like blocking the water slide, climbing on other children’s backs, running around the pool surrounds, and he had on earlier occasions twice been required to leave the pool for breaches other than diving into the pool.  Fourthly, he was disinclined to comply with rules at school.  Despite having a good academic performance, he did not achieve optimally and on occasions he was rude, disruptive and talkative.

Your Honours, if I can just address the categories of error – and I appreciate they are in our written submissions – the Court of Appeal in a judgment by Justice Mason at page 84 accepted correctly that the starting point for analysing the causation issue is to identify the factual content underpinning the finding of breach of duty.  If your Honours would go to page 84 your Honours will see that Justice Mason at paragraphs 17 and 18 states two propositions which appear to have been central.  His Honour found that:

First, the Council is to be held legally accountable only for what it negligently failed to do . . . 

Secondly, the causation question is what did the plaintiff show would probably have happened on his part had the negligence not occurred.

Could I address the first reason.  Your Honours, we submit that although his Honour correctly stated that the Council is only legally accountable for what it negligently failed to do, his Honour did not apply that dictate.  His Honour failed to give effect to the full elements of the breach of duty.  That is, there was not just a failure adequately to warn but also there was another aspect of negligence allowing an unsafe practice of diving to develop and to continue at the pool which caused dangerous diving habits by children, including the plaintiff, when proper enforcement of the prohibition on diving would probably have created different habitual behaviour, that is safe habits, of children, including the plaintiff, entering the pool.

Secondly, your Honours, the reason given by Justice Mason at paragraph 18 that the plaintiff had to show what “would probably have happened on his part had the negligence not occurred” and that “required the court to determine what the particular plaintiff would (subjectively) have done” raises three sources of error.  The first is that the defendant’s negligence prevented the plaintiff from readily or easily establishing, in effect, what probably would have occurred because the plaintiff could not point to his earlier behaviour or method of entering the pool as the defendant’s negligence which persisted over many years created unsafe diving habits in the plaintiff and the other children.  The negligence itself shut out the plaintiff’s means of demonstrating normal customary safe behaviour. 

Secondly, the test applied here in paragraph 18 looks more like a “but for” causation test even though elsewhere the trial judge and Justice Mason himself stated the test in the less demanding and more relevant terms of causal contribution.  The third error we point to there is that by referring to “subjectively” at line 51 on page 84, Justice Mason erred in that, although a decision on a particular matter like consenting to surgery may correctly be described as subjective, as occurred in Chappel v Hart, the applicant’s diving habits created by the respondent’s breach of duty were a matter of objective fact and not just subjective belief.

His dive on this occasion, being his normal habitual method of entering the pool, was quite possibly a mindless automatic act repeating habit rather than making a subjective decision of the type one makes when one is submitting to surgery.  So that when one is looking at what would probably have occurred, one should not just be looking, as his Honour did, at what the plaintiff thought subjectively but objectively at what the defendant customarily did.

The second aspect of error, your Honours, relates to the conflict between the causation findings and the volenti findings.  At page 86 of the book, if your Honours would go to paragraphs 23 and 24, your Honours will see that Justice Mason quoted from Justice Bell’s judgment what she said in relation to the voluntary assumption of risk.  The paragraph at the middle of page 86 contains the following features that for the purposes of voluntary assumption of risk, her Honour had accepted:

that the plaintiff may have understood that there was some risk of injury associated with diving into the pool at the shallow end, however, I do not find that he appreciated that he risked permanent injury of the kind that he sustained . . . While not of tender years he was nonetheless a child.  His ability to appreciate the risk and to voluntarily accept the legal consequences of doing so seem to me to have been reduced because of his immaturity.

This passage recognises that [the] appellant did not fully appreciate the risk he was taking. 

Here is the sentence we complain of:

It does not follow that such a state of mind was caused or materially contributed to by the Council’s negligent conduct.

Your Honours, how can that proposition be so?  The trial judge had already found that as a result of the breach of duty the effectiveness of the prohibition conveyed by the “No diving” sign was significantly weakened and that more consistent enforcement would have brought to the plaintiff’s attention that this conduct if detected would not be tolerated.

Also, the plaintiff as a child, as has already been found, did not appreciate he risked permanent injury and his ability to appreciate the risk was reduced because of his immaturity.  In that expression in paragraph 24, Justice Mason has failed to consider the role of habit and practice in the causation issue.  His Honour has concentrated on state of mind, that is informational causation, but has ignored in the consideration of the matter the habitual conduct, which of course is something which itself is instilled by the longstanding negligent conduct over years.

Your Honours, the third aspect of error relates to the way in which the Court of Appeal and Justice Bell dealt with the problem of inferring causation on what is colloquially described as a Betts v Whittingslowe basis.  From pages 89 through to 93 your Honours can see, particularly at 89, Justice Mason found that the trial judge had treated the applicant’s attitude to rules at school and the pool as sufficient reason to the contrary.  So therefore, one can acknowledge that the defendant had gone that far in discharging an evidential onus.

But that was not the end of the matter.  We submit that even if the respondent had discharged its evidential onus – and we concede that it put forward such evidence – by adducing some evidence to counter the prima facie inference and accepting as we do that the applicant always bore the legal onus of proof on causation, both Justice Bell and the New South Wales Court of Appeal should still have given weight to the argument that causation could readily be inferred from the accident, being the very type of event which the breach of duty made more likely to occur.

Your Honours, this was a situation where the exact act that should not have occurred was happening repetitively over the years and the mere fact that there was evidence to satisfy an evidential onus did not entitle the court to ignore what was necessary reasoning if one is inferring causation on a robust and pragmatic approach that when you have that kind of habitual behaviour producing that sort of risk‑taking, there must be a causal connection between the two certainly on a causal contribution basis.

Ultimately, your Honours, we submit that the case was resolved by ignoring what are overwhelmingly obvious inferences from causation in this

way and resorting instead to conjecture, and it was only conjecture, as to what a young man would do if he had had seven years of being told properly and watching others being told properly not to dive into the pool.  If he had that sort of background, it is pure conjecture as to what a young man of 14 would do but even if he was not an outstanding scholar and even if from time to time he had to be spoken to or even disobeyed pool attendants, we submit that that sort of conjecture became the basis of decision and the reasoning processes based on probability and inherent likelihood from the events have basically been ignored in the equation.

We would submit that the outcome was wrong and it would be helpful, we would add, that the Court in dealing with the issue also deal with the issues of principle which we have raised in our submissions.  Thank you, your Honours.

GLEESON CJ:   Thank you, Mr Gross.  We do not need to hear you, Mr Maconachie.

There are concurrent findings by the trial judge, Justice Bell, and the Court of Appeal adverse to the applicant on the issue of causation.  The reasoning of the trial judge and the Court of Appeal on that issue involved the application of established principles and ultimately a judgment of fact.  We think there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed with costs.

MR GROSS:   May it please the Court.

AT 9.45 AM THE MATTER WAS CONCLUDED