Wyatt v Mr & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park)

[2012] HCATrans 291

[2012] HCATrans 291

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P20 of 2012

B e t w e e n -

ROBERT BRUCE WYATT

Applicant

and

MR & RC SMITH PTY LTD T/AS ULTRA TUNE (OSBORNE PARK)

Respondent

Application for special leave to appeal

CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 16 NOVEMBER 2012, AT 1.12 PM

Copyright in the High Court of Australia

MR B.L. NUGAWELA:   May it please your Honours, I appear for the applicant in this matter.  (instructed by Friedman, Lurie, Singh & D’Angelo)

MS B.A. MANGAN:   May it please the Court, I appear for the respondent.  (instructed by Tottle Partners)

CRENNAN J:   Thank you.

MR NUGAWELA:   Your Honours, can I start with ground 2.1 – namely, the Pantorno principle, Pantorno v The Queen (1989) 166 CLR 466. Our starting proposition is this: that in truth the question whether the Building Code and the Australian Standards was a pure question of law must be decided against that proposition, namely – and I will demonstrate that when we come to ground 2.2.1, the appeal by way of rehearing point – that that question was essentially a mixed question of fact and law. But even if it is a question of law, we say that in this case the pure question of law which gave the Court of Appeal the mandate to intervene – we say that there were four matters which in this case conspired to raise real questions concerning the administration of justice.

The first is this:  the ground of appeal run below, 1.4.1 and 1.4.2, to be found at page 104 of the application book, clearly embraced the findings of the trial judge and made references to the findings of the trial judge that the Australian Standard applied and the Building Code applied.  Secondly, counsel’s statements during and throughout the course of argument also embraced that proposition, and there is a plethora of references in the joint supplementary application book to which I only wish to trouble your Honours with two references.  At page 13 of the joint supplementary application book, the third paragraph, his Honour Justice Murphy put to my learned friend:

you seem to accept that the product was inconsistent with the AS requirement and you seem to accept that the handrail was required.

MANGAN, MS:   Yes, your Honour, that’s right.

MURPHY JA:   That’s the foundation for your appeal.

MANGAN, MS:   That’s right.

The last two paragraphs on that same page –

MANGAN, MS:   That’s right, your Honour, yes.  The black letter of the law –

On the next page, 14, the second paragraph, my learned friend:

MANGAN, MS:   Yes.  The appellant accepts that under the building code that handrail was required.

The third matter was that, in addition to all of that, there was a conscious decision by the appellant below, the respondent in this Court, not to amend the ground of appeal.  Again, there is a plethora of references in the supplementary application book, starting at page 16 right through to 22 but culminating, importantly, at page 26 and 27 – importantly because this was the last word from the appellant below on the question.  At the bottom of page 26, his Honour Justice Murphy put in the last four lines:

and 1.4 is that you accept that there were contraventions of the Australian standards and the building code . . . Is that right?

On the next page, my learned friend:

MANGAN, MS:   Yes, your Honour.

That is the third of four matters which we say conspire to raise questions relating to the administration of justice and fairness arising out of, we say, the misapplication of Pantorno.

There is a fourth matter, but before I move to that may I pause just to take your Honours to what fell from both of your Honours in the majority in the decision of Kuhl v Zurich Financial Services Australia Ltd which is reported at [2011] HCA 11, under tab 11 of our book of authorities.  If I can take your Honours to paragraph 78 of Kuhl under the heading “Duty” of care, your Honours, a quintessentially pure question of law.  What the majority said was there was a procedural problem:

The Court of Appeal majority overturned the trial judge’s conclusion that WOMA owed the plaintiff a duty of care. It did so of its own motion, in the absence of any notice of contention, and despite a concession by counsel for the first respondent that there was a duty of care. This does not seem to have been open to it –

CRENNAN J:   Are you suggesting that the Court of Appeal was bound to apply the law erroneously just because the parties might have agreed to that?  Is that the suggestion you are making?

MR NUGAWELA:   It is bound to apply the law if it was purely a question of law but it needs to be agitated in a ground of appeal, which is the natural justice point.

CRENNAN J:   The question of the applicability and the construction of the code and the standard were raised, were they not, by the ground of appeal challenging the trial judge’s finding that the step presented a danger?

MR NUGAWELA:   In our respectful submission, if it was raised it was elliptically raised and insufficiently raised.  When we go to the actual ground of appeal, your Honour, which appears at page 104, the opening words:

The learned Trial Judge erred in fact in finding that the stair was a danger when –

We drop down to 1.4:

The stair was not too short . . and the stair complied with the 1988 Building Code . . and the Australian Standard . . in every respect except that –

1.4.1 –

It did not comply with the product and the Australian Standards – see reasons [68] – and:

a handrail was required pursuant to the BCA.

Reasons [53-79].

So those were the matters where a concession was made and it is to that that Pantorno applied.

CRENNAN J:   Then the Court of Appeal raised the issue and invited submissions in relation to this.

MR NUGAWELA:   I will come to that as my fourth matter, your Honour, concerning the administration of justice – my fourth and final matter.  But before I come to that I wanted to say in relation to the requirement to, clearly, amend the ground of appeal in this case – a ground of appeal which embraced the findings of the trial judge in no uncertain terms – there appears to be a division in the Court of Appeal in Western Australia as to the need – Pantorno to one side – to agitate this by way of a proper ground of appeal.

BELL J:   Can I just on that take up the matter?  One has a ground of appeal in ground 1 that the trial judge erred in concluding that the stair was a danger.

MR NUGAWELA:   Yes, your Honour.

BELL J:   When one goes to the respondent’s submissions at paragraph 17 on application book 184, it is suggested that some of the complaints that you seek to agitate do not really get to the nub of the matter, which is that the Court of Appeal reversed the findings of the trial judge on the basis of a conclusion that the stair did not present a danger and that, if one goes to the relevant argument in the supplementary application book, one finds on page 22, at about line 32, Justice Pullin put to the respondent’s counsel:

Well, you’re saying whatever the statutory requirements were, it wasn’t a danger?

The response is:

that’s the fundamental basis of the appellant’s appeal. 

MR NUGAWELA:   Quite so.

BELL J:   At some point, Mr Nugawela, that needs to be confronted, it seems to me.

MR NUGAWELA:   I am developing that.  I am coming to that, but perhaps I can come to it directly and perhaps revisit it again.  At the Court of Appeal’s decision at page 135 of the application book, one sees the approach that his Honour Justice Pullin and the majority took.  Paragraph 35 was a removal from the calculus, if you like, the breach calculus, of the non‑compliance with the standard and the code.  There is a discussion of the implications in 86.  At 87 is says:

As to (b) –

that is, the Building Code:

the trial judge did not consider at all whether a handrail was ‘necessary’.  If the trial judge had considered that question, she would have been obliged to conclude that there was no evidence about the condition of the stairs or the persons who used the stairs which made handrails ‘necessary’.

With respect, that is not correct because the expert evidence to which I am going to take your Honours and the findings of the trial judge were expressly to the contrary.  The expert evidence did not rely upon the Building Code and the handrail for their conclusion that the stair was a danger.  The ergonomic evidence and the architect’s evidence stood apart.  The learned trial judge’s approach to this was not to equate breach of the Building Codes and the Australian Standards as a common law danger.  Can I take your Honours immediately to what her Honour Judge Wager said of that at paragraph 144, which is page 34 of the application book, the last three lines?  In fact, on the contrary, her Honour said:

The fact that the stair does not comply with the BCA or AS does not of itself establish a breach of duty of care but it is a matter to be taken into account –

At 146, in summarising the effect of Francis v Lewis [2003] NSWCA 152, her Honour observed that in Francis v Lewis foreknowledge or actual foreknowledge of the dangers was the one that governed the question of breach even though there was actual compliance with the building standards in Francis v Lewis.  So the criticism made by the Court of Appeal in two respects that there was no evidence is wrong and the criticism made by the Court of Appeal, the trial judge, that her Honour simply equated the departure from the Building Code as a common law danger is also wrong.

The question of foreknowledge, which the Court of Appeal did not look at but which occupied a considerable consideration by the learned trial judge, starts at page 22 of the application book at paragraph 88 right through to paragraph 93, where her Honour the trial judge meticulously went through all the evidence of the sole director and his wife, the adjutant. 

BELL J:   I am sorry, Mr Nugawela; to what ground in your application is this relevant?

MR NUGAWELA:   In answer to your Honour Justice Bell’s question, we have moved to ground 2.2.1 because your Honour asked me to address the question that arises out of the respondent’s summary of argument which necessarily goes to ground 2.2.1.

BELL J:   So the factual conclusion made by the Court of Appeal in the exercise of its appellate jurisdiction to rehear, you say, was not open?

MR NUGAWELA:   Not open for two reasons because, firstly, his Honour Justice Pullin, with whom I think his Honour Justice Newnes agreed, said that how the trial judge got it wrong was to equate danger with non‑compliance with the Building Code.  Now, I have demonstrated to your Honours that that is not what her Honour did.  Simply for that reason, Justice Pullin said ground of appeal 1 is allowed.  I go back there, your Honours, to page 135, paragraph 87, and then 88:

Ground 1 should be upheld.

It arises out of Pantorno, of course, because if the question of the Building Code is a question of law then arguably no ground of appeal needed to be raised.  But we say in this case – and I have to come back to Pantorno – for the fourth reason, that the email from the Court of Appeal on the day before the hearing of the appeal merely asked for submissions about the applicability of the Building Code and which version of the code applied.  That email is on page 69 of the joint supplementary application book.  The response given, the written response, is on pages 66 and 67, only from the applicant in this Court, nothing from the respondent.  The email and the response – well, I would say of the email that it is completely innocuous as to what question it was that the court was considering, namely, the applicability of the code and which version, and that was fully answered.

BELL J:   Before we move to a criticism of the content of the email, Mr Nugawela, the matter having been raised by the court having directed the parties’ attention to the question of the standard and the code was then fully canvassed in argument before the court and that material is in the supplementary application book.

MR NUGAWELA:   It is.

BELL J:   So what is the procedural fairness point?

MR NUGAWELA:   The extent to which it was fully canvassed I have taken your Honours to – the lulling to sleep, the position taken by the appellant below that it was embracing the findings of the trial judge at the end of the day in relation to the applicability of the code and the Australian Standards.  It was not going to amend its ground of appeal.  It was content to rest there.  All the judge has put to it ‑ ‑ ‑

CRENNAN J:   But that cannot mean that an erroneous view of the law has to be upheld.  It is very difficult to come to grips, I must say, with what is the nub of the point you are seeking to make about procedural fairness, questions 1 and 3.

MR NUGAWELA:   May it please your Honour.  But can we put that to one side and come to a question as to whether there was an erroneous view of the law taken by the learned trial judge?  That comes down to grounds 2.2.1 and 2.2.2, the appeal by way of rehearing point.  Firstly, we disavow any suggestion that the trial judge equated danger at common law with mere non‑compliance with the Building Code.  I have taken your Honours to that part of the judgment, 144 and 146.

BELL J:   Plainly it was a matter that influenced the trial judge’s view on that matter and was a significant consideration.

MR NUGAWELA:   Yes.

BELL J:   The Court of Appeal considered that her Honour had failed to correctly apply the code and that matter was raised very squarely with counsel.

MR NUGAWELA:  And itself the Court of Appeal erred in coming to that conclusion.  The evidence, your Honours, that was before the trial judge, and I can take your Honours to the supplementary application book at page 34 and 35 – this is the evidence of Mr Brand – at 34, line 40, he was aware that:

handrails must be provided where necessary to assist and provide stability to persons using a inter alia stairway.

At 35, at line 20, he said in his opinion it:

should have had a . . . handrail. . . in a central position

That was his expert evidence.  He thought it was necessary for safety, therefore, the code applied.  Jenny Miller, the ergonomist, at 46 and 49, said this: at page 46, at line 12, she spoke about the basis of her ergonomic evidence and at 49 she took the court through the experiment that she had conducted before she came to the conclusion at 30:

that the ball of his foot is likely to have missed the step completely –

And at 38:

somebody who is taller and has longer legs than I have will miss it as well, probably – well, even further than I’ve missed it. 

Now, the trial judge, in recognising that, encapsulated that evidence at 159 and 161.

BELL J:   The trial judge said it was matter of common sense, did she not, in essence?

MR NUGAWELA:   Not in relation to that issue, your Honour.

BELL J:   I am sorry;  I thought this was the ergonomic evidence respecting the width of the stair, not the size of a person’s foot.

MR NUGAWELA:   Not entirely, because what her Honour encapsulated at 159, at the bottom of page 36, is this evidence about, well, what can this plaintiff do if he is descending the stair?  Could he not angle his foot and twist his hips?  On the next page ‑ ‑ ‑

BELL J:   I am sorry; what page are you on?

MR NUGAWELA:   On page 36 of the application book, paragraph 159.  On the next page, 37, encapsulated the evidence of the ergonomics about the design of the stairs.  That evidence did not turn upon at all the invocation of the Building Code or the Australian Standards.  She was giving her own expert evidence in relation to the adequate design of the stairs.  The point being made, of course, is that when the Court of Appeal intervened, it did so without regard to the underlying expert evidence that I have taken your Honours to concerning danger at common law – nothing to do with the Building Code. 

Your Honours, we say that the misapplication of the – if one asks the question why did the Court of Appeal intervene, neglecting the underlying expert evidence relied upon by the trial judge and matters relied upon by the trial judge for finding breach, namely, the precise foreknowledge of the risk on the part of the respondent, the answer to that, we say, is found in this invocation of the notion of everyday risk.  At 103, in appeal book 139, and again at appeal book 154, at paragraph 169 and 170, essentially, your Honours, the Court of Appeal defined that this is an everyday risk.  We shall forget the evidence of the experts, which did not turn upon the application of the Building Code and the Australian Standards, but their expertise in relation to a danger; we shall forget about ‑ ‑ ‑

CRENNAN J:   Did it not turn, though, on noting that the risks associated with the step were obvious, plainly observable, all those sorts of ‑ ‑ ‑

MR NUGAWELA:   Quite.  It is as if this everyday risk notion has a life of its own, we say, because it does not supplant the need to go through the process of duty, breach and causation, which is what the trial judge clearly did.  What the Court of Appeal did was to say, hang on a minute, we are going to disregard the findings of the trial judge on foreknowledge.  We are going to disregard the findings of the trial judge based on the expert evidence, quite apart from breach of the Australian Standard and the Building Code, and we are going to come to a conclusion based on this notion of everyday risk, and because it is a risk that is faced every day then that is a complete answer to the tort.

CRENNAN J:   They were assessing whether or not reasonableness required any further action in relation to the step.

MR NUGAWELA:   Any action in the light of the foreknowledge and acknowledgement of risk – any action, quite.  We say in doing so it was obliged to conduct the full appeal by way of rehearing and not a resort to this notion of obvious or everyday risk, which is what they patently did.  I notice my time is up, your Honour.

CRENNAN J:   We will not trouble you Ms Mangan.

This application for special leave does not raise a question of law which would warrant a grant of special leave.  There is no reason to doubt the correctness of the decision below.  Special leave to appeal is refused with costs. 

AT 1.34 PM THE MATTER WAS CONCLUDED