Wynne v Pilbeam

[2006] HCATrans 493

[2006] HCATrans 493

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P56 of 2005

B e t w e e n -

MARK WYNNE

Applicant

and

ROGER PILBEAM

First Respondent

CITY OF STIRLING

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 SEPTEMBER 2006, AT 9.44 AM

Copyright in the High Court of Australia

GUMMOW J:   The applicant was injured in a motor vehicle collision with a vehicle owned by the second respondent and driven by the first respondent.  The applicant was driving into the sun in the early morning and collided with the second vehicle, a garbage collection truck, which was stationary at the kerbside of a two-lane carriageway.  As a result of the accident the applicant was rendered an incomplete quadriplegic.

The trial judge in the District Court found that the cause of the collision and its consequences was the applicant’s failure to take adequate care for his own safety, and that the conduct of the truck driver did not amount to an unreasonable lack of care for another reasonable person.  The trial judge further found that the need to ensure that the stationary truck was visible from behind had been addressed by the second respondent in a manner which substantially exceeded the regulatory requirements and that, in any case, no instance of difficulty was known to have arisen from the operation of a rubbish truck on a road.  As a result neither of the defendants had breached their duty of care to the applicant.

In the Court of Appeal of Western Australia it was argued that the trial judge had erred in considering the issue of liability in terms of causation before formulating and answering the questions as to duty and breach of duty.  Pullin JA, with whom Wheeler JA agreed, held that the trial judge had not confused issues of causation with issues of breach of duty.  Steytler P held that the trial judge’s approach was “broadly in accordance” with the principles stated by this Court in Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234 at 246-247 [35]-[37]. In particular their Honours did not see any error in the trial judge’s treatment of aspects of the facts that touch upon the issue of “obvious risk”.

The applicant’s arguments in this Court focus upon the issue of “obviousness of risk”.  It is contended that the Court of Appeal fell into the error identified by Hayne J in Vairy v Wyong Shire Council (2005) 80 ALJR 1 at 32 [162]-[163]; 221 ALR 711 at 750 by treating the issue of obviousness of risk as determinative of liability. However the respondents correctly submit that the Court of Appeal did not advance any proposition that no duty of care exists where a risk is obvious and that, rather, the Court of Appeal treated the case as turning on its own facts. The applicant also argues that guidance is required from this Court as to the appropriate usage of the concept of obviousness of risk in answering questions of breach of duty of care. This Court has already provided ample guidance on that issue in authorities including Vairy and Thompson.  Finally, the applicant suggests that this Court should grant special leave in order to resolve conflicts between various decisions of the Supreme Court of Western Australia.  However, that is a matter for the Court of Appeal of that State to address in an appropriate appeal to that Court.

No question of sufficient public importance arises, and there would be insufficient prospects of success on any appeal to this Court from the Court of Appeal to warrant a grant of special leave.  Special leave is refused with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave with costs.  I publish the disposition signed by Heydon J and myself.

AT 9.48 AM THE MATTER WAS CONCLUDED