Curmi v McLennan M3/1994 [1994] HCATrans 37 (16 September 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M3 of 1994

B e t w e e n -

BRIAN CURMI

Applicant

and

ROSS NORMAN McLENNAN THE MAGISTRATES COURT OF

Respondent

Application for special leave

to appeal

MASON CJ

BRENNAN J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 SEPTEMBER 1994, AT 3.35 PM

Copyright in the High Court of Australia

MR B.W. COLLIS, QC: If the Court pleases, I appear with MR D.J. CONNELL for the applicant. (instructed by K.M.Steele & Giammario)

MR D.E. CURTAIN, QC: May it please the Court, I appear with my learned friend, MR M.D. HENNESSY, for the respondent. (instructed by John Conquest)

MR COLLIS: If I could say at the outset that the effect of the finding of negligence against the applicant in this case, which finding was upheld by the Full Court was to hold him liable for the misconduct of two youths, one aged 16 years and 9 months, the other - - -

MASON CJ: It was to hold him liable for his misconduct in allowing the situation to develop in which they had access to this gun.

MR COLLIS: But in effect what we would say is that it is one thing to allow such people to have access to the gun; it is another thing then to find someone liable for the use that is made of that particular gun. What we would say is that the principle upon which the court relied was too general and that because of that it has inherent dangers as far as the members of the community are concerned.

MASON CJ: Why was the principle too general?

MR COLLIS: What we would say is that the court simply stated at page 43 that there was a general duty of care owed by those who provide a dangerous object to others who may suffer injury as a result of the use of that object by a third person.

MASON CJ: I would have thought that was precisely correct.

MR COLLIS: What we would say, that it has some inherent dangers, is that the object that was provided was not an object which was dangerous per se. The object was simply left in a cupboard on a houseboat and it only became dangerous if used or misused by parties. The people that were given access to it, youths of this particular age who we would say one could without any evidence to the contrary - one could say could hold responsible positions in their schools or responsible positions in the community, even responsible occupations.

BRENNAN J: Mr Collis, look at page 50 of the application book for a moment, would you, where the court states a question for itself. Is that the question you pose for this Court?

MR COLLIS: That was one of the matters I was going to deal with.

BRENNAN J: Is that what you would ask this Court to determine?

MR COLLIS: That is not the only matter that I would ask this Court to determine but it would be one of the matters.

BRENNAN J: Can there be any other matter?

MR COLLIS: What we would say, Your Honour, is that this use of this general principle has really taken liability and negligence into what I would say are previously unchartered waters.

BRENNAN J: But there is a jury trial here. There is a verdict. You are trying to set aside the verdict.

MR COLLIS: Yes.

BRENNAN J: That is the only question, is it not, the one on page 50?

MR COLLIS: What we would say firstly is whether in these circumstances these particular circumstances ought to give rise to a duty of care. Then, as a matter of common sense, applying the principles in March v Stramare, one could say that a jury could then say that the alleged breach was causative of the person's injury. So we would say, firstly, ought there be a general duty of care in these circumstances where a person does not know - there is no evidence whatsoever that the applicant knew or ought to have known that these people would engage in this sort of misconduct or any sort of misconduct. What we say is that that is really placing unreasonable burdens on members of the community because if you take this general principle to its conclusion, if you were to leave a sharp carving knife in a drawer on a boat and some boys got it out and started to throw it about and someone got stabbed, that if you applied this general principle people would say you are responsible then in that sort of situation.

So what we are saying is that this Court, because of what we say this duty that has been said my client is subject to has really taken the matter, the liability and negligence, one step further than it has before. I appreciate that the principle might be there, but that has really taken it another step and unless there are certain limitations placed upon it, that can lead to unreasonable burdens being placed upon members of the community.

What we would also say, that having provided access to a gun, that as a matter of law and a matter of common sense, that that could not be causative of all damage that that particular providing of access caused. Could the court say that if the two boys had taken the gun and they were hopping over a fence and the thing accidentally discharged, would the father then be held responsible as a matter of causation.

So what I simply say is the real point here - one of the real points here is that this Court ought to look at the principle of negligence in this particular case and impose restrictions on it so that there will not be unreasonable results. If the situation is left as it stands at the present time and there are able to be findings of negligence imposed in these sorts of circumstances, we will say that that really largely comes about by way of conjecture and such matters.

In this particular case Mr Justice Gobbo found that this was just the sort of conduct high spirited boys would engage in. There is no evidence here one way or the other as to what sort of lads these were. All we are told is that they are of this age, that they are at school and, as I say, boys of that particular age can be of all sorts of maturity, all sorts of responsiblity and so forth. What we say that this Court should do is provide some principles limiting the responsibility in this particular case. We also say as a matter of law that really when the only evidence here of negligence is, namely that he left this gun on the boat, which is in breach of a statutory provision and did not give them any instructions, it would seem to be the fact whether he gave them instructions or not would seem to be irrelevant, but the real cause here is leaving this thing on the boat, that that fact of itself ought not to give liability in negligence and also not be held to be causative of an injury that occurred in these sorts of circumstances.

There is the thrust of what we say. We say this really is not a factual matter, that this is extending the law of negligence into unchartered waters and that unless there are restrictions placed on it, that it will cause some unreasonable burdens being placed on members of the community. The restrictions that we say is that there ought to be attendant circumstances or evidence from which a jury could properly find, or a court could properly find that a person such as the appellant knew or ought to have known that there was a risk that these boys would engage in this sort of conduct. There ought to be something there. Here, in this particular case, there is nothing. So what we say is you really are leaving the matter up for conjecture and that there really should be a statement limiting the application of this sort of general principle in these sorts of circumstances.

That is what we say, that that ought to be the reason that the Court ought to grant the application and deal with the matter.

MASON CJ: Thank you, Mr Collis. The Court need not trouble you, Mr Curtain.

The Court is of opinion that the decision of the Full Court of the Supreme Court is not attended with sufficient doubt to justify the grant of special leave to appeal. The application is therefore refused.

MR CURTAIN: We seek an order for costs, Your Honour.

MASON CJ: You do not resist costs, Mr Collis?

MR COLLIS: No, Your Honour.

MASON CJ: The application is refused with costs.

AT 3.45 PM THE MATTER WAS ADJOURNED SINE DIE