Williams v Government Insurance Office of New South Wales S48/1995 [1995] HCATrans 446 (15 December 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S48 of 1995

B e t w e e n -

TANYA MAREE WILLIAMS

Applicant

and

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

DAWSON J

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 1995, AT 11.21 AM

Copyright in the High Court of Australia

MR C.R. CALLAWAY, QC: If the Court pleases, I appear with MR K. CONNOR for the applicant. (instructed by Johnson & Sendall)

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR H.G. SHORE, for the respondent. (instructed by G. Meadows, Solicitor for the New South Wales Insurance Ministerial Corporation (formerly GIO) of New South Wales))

DAWSON J: Mr Callaway.

MR CALLAWAY: Can I inquire if your Honours have the reply of the applicants to the respondent's statement of argument? It was prepared and, we understand, sent to your Honours.

DAWSON J: Yes, we do have it.

MR CALLAWAY: Your Honours, the special leave question here involves the interpretation of an Act of Parliament, Law Reform (Miscellaneous Provisions) Act 1965 (NSW), which is to be found, as is set out in the applicant's summary of argument, in virtually identical terms in every State and Territory in the Commonwealth, and specifically, the question raised before this Court is whether, in considering the terminology of section 10(1), in dealing with the reduction of a plaintiff's damages for the plaintiff's responsibility for such damage, regard should and must be had for the responsibility for the damage of persons other than parties to the action.

McHUGH J: Yes, but it requires fault and that means there must have been a breach of some duty on the part of Peter Southwell.

MR CALLAWAY: Yes, and, in our submission, there clearly was.

McHUGH J: I would have thought, on the facts, there was not, but that is all that is involved in the case, the question of fact. You claim that because he sat next to him he undertook the role of driving supervisor.

MR CALLAWAY: Well, that is what the regulation says - - -

McHUGH J: No. It does not say that, at all. It says, `You shan't drive without somebody sitting next to you". It does not mean that the person sitting next to you necessarily undertakes the role of supervisor. What if it is a seven year-old child?

MR CALLAWAY: A seven year-old child cannot have a licence.

McHUGH J: Exactly.

MR CALLAWAY: The person that is sitting next to the unlicensed driver, the driver with a learner's permit, is in the role of an instructor by virtue of the regulation which is set out on page 3 of the - - -

McHUGH J: Yes, I know.

MR CALLAWAY: - - - third document, in effect, and it is pretty clear, your Honour:

A person accompanying a learner in a vehicle being driven by the learner on a public street is:

(a) to supervise the learner with respect to the driving of the vehicle; and

(b) to take all reasonable precautions to prevent a contravention of any provision of the Act or these regulations.

One of the provisions of the Act, of course, is, "Thou shalt not drive a motor vehicle whilst affected by liquor". So that, clearly, having assumed the role of instructor, being an experienced, in fact a professional driver, a licensed driver, Southwell did not carry out the obligation imposed upon him by the regulations.

McHUGH J: You cannot read regulation 12 as meaning simply because somebody happens to be sitting next to somebody who is the holder of a learner's licence, that that person has, therefore, got an obligation under 12(7).

MR CALLAWAY: If that is so, in our submission, you would be doing violence to the language of 12(7):

A person accompanying a learner in a vehicle being driven by the learner on a public street -

It cannot be much clearer than that.

McHUGH J: Mr Callaway, the argument that is sought to be run on this special leave application seems to be so remote from the issues that were litigated at the trial, or in the Court of Appeal, that it is really - - -

MR CALLAWAY: Well, your Honour, I am merely raising what I have in answer to the proposition your Honour put. Southwell was a participant. Let me just take your Honours to the wording of section 10, which says:

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage -

et cetera. The rest of the words are fairly obvious in their intent. Now, Southwell was a participant. The claimant said, in effect, "I am unfit to drive", and she got in the back seat, not the front seat; she got in the back seat. The keys were given to the driver. Southwell, the licensed driver, sat beside her. Southwell undertook, to some extent, the role of instructor, telling her, in the course of the journey, that she was going too quickly, or something to that effect. But, your Honour, what he did was to permit her to drive in breach of the Act and in breach of his obligation under regulation 12(7). So that, what the plaintiff has done is, in effect, said, "Well, I'm unfit to drive. I'm unfit, in effect, to be an instructor". She got in the back seat. Southwell sits in the passenger seat, beside the driver, permits her drive in breach of the Act, permits her to drive in a manner - that is clearly another aspect.

McHUGH J: But he had no control of the vehicle. It was not his vehicle. You talk about him permitting.

MR CALLAWAY: Yes, your Honour. He made a decision that, in fact - we are not going to go back over the evidence - he would occupy the seat of the licensed driver and that she would drive.

McHUGH J: What if he had got in the back seat?

MR CALLAWAY: If he had got in the back seat?

McHUGH J: Yes.

MR CALLAWAY: I probably would not be here now. your Honour. But so far as getting in the front seat and assuming the responsibility that regulation 12(7) imposes upon him, he clearly, in my submission, must have been accepting the responsibility that your Honour has just put to me not long after I rose to my feet.

DAWSON J: Why was this not considered in the court below?

MR CALLAWAY: Your Honour, it was put in the court below. It was, in effect, mentioned and dealt with in the judgment, both at first instance and in the Court of Appeal, but never reflected in the judgment - - -

DAWSON J: Because it was a question of fact.

MR CALLAWAY: Your Honour, with great respect, it is a question of law, whether or not a particular obligation arises. The obligation arose by virtue of the position occupied by Southwell and the regulation and it was not then dealt with. And the apportionment of 80 per cent, 20 per cent, of itself clearly indicated that no thought was had to the participation in the events which gave rise to this accident of Southwell. So that, in our submission, it cannot be clearer than that, in that it was dished up and ignored. It was dealt with in passing in all the judgments, and in particular in the judgment of the court below - the court at first instance.

Secondly, of course, the question as to whether or not a person whose fault is to be taken account of in this situation must be a party or not, is one in which there is a conflict of authority between the decision of Vail v Formato, which your Honours have been referred to, the South Australian Full Court, and the case of Barisic which is of the New South Wales Court of Appeal.

GUMMOW J: Was there any debate about those two authorities to the Court of Appeal?

MR CALLAWAY: No, your Honour, no there was not. As we have said in our argument, Barisic was not specifically raised, but the conduct of Southwell was; his position was and we submit that impliedly, it should, therefore, have been taken into account, but it was not. So that from the point of view of a special leave question, there are two points which, in this area of the law - there are dozens of cases every day throughout the Commonwealth, dealing with this type of situation, not only in a personal injuries case, but in other cases also, where section 10 speaks of damage as the result partly of his own fault - that is the claimant - and partly of the fault of any other person or persons. It speaks not only of parties to the action, but it speaks of persons who are not parties, the conflict being in the South Australian case of Vail v Formato. The court specifically there said it would not have regard to the conduct of another motorist - it was a motor car case - who was not a party to the action. In Barisic, all the people whose behaviour was taken into account were, in fact, parties.

Now, where there is an important question which, in our submission, should be dealt with and could be very conveniently, neatly and with a minimum of the occupying of time, dealt with in this case, is do the words, "partly of his own fault" and "partly of the fault of any other person or persons", do those words confine an examination of that point to parties, or does the examination extend to persons such as Southwell, who were not parties.

McHUGH J: Well I would have thought it was as plain as day that it applies to any person whether a party or not, an onus of duty of care and he is in breach of it.

DAWSON J: That is what the question is.

MR CALLAWAY: But that is not the view taken by the Full Court of South Australia.

McHUGH J: We can deal with that if it ever needs to be determined, but for the moment Barisic is the law in this State and ought to be followed in this State; will be followed in this State.

MR CALLAWAY: That only relates, of course, to parties, your Honour.

McHUGH J: But there are general statements, are there not?

MR CALLAWAY: The ones we have quoted are, in effect, general statements, but then the South Australian Full Court is of the persuasive value and it post-dates so that, your Honour, in our submission, this is an appropriate case and an appropriate vehicle.

DAWSON J: Thank you, Mr Callaway. The Court need not trouble you, Mr Hislop.

This application involves questions of fact only and does not raise the question of law under section 10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) which the applicant seeks to agitate. Moreover, the conflict of authorities which the applicant seeks to raise was not considered by the court below.

Special leave to appeal is accordingly refused.

MR HISLOP: I seek costs, if it please the Court.

DAWSON J: Do you have anything to say about that, Mr Callaway? With costs.

AT 11.35 AM THE MATTER WAS CONCLUDED