Woods v Roberts A1/1998 [1998] HCATrans 298 (13 August 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A1 of 1998

B e t w e e n -

RODERICK JAMES WOODS

Applicant

and

MATTHEW ROBERTS

Respondent

Application for special leave to appeal

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 13 AUGUST 1998, AT 4.35 PM

Copyright in the High Court of Australia

MRS M.E. SHAW, QC: If the Court pleases, I appear with my learned friend, MR C.J. KOURAKIS, QC, for the applicant. (instructed by Piper Alderman)

MR D.A. TRIM, QC: May it please the Court, I appear with my learned friend, MR M.A. ROBERTS, for the respondent. (instructed by Phillips Fox)

GUMMOW J: Now, there is an extension required here, is there not?

MRS SHAW: There is, your Honour, depending on your interpretation of the rules, but in any event, there is an affidavit by Mr Phelps which has been filed, and I seek leave - - -

GUMMOW J: You need not bother any more about the extension; we will grant that in so far as it is needed.

MRS SHAW: Thank you, your Honour. Your Honours, this application raises two questions. Firstly, the extent to which a convention in a sport which existed for the purpose of not unduly inconveniencing players can absolve a person from taking any step in order to minimise or eliminate a foreseeable risk of harm to another person, which step could be taken without any inconvenience. The second question is the extent to which a person is entitled to rely on the conduct of a third person in order to make assumptions about whether others who are foreseeably at risk of harm, are not at risk.

That, the applicant submits, relies on the approach of the High Court in Baggermaatschappij Boz v Australian Shipping Commission [1924] ArgusLawRp 66; (1980) 54 ALJR 382. In this case the Full Court proceeded on the basis that if the respondent had moved two steps to the right on the tee he probably would have seen the applicant. It did not matter whether the applicant was aware that his playing partner had called him through, because the respondent, having had the "call through" was under no obligation to move to his right on the tee to see where the applicant might be.

GUMMOW J: What is the point of general principle?

MRS SHAW: The point of general principle is the extent to which - - -

GUMMOW J: We understand the end result of all this has been personally disastrous for your client, but what is the point of general principle?

MRS SHAW: the point of general principle raises a question of whether or not the duty of care has effectively been reduced and limited by reason of reliance on a convention or a practice, whether it be good or bad, such that an individual does not have to take any further care to eliminate risk to someone else, even though that step could be taken without any inconvenience. In the context of sport, that is a very important matter, when rules and conventions abound. Here we are dealing with a social game of golf, where what is in issue is a convention that is pure courtesy - has no relevance to safety - and yet the Full Court has said to make that convention practicable, there is no need for the person hitting to take any steps at all. We say it is important that the standard of care is not thereby compromised. Because, effectively, the approach the court took was, by giving paramountcy to the convention rather than asking what - - -

GUMMOW J: Where did they do that?

MRS SHAW: They did that by saying that in this case the approach was, bearing in mind - - -

GUMMOW J: Is there a particular passage?

MRS SHAW: I am looking at page 28.

GUMMOW J: Line 20, is it?

MRS SHAW: Yes. Well, first of all, in response to the argument that if the respondent had to go further, or had to take the two steps despite the "wave through", their Honours say that:

That would render, in many circumstances, the operation of the convention on playing through quite impracticable.

Further, down at line 30:

It is true that if he had walked to the right-hand side of the tee block he probably would have seen the appellant.

And their Honours say:

However, if it were to be held that in the circumstances he was obliged to take that precaution, it would be difficult to avoid the conclusion that, if he did not then see the appellant, he should have gone much further to ensure that he and anyone else within his possible hitting range was accounted for.

In other words, rather than applying a test which was simply, in this case, was it reasonable for the defendant to take steps to see that the fairway at least was clear. We do not approach the question from the point of view of was it foreseeable; could the steps to remove the risk occur without inconvenience. We approach the question of inconvenience from the point of view, "In other cases if we place some restriction or some qualification to the convention, then the convention will become impracticable", and we say that is an incorrect approach to the place of conventions and rules in support.

GUMMOW J: Now, which side referred the Full Court to the number of cases involving golfing accidents referred to at the bottom of page 28? Who took the running with them?

MRS SHAW: I probably did, your Honour. Certainly, I would have been responsible for most. The prime one was a case where the court approached the question from the point of view of what was required to eliminate the risk in that case and whether that could have occurred without convenience. Here, of course, the court just has not adopted that approach at all.

HAYNE J: Leaving aside questions of etiquette, convention and other characterisations of what was done, if a person further down the fairway in the target area waives to a player about to tee off in such a fashion as to indicate tee off, why is the player who strikes the ball in breach of any duty of care?

MRS SHAW: Two reasons, your Honour. The first is if he knows that there are other persons who he cannot see within his line of fire who are at risk if he hits off, then he has to consider whether he can eliminate that risk by any steps taken, any precautions taken.

HAYNE J: When someone closer to the area and in the target area has waived him or her through?

MRS SHAW: Yes. Your Honour, that, in my submission, raises the specific issue raised in what I call the Australian Shipping Case where the ship relied on the signalman, the dredge relied on the signalman to relay a message to the vessel coming in and the High Court said even if one assumes that it was an invariable practice that the signalman would relay the message, if there is still a risk the signalman might be negligent and not relay it. In this case, the Full Court proceeded upon the premises that it did not matter whether he relayed or not. It was sufficient if that was the convention. So, we say that the Full Court failed to consider the question of whether or not there was a risk that either the signalman or Mr Fulton would not pass the message on or, secondly, even if he did, was the other person or the class of persons in a position where they could heed the warning?

HAYNE J: You see, I wonder whether the characterisation of this as convention etiquette, rule of golf, et cetera, may not distract us rather from identifying what was physically happening out there on the ground on that day. Somebody is about to tee off and somebody in the target area waives "play on". What is the reasonable person to do in those circumstances?

MRS SHAW: Your Honours, first of all, can I make it plain that as far as this "waive on" is concerned, it is plain on the evidence, that according to the plaintiff, the convention does not apply on social days. It only applies on competition days. But, more importantly, it does not, in any way, derogate - - -

HAYNE J: It is an unusual course, but perhaps I should put that out of mind.

MRS SHAW: It does not derogate from the application of ordinary principles of standard of care. If he knows there is someone in the target area who he cannot see, he knows there is a risk.

HAYNE J: But that then begins to push it in a direction that this is a particular decision on a particular set of facts raising no point of general principle. It is best that I disclose the knife in the napkin early so that you might deal with it.

MRS SHAW: Your Honour, in my submission, quite the opposite because the court has, as a point of principle, approached this matter by considering not whether a reasonable man in this situation would foresee a risk but is it reasonable for a person to follow a convention in every case?

HAYNE J: Or was the question whether it was reasonable for this defendant in this circumstance to follow the signal which happened to be given in accordance with convention?

MRS SHAW: In my submission, that is not the test the court has applied. The test the court has applied is a different one and, effectively, puts, in my submission, a complete absolution on the hitter because of the convention. Effectively, what the court is saying is the other player could have passed out on the ground in a position where nobody could help him and if someone called someone through, and even if the hitter, by taking two steps can see him, he does not have to do anything about it. He could do what this hitter did, simply move to the left side and hit off.

GUMMOW J: We have to get down to some facts or specifics, do we not, having regard to what Mr Trim says at paragraphs 12 and 13 of his outline which is at page 56?

MRS SHAW: As to 12, your Honour, can I make this plain: the defendant's account was that he moved to the left side of the tee. He did not ever move to the right side. From the left side he could not even see the left side of the fairway.

GUMMOW J: You have to read 12 and 13, I think.

MRS SHAW: That is right. So, what the defendant's position was, having heard the "call through", he did not care, effectively, where the plaintiff was. He said, "He could have been on the right-hand side of the fairway, I did not turn my mind to it." In our submission, that means that he has not considered specifically, or at all, the possibility which was known to be the case that the plaintiff was within range and was at risk. So, the fact that he was called through does not in any way impinge upon the foreseeability of risk to another person.

Your Honours, the facts of this case demonstrate that because according to the evidence on which the judge acted, any relaying of the message only occurred after the "call through" at a time when the applicant was moving towards Mr Fulton. So, in my submission, the error by relying on the "call through" involves both the error of not considering the possibility that risk still exists and comparing that with the measures that could easily be taken to remove it but, more importantly, considering whether or not the assumption is justified based on the "call through" that any other person, not just this applicant, but a person in the class of persons on the fairway are not at risk.

Your Honours, the question has not been considered in this context but was considered in the House of Lords decision of Morris v West Hartlepool Steam Navigation Co (1956) AC 64. The employer in that case relied on a practice that had been in existence for 40 years, with no handrails near the hatchway and what the House of Lords or their Lordships looked at was, "First of all, is this a good practice or a bad practice, and does it eliminate the foreseeability of risk or is there still a risk of injury?", and the respondents cannot rely on the practice if in fact it is a practice that does not eliminate the risk of injury. We say here that this is a convention which does not have any relevance to safety but is purely a convention in relation to convenience. Then the first question is how does that fit with the duties to consider foreseeability risk?

So, your Honours, we say the approach to a convention which relies on the "call through" does not sit with the High Court decision in the Australian Shipping Case because the Full Court has simply not considered the question of whether or not there remained a risk and considered whether or not, for example, the plaintiff might be inadvertent and not have heeded the risk. We say, your Honours, that those questions justify the grant of special leave in this case.

GUMMOW J: Yes, thank you. The Court does not need to call on you, Mr Trim.

As we have indicated, there will be an extension of time to the extent that that is necessary.

However, the Court is of the view that the application raises no question of general principle and that, in any event, the decision of the Full Court is not attended by sufficient doubt to warrant a grant of special leave. Accordingly, special leave is refused.

MR TRIM: I seek an order for costs.

GUMMOW J: Yes, refused with costs.

AT 4.50 PM THE MATTER WAS CONCLUDED