Borland v Makauskas & Anor B6/2001 [2001] HCATrans 498 (12 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B6 of 2001

B e t w e e n -

PAUL MICHAEL BORLAND

Applicant

and

ALEX MAKAUSKAS

PAMELA FAY MAKAUSKAS

Respondents

Application for special leave to appeal

GLEESON CJ

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 OCTOBER 2001, AT 11.33 AM

Copyright in the High Court of Australia

MR M. GRANT-TAYLOR, SC: May it please the Court, I appear for the applicant with my learned friend, MR P.B. DE PLATER. (instructed by McLaughlins)

MR P.A. KEANE, QC: May it please the Court, I appear for the respondents. (instructed by Barry & Nilsson)

GLEESON CJ: Yes, Mr Grant-Taylor?

MR GRANT-TAYLOR: Your Honours, this applicant asks that this Court do what was done in Liftronic v Unver and that is to correct an impermissible interference by the Court of Appeal with an entirely reasonable verdict by a properly instructed jury after an unexceptionable trial. The case at first instance embodied the archetypical occupiers - - -

KIRBY J: What was Liftronic about? I remember the name but I do not remember the detail. What was the case about?

MR GRANT-TAYLOR: Yes, your Honour, Liftronic (2001) 75 ALJR, it is the only case in our bundle.

KIRBY J: We have had another case, the case of Naxakis, have we not, in relation to - - -

MR GRANT-TAYLOR: Naxakis was an earlier medical negligence case, your Honour. Liftronic was a master and servant case.

KIRBY J: Yes, but it was a jury case and it involved disturbance of a jury decision by the Court of Appeal of Victoria.

MR GRANT-TAYLOR: Yes, your Honour is quite correct.

KIRBY J: But you cannot contest, can you, the power of the Court, in a sense, as a reserve against an unreasonable verdict. You began by saying a "reasonable verdict" and that, I suppose, is the very core of the question in the case: was this verdict reasonable?

MR GRANT-TAYLOR: Your Honour has precisely encapsulated the issue. We take no issue with the test that was approved by this Court in Liftronic where the Court quoted at page 872 of the report at column 2 from the decision of the Full Court of Victoria in Zoukra v Lowenstern. I will not read the passage that your Honours find there. There is no dispute with the principle. The issue is whether the verdict at first instance was unreasonable so as to justify interference at appellate level. We simply say that it was not.

KIRBY J: You say it was not, but it was a very dangerous act of your client and had he been sober or unaffected by his consumption of the night before, a completely unthinkable act, so that - - -

MR GRANT-TAYLOR: Your Honour, that is the point that we take up in the outline of argument and we suggest that that is precisely the error that the Court of Appeal fell into in focusing attention on the acts and omissions of the applicant, rather than focusing attention upon the acts and omissions of the respondents. The - - -

GLEESON CJ: I thought that one of the strangest parts of the case was the suggestion that there should be a warning sign. If householders had to put signs warning of dangers which could face people who behave as carelessly as your client behaved in the present case, most of us would live in houses mainly occupied by signs.

MR GRANT-TAYLOR: Your Honour, of course, there were two aspects to what was said to be the breach of duty on the part of the respondents. The warning sign was but one of them. The Court of Appeal seemed to concentrate on the warning sign. However, the other, which we can see was also dealt with, was the fact of the design and construction of the fence or railing upon which the applicant climbed before he performed the ill-fated dive. The evidence is - - -

KIRBY J: What was your complaint there? Was it that the fence was too far back from the canal, or was it that it ought to have been higher, or what?

MR GRANT-TAYLOR: No, your Honour, the complaint was that the fence in the form in which it was designed and constructed served as an invitation, a positive invitation for somebody in the position of the applicant to do just as he did. It was constructed so that one could step up very easily from the decking around the pool so as to take up a position equally easily upon a flat, top railing which was of a width of some eight inches, so - - -

GLEESON CJ: What used to be called "the matter of allurement" used to usually relate in practice to the conduct of little children.

MR GRANT-TAYLOR: Yes, your Honour, but that again is the point that we raise. The duty that was owed by these respondents was owed to a class of persons of whom the applicant was but one and that is the point that we seek to make in the outline of argument and we postulate the proposition that imagine if a four-year old - a stone cold sober four-year old we interpolate - had seen this fence and had decided to do exactly as the applicant did, could it possibly be said of a four-year old that his conduct was outrageous or reprehensible?

GLEESON CJ: But the question was not whether or not the defendants owed a duty of care to four-year olds, the question is whether the defendants owed a duty of care to your client or, more accurately, the content of the duty of the care that was owed to your client. They obviously owed him a duty not to set traps for him, for example.

MR GRANT-TAYLOR: Yes, your Honour.

GLEESON CJ: But in what respect did their conduct, vis-à-vis your client in relation to the design and construction of this fence falls short of the duty they owed?

MR GRANT-TAYLOR: The respondents left in place a fence of such a construction that it afforded a positive invitation for the applicant to do as he did?

GLEESON CJ: How old was he again?

MR GRANT-TAYLOR: The applicant, your Honour?

GLEESON CJ: Yes.

MR GRANT-TAYLOR: In his early twenties.

GLEESON CJ: He is an adult.

MR GRANT-TAYLOR: Yes.

KIRBY J: One must be respectful of your client because of his profound injuries, but the same problem the Chief Justice raised with you earlier is still there in relation to your complaint about the design. Essentially, if your argument is right, then a message goes out that you have to put barbed wire or spikes or something else on all fences which is not really a very sensible result. What is wrong with having a ledge on a fence? It is a very common thing in suburban Australia.

MR GRANT-TAYLOR: With respect, your Honour, there was no need to put barbed wire or spikes or adopt any of those measures. The simple - - -

KIRBY J: You complained about the ledge. You said the ledge was an invitation to jump - - -

MR GRANT-TAYLOR: Quite so.

KIRBY J: - - - quite a considerable distance into a canal which was obviously, as I understand it, with a graded side and in circumstances which, had your client been completely sober, he would have realised was a very, very dangerous thing to do.

MR GRANT-TAYLOR: Your Honour, with respect, we question whether the jury did come to that conclusion, or could have come to that conclusion. The applicant's evidence was - and it must be borne in mind that the applicant himself was the only person who stood up on that railing that morning so as to be in a position to enjoy the vantage point of seeing down into the canal below, and the applicant's evidence, which, adopting a view of the evidence most favourable to the applicant, entitled the jury to accept what he had said when he spoke in these terms, that up there, having contemplated for a minute what he was going to do, he had "no apprehension of danger". He "didn't sense the danger", and he "didn't think there was a risk of him hurting himself". That was the applicant's evidence and there was no other evidence from anybody else as to what one could or could not see, or any dangers that one could or could not evince from that vantage point.

KIRBY J: Yes, but you are looking at it solely from a subjective point of view, but the law of reasonableness has to inject certain elements of objectivity and the courts, in scrutinising jury verdicts and interfering, albeit in the most exceptional cases, and accepting the evidence at its highest for the plaintiff, has a reserve role to ensure that the verdict is not the reflection of, simply, sympathy for a profoundly injured person but is an application, a proper application of the law. Obviously, the Court of Appeal reacted negatively to that and I must confess that that was my reaction when I read the papers.

MR GRANT-TAYLOR: We cannot complain that we were not given publicity, your Honour, but the point about it is that we say that this case was no more deserving of being overturned at the intermediate level than was Liftronic and if Liftronic was - - -

KIRBY J: I had forgotten Liftronic. What were the facts in Liftronic?

MR GRANT-TAYLOR: They were moderately complicated. Your Honour finds an outline of them in the headnote.

KIRBY J: Yes, this was the carrying of the weight.

MR GRANT-TAYLOR: Yes, and the conclusion that this Court arrived at was that it was perfectly permissible for the jury to arrive at the almost ruinous apportionment, from the plaintiff's standpoint, that they did because the worker had simply abandoned the system of work that the employer had put in place and had gone off on a frolic of his own and under those circumstances this Court held that it was quite impermissible for the Court of Appeal to interfere with the jury's assessment that the worker ought to bear 60 per cent responsibility for what occurred. It was really Podrebersek revisited.

KIRBY J: That was the special issue of contributory negligence there, was it not, where there are a lot of holdings in this Court about not interfering in apportionment?

MR GRANT-TAYLOR: Yes.

KIRBY J: But this is the question at the threshold of whether there was a proper foundation for the jury to have found reasonably that the landowner was negligent.

MR GRANT-TAYLOR: Say, your Honours, that we point to the opening passage of the joint judgment of Justice Gummow and Justice Callinan, which your Honours find at 875 of the report, and their Honours at paragraph [47] very tellingly say:

This appeal raises no new point of principle but requires the intervention of this Court to correct an impermissible interference by the Court of Appeal of New South Wales with an entirely reasonable apportionment of fault by a properly instructed jury after an unexceptionable trial.

KIRBY J: Well, there is where their Honours - the key word is "entirely reasonable" decision of the jury. You see, the difficulty here is the reaction which the Court of Appeal have had which, unfortunately, I share, that the jury verdict was not entirely reasonable and was unreasonable.

MR GRANT-TAYLOR: Your Honour, the Court of Appeal decision, in our submission, really struck at the heart of what one is trying to achieve by having juries decide these things at all. We pull four people off the street and sit them in an, admittedly, foreign environment under circumstances where we call upon them to exercise - - -

GLEESON CJ: On the contrary. The Court of Appeal decision permits conditions to exist under which we will continue to have cases like this decided by juries.

MR GRANT-TAYLOR: I accept what your Honour says. Your Honours, we do not feel that we can take it any further.

GLEESON CJ: Thank you.

This case turned upon the application by the Court of Appeal of well-settled principles to the particular facts and circumstances. There are insufficient reasons to doubt the correctness of the decision of the Court of Appeal to warrant a grant of special leave and the application is refused with costs.

AT 11.45 AM THE MATTER WAS CONCLUDED