Prast v Town of Cottesloe P85/2000 [2001] HCATrans 548 (24 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P85 of 2000

B e t w e e n -

DAVID DUNCANSON PRAST

Applicant

and

TOWN OF COTTESLOE

Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 12.23 PM

Copyright in the High Court of Australia

MR N.J. MULLANY: If the Court pleases, I appear for the applicant. (instructed by Anthony Torre & Monaco)

MS N. JOHNSON, QC: If the Court pleases, together with MR C.C. RIMMER, I appear for the respondent. (instructed by Jackson McDonald)

GAUDRON J: Yes, Mr Mullany.

MR MULLANY: Your Honour, there are four feature of this case which justify a grant of special leave. First, it raises squarely a highly important question of principle, the misinterpretation and misapplication of which continues to plague the courts throughout the country. Secondly, it is of a character this Court has twice acknowledged is fitting of appellate review by this jurisdiction. It did so on the applications for special leave to appeal in the matter of Woods and it did so in the matter of Bomford. The third feature is this: in contrast to the decision of the Full Court in Bomford, there can be no doubt that the error of law of which we complain was committed below. The flawed and only basis upon which Mr Prast failed to establish a breach of duty is clearly articulated by his Honour Justice Ipp with whom Justices Wallwork and Parker agreed.

GAUDRON J: Yes, but it is not so clearly articulated by the trial judge. She seems to have been very much aware of the precise considerations which the statute required her to take into account.

MR MULLANY: We say not, your Honour. I will deal with that in due course if I may.

KIRBY J: The trial judge also dealt with it on causation too.

MR MULLANY: Yes, she did and the causation finding was reversed on appeal because it was said that she had misapplied the relevant test, namely an objective rather than a subjective test.

GAUDRON J: Yes, but if she is correct on breach, that really is the end of the matter, is it not?

MR MULLANY: Yes, your Honour. Can I deal first with the Full Court and then I will tackle that problem, if I might. The critical analysis of the Full Court appears under two telling headings, the first, "The obviousness of the risk" on application book page 73 and the "The obviousness of the risk and the discharge of the duty of care" on page 76. It follows immediately his Honour's recitation of the relevant facts. Now, in contrast to its subordinate position in the reasons for decision of his Honour Justice Murray in the Bomford Case, the erroneous principle guiding the Full Court in this case assumed front and centre stage at the beginning of the reasons of his Honour Justice Ipp and is signposted by what we say are instructive headings. In Bomford your Honours Justice Kirby and Justice McHugh attached great significance to the fact that the controversial passage in your Honours' judgment in Romeo appeared right at the end of the reasons of his Honour Justice Murray, characterising its citation as a throwaway line rather than the foundation for the decision. Your Honours gave, in our respectful submission, the Full Court in that case the benefit of the doubt, and that was the only basis for the refusal of leave in that case.

The structure, we say, of his Honour Justice Ipp's decision is quite different. It confirms, we say, rather than denies our contention that he elevated impermissibly the observations of your Honour Justice Kirby in Romeo and the perceived obviousness of risk to the status of a universal legal principle disqualifying Mr Prast from success. The contention that is put against me that that misinterpretation was not determinative below cannot be accepted.

The fourth reason for qualifying this matter as worthy of a grant of special leave is that it is a particularly suitable vehicle, we say, for the ventilation of the point we wish to agitate. It is better suited than Woods, which gave rise to other complicated issues of law, in fact, than the final resolution of which might be hindered by the want of central findings. There was no evidential impediment to the resolution of this case in contrast to Woods, where there were difficulties with questions of credit. We say the solitary question arises in a crisp, clean fashion. We say it is isolated. We say that every other feature that her Honour the trial judge referred to, other than the perceived obviousness of the risk, supported the imposition of the obligation to warn as alleged.

GAUDRON J: I do not think that is right.

MR MULLANY: I will tell you why I say that, your Honours. If you turn to paragraph 4 of the summary which you find at application book page 95. The findings we set out (a) through (gg) we say should have led to two compelling conclusions. It is the second with which we are concerned today.

HAYNE J: Of those, you have occupier, encourager, knowledge, is that the sum of it expressed in 52 paragraphs?

MR MULLANY: We have all those things, your Honour, but we have a number of additional things. We have those additional features such as the cost of the erection of the signs, the cost of the maintenance of them, the ease with which this risk could have been - - -

GAUDRON J: The risk could never be eliminated except by refusing entry to the beach and it is really quite wrong to look at this as a risk case. It is a question whether in all the circumstances notice was required, that is to say, a positive step was required in the circumstances of this case.

MR MULLANY: I accept that, your Honour. What it is, to put it slightly differently, is what Justice McHugh referred to on Monday: what was required in all the circumstances, what was - - -

GAUDRON J: Why do we not have signs warning about sharks?

MR MULLANY: Let me tell you why, your Honour. Two features of this case, we say, operate to elevate these particular circumstances into the situation commanding a warning. They are these: the hidden nature particularly of this danger. It has to remembered that when - - -

GAUDRON J: Hidden by whom?

MR MULLANY: Hidden to the observer, your Honour, and there was a finding about that. Your Honours find it at 4(v) on page 96 of our summary, that even the experienced body surfer could not discern the particular character - - -

GAUDRON J: In that case, what good would a notice do? What would the notice say: "Beware. Sometimes the waves may be dumpers"?

MR MULLANY: No, your Honour, what we allege was very specific. We did not say, "Be warned, dumping", "Be warned, you might be injured". What we said, which is recorded at paragraph 95 of the trial judge reasons for decision at 33 and 34 and in the Full Court decision on page 66 at paragraph 3, was that those who want to body-surf:

run the risk of serious spinal injury by reason of the condition of the surf and the seabed.

GAUDRON J: Very well. Now, what one is talking about is a warning as to an activity, not as to a danger in the occupied land.

MR MULLANY: There is no creation of the danger, that is true, but that makes no difference, in my submission. I told your Honour there were two features that operate to elevate this case into the circumstance where warning is required. The first is the hidden nature of the danger here. When Mr Prast stood on that beach, he was confronted with a benign scene, waves which were lapping at one to two feet; it was in effect like a billiard table. All the experts could not discern whether or not the particular wave he was to tackle would have resulted in his - - -

GAUDRON J: That being so, that takes you straight into the question of the effectiveness of a sign.

MR MULLANY: That is right, your Honour, and we dealt - - -

GAUDRON J: I would have thought that even assuming you could get past breach of duty, the notion that a sign would do any good in relation to would-be surfers in conditions in which the surf looked like a billiard table was one that was unlikely to gain popular acceptance or even judicial acceptance.

MR MULLANY: What your Honour has just put to me has to be evaluated in the light of this particular individual and that is what the Full Court said, albeit judged by reference to objective evidence. What kind of man was Mr Prast? He was found to be an honest, compelling witness.

GAUDRON J: Look, that is only one question when you are looking to see whether it was a breach of duty not to have signs. It cannot be right as a matter of law that the Town of Cottesloe should have anticipated that Mr Prast would come along.

MR MULLANY: Quite so, your Honour.

GAUDRON J: The reasonableness of the placing of signs has to be judged by reference to their general effectiveness and presumably effectiveness in conditions where it looks like a billiard table, is that what you said?

MR MULLANY: We are saying those conditions made the need for the warning sign acute. Can I just go back and give you the second feature of why I say this particular circumstance had commanded a warning. The consequences of the materialisation of this risk were catastrophic. Your Honour Justice Kirby said on Monday that to lose an eye is a terrible thing and so it is. To be rendered a tetraplegic as a consequence of one's decision to body-surf at 5 pm on a dusky night in a one-foot wave is catastrophic.

KIRBY J: I think you can take it all of us understand that.

MR MULLANY: Those two things, we say, operate in tandem along with those other factors in Wyong Shire v Shirt and so on.

HAYNE J: But what you say is that the town should put up a sign saying "What you propose to do may cause death or paralysis"?

MR MULLANY: We put it very clearly, your Honour, in our pleadings in our particulars.

HAYNE J: Now, why should the town put up a sign saying to someone, "What you are about to do - - -

MR MULLANY: Because they had an obligation to make sure that - - -

GAUDRON J: In what capacity?

MR MULLANY: In their capacity as occupier, in their capacity as an authority who had gone out of its way since 1963 to encourage persons to attend, indeed, to take up this particular activity in circumstances where they promoted the beach as a safe family environment. All of that is relevant, of course, as it was in Nagle.

To return to what your Honour Justice Hayne put to me, because they have to make sure that a person standing on that beach at that time is fully apprised of all of the particular circumstances in order to allow him or her to make a fully informed choice about whether to partake in that activity. He knew he could be grazed, he knew he might suffer a broken tooth or a bloody nose or some such minor injury. But what he did not know, and he was believed on this, was that he could if he engaged in this activity end up in a wheelchair for the rest of his life. That is the kind of thing that this Court has emphasised in cases like Agar v Hyde at paragraphs 15 and 90, when your Honours have spoken of "autonomy" and "freedom of choice". It cannot be said that Mr Prast fully exercised his freedom of choice if standing on that beach he did not know what he was about to get into.

KIRBY J: Now, I think there was not evidence of similar injuries?

MR MULLANY: There was a dispute about that, your Honour, but can I deal with that by telling you that at the end of the day the evidence reduced, so the Full Court found, to no more than this, that the authority was aware that certain reports had been made to it that persons had been injured body-surfing and one of those reports was a suspected spinal injury.

KIRBY J: It is not as though this is a case where there has been a record of a number of such injuries.

MR MULLANY: I cannot put that submission to you. His Honour Justice Ipp was critical of the learned trial judge when dealing with the admissibility of certain evidence of prior reports and that is what he said that evidence amounted to.

Can I deal with what your Honour Justice Gaudron put to me at the outset, that there may be some debate about what her Honour the learned trial judge did with this case. The answer to that question has to be judged by reference to the approach that the defendant took in this case. Its defence reduced to one simple point - it is not in the application book, of course - but at paragraph 9 of the re-amended defence, they hammered their colours very clearly to the mast and they said this:

The risk of injury to the plaintiff was inherent in body-surfing and it was obvious to him as to any member of the public and was, therefore -

ie, because of that fact -

not a risk of which the defendant was required to warn him.

GAUDRON J: Whatever the defence might have been, her Honour at paragraph 115 on page 40 has regard to a number of matters.

MR MULLANY: She does. Can I deal with that this way, your Honour, and ask you first to turn to paragraph 29, line 3, on 73 of the application book and look under the heading, "The obviousness of the risk", at the way the Full Court characterised the defence and what had happened below. His Honour says:

the appellant's - - -

HAYNE J: Look, I understand that the Full Court may represent more fertile ground for you. For my own part, your principal difficulty lies in the trial judge's - - -

MR MULLANY: Yes, your Honour, I am not shying away from what has occurred at first instance, I am simply setting the scene for your Honours. So, once one has read what is said at 29, we say that is how the case was resolved both at first instance and on appeal and his Honour Justice Ipp's summary of what occurred at first instance is accurate. We say that is clear in any event from what occurs at paragraphs 103 to 115 on application book 36 through 40.

The fact, to return to your inquiry, Justice Gaudron, that her Honour went through some of the factors that feature in the Shirt analysis does not save that judgment, in our respectful submission. Your Honour has to look, at the end of the day what was it that caused Mr Prast to fail, and the answer to that, we say, is clear from what appears from about 105 through to - - -

HAYNE J: Was there a duty?

GAUDRON J: Now, her Honour had taken into account the gravity of the injury, that its likelihood was remote. Relevant considerations?

MR MULLANY: Yes, having concluded it was foreseeable, indeed, as it was admitted. So both of those factors, your Honour, are in favour of liability.

GAUDRON J: Right. That the danger was not hidden, that it was inherent in body-surfing and obvious to body surfers, that is the first time she said it. It was not created by the defendant, was naturally occurring, difficulty and costs associated with providing signs.

MR MULLANY: That is a factor for us.

GAUDRON J: I think the others are factors for you too.

MR MULLANY: That is right, your Honour.

GAUDRON J: When they are all taken into account, failure to erect the signs did not breach its duty of care.

MR MULLANY: The question then arises, your Honour: why was it that Mr Prast failed?

GAUDRON J: For the reasons her Honour gave.

MR MULLANY: Your Honour has put to me that all of those first set of factors are factors in favour of the applicant. I embrace that. So there must - - -

GAUDRON J: No, I do not say that they are considerations in favour of the applicant at all.

HAYNE J: They are considerations, period, which then are weighed and which result. Now, her Honour the trial judge appears there to take a series of matters to account, weigh them and reach a conclusion. Do you say that her Honour should have taken other matters to account or should not have taken some of these to account?

MR MULLANY: What we say, your Honour, at the end of the day when one asks why we failed at first instance, the only answer to that question can be her Honour's conclusion in relation to two things: that the risk was obvious and inherent in body-surfing - and we have dealt with that, we say that is not correct as a matter of fact - and, secondly, she erred in relation to her analysis of the legal consequences of that finding. She erred for the reasons this Court has already identified in Woods and Bomford. Why was it that Mr Prast lost? It could only have been if the risk was easily - - -

GAUDRON J: Now, your argument must be ultimately this: if any activity is dangerous and any occupier of land knows that it is dangerous and that it is being undertaken on his or her land, then the occupier must put up a sign warning of that danger, even though he could not really be satisfied that a sign would generally be effective to prevent people from taking that risk.

MR MULLANY: There are two responses to that, your Honour. Firstly, that is not my submission; we do not say that at all. What we say is - - -

GAUDRON J: No, but it must come to that, must it not? Now, what is the difference between the occupier of land that has limestone caves in it who knows and permits speleologists to visit his land for the purpose of caving?

MR MULLANY: Well, I go back to the two features I identified earlier on. The first feature is the hidden danger in the particular circumstances. Here the calm scene made the need for that warning all the more acute.

GAUDRON J: All right, let us take that this case - - -

HAYNE J: But, so too it would with a board rider. The board rider could be struck by his or her own board and the board can do you dreadful damage.

MR MULLANY: That is not hidden, your Honour, that is not a hidden danger. When one stands at the shore, one looks at - - -

GAUDRON J: But you are using the nature of "hidden" really as synonymous with a remote danger, are you not?

MR MULLANY: What I am doing, your Honour, is to seek to persuade you that an imposition of this kind of duty will not result in the coastline being dotted with signs up and down warning - - -

GAUDRON J: Why not?

MR MULLANY: For the reasons I have just articulated.

GAUDRON J: I should have thought you would need it everywhere.

HAYNE J: The moment you knew there was body-surfing happening on your beach, you have to put a sign up.

MR MULLANY: Well, that might be right, your Honour, but can I deal with the example you gave me. When you board-surf it is patently clear to anyone who rides a surfboard that they may be injured as a result. It was not patently clear to Mr Prast when he stood there that if he engaged in this activity, he could end up in a wheelchair. It is the gravity of the particular risk that one is undertaking and the consequences of it which are the primary features which require the warning.

I was going to return, if I might briefly, to your Honour Justice Gaudron's observation in relation to sharks and whether or not that would be required. The answer to that question is met by asking: what would have been reasonable in the circumstances? Your Honours remember the tragedy we had here not so long ago. There are a couple of things that could be done. One could perhaps erect shark nets, one could perhaps warn of the risk of that. It may not be obvious to every beach-goer.

KIRBY J: There are beaches in Sydney which have shark warnings.

MR MULLANY: Exactly, your Honour.

KIRBY J: Especially in the harbour, as distinct from the surf.

MR MULLANY: The reason is that that risk is not patently clear to all who venture forth and the gravity of its materialisation is huge. If it please your Honours.

GAUDRON J: We will adjourn briefly to consider what course we will take in this matter.

AT 12.45 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.48 PM:

GAUDRON J: Yes, we need not trouble you, Ms Johnson.

Whilst we would not necessarily endorse all that was said by the Full Court, we are of the view that given the nature of the danger which resulted in the injuries sustained by the appellant and given that it was not one which was of the respondent's making, that no error is to be detected in the approach of the trial judge on the question of breach by the respondent of its duty of care as occupier of Cottesloe Beach.

Accordingly, special leave is refused. It is refused with costs.

The Court will now adjourn until 2.15.

AT 12.50 PM THE MATTER WAS CONCLUDED