Kukovec v Sutherland Shire Council & Anor S136/2001 [2002] HCATrans 83 (5 March 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S136 of 2001

B e t w e e n -

JOSEPH KUKOVEC

Applicant

and

SUTHERLAND SHIRE COUNCIL

First Respondent

ELOUERA SURF LIFESAVING CLUB INC

Second Respondent

Office of the Registry

Sydney No S137 of 2001

B e t w e e n -

JOSEPH KUKOVEC

Applicant

and

ELOUERA SURF LIFESAVING CLUB INC

Respondent

Applications for special leave to appeal

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002, AT 10.36 AM

Copyright in the High Court of Australia

__________________

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR M.G. O'BRIEN, for the applicant. (instructed by Di Lizio & Associates)

MR D.L. DAVIES, SC: May it please the Court, I appear for the first respondent. (instructed by Phillips Fox)

MR A.D.M. HEWITT, SC: May it please the Court, I appear with my learned friend, MR E.G.H COX, for the second respondent. (instructed by Curwood & Partners)

McHUGH J: Mr Davies and Mr Hewitt, what about 15 minutes for each of you? Is that sufficient?

MR DAVIES: Yes.

MR HEWITT: Yes.

McHUGH J: If need be, as Justice Gummow says to me. Yes, Mr Hislop.

MR HISLOP: Thank you, your Honour. Your Honours, the essential proposition which we would submit is that in the Court of Appeal the court overturned the judgment of the trial judge by substituting inferences which were less probable than that drawn by the trial judge and indeed inferences which were not inconsistent with negligence on the part of the first and second respondents. As a result of that, there has been a miscarriage occasioning substantial injustice to this man, who has had a serious injury to his right eye as a result of the events that occurred on the relevant date.

The important factual matters which ground the need for inferences was that at the beach on this day there was a safety zone for swimming marked by the usual red and yellow flags. Immediately beyond that there was a buffer zone on each side, 25 to 50 metres wide, which was marked by a sign saying that surf craft were prohibited. It was accepted that the task of the Club was to keep surfers with fibreglass surfboards out of the designated swimming area and the buffer zones. What occurred was that the applicant was standing in the surf or, more accurately, in the whitewash of the sea within the flagged swimming area, holding his two children by the hand, when he observed a lad carrying a surfboard 10 metres ahead of him further out to sea. The boy then threw the surfboard down, jumped upon it in such a way that the board flew into the air and struck the applicant in the right eye.

Now, the trial judge, in those circumstances, concluded that it was probable, and, indeed, a proper matter for inference, that the boy had entered the surf with his board within or near the flagged area, each of which was prohibited, and had engaged in some activity, either of riding the board or indicative of an intention to ride the board, and in so doing there had been negligence on the part of the respondent in not noticing him and removing him from the surf prior to the event occurring.

Now, it is our submission that the conclusion which the trial judge drew based upon those inferences was a proper one and well open to him in the circumstances. There was no doubt that at all relevant times when the boy was seen he was within the prohibited areas. He was 10 metres beyond the applicant and he was heading in toward the beach. The applicant was standing in knee-deep water. The direction of travel indicated he was coming directly in from deeper water and that seemed to be confirmed by the evidence of the applicant's elder daughter, who said the boy came out of the surf.

Now, common experience, in our submission, suggests that it is usual to leave one's personal effects on the beach in the vicinity of the place where one enters the water, thus it was reasonable to conclude that, indeed, the inference which his Honour drew at the trial was an appropriate one. The Court of Appeal concluded that the inference drawn by the trial judge should be rejected on the basis it was no more likely than two other inferences which were outlined by the Court of Appeal and that, accordingly, the applicant had not established his case on the balance of probabilities.

The difficulty, in our submission, with the approach of the Court of Appeal was that each of the scenarios which they suggested were (a) less likely than what the trial judge had inferred and (b) each involved negligence or were consistent with negligence on the part of the respondents.

The first of the matters which the Court of Appeal suggested was that the boy had been surfing in a legitimate surfing area about 30 to 55 metres away. He had surfed towards the shore, entered the buffer zone on his board, caught another wave, with the consequence that after a couple of seconds he entered the flagged area and then commenced to walk to the shore.

Now, on that scenario we have the boy proceeding across the prohibited buffer area and proceeding into the swimming area. The problem with that scenario is that the evidence was that it would take a massive wave to carry a surfboard rider through the buffer zone to the flagged area and the swell on the day on the evidence was only half a metre, so there was no wave that would have done that, and the evidence was that anyone using a board in the buffer zone would be removed - that is at 8, 5 of the judgment of the trial judge - and at 6, 25 of the book this evidence is stated, that:

Every attempt is made to restrict riders of surf craft to the designated area outside the buffer zones. If they do stray into the buffer zone they are warned. There is a loudspeaker in the tower. There are patrol persons in the buffer zones either swimming or on surf craft.

So that, in our submission, having regard to the surf conditions on the day, it would have taken several waves for him to have carried out the manoeuvre which was suggested in the Court of Appeal and there would have been sufficient time for him to be observed and removed which, in our submission, should have occurred if the defendants were acting properly and in accordance with the task which they accepted was theirs.

GUMMOW J: Now, how did it come about that the Council was held liable?

MR HISLOP: The Council was held liable on the basis that they were vicariously liable for the negligence of their agent, the Surf Club.

GUMMOW J: Why was the Surf Club negligent?

MR HISLOP: And the Surf Club was negligent because it failed to carry out the task of policing the safe swimming area to ensure that dangerous surf craft - - -

GUMMOW J: Task imposed by whom?

MR HISLOP: The task accepted by them and it being a task which the Council had and accepted it had and which it purported to delegate to the Club, which in turn then acted pursuant to that and carried out these functions and accepted on the evidence that that was their task. So that there is, in our submission, no doubt on the evidence that there was an acceptance of the task which was being carried out. I should say that the Court of Appeal found it unnecessary to determine the questions of vicarious liability and the like, because it determined it on this question of inference and proceeded no further.

GUMMOW J: I know. They come here on a notice of contention.

MR HISLOP: Well, I cannot see any notice of contention, your Honour, although there is some suggestion. Well, the way we put our case, your Honour - I have dealt with the first of the scenarios suggested by - - -

GUMMOW J: Yes. Now, this word "scenario" is a slippery one too. It suggests the whole problem in a way. Justice Ipp found five scenarios.

MR HISLOP: Well, in our submission, he found two, which were to be preferred and which, for the reasons we have given, should not have been, because they were not more likely or more probable than that determined by the trial judge and, secondly, each of them involves potential negligence on the part of the respondents and, in our submission, the Court of Appeal was not entitled to substitute its inferences, in those circumstances, for those of the trial judge. It was not shown that he was wrong and, indeed, the inference preferred by him was a better one, and if the court was - - -

McHUGH J: But to say it is not shown he is wrong seems to be an attempt to reinstate Edwards v Noble as opposed to Warren v Coombes. The Court of Appeal has to make up its own mind, bearing in mind the advantages the trial judge has.

MR HISLOP: Yes, it has to give due deference to the decision of the trial judge, but, in any event, your Honour, putting that to one side, if we are correct and the probability favoured by the trial judge is more likely than those suggested by the Court of Appeal, then that of the trial judge should prevail and, secondly, if the other possibility - - -

McHUGH J: If it is more probable, it prevails in its own right.

MR HISLOP: That is right.

McHUGH J: But what is the special leave point in the case, Mr Hislop?

MR HISLOP: Well, the special leave point, your Honour, is that there has been a grave miscarriage of justice affecting substantially the applicant and that that injustice results from a failure by the Court of Appeal to have regard to principles such as the proper way in which to approach matters of inference and the fact that if there is an alternate inference which is consistent with negligence, then that cannot prevail over the one which, in this case, was preferred by the trial judge.

McHUGH J: The Court of Appeal took the view that the plaintiff had failed to establish the inference of negligence relied on was more probable than inferences of non-negligence. Now, the most you can say is they got it wrong. That is not a special leave ground, otherwise we would be granting special leave in every case in which it was claimed the facts were wrongly decided.

MR HISLOP: Well, in our submission, they did get it wrong and, secondly, it does involve questions which are relevant to many trials and it is appropriate that the Court reinforce, in our submission, the principles in relation to matters of inference, particularly where the alternate inferences sought to be drawn by the Court of Appeal are consistent with negligence on the part of the respondents. It is a very real matter to the applicant here.

McHUGH J: I understand, of course it is, but appeals ordinarily end with the final Court of Appeal in the jurisdiction. There has to be something special about the case before we will grant special leave to appeal.

MR HISLOP: Your Honour, if I might say - and I heard with gloom the case before, because when leave was granted in that I thought that the prospects of this case probably decreased, but there really is no difference in terms of general approach to the grant of leave in that case to this one. It is the Court's overall obligation, if we could put it in that way, to correct errors and to ensure that there is a proper application of principle laid down by this Court in other cases.

McHUGH J: Intermediate courts have an error-correcting role. The role of this Court since 1984 is to lay down the law generally for the country. That is its principal function. It does so in the purpose of deciding cases, but of all the thousands of cases that are decided in this country each year, we can only take on a handful, 70 or so at most, and there has to be something special about the case and arguments that intermediate courts of appeal have found facts wrongly or drawn the wrong inferences is not ordinarily special.

The other case, Fox v Percy, was a case where there were specific findings of fact that an accident happened on a particular side of the road and the Court of Appeal set aside those findings which turned on credibility because of some skid marks. That is a long way removed from this case.

MR HISLOP: Well, we submit not, your Honour, because in this case the Court of Appeal set aside a finding of the trial judge based upon erroneous conclusions as to inferences, alternative inferences, and which inferences were consistent with negligence on its part. So that, in our submission, this is an appropriate case for a grant of leave and the Court's error-correction jurisdiction, in our submission, should be engaged. I have not gone into the detail of the second inference approach of the Court of Appeal, which suffers from similar problems to that of the first. It is unnecessary perhaps to burden the Court with that. If it please the Court.

McHUGH J: Thank you, Mr Hislop. The Court does not need to hear you, Mr Davies or Mr Hewitt.

The decision of the Court of Appeal in these cases turned on the inferences to be drawn from certain proved facts. The Court of Appeal thought that the plaintiff had failed to establish that the inference of negligence on which he relied was more probable than inferences of no negligence on the part of the defendants and their servants and agents. There is no special leave point in the case. Accordingly, the application for special leave is dismissed with costs.

Call the next matter.

AT 10.52 AM THE MATTERS WERE CONCLUDED