Hansford v Gondoline Pty Ltd [2003] HCATrans 429 (24 October 2003)

--

Hansford v Gondoline Pty Ltd [2003] HCATrans 429 (24 October 2003)

Last Updated: 6 November 2003

[2003] HCATrans 429

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P94 of 2002

B e t w e e n -

JANICE ROSE HANSFORD

Applicant

and

GONDOLINE PTY LTD

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 24 OCTOBER 2003, AT 9.21 AM

Copyright in the High Court of Australia

MR B.L. NUGAWELA: If it please your Honours, I appear for the applicant in this matter. (instructed by Friedman Lurie Singh)

MS B.A. MANGAN: If it please your Honours, I appear for the respondent. (instructed by Phillips Fox)

GLEESON CJ: Yes, Mr Nugawela.

MR NUGAWELA: Your Honours, we offer ten considerations why we say this case is a suitable candidate for the grant of special leave. We do not present them in any order of importance, but hopefully they will appear with some logical connection and sequence.

GLEESON CJ: A case about somebody tripping over on a footpath does not immediately hit you between the eyes as a candidate.

MR NUGAWELA: No it does not, I accept that. Dealing with the standard of care, the first point we make, your Honour, is this. The concept of “everydayness” of a risk does not inform what is an obvious risk or what is a latent risk.

CALLINAN J: Why not?

MR NUGAWELA: Well, driving a car, your Honour Justice Callinan, or catching a bus is an everyday risk, and, to some people, an obvious risk, but sometimes the familiarity bred of repetition results in it becoming a necessarily automated function in our society. The point we make is that simply because something is an everyday risk, or an everyday activity in the lives of humans, does not always mean that no duty of care can attach to it. Now, the reasoning of his Honour Justice Miller in this case hinges solely on the duty calculus on that point. At paragraph 65 of his Honour’s reasons for decision, which is at the application book, commencing at page 49, the third line:

The protruding paver was but an ordinary and everyday risk that a pedestrian on a pathway ought to have envisaged. It was not a hazard, but an everyday risk -

That is the first point we make, by way of introduction. The second point, your Honours, is that even if the Full Court did not, as we submit, advance the “bowling green” test or an “everyday risk” test for all pedestrians using or traversing pathways on commercial or public footpaths, we say, at the very least, what it did was that it fell into the danger of following your Honour the Chief Justice’s words in Ghantous and permitting it to be the tyrants over the facts of this everyday factual scenario.

We say this for two reasons, your Honour. Firstly, his Honour Miller expressly did so, at that part of the reasons which I have taken your Honours to, but also because, throughout the entire reasoning of the Full Court, it refrained from undertaking the necessary negligence calculus, of the type taken by the Court of Appeal in ACT v Gharvan throughout paragraphs 52 through to 72. It is one of the decisions in our book of authorities.

The third point, your Honours, is that the facts of this case, we submit, do raise a point of public importance. The statistics annexed to my instructing solicitor’s affidavit, if I might briefly turn to that, at table 4 show that in the 12 months to October 1995, in New South Wales alone, some 139,500 citizens tripped and fell. Of them, 27,200 females - - -

GLEESON CJ: Tell me, how do you work that figure out? That is people who tripped and fell, or people whose tripping and falling was reported? I sometimes trip and fall myself, but I do not report it to anybody.

MR NUGAWELA: Indeed. So the figure could be much higher than that, your Honour.

GLEESON CJ: Well, what kind of person reports every trip?

MR NUGAWELA: The nature of the persons who actually suffer fractures, for instance, and the number there – the number of females who suffered fractures in that period of time was 11,100. That is just for the State of New South Wales in one year, in 1995. There have been no more recent statistics on that, but, multiplying that countrywide, we say that demonstrates a sufficient point of public importance in this case.

The fourth point, your Honours, is that there has been no factual finding by the learned trial judge that has been disturbed. So we say that this is not an inconvenient or unsuitable vehicle for the High Court of Australia to provide guidance post-Ghantous, but also to intervene in the interests of the administration of justice in this State.

GLEESON CJ: What point of principle did Ghantous leave unclear?

MR NUGAWELA: For a start, your Honour the Chief Justice, Ghantous, as his Honour Justice Hayne points out, was not concerned with the duty of care upon councils as occupiers – or private occupiers – of land. It is not so much, I suppose, the lack of clarity in Ghantous, but the approach taken by intermediate appellate courts, certainly in this State, which allows the facts in Ghantous to be used as the tyrants over the facts of other cases without carrying out the requisite duty calculus examination. That is exactly what we say his Honour Justice Miller did, very much like what happened in Romeo. Justice Kirby’s reference to obviousness of risk had to be clarified three and a half years later in Woods v Multisport, so that it did not remain tyrants or mere verbal labelling where courts do not need to look into the actual negligence calculus.

In answer to a question that might be, “Why should this Court, so soon after Ghantous, entertain another appeal concerning the content of the standard of care in a tripping on a pavement case?”, we say this. In the light of the frequency of these incidents throughout Australia, your Honours, and in the light of the fact that Ghantous was delivered in May 2001, and if special leave were to be granted in this case, if a decision is handed down, it might take another year, a period of about four years would have elapsed since the High Court looked at this issue. By similar analogy, a period of four years did elapse before the High Court considered it necessary to swiftly intervene after his Honour Justice Kirby’s comments relating obviousness in Romeo had to be clarified in Woods v Multisport.

Can I say, as our sixth point, your Honour, at the risk of repeating myself – because I think I dealt with this shortly in answer to your Honour the Chief Justice’s question – that nothing that fell from this Court in Ghantous deals with the council’s duty of care as an occupier, or, indeed, the highway authority’s liability without regard to the statutory obligations and immunities upon a highway authority. In any event, the position of councils as occupiers, as his Honour Justice Hayne has observed, is very different from the position of private owners as occupiers.

CALLINAN J: I was just looking at your statistics. I see it is something like 11 per cent or 12 per cent said that they fell on uneven or cracked surfaces and, of the total people who fell, something like 17 per cent fell on a public footpath or a road. So you have 12 per cent of 17 per cent. So you have about 2 per cent of those who fell, fell on a public footpath because of a cracked or uneven surface.

MR NUGAWELA: Yes.

CALLINAN J: It does not suggest that it is a very big problem.

MR NUGAWELA: Yes. I was just looking at the number of reported incidents.

CALLINAN J: Yes, the raw numbers, but the actual percentages show that it is about 2 per cent.

MR NUGAWELA: Yes.

CALLINAN J: In fact, it is about a fiftieth of the number of - - -

MR NUGAWELA: Two per cent of 17 million or 10 million is a big number, in our respectful submission.

CALLINAN J: No, no. Two per cent of 139,000.

MR NUGAWELA: I see. I do not think that is right, your Honour Justice Callinan, from my reading of it, because at table 5 under the heading “Persons 65 Years And Over Who Have Fallen In The Last Twelve Months”, under the heading “Surface”, the third and fourth entries, “Uneven/cracked man-made surfaces” was 16,500 persons.

CALLINAN J: That is not the figure given in the percentages.

MR NUGAWELA: No, it is not, but as a percentage of 139,000, it is more than 10 per cent, looking at it. If I can move away from that and look at the last point I was making, your Honours, that to the best of our research there has been not a single application for special leave granted in the similar facts of this case, nor is there any current decision reserved for judgment before the High Court. The seventh point - - -

GLEESON CJ: You are right when you say that there has not been a single application for special leave in a tripping case granted recently, but a number were refused.

MR NUGAWELA: Yes. We have looked at those that have been refused, two or three, Bonnici and the like, and the refusals arose out of entirely different situations. Some were not factually suitable vehicles and some findings were not made – unlike this case, where there is absolutely no disturbance to the primary findings of the trial judge and the only basis upon which the Full Court intervened was on the basis of this conceptualisation of everyday risk. There has been no similar scenario presented since Ghantous was decided.

The seventh point, if I can quickly say, your Honours, is that another interesting question which arises out of the facts of this case is whether, as a matter of legal common sense, a pedestrian walking on a pathway, clearly provided for the purpose of access to or egress from premises built for custom or trade, must constantly monitor his or her footfall. I am, of course, thinking of the decisions of ACT v Badcock, which, interestingly enough, the Full Court adopted as a correct statement of the law for this State.

ACT v Badcock was the decision of a Master which was upheld by three Supreme Court justices and further upheld by five Federal Court justices. It rates a mention in Brodie, only in the joint judgment at footnote 63, but not in the context of this issue – in the context of the distinction between the liability for misfeasance and nonfeasance. So, as far as the State of Western Australia is concerned, and, I suppose, as far as authority from the High Court is concerned, there is nothing to indicate to the contrary that a person normally walking on the footpath, whether it is in a suburban area or on a man-made footpath through the city centre, has to constantly monitor his or her footfall. In fact, it would be a social phenomenon to the contrary for everyone to be walking with their heads down, in our respectful submission.

So that question that was decided in ACT v Badcock is still a live question. If the answer to that question is in the negative, your Honours, the question then becomes, “Can a half-inch protruding paver on a downward slope, as found by the trial judge, represent a latent hazard or trap for the unsuspecting pedestrian?”, perhaps – to use the words of Ghantous – distracted by discourse or by momentary inadvertence? None of these issues were considered by the Full Court. They simply adopted the everyday risk formulation and said that a duty of care does not even arise.

The eighth point, your Honours, is that our reading of Ghantous is that it is not an imprimatur for the lower courts to avoid carrying out the duty calculus by the adoption of labels such as “everyday risk” or “obvious risk simpliciter”. If we are not entirely correct in that statement, then we say that the decisions which we have isolated and extracted in the book of authorities, like ACT v Garvan or Gosford City Council v Needs, are in conflict with this Full Court authority in Hansford v Gondoline.

In Needs, your Honours would recall, Justice Ipp – a feature of it was that the trial judge made a finding that the obstruction on the pathway was not obvious to the plaintiff as she walked, even though photographs later tendered showed that it was objectively obvious. We say that is an illustration of the cautionary principle that fell from your Honour in Ghantous, that questions of inadvertence and distraction are nevertheless important elements which inform as to the existence of a duty of care.

There is another interesting decision in Francis v Lewis, which is at 2.5 of our book of authorities, and if I can just read two paragraphs of that decision. Paragraph [50]:

The significant issue in this appeal involves his Honour’s somewhat implicit conclusion that it was unreasonable for the appellants to have left this stairway in its present condition –

and at paragraph [53]:

The stairs were steep and exposed to the elements. The 19 risers were one more than the maximum permitted for a fire escape under Ordinance 71 and there was no landing. These matters made them inherently dangerous, more so than many stairways encountered in everyday life. Of course the dangers were obvious, with or without the assistance of the notice. The photographs confirm this. The very obviousness of the danger in no way absolves users from their own responsibility to take care for their own safety. But the dangers were also obvious to those having the control of the stairs, ie the appellants.

We say that in this case the trial judge actually made a compendious finding that the upraised paver was not an obvious risk. He referred to the evidence of Waldron, who said that she could not see the upraised paver, and he concluded, at 36 to 38 of his reasons, that the respondent had breached its duty of care to inspect the pavement thoroughly or carefully. That is very much like the compendious finding made in Ryde City Council v Smith, at paragraph [26], if I could just read that very briefly, your Honours. It is under tab 2.3, where it is said:

The trial judge compendiously described the council’s standard of care as that enunciated in Brodie. His evaluative conclusions as to breach were expressed in the following terms –

and then they set out how the trial judge decided the compendious question, which is in all material respects identical to what his Honour Judge Viol did in the case below.

Finally – I do not want to dwell on these illustrative cases too much, but I cannot resist the temptation of looking at ACT v Garvan one last time, and that is under tab 2.4, at paragraph [23]. I think this was the judgment of the whole Court:

However, this is not a case where there was an irregularity in the paved area that might be expected –

jumping to [24]:

It should be observed that the existence of such an obstruction in a heavily trafficked area traversed by pedestrians is potentially a trap for them. Further, there was no evidence as to how obvious it was to an approaching pedestrian that the obstruction existed.

A duty of care was found to exist in that case, and that was, again, post-Brodie.

The ninth point, your Honour, is that we say that this case is not an unsuitable vehicle for the grant of special leave. The primary findings of the trial judge are intact and undisturbed. No factual controversy remains. There are no allegations of contributory negligence in the court below, and no findings in that respect. So there is no confusion in the crisp duty question that arises in this case.

Finally, the individual justice of the case, your Honours, in cases involving, as it does, senior citizens – she was 61 at the time of her injury, she is 68 now. She suffered a serious injury with serious consequences, restricting the enjoyment of the twilight years of her life, and we say that, for all those reasons, special leave should be granted in this case.

GLEESON CJ: We do not need to hear you, Ms Mangan.

The Court is of the view that in this matter there are insufficient prospects of success of an appeal to warrant a grant of special leave. The application is refused with costs.

AT 9.39 AM THE MATTER WAS CONCLUDED