Canterbury Municipal Council v Taylor & Ors S118/2002 [2003] HCATrans 577 (14 February 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S118 of 2002

B e t w e e n -

CANTERBURY MUNICIPAL COUNCIL

Applicant

and

WILLIAM ROY TAYLOR

First Respondent

CHRISTOPHER JOHN KEOGH

Second Respondent

KAREN BENEDET (Executrix of the Estate of Franco Benedet)

Third Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 2003, AT 11.37 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.K. KIRK, for the applicant. (instructed by Moray & Agnew)

MR G.B. HALL, QC: May it please the Court, I appear with my learned friend, MS S. NORTON, SC for the first respondent. (instructed by Makinson & D'Apice)

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR R.C. TONNER, for the third respondent. (instructed by Bartier Perry)

GLEESON CJ: Thank you. There is a certificate from the Deputy Registrar saying that she has been informed by the solicitor for the second respondent, that the second respondent submits to the order of the Court save as to costs. Yes, Mr Walker.

MR WALKER: May it please your Honours, we, may it please the Court, wish to confine our remarks to the matters advanced in paragraph 10 and 11 of the written argument, voluntary assumption of risk, in terms of the argument by which the Council was held liable for the injuries - chiefly, mental - suffered by this collision between speeding cyclists and resting touch footballers.

GLEESON CJ: Just looking at the draft notice of appeal. What page is that, Mr Walker?

MR WALKER: It is at page 175 and it is line 50 that the matter I am confining myself to is advanced, 175 in the application book, lines 49 and 50.

GLEESON CJ: Thank you. Where do we - - -

MR WALKER: And it is 153 in the application book which contains, we submit, the serious error which requires this Court's attention. May I, rather than go straight to 153, however, pull together those facts which demonstrate, in particular, that this is a case where the findings, without any embarrassment as to credibility aspects, present starkly for decision that the two supposedly unreversed decisions of this Court have become, as Justice Pincus has said in the Queensland Court of Appeal, virtual dead letter. In our submission, the point of our application is to vindicate as current, sensible and good law that which it would appear three Full Courts are suggesting has become a dead letter.

Now, in our submission, that is an important matter for the High Court to take on because Full Courts cannot, with respect, say that anything emanating from this Court has become a dead letter. At page 15 of the application book, in paragraph 30, there is the finding at trial that they - that is, the cyclists:

must also have known of the risk of injury which would result from cyclists and footballers single-mindedly following their pursuits side by side.

May I interpolate, your Honours will recall the touch football field is in the middle, the track is round the outside and the fatal collision takes place when there is this extraordinary pursuit activity going on and a footballer steps into the cycle track. At page 17 of the application book, paragraph 33, we had more than simply that general awareness to which I have drawn attention, we had the "near miss" just a week or so before on 29 April, "heated" discussions. That is real attention, subjective, "probably apparent" says the trial judge:

to all the members of Mr Stoker's team. Although the plaintiff may not, by the time he gave evidence, have remembered such events, I think that he must have known about them on 29 April and on the following Sunday -

the relevant day -

Although the plaintiff might not remember touch football being played - - -

again, a reference to a trial phenomenon -

the fact must have been obvious to him at the time.

CALLINAN J: Mr Walker, was there any evidence about how the field fitted within, I take it, the circular track? It was a circular track?

MR WALKER: I do not think it is geometrically a circle but, yes.

CALLINAN J: Oval, or something to that effect?

MR WALKER: Yes.

CALLINAN J: How far was the sideline from the track at the point - - -

MR WALKER: In the order of about two metres at the relevant point, at the nearest separation.

CALLINAN J: How close was this to the nearest separation, do we know?

MR WALKER: It was in, I think, the vicinity of that corner area, yes. Pages 20 and 21 of the application book, paragraph 43, is the reference then, coming closer to the fatal event. We have, "The cyclists' `warm-up'". Your Honours have probably seen this kind of competitive cycling on television where there is a group which has one in the front:

Each cyclist following another rode as closely as possible to that other -

foot of the page:

usual to maintain a distance of between six and eight inches -

The inherent danger of this kind of procedure at great speed is clearly obvious, and you see at the foot of that paragraph, they eventually reach a maximum speed, believe it not, of 55 kilometres an hour.

Next, may I take your Honours to paragraph 46 on page 21. There are no bells, no warning devices and no brakes, and they appear to be silent. Page 34 of the book, paragraph 82, foot of that page, third last line:

I think that it must have been obvious to the plaintiff that touch footballers were seriously engaged in a match on the inner field. Moreover, he had been present on the Sunday before and had seen touch footballers playing on that occasion as well. He knew that he was there unofficially without the knowledge or approval of his cycling body.

GLEESON CJ: Were these findings made in the context of dealing with an argument about contributory negligence, or about voluntary assumption of risk, or both?

MR WALKER: Yes, both. It was 50 per cent contributory negligence, the finding at trial, reversed or changed - as your Honours will have read - to 25 per cent on appeal. Then page 35, paragraph 85, at the foot of that same page:

The plaintiff rode a number of laps solo before forming up with the other riders and for that reason alone had plenty of opportunity to observe what was happening on the inner field . . . He was well aware of the speeds he and his colleagues were likely to reach -

and then, of course, at the foot of that paragraph, the curious expression:

If he had bothered to think about it -

which means, of course, there is not a finding one way or the other about whether he did -

he would have realised -

so his Honour seems to be finding - this is lines 17 and following on page 36 -

what an extraordinary pursuit he was undertaking given the proximity of the touch footballers.

Now, your Honours - - -

GLEESON CJ: How did the trial judge deal with this issue?

MR WALKER: The trial judge dealt with this issue at page 37, paragraph 89. He did not think:

however, that in the circumstances the plaintiff can be said by participating in the warm up voluntarily to have assumed the risk of injury.

That is a rather factually stark way of putting the argument:

What the Council must show to establish such a defence is that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it. The issue is not whether the plaintiff voluntarily and rashly exposed himself to the risk of injury, but whether he agreed that if injury befell him the loss should be on him and not on the defendant.

Now, that is the language of assumpsit, which has nothing to do with the doctrine in question. The voluntary acceptance of risk is not a matter of dividing between knowledge of the risk, and, without being forced to engage in the activity, then freely engaging in the activity and then a superadded function that, as it were, there has been something in the nature of an unvolunteered, that is, secret, waiver. There is no such requirement at all. At page - - -

GLEESON CJ: What is the difference between voluntary assumption of risk and contributory negligence?

MR WALKER: The principal difference is that contributory negligence can involve judicial findings about conduct which have meaning only after the risk has been presented by the circumstances. Conduct for contributory negligence may, of course, be conduct which shows that one voluntarily accepted a risk, but need not be. It is a much wider inquiry. Voluntary assumption of risk looks, and looks entirely, to the circumstances which precede the falling in of that risk. It is at the stage of when it is a risk that the voluntary acceptances are judged. Contributory negligence, of course, can include consideration of facts which actually involve the manifestation of that risk falling in and causing the injury.

There will very often be a factual overlap, indeed, very often be a factual identity of the evidence, which could either support volens on the one hand, or would demonstrate a very high level of contributory negligence on the other. Contributory negligence, notwithstanding it is statutory, does not abolish the doctrine.

CALLINAN J: I think there is New South Wales legislation, is there not? I thought we had to look at something.

MR WALKER: Yes, but it does not relate to the case of footballers and cyclists.

CALLINAN J: No, no, but it may be relevant that there had been - - -

MR WALKER: The very specificity of what your Honour is thinking of indicates precisely the point I have just made.

CALLINAN J: What Act is that? I am sure we ought to have - - -

MR WALKER: It is a Motor Accidents legislation - I am going to mislead your Honour by giving a name, because I do not know the precise provision of it.

CALLINAN J: It prescribes the - - -

MR WALKER: Yes.

CALLINAN J: It either writes it out by legislation completely or it prescribes very strictly the conditions for its implication. I think it is the former, is not it? I am not sure.

MR WALKER: I think it is the former - that is, it renders it, in effect, inapplicable, and it does not apply in this case at all.

CALLINAN J: No, but it is not without significance - - -

MR WALKER: I am not sure how current this is. I think it is section 76 of the `88 Act that your Honour may be thinking of.

CALLINAN J: If legislation is necessary to eliminate it, it hardly suggests that it is a dead letter at common law.

MR WALKER: If legislation is necessary to eliminate it, it is, in our submission, a powerful indication - though, of course, not binding on the common law court - that it has not been eliminated by common law.

GLEESON CJ: Mr Walker, what did Justice Ipp have in mind by the last two sentences in paragraph 146?

MR WALKER: It would appear his Honour has in mind either the superadded ingredient to which I have already referred, that is, something of the nature of a contract, an agreement in the sense of a waiver given to the other side - which would be error - or his Honour seems to have overlooked the power of the precedent, for example, in Joyce when none of the relevant people gave evidence and where it was stressed that this would be, in the ordinary course, a matter of inference - because the facts to which I have gone provided a relatively rich tapestry of detail from which one could draw the relevant inferences.

GLEESON CJ: Now, suppose - to take a not uncommon example - a person becomes a passenger in a motor car where the driver is obviously drunk. In what circumstances does that go beyond contributory negligence into voluntary assumption of risk?

MR WALKER: As we would put it from the authorities, if there is no question about the freedom of the choice exercised by getting into the motor car - and, in this case, it is even stronger, there is no question about the freedom of the choice in getting onto the cycle at the velodrome - then in our submission, as soon as one has the awareness of the possibility, that is, the risk, and the free choice to engage in the activity as to which one is aware of that risk, then that is the point at which voluntary assumption of risk is demonstrated.

What one does not need is the superadded requirement to investigate what one's hopes or expectations were. As to hopes, it would be, in our submission, a complete denial of the doctrine, as demonstrated in Joyce or Roggenkamp to suggest that it is defeated by the plaintiff demonstrating, as one would imagine would be universally the case, that one hopes the driver would make it safely home. That would be to trivialise the doctrine. Indeed, it would be a perverse approach to it.

CALLINAN J: It must be very different to distinguish, however, between carelessness to the extent of indifference and consent to run the risk? That is where you get the problem about where does contributory negligence end and volenti perhaps begin.

MR WALKER: But, in our submission, it would be error to suppose that a statutory doctrine, contributory negligence, and a common law doctrine, voluntary acceptance of risk, must relate to one another without any overlap but by abutting each other.

CALLINAN J: In practical terms, they do, and must, Mr Walker.

MR WALKER: In practical terms, as I have already, I think, made clear, the evidence and the facts will be, if not identical, virtually always so, and there is no doubt about that. There will be a choice for the court as to whether it defeats the claim, voluntary acceptance of risk, or as to whether it is contributory negligence, merely. That choice, in our submission, will be wrongly made if it does not start with the elementary propositions which underlie voluntary acceptance of risk, and I have to make this application in the clear light of this Court, having been very clear in Joyce and Roggenkamp what was required.

CALLINAN J: Is reckless indifference enough?

MR WALKER: Reckless indifference would be more than enough. It is voluntarily accepting a risk to be inferred from prior awareness - in this case, of the risk - of that there can be little doubt - and then embarking upon the activity without there being any rival influence or force driving one to that choice to embark on the activity from which one may then infer that to do something where you are aware that it carries a risk is voluntary, hence, free choice, to embark on the activity, to embrace that risk. It is not negatived by showing that you hoped the risk would not fall in - that would be absurd. It is not negatived by some entirely speculative statistical approach by saying that you did not expect it would happen. A risk is a risk, notwithstanding it is not more likely than not.

GLEESON CJ: In a practical sense, does it come down to this, that there are some cases in which the risk is so obvious that the mere act of running it justifies a conclusion of voluntary acceptance of it?

MR WALKER: Yes, your Honour.

GLEESON CJ: That is why Justice Pincus referred to some drivers who are so obviously and extremely drunk.

MR WALKER: Yes, or, as Justice Dixon put it in Joyce, knowledge of what is apparent may readily be inferred. He used that as an essential first step then to putting it together with the lack of any other influence, forcing, anything other than a free choice to embark upon a course, from which one then finds voluntary acceptance of risk, and, in that case, without any subjective evidence of any kind. When your Honour the Chief Justice refers to the last couple of lines of paragraph 146 in Justice Ipp's reasoning in page 153 of the application book, in our submission, that is error in relation to the factual approach.

So far as concerns why this Court should look at it, bearing in mind that Joyce and Roggenkamp remain on the books as good authority, as your Honours are aware, from page 153, what Justice Ipp has done in the Court of Appeal of New South Wales has been to incorporate what he did in the Full Court of the Supreme Court of Western Australia in Suncorp and, in our submission, is to go further than was warranted by either of the authorities in Joyce and Roggenkamp, to ask for something other than awareness plus free choice to embark upon the activity which carried the risk.

That is why, in our submission, Justice Pincus was correct in suggesting in the Surcorp decision, which we have supplied to your Honours, that this has become, in effect, a dead letter - "practically a dead letter", his Honour said.

GLEESON CJ: He actually said, "In cases of this kind".

MR WALKER: In cases of this kind, practically a dead letter. "Cases of this kind" fall to be described in general terms as we have put this case, namely, awareness of the risk and nothing other than a free choice to take the course which you were aware carried that risk, because it is difficult to see that there is any added element in the motor vehicle cases to which Justice Pincus was referring.

In our submission, when three Full Courts have said of authorities of this Court, which proceeded on a basis of a common sense piece of inferential reasoning and a common sense allocation of responsibility between plaintiff and defendant, and says that that is a dead letter, the time has come, 50 years later, for this Court to look again and to see whether or not the doctrine of voluntary assumption of risk has, by some process not yet identified, been atrophied by the statutory availability of contributory negligence, or, by some common law method, has dropped out of the books, notwithstanding there is no decision of this Court to that effect. May it please your Honours.

GLEESON CJ: Yes, Mr Hall.

MR HALL: Your Honour, we rely upon the written submissions we filed and in relation to this aspect of my friend's case which he now presses only, may I take your Honours to paragraph 5.1 of our written submission. Could I draw your Honours particularly to the fact, as we would perceive it, the evidentiary basis for attacking the finding of the Court of Appeal and the trial judge simply has not been established.

My friend has not pointed to any evidence which would enable this Court to say that the courts below erred in their approach to the facts. The trial judge - if your Honour goes to paragraph 89 of his decision - he was not satisfied on the facts that the Council had shown that:

the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.

The rest of that passage quoted, your Honour, does no more than cite a frequently cited recapitulation of the fact. If one goes to - - -

CALLINAN J: I often wondered what the words "and extent" had - "nature and extent of the risk". Why is it not enough if you know what the nature of the risk is?

MR HALL: Your Honour - - -

CALLINAN J: Take the drunk driver, the obviously drunk driver. You know that there is a very serious risk that he is going to run off the road. You know the nature of the risk, and the possibilities are endless. You might get a scratch or you might end a quadriplegic. I do not see that it should depend upon whether you actually turn your mind, or are inferred to have turned your mind, to the fact that you might become a quadriplegic, rather than that you might escape should determine whether you - - -

MR HALL: Your Honour, in fairness, if one goes back to Roggenkamp, which is the second case in my friend's additional list of authorities which was sent up. If your Honour goes to page 300 of the High Court decision, and the first paragraph, if I can point to the paragraph, your Honour. The paragraph starting there:

Taking the defence of volenti non fit injuria, the onus was on the respondent to prove this defence.

Now, your Honour, we point out that the respondent failed on the facts to prove the defence in this case:

The elements of the defence are conveniently stated in . . . In order to establish the defence, the plaintiff must be shown not only to have perceived the existence of danger, for this alone would be insufficient, but also that he fully appreciated it and voluntarily accepted the risk.

So that the emphasis seems to have been on a concept that the nature of the risk was very clearly understood. If I read on:

The inference may more readily be drawn in cases where it is proved that the plaintiff knew of the danger and comprehended it, as for example, where the danger was apparent, or proper warning was given of it, and there was nothing to show that he was obliged to incur it, than in cases where he had knowledge that there was danger but not full comprehension of its extent, or where, while taking an ordinary and reasonable course, he had not an adequate opportunity of electing whether he would accept the risk or not.

Now, your Honour, historically, that arose - your Honour might recall that historically the doctrines applied very aggressively against workmen and it was said - - -

GLEESON CJ: Mr Walker says it is now only applied against bungee jumpers.

MR HALL: Yes.

CALLINAN J: I am wondering whether revulsion against its arguments and application against workers has infected other areas?

MR HALL: Your Honour, I would not use the word "infected", if I may say so, but the courts, I think - it would be fair to comment - have found that contributory negligence is a much better mechanism.

CALLINAN J: But Mr Walker, is right, is he not, that immediate appellate courts just cannot write it out of the common law?

MR HALL: Your Honour, it is not suggested that they have, with all due respect.

CALLINAN J: To all practical intents and purposes, in some cases, they seem to have. It is almost what Justice Pincus says in the Queensland case, and the passage that he cites from the Chief Justice, Chief Justice Campbell in Queensland, almost involves that. If it does not involve that, just writing it out, dispensing with it - - -

MR HALL: Your Honour, there is no evidence, may I point out, in this case, that the court approached the matter on that extreme basis. My friend has not drawn your attention to any evidence which was led, which would show that the plaintiff relevantly appreciated the risk and agreed to undergo it. This is not, with all due respect to my learned friend, factually an appropriate vehicle for the case - for the point he wants to run.

The onus was on him to prove that we understood the risk. There was very little evidence led at all on the point by way of cross-examination. Their true case and the comment of the trial judge when he said the extraordinary circumstances points more to a case where the plaintiff does not see, or does not really appreciate, what was involved.

CALLINAN J: Why did the Court of Appeal reduce the contributory negligence?

MR HALL: Because they took the view - rightly, we would say - that the responsibility of the plaintiff was considerably less than that of the other defendant.

CALLINAN J: Why?

MR HALL: Why?

CALLINAN J: Yes.

MR HALL: Because the Council was in charge. It owned the area, it occupied the area. My client was a 17-year-old schoolboy. He was a very clever boy rider, and he had been invited to train with champions, and the champions decided to train. He got on his bike and rode with them. This is not a case where - my junior points out, Mr Benedet had to carry 25 per cent of the damage. The Council stayed the same. So the Council paid 25 per cent; Mr Benedet paid 25 per cent.

CALLINAN J: So you were left with 50 per cent damages. Is that - - -

MR HALL: 75. We were left with 75, your Honour.

CALLINAN J: I notice, however, that - - -

MR HALL: That is not the subject in an application for leave.

CALLINAN J: No, I understand that.

GLEESON CJ: It is not insignificant, is it? If there is no challenge to an apportionment of 25 per cent contributory negligence, it is an inauspicious beginning to an argument that there was actually a voluntary assumption of risk. There seems to be an incongruity between those two propositions.

MR HALL: Yes.

CALLINAN J: The reality is that Mr Walker might well, in his judgment, think that the prospects of this Court to order an assessment of contributory negligence are not very high. There might be a rational decision to make - - -

MR HALL: Yes, having sought to do that from time to time, your Honour, I would think that would be so. Your Honour, I would put, and we would file a notice of contention and strongly argue this matter, if the matter went on appeal: you have to allow for the fact of the very significant difference in position between a 17-year-old boy invited to train with champions and the champions. This is not a case where my client was participating, so to speak, in the activity as an equal, and exercising independent judgment as to what he would do.

What happened is, one of the senior riders, a State champion, said, "Righto, we are going", you know, "we are starting this warm-up ride", and from my client's point of view, a 17-year-old boy, he was invited to train with them, he either trains with them or he does not. He gets on his bike. He made no decision about when they would start. He just started with them, and in the events that happened, your Honours, the evidence discloses that they ride round the rink in file and the lead rider swings up each time they complete a circuit and drops to the rear so that everybody spends a turn at the front. As was pointed out, the evidence established that once they get going at any pace, the aim is to keep the front wheel of the bike within 6 inches of the preceding bike, and the only person who is looking ahead is the lead rider, because all the other riders, particularly once they get up to a fairly high speed, have to have their attention totally concentrated on the wheel of the bike in front.

CALLINAN J: I think the Council fenced this area very soon afterwards, did not they? Something was done.

MR HALL: The area was fenced.

CALLINAN J: But did not they do something to isolate the track in some way from the field?

MR HALL: No, your Honour.

CALLINAN J: Afterwards, they did not?

MR HALL: No, your Honour. What they did do was they changed - after the event they required people to pay a fee to train and they toughened up -the area was already fenced, but there was a considerable body of evidence to show that keys had been given out fairly indiscriminately - - -

CALLINAN J: I mean to separate the track from the touch footballers?

MR HALL: No, the track remained - the inner field was not strictly a football field. The velodrome had been built as an Olympic velodrome. It was the only one in Sydney that was of the appropriate Olympic size at -there was another one but it was a bit small, and this was the one on which all the champions, so to speak, trained, and had been built specifically to Olympic standards, and the area inside was actually a little bit smaller than a football field in fact, but it suited the touch footballers to use it because there was a grandstand there and it became a big centre for touch football, and they used it - really, in concept, the centre field was to be used for so-called big matches, but it was being used on this occasion.

GLEESON CJ: Yes, we will hear what Mr Hislop has to say.

MR HALL: As your Honour pleases.

MR HISLOP Your Honour, I really do not wish to make any submission on the issue to which the application is now being comprised.

GLEESON CJ: Mr Walker?

MR WALKER: If it please your Honours. Your Honours, the fact is that the full courts to which I have referred have taken the position as if there had been further utterance by the High Court since Joyce and Roggenkamp, a fictitious position. Apart from Chief Justice Campbell's dictum, to which your Honour Justice Callinan has already referred, could I remind your Honours that in O'Shea, tab 3 of the bundle, as far back as 1971, one of the authorities relied upon by Justice Ipp, both in Western Australia and in New South Wales, there is a revealing manner of speech, namely, at page 11, between B and C, having referred to another of the drunken driver cases - your Honours will recall that was the case where the alcohol was imbibed because of a shortage of girls near the military camp. The approach taken to the binding decisions was as follows:

The finding that the plaintiff thought that the deceased driver was quite capable of driving safely was open on the evidence.

And we would say that can only amount to a hope or expectation. It cannot possibly negative awareness of risk:

Such a finding completely rules out a defence of volens . . . The decisions in Joyce and Roggenkamp are binding on us -

a curiously super rogatory statement to be said -

as to the availability of the defence in this kind of situation -

and then a very telling word "but" -

but nevertheless it is only in extreme cases -

that is not to be derived from High Court authority.

CALLINAN J: That cannot be right. It is either a case within it or it is not?

MR WALKER: Yes. In our submission, this is an artificial piece of jurisprudence which has been brought without any authority imposed upon the straightforward, commonsense, everyday relationship to which the voluntary assumption of risk doctrine is directed.

As to the point of fact, that my learned friend, as it were, threatened your Honours would involve some contention, it is simply a matter of the facts about the inferences to which I referred in my opening address. At page 36 of the application book, in any event, paragraph 87, continuing over to the top of the next page, makes it clear that there is a credibility, that is, an impression formed assessment by the trial judge of the plaintiff which really puts out of court the argument that as a 17 year old some special application or non-application of this doctrine should have applied.

The judge assessed the plaintiff, assessed the plaintiff's testimony and rejected the notion that as a 17 year old, in the company of champions, any difference should be observed between his and the ordinary case. May it please your Honours.

GLEESON CJ: On the evidence and in light of the findings of fact at first instance, this case is not a suitable vehicle for the examination of the only issue the applicant now seeks to raise. Furthermore, whilst we do not necessarily accept every aspect of the reasoning of the Court of Appeal on the issue, we consider that there are insufficient prospects of success to warrant a grant of special leave to appeal, and the application is refused with costs.

AT 12.15 PM THE MATTER WAS CONCLUDED