Mathews v Waterways Authority [2004] HCATrans 511 (30 November 2004)

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Mathews v Waterways Authority [2004] HCATrans 511 (30 November 2004)

Last Updated: 18 January 2005

[2004] HCATrans 511

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S596 of 2003

B e t w e e n -

DESMOND STANLEY MATHEWS

Applicant

and

WATERWAYS AUTHORITY

First Respondent

THE OWNERS – STRATA PLAN NO 2373

Second Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 2004, AT 11.40 AM

Copyright in the High Court of Australia

MR B.M. TOOMEY, QC: May it please, your Honours, I appear with my learned friend, MR J.S. DRUMMOND for the applicant. (instructed by Hartmann & Associates)

MR P.R. GARLING, SC: May it please, your Honours, I appear with my learned friend, MS K.C. MORGAN, for the respondents. (instructed by Moray & Agnew)

McHUGH J: Yes, Mr Toomey, Ms Morgan, the junior for Mr Garling, is the mother of three of my grandchildren, so I - - -

MR TOOMEY: Is that right, your Honour?

McHUGH J: I draw that to your attention. I do not feel embarrassed about sitting on - - -

MR TOOMEY: Neither do we, your Honour. I mean, neither do we in having your Honour sit.

McHUGH J: Yes, Mr Toomey.

MR TOOMEY: If I could give your Honours a short sketch of the facts. The applicant, Mr Mathews, was a 63-year-old man when he fell from the end of a pool, a harbour pool, on a night in January 1998. He had bought a unit in a building called The Moorings at the bottom of Addison Road, Manly in 1966, the building having been newly constructed and as part of the construction, the harbour pool having been built on land which was leased from the predecessor in title of the first respondent. The pool is shown at page 3 of the folder of additional materials which we filed in the Court, your Honours. It is a structure about 18 metres longs and 9 metres wide. It has no fencing of any sort. Generally, I will refer to the directions as the land end, the eastern end and the harbour end, the western end because it extends out into Manly Cove.

Your Honours, the dimensions of the ledges, which are better shown at pages 30 and 32 - the bottom photo on page 30 shows the southern ledge. Your Honours will see that the edge of the pool forms a higher ledge and then there is a drop of about 230 millimetres to the lower ledge. The dimensions are set out by his Honour the trial judge at - - -

CALLINAN J: They are also at pages 27 and 28 of Justice Meagher - - -

MR TOOMEY: Thank you, your Honour. Your Honours, the pool as I have said had been in situ for 32 years when the applicant was injured. He and other owners of the units used the pool constantly. The evidence was that from a member of the owners’ corporation, the second respondent, that they knew that it was used and that people sat on the ledge at the far end, the harbour end and your Honours can really see from the photographs what a magnet it would be. Indeed, on the night that the applicant was injured after a dinner party he had taken a friend from Canada down and they had sat there looking out over Sydney Harbour on a warm, sunny night. There was no restriction on the hours in which the pool could be used. There was no suggestion in the trial, although the Court of Appeal manufactured a suggestion that the ledges were slippery, there was no suggestion that the pool was dark, although again, there is a suggestion in the Court of Appeal judgment that that is the case. The unchallenged evidence of the applicant was that the pool was well lit.

The day before his accident the appellant had had a dizzy turn. He was reaching up to a cupboard for something and he felt dizzy. It sufficiently concerned him to go to a doctor who told him there was nothing wrong with him. His evidence, which was accepted by the trial judge was that he and his Canadian friend, who was his house guest, after a dinner party which ended at 11.30, cleaned up for an hour and a half during which they drank no liquor, then went down to the end of the pool to sit and enjoy the summer night looking out over the Harbour and were there two to three hours. No alcohol again, so it was of the order of three and a half to four and a half hours since the applicant had drunk any alcohol when the fall occurred.

His Honour the trial judge found that alcohol had no causal connection of the accident. The applicant said that he rose, he put his hands on the upper ledge on which he was sitting and pushed to raise himself, felt dizzy and fell over the edge onto the rocks which were about eight feet below and he damaged his feet and legs, which for this man was a particular tragedy because his occupation was running a dance studio and of course, he could not do that and his lifelong love was dancing and he cannot do that.

The evidence on behalf of the second respondent was that there had been discussion in the body corporate of whether or not there ought to be fencing. The lady who gave evidence, a Mrs Bradley, who was a member of the body corporate and had been for about 12 years, said that the body corporate considered the erection of a balustrade or railing, that is right round the pool, but particularly, of course, the danger was at the far end where the drop was, and decided, without taking any advice from anyone outside the owners’ corporation, not to fence. She said there were two reasons why they had done that but she only identified one and it was that she understood that the Maritime Services Board which was, as I say, the predecessor of the first respondent, did not agree with railings.

CALLINAN J: What is the relevance of the fact that they considered it and discarded it?

MR TOOMEY: Well, I suppose it is irrelevant, your Honours, since it was foreseeable and conceded to be foreseeable.

CALLINAN J: Exactly.

MR TOOMEY: His Honour the trial judge found that the failure to fence – he found there was a duty and, in our respectful submission, there really cannot be any argument about that. I mean, the relationship between this man and the owners’ corporation was that the owners’ corporation existed for the benefit of the occupiers of the units so there had to be a duty. There was a conceded foreseeable risk and no steps were taken to remove the risk.

CALLINAN J: Why was there necessarily a duty? Just explain that to me please? He was an owner of a unit, was he not?

MR TOOMEY: Yes, he was and this was part of the common property, your Honour, which was vested in the owners’ corporation.

CALLINAN J: Of which he was, in part, a proprietor. Was he not one of the proprietors?

MR TOOMEY: Well, it is a separate legal entity, your Honour, and it has separate duties under the Act and its duties, we have here - - -

McHUGH J: One of the difficulties of the judgment below is that Justice Meagher’s judgment seems to confuse duty with breach of duty. He starts off by talking about occupiers having a high duty and then he says they did not owe any duty in this case. At best, he must be meaning that there was no breach of that duty, but they certainly owed a duty.

MR TOOMEY: Yes.

CALLINAN J: He makes that clear later that what he was really saying, I think, but explain to me why – you did not rely upon a breach of statutory duty, did you? Your case was purely negligence?

MR TOOMEY: Yes.

CALLINAN J: Well, why was he not an occupier in himself?

MR TOOMEY: He was not an occupier of the common property, your Honour.

CALLINAN J: No, but he is one of the proprietors of the common property.

MR TOOMEY: But, your Honour, if there is an analogous situation it would be a shareholder in a company suing the company over dangers to land which was owned by the company.

CALLINAN J: I am not so sure about that. He is more than a licensee, is he not?

MR TOOMEY: Yes, he is more than a licensee.

CALLINAN J: I suppose you say he does not have control of the property.

MR TOOMEY: No, he does not and, your Honour, the statute expressly gives control to the owners’ corporation.

CALLINAN J: The control lies with the body corporate.

McHUGH J: It is the Strata Plan 2373 that was the occupier.

MR TOOMEY: That is right. Your Honour Justice McHugh is obviously aware of our argument and it really hinges on the manner in which the case has been dealt with in the Court of Appeal by Justice Meagher who gave the leading judgment which was simply - - -

McHUGH J: I must say I have commented on this before recently. There seems to be growing up in the New South Wales Court of Appeal some notion that if a person knows of a risk or if it is obvious, that you do not owe them a duty of care or there is no breach of duty.

MR TOOMEY: Yes.

McHUGH J: Well, that is just contrary to fundamental principle.

MR TOOMEY: Indeed, your Honour.

CALLINAN J: Was there a plea of volenti?

MR TOOMEY: No, your Honour, there was not and paragraph 9 on page 29 of the book - - -

CALLINAN J: Well, that is what I was looking at.

MR TOOMEY: Yes, paragraph 9 of Justice Meagher’s judgment seems to suggest that really he brought it all on himself and there was no one else to blame.

McHUGH J: It is almost as if Smith v Baker on volenti was never decided back in 1891.

MR TOOMEY: No, and, of course, volenti is subjective and the applicant strenuously denied that he appreciated the risk.

CALLINAN J: How could he fail to appreciate the risk?

MR TOOMEY: He knew if he slipped, he would fall, your Honour - - -

CALLINAN J: He had lived there for years, had he not?

MR TOOMEY: Yes, and used it for years.

CALLINAN J: Well, how could he not appreciate the risk?

McHUGH J: Your point is that is irrelevant, that the reason he fell was because of his dizziness, not because he had any conscious, mental - - -

MR TOOMEY: No.

CALLINAN J: But people might appreciate a risk is not irrelevant to the question of the measures that might appropriately be adopted in respect of foreseeable risk.

MR TOOMEY: No, with respect, it is not, your Honour, but it goes, in our respectful submission, to contributory negligence and what has happened here is that the Court of Appeal has subsumed contributory negligence, as this Court warned in Romeo to an absence of duty.

McHUGH J: I must say I am surprised there has not been some incident in the past. One would have thought with water splashing on the concrete that the chance of somebody slipping over would be - - -

MR TOOMEY: Well, your Honour, there may have been but the applicant did not know of it. Mrs Bradley had been on the corporation for 12 years, she did not know of it. All I can say is that no other incident was proved. It is not to say that one had not occurred or that on had.

CALLINAN J: Well, it does not surprise me that there was no incident. It is so obvious.

MR TOOMEY: Well, your Honour, obviousness - - -

CALLINAN J: Twenty two years.

MR TOOMEY: Obviousness does not overcome foreseeability.

CALLINAN J: Thirty two, not 22. Everything is foreseeable after Wyong. We are all Jeremiahs, Mr Toomey. We foresee every possible risk.

MR TOOMEY: Yes, well, they all come to your Honours sooner or later, I suppose.

McHUGH J: You would not need much imagination to see a foreseeable risk here.

MR TOOMEY: None, your Honour, absolutely, but the question is what the Court of Appeal did about it and quite apart from misstating the facts in paragraph 9, because his Honour had found that liquor had nothing to do with it, when Justice Meagher talks about him climbing along a narrow ledge – he walked along it, it is a bit of - - -

CALLINAN J: You would be worried if nothing was there - - -

MR TOOMEY: Well, your Honour, judges are not supposed to have advocates’ flourishes. It is supposed to be left for chaps like us, and then “at the dead of night” - - -

KIRBY J: That was not accurate. The pool was lit, I think.

MR TOOMEY: Yes, the pool was well lit was the evidence.

KIRBY J: Well, I think it was probably Justice Meagher’s colourful language.

MR TOOMEY: It unquestionably was, your Honour.

CALLINAN J: He said your client had reached the age of discretion, Mr Toomey.

KIRBY J: His Honour was not saying it was in the dark of night, he was expressing a time description.

MR TOOMEY: But what possible relevance could it have, your Honour, unless he was referring to the fact that it was at night and, therefore, dark?

KIRBY J: It is a fair point.

MR TOOMEY: May I point out again, having conceded foreseeability at paragraph 6 - the risk of falling - his Honour, in paragraph 10 seems to be suggesting that there was indeed, no foreseeability, or at least – I am not quite sure what use he sought to make of it. Now, Justice Sheller, on page 30 of the book, cited Romeo, a passage from Justices Toohey and Gummow at page 454 and dealt with the Court’s decision in that case, but that was a case, as your Honours pointed out, where the reasonable response might have been that a substantial period of the cliff would have had to be fenced. Here, we are talking about fencing a pool at a cost of $9,000. The evidence was that levies of $100,000 were paid every year and there was, of course, the power to raise special levies.

KIRBY J: But cost is not the only factor though. I mean, one matter that concerned me in Romeo was that every cliff in the country was going to have to have an ugly fence around it and one might say the same about every pool facing rocks in the Sydney Harbour. Your solution is, is it not, signs and fences?

MR TOOMEY: Well, signs and/or fences. There were signs.

KIRBY J: Natural beauty is then significantly diminished.

MR TOOMEY: Well, of course, the Swimming Pools Act requires fences round pools, your Honour.

KIRBY J: Well, if it requires it then let it be done, but if it does not require it, for the courts to add in a common law requirement that every swimming pool around the Harbour has to be fenced is - - -

MR TOOMEY: Your Honours, the - - -

McHUGH J: Does not the Local Government Act require or the ordinances require the fencing of all pools?

MR TOOMEY: Yes.

KIRBY J: Only in certain circumstances. There has to be - - -

MR TOOMEY: There are exemptions and I think this one might be an exemption.

KIRBY J: It is mainly designed to prevent children coming into it.

MR TOOMEY: Yes, that is so, your Honour.

KIRBY J: I suppose you can say here that because of previous damage to the abutment that there was a special need in the circumstance given that it was a natural place to sit and in any case the primary judge found that that should be done. To be honest, I am concerned that you would get up here because, like Justice McHugh I am very concerned about the reasoning of Justice Meagher, but that it would not do your client any good because in the end you have problems of breach of duty, causation and possibly contributory negligence down the line.

MR TOOMEY: Well, your Honour, there could not, with respect, be any difficulty with causation because he fell and the fence would have been a metre high – a metre above the ledge upon which he stood as he rose and his Honour found it would have prevented the accident and I do not understand the Court of Appeal did that, made any contrary finding.

CALLINAN J: But giddiness may have been the cause.

MR TOOMEY: It was unquestionably the primary cause, your Honour, but that is not unforeseeable - - -

KIRBY J: Your best point is that this is coming up over and over and over again. Throughout Australia people have taken Romeo to mean that if the risk is obvious, then end of question and that is to mix up and confuse, as Justices Toohey and Gummow said. It is to telescope the process instead of considering them analytically as the law requires.

MR TOOMEY: It is, your Honours. There was no consideration by the court here of the appropriate response. I mean, there should have been consideration of duty, foreseeability, appropriate response, breach; but it never happened. It is very difficult to say just what the Court of Appeal decided.

KIRBY J: In a sense, the risk that planes will crash is obvious and yet that does not relieve plane makers of their obligations to take proper care.

MR TOOMEY: No. May I remind your Honours of one other thing. The difference in Romeo was, of course, that it was a topographical feature. Here, the risk creator is the defendant because the pool was built by the body corporate. May it please, your Honours.

McHUGH J: Yes, Mr Garling.

MR GARLING: If the Court pleases. We submit this is a case in which the Court would not grant special leave. Your Honours, the applicant does not seek to challenge the findings by the Court of Appeal that there was no breach of duty. It is quite curious. If your Honours go to page 29, paragraph 11 of Justice Meagher’s judgment. His Honour is dealing there with the question of the correctness of the trial judge’s finding that the evidence of the Waterways Authority’s staff was that consent would not have been given to the erection of a fence had it come before the Waterways Authority and the trial judge rejected that evidence even though there was no evidence to the contrary. The Court of Appeal overturned that rejection.

Now, the significance of that was this, your Honours, that there was a planning policy in place of the Waterways Authority. That was proved. The evidence of Mr Gaweda, the Waterways Authority’s employee said that he was a person who sat on the committee that considered applications of this kind or another and his evidence was it would not have been granted had the body corporate applied for permission to fence the pool. He said the other risk was to the body corporate by reason of a change in policy since the pool had been built in 1966, was that if they applied for permission to fence the pool, they would have been ordered to demolish the pool. Now, the trial judge dealt with that by saying “Well, I am not prepared to accept that in acting appropriately the Waterways Authority could have rejected such an application”.

KIRBY J: Seems a reasonable statement by the trial judge. If it is a complete and utter rule never to be varied that does not seem a very rational way to exercise their powers.

McHUGH J: In fact, it would be an invalid exercise of the power to say we have a blanket rule.

MR GARLING: But the difficulty is – the error the trial judge fell into which is at page 11, paragraph 65 was the very sort of error which this Court has held time and again is not open in a case of common law negligence. What the trial judge said was:

If the Policy of the First Defendant precludes the erection of safety railings around pools of the type under construction in this case, then it seems to me, that as a consequence, they can be held liable for injuries which are sustained as a consequence of such policy.

Now, that is the very sort of thing, with respect, that this Court has said is not open in claims of common law tort, common law negligence. So the trial judge misconceived entirely the way in which my clients, both of them, one for failing to apply and the other for either failing to consent to, or failing to direct an application to be made or constructing it itself, misconceived entirely the interaction of proper planning policy and - - -

KIRBY J: Would you give me an idea of why your client, the Authority, will not agree to a fence in circumstances where you have a natural harbour outlook and you have damage by water to the outlook and, therefore, a new and added danger that, on the face of things, in slippery conditions, suggest that there should be some sort of a barrier. Why would your Authority refuse that permission?

MR GARLING: Well, the evidence, as I understand it, which is summarised by the trial judge on pages 9 through to 11 is to this effect, that it was the policy of the Authority to remove intrusions into the Harbour and that was the overall planning policy. They had turned their face against approvals of new constructions of pools such as this in the Harbour because it was public land and it was not appropriate to grant private use of public land.

KIRBY J: Your point is on causation that the only fence that the body corporate could build would be on its own land, which would likely not have stopped this applicant from climbing down with his Canadian friend onto the Harbour, which is public land on which they have no right to be putting up fences.

MR GARLING: The relevant fence was at the western end of the pool. That was clearly on the leased land owned by the Waterways Authority. Both the lease and - - -

KIRBY J: And you say there is an issue on causation.

MR GARLING: Absolutely, and it was found one way by the trial judge, overturned in the Court of Appeal and as I read the draft notice of grounds of appeal, not raised by the applicant. So that whatever may be, and for a moment I will come back to it, but whatever may be the question about duty, for a moment this could not be a suitable vehicle for the consideration of that point. That is the first submission we put, your Honours.

The second submission we put is that there is a tendency, in our respectful submission, in reading this short judgment of his Honour, to overlook the real facts of the case. One has a look at this pool. Yes, of course it is foreseeable that where there is a drop of 2.4 metres, which is unfenced, someone might fall over it. That cannot be contradicted and the respondents below did not attempt to, but part of the question of foreseeability, your Honours, even in the light of the development of all of the cases, it is still a question of reasonable foreseeability. Reasonableness remains the touchstone of that proposition.

Now, if one looks at this swimming pool and it matters not which photograph your Honours look at but the one at page 3 is perfectly adequate for the point, your Honours see looking down on this pool - the western edge is at the top of the photo - that the ordinary and common way of getting into the pool and using it is by the eastern end where there are steps within the pool. So one climbs down and gets in the pool or dives in it or enters in some way. The usage of the pool, principally, is by people swimming. No doubt they got out of the pool and could get out of the pool at the western end, but if one is talking about reasonable foreseeability it is necessary as, not quite a threshold but nevertheless a relevant element, to say that people using this where they can see what the danger is will take reasonable care for their own safety. That is all his Honour has said, in effect.

CALLINAN J: Talking about foreseeability, in this case you have to factor in alcohol, albeit I know there is a finding of sobriety, or not of insobriety; giddiness; certainly tiredness; early hours of the morning.

MR GARLING: And a person who has been living there for 32 years and yes, I appreciate and I accept that the legal entities are different and the body corporate is the occupier and owner of the structure, of course, but it is not quite the same as a public company and shareholders. I mean, after all, this is where the man lives. It is his home. Every home has dangerous features. No home is perfectly safe.

KIRBY J: We do see a lot of these cases where there seems to be this view abroad, and I think I was blamed at one stage for something I said in Romeo, that if it is obvious, end of question and that really is telescoping things.

MR GARLING: Yes, but it is a question of reasonableness.

KIRBY J: If I thought this was a case to knock that on the head, I would grant leave. What worries me is that we would not be doing a favour to the applicant because he has lots of other problems waiting in the wings.

MR GARLING: And it would lead inevitably to a new trial, with respect.

KIRBY J: I do not know about that.

McHUGH J: How would that be? I mean, we would make a finding one way or the other would not we, on the facts? The case is complete.

MR GARLING: Perhaps I could come back to that, your Honours, but we would submit that if this is overturned on a question of what is, in effect, reasonable foreseeability or the reasonableness of conduct and the relationship of reasonableness, neither the trial judge, nor the Court of Appeal has considered that and that is why it would lead to a new trial.

KIRBY J: Well, that might be a reason for you to argue that they have to complete their task. I mean, it is not really the plaintiff’s problem. The plaintiff has a complete verdict and the decision of the primary judge on all issues. It is the Court of Appeal that has not addressed itself on your view to some remaining issues and they said it was obvious, end of question. I am just concerned about this telescoping. I have seen it at least 10 times in the last three years. I am one of those old-fashioned people who was trained in your time too, Mr Garling, where you took them separately and you went through. Is there a duty? Has there been a breach? Has it caused the damage?

MR GARLING: Yes, your Honour, but the way my learned friend puts it in his submission orally this morning is, in effect, foreseeability, not inexpensive to remedy, therefore an obligation to do it. It seems to embrace the proposition that owners or occupiers are insurers for the safety of others. Now, that has never been the case, your Honour. Going back to Indermaur v Dames, for example, I know that is not the current test, but that was a proposition that - - -

KIRBY J: .....it might come back, anything is possible.

MR GARLING: No, your Honour, but my point is that even back then the notion that entrants on land would take reasonable care for their own safety was commonplace and was part of the overall concept that where someone came along onto a land either lawfully, or as a licensee or however they got there, there was a question of how they behaved for their own safety and that is all that has happened here, your Honours. There is nothing, with respect, remarkable about the outcome in this case and your Honours have said time and time again your Honours do not give special leave to deal with reasoning. Your Honours give special leave to deal with orders and, in our respectful submission, the result in this case is unsurprising. It is not a suitable vehicle to deal with the points that are raised, and in any event, reasonable foreseeability was not something which was dealt with by the appropriate concession because it has to be reasonable foreseeability of what particularly happened and the nature of what happened here. In those circumstances, your Honours, we would submit that special leave ought to be refused.

McHUGH J: Yes. Yes, Mr Toomey, what do you say about this causation point?

MR TOOMEY: Your Honours, with great respect, that is all within what should have been foreseen. It is foreseeable that people will have a giddy spell. It would even be - - -

McHUGH J: No, I am not talking about that, I am talking about the evidence of Mr Gaweda and the finding of the Court of Appeal.

MR TOOMEY: Well, Mr Gaweda was rejected by the trial judge for reasons which he set out and he claimed that a manual, the relevant parts of which are set out at the top of page 10 of the book, precluded the committee on which he sat from granting leave. At the top of page 11:

He further conceded that the Manual did not deal with an application such as that hypothesised -

so that was not there.

McHUGH J: I know, but the problem is that you have a finding by the Court of Appeal which is against you on the causation issue and it would mean that we would have to examine the facts of the case to see whether or not that finding was reversed. You could not succeed unless you get that finding reversed, could you?

MR TOOMEY: Does your Honour refer to the last finding on paragraph 11?

McHUGH J: Yes.

MR TOOMEY: Well, your Honours, his Honour made a finding on the basis that it would have been extraordinary had such an application been refused. Mr Gaweda had been on the committee since 1990 which had never considered an application. So the suggestion that there was a policy which had been put into effect was nonsense and his Honour took that into account in rejecting the suggestion of the first respondent based on Mr Gaweda that there would not have been a fence allowed.

Secondly, on one view of it, there was no power in the lessor to stop a fence being built because it depends upon an interpretation of the lease which, in our respectful submission, when it refers to alterations to structures is not referring to building a safety fence. It is dealing with altering the pool, extending it, that sort of thing, but the question of causation was one which came in by side wind. In fact, a structure in the nature of a fence had been built and - - -

McHUGH J: But it is more than causation. It goes to reasonable practicability of precautions, that without a fence, you do not have a feather.

MR TOOMEY: We do not have a feather?

McHUGH J: No, you have not got a feather to fly with. You have to show - - -

MR TOOMEY: Well, we do, your Honour, because they could have forbidden people to do it and they did not and they knew it was being done. The member of the body corporate conceded that they knew it was done and that they had considered forbidding it and had decided not to. Your Honours, the fence point, if I can just take one moment. If your Honours have a look at the photographs on page 30 – there is one on page 32 which is better, your Honours will see that there are poles on top of the ledge bolted into the structure. Now those, Mrs Bradley said, were built and bunting was strung along from them, to stop birds from landing on the ledge and soiling the ledge. The fence which would have been built would have been no higher, or if higher, by only a few millimetres, than that because it would have been attached to the outside of the next ledge down. That was the plan.

KIRBY J: There seems to be a fence in the background on page 31. You see the higher level, there seems to be some sort of a fence around what I assume is a swimming pool in the adjoining property.

MR TOOMEY: No, I think it is a staircase, your Honour, but that photograph does show the poles and the way they stand proud of the pool. So, either permission was not required from the first respondent or they gave it for such a structure to be built and in those circumstances it would indeed be extraordinary, as his Honour found, that they would not allow a safety fence to be built which would stand no higher or very little higher than those. May it please, your Honour.

I am sorry, could I just hand up to your Honour – I did intend to hand up to your Honours what we say is a summary of the errors of the Court of Appeal, the manner in which they proceeded because they proceeded from - - -

KIRBY J: The trial judge said that refusing the fence was inconceivable and Justice Meagher said that that finding was truly extraordinary.

MR TOOMEY: Yes, quite. Now, your Honours, we say those are clearly what the Court of Appeal did and did not do and it is, in our respectful submission, a very clear vehicle for the difficulties to be addressed. May it please, your Honours.

KIRBY J: Does it mean that every elevated swimming pool around the Harbour has to have a fence created around it?

MR TOOMEY: If it has a drop at the end, it does, your Honour. I am sorry, if people are allowed to sit in an area where it is dangerous and if this concatenation of facts occurs, yes, but your Honours floodgate arguments went out a long time ago.

KIRBY J: No, but it was a consideration in Romeo, that the theory that was being propounded by the plaintiff was that every beauty cliff around Australia would have to be fenced.

MR TOOMEY: But your Honour the alternative is that in respect of every of the millions of people who live in blocks of units in Australia that any danger on the corporate property which is obvious need not be worried about.

KIRBY J: I suppose your point is this is elevated, there are rocks below. It is therefore very dangerous.

MR TOOMEY: Yes. If there were grass below, your Honour, it would not matter, but there are rocks.

KIRBY J: But no accident had ever happened in the 30-odd years your client lived there and no notice had been given to the body corporate of an accident.

MR TOOMEY: It has happened now, your Honour.

McHUGH J: I think we understand your submission. Your time is up. The Court will adjourn briefly.

AT 12.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.24 PM:

McHUGH J: The reasons of the Court of Appeal in this case have given us cause for concern, particularly the passage that appears on page 29 of the application book:

But in my view neither defendant in the present case owed any duty to the respondent, who, fully knowing the risk, affected (even if slightly) by liquor, and subject to giddy fits, climbed voluntarily at the dead of night along a narrow (and probably slippery) ledge.

That passage appears to confuse questions of breach of duty with questions of duty and also with issues of contributory negligence. It is as well to point out once again what Justices Toohey and Gummow pointed out in Romeo’s Case 1998] HCA 5; (1998) 192 CLR 431 at page 455:

In putting the matter in that way, there is a danger of drawing in the question of contributory negligence of the plaintiff to what is a consideration of the duty of care on the defendant. For that reason we think it is preferable to approach the matter on the footing that there was a duty of care on the respondent to take any steps that were reasonable to prevent the foreseeable risk becoming an actuality.

However, assuming that the plaintiff overcomes the findings in the passage to which I have just referred, we are far from convinced that the plaintiff would be able to overcome issues of reasonable precaution and causation upon which he would have to succeed for an appeal to be successful.

In the circumstances, therefore, the Court does not think the matter is one that warrants a grant of special leave to appeal, and the application must be dismissed with costs.

The Court will now adjourn to reconstitute.

AT 12.27 PM THE MATTER WAS CONCLUDED