Shanahan v Ollier & Anor [2005] HCATrans 169 (21 March 2005)

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Shanahan v Ollier & Anor [2005] HCATrans 169 (21 March 2005)

Last Updated: 4 April 2005

[2005] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B31 of 2004

B e t w e e n -

MARK ROY SHANAHAN

Applicant

and

GLENN THOMAS OLLIER BY HIS LITIGATION GUARDIAN SUSAN OLLIER

First Respondent

MAGNETIC ISLAND COUNTRY CLUB INCORPORATED

Second Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 MARCH 2005, AT 2.34 PM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC: May it please the Court, I appear with my learned friend, MR G.J. BLANK, for the applicant. (instructed by Vandenberg Reid)

MR J.R. BAULCH, SC: May it please the Court, I appear with my learned friend, MR M.A. DREW, for the first respondent. (instructed by Lee Turnbull & Co)

HAYNE J: There is, I think, no appearance for the second respondent, is that right?

MR BAULCH: That is so, if the Court pleases.

HAYNE J: Yes, Mr Tilmouth.

MR TILMOUTH: Your Honours, the case for the applicant in the courts below was that when it came to teeing off from the green he had not seen the players ahead of him, nor had two players who teed off in front of him, seeing the players ahead, and nor had the fourth member of the party who was yet to tee off. The explanation for that failure was that the players ahead, including the respondent, were in the shade.

Now, Your Honours, the complaint, in the briefest of terms, in the Court of Appeal was that the learned trial judge had failed to deal with the issue at all, which was one of the primary issues at trial, that the reasonable explanation for the failure to see was that the advance party was in the shade. The applicant relied upon the findings of the trial judge that all the witnesses had given an honest account of the events.

How the Court of Appeal resolved the matter though, in our submission, wrongly, was rather than deal with the evidence that there was relating to the respondent being in the shade, simply drew a distinction between, on the one hand, the witnesses being honest but, on the other hand, that did not encompass necessarily that they were reliable. Your Honours, that crystallises perhaps best - although the three members of the Court of Appeal wrote separate judgments the reasoning is the same. It crystallises, your Honours, if I may take you briefly to page 30, paragraph [32] of the application book in the judgment of Justice White:

The appellant contends that having accepted the evidence of the players in the appellant’s team that they had looked down the fairway and saw no persons, or indeed, equipment present on the fairway he was not entitled to find that the respondent ought to have been seen by the appellant and, in effect, wrongly reversed the onus of proof. When his Honour said that he found all of the witnesses were credit worthy and were giving an honest account of the events as they saw them he was not, thereby, saying that the witnesses were reliable.

That is, essentially, the basis on which the Court of Appeal dealt with the matter. The passage then goes on to talk about other witnesses who his Honour, it is accepted, had qualifications about. But then at page 31, your Honours, at paragraph [33], her Honour continues:

There was no basis for a finding, as the appellant contended, that the respondent was in an area of shadowed or dappled light as an explanation for neither the appellant nor any member of that team having seen the respondent from the eighth tee.

Now, if the Court pleases, our submission is that that is incorrect.

Your Honours, the evidence was – and this is summarised at page 42 of the application book, your Honours – first of all from Mr Hurst, who was the club patron and who was in the respondent’s group, as your Honours can see in paragraph 15 of our written submissions at page 42, the last two lines, his evidence was that the shade from the trees had extended to the portion of the fairway where Mr Ollier, the respondent, was preparing to take his shot. For relevant purposes, your Honours, Mr Hurst was not doubted or qualified in the reliability sense in any way by the trial judge.

HAYNE J: But let it be assumed that this is the forefront of your case, what does the point come to? That the facts were found wrongly?

MR TILMOUTH: No, it is more than that, if the Court pleases.

HAYNE J: What is it?

MR TILMOUTH: There was no analysis, in our submission, in the court below of the content of the duty of care or the content of the standard of care.

HAYNE J: Well, what do you say should have been established?

MR TILMOUTH: What should have been established, if the Court pleases – and by the way can I make the same point as I made with Mr Hurst in relation to Mr Singleton and the applicant, Mr Shanahan. Mr Singleton, your Honour – also at page 42 – he said that the group ahead was definitely in the shade, and Mr Singleton was not criticised or qualified in the reliability sense in any respect by the trial judge, and the same applies to Mr Shanahan.

Now, to answer your Honour Justice Hayne’s point, is that first of all there was no finding by the trial judge dealing with the primary submission that these people – the reasonable explanation for the failure to see was that they were in the shade. There is no passage where his Honour deals with that at all in those terms.

What we submit is this, that on the findings which, as I have said, were that all the witnesses were honest and doing their best, on the basis that there were at least three witnesses, or two – Mr Hurst and Mr Singleton, and perhaps the applicant – who had said that the advance group was in the shade, four people had said they all looked ahead to see whether there was anybody ahead and could not see anybody. They had, on any view, in our submission, to discharge any duty of care and had not, on any view, committed any breach of the rules of golf because all the rules of golf required, if the Court pleases, was not to make a shot if the advance party was within range.

Now, the applicant himself and the two players ahead of him in his group had looked ahead and had seen nobody. The problem, your Honours, in my submission, is that if one goes to the trial judge’s findings where we submit the error occurred and the error - - -

HAYNE J: But in the end, Mr Tilmouth, is this not all just a question of fact? I know you say it is wrong, but is it not just fact? What is the principle that emerges?

MR TILMOUTH: Well, the principle is twofold, your Honour. It relates to the content of the duty of care and standard and perhaps the volenti principle, if we get that far. What we would put, your Honours, is that on the evidence accepted by the trial judge, without analysing the content of the duty, that duty – there was no breach of duty at all, however described. That is the first fault, and the miscarriage in the individual circumstances.

HAYNE J: The fact is the man was struck by a golf ball.

MR TILMOUTH: Yes, a tragic accident - - -

HAYNE J: He was within range, he was not seen. There are a lot of surrounding facts and circumstances but - - -

MR TILMOUTH: Your Honour, perhaps the best answer that I put forward is at page 9, paragraph [40] of the trial judge’s reasons. After making the observations about the honesty of all the witnesses and so on, what his Honour did, in our submission, was made a great leap of faith at paragraph [40] by saying:

This being so and bearing in mind that Petersen -

who was part of the respondent’s group –

had already hit off from this point, the plaintiff was, at the time he was struck, in a position where he ought to have been seen by the second defendant as he was preparing to tee off. I am satisfied that the plaintiff’s group was at all times in a position where it should have been visible at any time the second defendant might have been expected to look prior to hitting off.

His Honour has not analysed or dealt with the explanation for that occurring, namely that they were in the shade. Indeed, your Honours, curiously with respect, in our submission, at [41] he continued:

It is not readily explicable why Rockett, Woodger and Singleton, as well as the [applicant], had not seen the group before. It can be accepted there would have been some dappling or shadow effect but, as I have said, the position of the group and certainly the plaintiff was at all times on the fairway in a position where they or he ought to have been seen.

But that was only true, if the Court pleases, could only be right if his Honour had first rejected on the probabilities the fact that the group ahead was in the shade and therefore had not been seen.

Now, the principle of law, if the Court pleases, is that in relation to standard of care and breach of duty it is completely unclear, in our submission, on the cases relating to sporting injuries, whether or not the rules of the game of golf condition or are relevant, perhaps better put, in the content of the duty of care. It seems quite clear that they are - - -

HAYNE J: I would have thought Agar v Hyde had something to say about that, but yes.

MR TILMOUTH: The Chief Justice did. His Honour said that they would appear to be relevant at both. But this is also, as I put earlier, your Honour, the flip side of the Rootes v Shelton point. Justice Kitto spoke of a general duty of care, which of course would exclude in the breach stage any question of the influence of the rules of the game of golf at breach because it had been general duty. The rules of golf would then become applicable at the standard of care stage. On the view of Chief Justice Barwick, as we would argue it, it would be relevant on the duty stage more particularly than the standard stage, although possibly at both.

Now, the other difficulty, if the Court pleases, with this judgment is that in the passage that I have just read from page 9 it appears as if it is accepted automatically that if there was a breach of the rules of the game of golf, ie that the party ahead was within range and the party ahead was struck, that automatically means negligence which is not, with respect, the law and has never been the law since it was made clear in Rootes v Shelton that that was not so. The rules of the game are relevant, query whether at both the duty and the breach.....but they are not absolutely fixed and that they are not binding on the courts in terms of either the content of the duty or the content of the standard.

HAYNE J: Where they are founded on eminent good sense they might be thought to have something to say.

MR TILMOUTH: Well, your Honour, can I put it another way. What more, if I can put it rhetorically, with respect, could the applicant have done? Two people teed off, two experienced golfers teed off in front of him and saw no one. The club captain, who is a very experienced golfer who stood behind him and to the side, to the left, I think – it does not matter really –saw no one. The applicant himself looked ahead and saw no one. Is it really likely, if the Court pleases, that those four people – the applicant the least experienced of them – would not have seen the party ahead if they were clearly visible, as the trial judge has found. In our submission, the only logical explanation is - - -

HAYNE J: I do not think we need persuasion that they did not deliberately fire at the plaintiff.

MR TILMOUTH: Exactly.

HAYNE J: We know that.

MR TILMOUTH: But the only explanation, your Honour, was they must have been in the shade and could not be seen. The explanation for seeing them when the ball was in flight was the evidence from Singleton and the applicant himself that they were following the flight of the ball, which takes quite a number of seconds, your Honour – more than four, I think, on the evidence – and then as it was coming down and the line of sight was focused where the ball was going that these people became visible. Of course it is at that stage that Singleton yelled out, “Fore”, which of course is a complete discharge of the rules of the game anyway.

Your Honours, as we understood the effect of the exhibit 1(G) – this is reproduced in relevant respects at page 44 of the application book in paragraph 19 of our written submission in the matter, the relevant rules of the game were “No player should play until the players in front are out of
range”. Now, of course that predicates the fact that you see players in front and you make a conscious decision not to play or to play, whatever the case may be. But in relation to the forewarning, your Honours, the rules were, as we understand it, if the player plays a ball in a direction where there is a danger of hitting someone he should immediately shout a warning. The traditional word of warning in such a situation is “Fore”, and that is precisely what happened here, if the Court pleases.

So the first rule was not applicable because neither the applicant nor anybody else in his group had seen anybody in the first place so that the rule took effect, because it does not take effect until they are seen. The second rule was discharged because upon Singleton seeing the danger he immediately yelled out, “Fore”.

So, in our submission, if the Court pleases, you have a fundamental problem of the failure to deal with the major argument in the defence case; therefore, there has been a finding erroneous, in our submission, that the applicant ought to have seen the party ahead without dealing with the preliminary issue of why the failure of the whole group to see him had been dealt with and properly accepted or rejected, with reasons given for it – though they simply do not appear in the judgment. In our submission, the Court of Appeal simply saying, “These witnesses were honest but unreliable” does not deal with the problem and it does not dispose of at least Hurst and Singleton and perhaps the applicant because his Honour was not critical of them in any reliability respect.

In our submission, what the court has done here is simply – both courts have done, is simply said for the purposes of the law in negligence, a breach of the rule automatically sounds in negligence. The breach of the rule in this case was, as your Honour Justice Hayne put it to me, he was within range and he got hit. No court – none of the judges in the courts below have analysed the content of the rule, the rules of golf, or the content of the duty of care or the content of the standard of care, looked at what the applicant actually did and said, “Well, there was a compliance or non-compliance”. There is just a huge assumption that because the respondent was within range and he was hit that he should have seen them ahead without dealing with the issue that I have put about the reasonable explanation for the failure to see them, which was that they were standing in the shade. That evidence was there from at least two credible witnesses. If the Court pleases.

HAYNE J: Thank you, Mr Tilmouth. We need not trouble you, thank you, Mr Baulch.

This case turns on its particular facts. No point of general principle arises. It is not in the interests of justice, either in the particular case or more generally, that there be a grant of special leave, and accordingly, special leave is refused with costs.

AT 2.50 PM THE MATTER WAS CONCLUDED