Stevens v State of New South Wales [2005] HCATrans 38 (11 February 2005)

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Stevens v State of New South Wales [2005] HCATrans 38 (11 February 2005)

Last Updated: 22 February 2005

[2005] HCATrans 038

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S81 of 2004

B e t w e e n -

KAREN THERESE STEVENS

Applicant

and

STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2005, AT 10.12 AM

Copyright in the High Court of Australia

MR S.G. CAMPBELL, SC: May it please the Court, I appear with my learned friend, MR B.R. YOUNG, for the applicant. (instructed by GWM Lawyers)

MR B.W. WALKER, SC: May it please the Court, I appear with my friend, MS S.E. PRITCHARD, for the respondent. (instructed by Hicksons)

GLEESON CJ: Yes, Mr Campbell.

MR CAMPBELL: Your Honours, it may be that there are one or two procedural hurdles I need to leap before we get into what the appeal would be about if your Honours were going to grant special leave.

GLEESON CJ: What is the problem?

MR CAMPBELL: We filed the application late, your Honour. We have sought an order extending time.

GLEESON CJ: Is that opposed, Mr Walker?

MR WALKER: Yes, your Honour. Your Honours will see that there is a summons on foot to strike the application out which was also returnable this morning. The same ground which supports the - - -

GLEESON CJ: This is the non-payment of money?

MR WALKER: Yes.

GLEESON CJ: Why do we not hear what the applicant has to say on the merits of the application and see whether it is necessary to get to the other point.

MR WALKER: I was going to propose that and I should say my friend has our consent during that address, if he so wishes, to refer to and to show your Honours and to file in Court an affidavit latterly received from Ms Stevens if that is relevant in any way to questions of discretion on the merits.

GLEESON CJ: All right. Why do you not go to the merits, Mr Campbell, and we will come back to your procedural difficulties later.

MR CAMPBELL: Thank you, your Honour. As your Honours will have seen from the written submissions, we say that the critical part of the reasoning below was the idea that to make good the case that had been made good at trial, the applicant needed expert evidence.

GLEESON CJ: Well, all that was said by the Court of Appeal was, in the absence of expert evidence, it is difficult to sustain such and such a conclusion.

MR CAMPBELL: With respect, I accept that it was put that way, your Honour, and I am not cavilling at the language but it amounts to the same thing in terms of the assessment of facts which – what was involved was essentially, of course, a question of fact – their Honours felt unable to draw in their own judgment inferences favourable to the applicant in the absence of expert evidence. So whether it is put, with the greatest of respect, positively or negatively, the effect upon the reasoning process, we submit, is the same.

GLEESON CJ: On your case, exactly who was negligent here and in what way?

MR CAMPBELL: As we put it in the Court of Appeal, your Honour, we said that in respect of the first incident, that of October 1997, it was casual negligence on the part of the aide who had been appointed to provide the support or supervision that the child referred to as “D” required. In the second incident, that of 4 May 1998, we said, your Honour, that it was casual negligence on the part of the assistant principal, the teacher who was in charge of the process then being undertaken, Ms Winfield.

GLEESON CJ: Thank you.

MR CAMPBELL: Those matters were highly relevant, we submitted, because, in a number of ways, but particularly as his Honour Acting Justice Davies, we submit, correctly found, that the duty owed in this circumstance was so analogous to the duty owed by an employer to be equivalent to it, that the idea of one, a high duty, high content of duty in that type of category, and secondly, the idea that the employer, of course, the duty being non-delegable, would be vicariously liable for the actions of even a highly skilled person like Ms Winfield.

Your Honours, my learned friends, I think, have a bundle which includes the transcript of the submissions below and it is said against us that - well, the point was raised in argument in the Court of Appeal and that the applicant’s counsel declined to argue it. The point about the matter is, your Honours, that it was raised three times, we accept. On each occasion, the question about the need for expert evidence emanated from the court and from, on each occasion, the learned President of the court below.

On each occasion, a response was made by learned senior counsel for the respondent appearing in the Court of Appeal but the issue was not taken up and run with by the respondent there. In particular, the absence of expert evidence did not form the basis of any ground of appeal and it did not find any mention in the written submissions that had been filed and, as I have said, even though we would say rather alluded to in argument, it was not taken up and run with. In those circumstances firstly, we were not asked to address the issue during our address below, nor did it seem to be something which was, as it were, in the vanguard of the debate in that place.

GLEESON CJ: Does it amount to anything more than the judges in the Court of Appeal saying “Look, we are being asked to find that the deputy principal and the teacher’s aide, faced with all the difficulties they were faced with in caring for these children, were negligent and we do not feel able to say that of them, that is a very serious criticism of them and we do not feel able to make that criticism, at least in the absence of somebody who knows a great deal more than we know about teaching, to say they were negligent”?

MR CAMPBELL: Your Honour, with respect, it did not amount to any more than that in the reasoning process in the Court of Appeal and put the way it was put by Justice Davies and, if I may say with respect, put the way it is put by your Honour the Chief Justice, one could see how that is a perfectly reasonable approach.

Our complaint, however, is that had that been said against us at the trial, it was the very type of thing which could have been met by other evidence or further cross-examination of the witnesses who were called. After all, there was relevant evidence in, in terms of the report from the Department of Community Services of February 1997, and indeed Ms Winfield herself gave oral evidence and touched upon some of these issues so that by the time it got to the Court of Appeal and even in argument there, as I have tried to demonstrate, it did not assume any particular significance.

It was referred to and the disquiet perhaps, if I can put it that way, of Justice Mason was expressed. It was not picked up as I have said other than in a, I would submit, polite and courteous way by learned senior counsel, but it certainly was not adopted as part of the argument.

GLEESON CJ: The trouble is that because of the prevalence of insurance, people sometimes assume that a finding of negligence is neither here nor there as far as the defendant is concerned, but it is a very serious thing to say about these teachers.

MR CAMPBELL: Your Honour, I accept that entirely and I accept, for instance, that a trial judge would need to be, therefore, satisfied on perhaps not quite but something approaching a Briginshaw-type approach to it, that is to say his level of satisfaction would want to be certainly comfortable on the balance of probabilities, but the learned trial judge acquired that level of satisfaction from the evidence he saw and read, and if that finding was to be overturned on a rehearing then it should have been on grounds that were clearly delineated and debated, not only in the Court of Appeal but also in the District Court.

Your Honour, I accept, with respect again, that an allegation of – it is easy for a lawyer to say - casual negligence can involve a serious complaint, particularly against a professional person, even an ordinary person without any qualifications would take it seriously and might, in fact, resent it if it was unfounded. I acknowledge that. It does not involve, however, in the context of the law of torts, any moral turpitude whatsoever and, for instance, if I can take what we would submit is an analogy, it is said all the time of people who drive motorcars that they were casually negligent in that they did not keep a proper lookout or they drove at a speed which was excessive in the circumstances and although things like that can give rise to traffic offences, they are perhaps considered as routine in the ordinary cut and thrust of robust life. We said nothing more than that type of casual negligence about the aide or Ms Winfield than one might say against a driver who had been travelling a little too quickly in the circumstances of a particular case.

So, your Honours, as I have said and as we have tried to develop, our complaint is that although the approach taken in the Court of Appeal was a legitimate reasoning process, we were disadvantaged because it was not clearly signalled to us. One thinks of situations perhaps not quite as analogous as.....where counsel has stopped in the course of his or her addresses but certainly, as your Honours observed or the Court observed in the recent case of Dixon it is very important that in deciding appeals for a rehearing the Court of Appeal be astute to give proper regard to the primacy of the trial process. Similar comments may have been repeated recently. May it please the Court.

GLEESON CJ: Thank you. We do not need to hear you, Mr Walker.

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of leave in this matter and the application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 10.24 AM THE MATTER WAS CONCLUDED