Clarke v Coleambally Ski Club [2006] HCATrans 8 (3 February 2006)

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Clarke v Coleambally Ski Club [2006] HCATrans 8 (3 February 2006)

Last Updated: 16 February 2006

[2006] HCATrans 008

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S447 of 2004

B e t w e e n -

SEAN THOMAS CLARKE

Applicant

and

COLEAMBALLY SKI CLUB

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 FEBRUARY 2006, AT 9.47 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 D.E. GRAHAM, for the applicant. (instructed by McClellands)

MR D.G.T. NOCK, SC: May it please the Court, I appear with my learned friend, MR S.E. McCARTHY, for the respondent. (instructed by Ebsworth & Ebsworth)

GLEESON CJ: I think this case has been here before, has it not, Mr Walker, and was stood over to await Vairy?

MR NOCK: Yes, your Honour, to await Vairy and Mulligan.

MR WALKER: Yes, to await Vairy and Mulligan, your Honour. The way in which we start, therefore, cannot but be heard with the findings of Vairy and Mulligan to the forefront but, nonetheless, in relation to the identification of error and the importance generally of the matters thereby potentially raised for determination by this Court, can we go directly to the fundamentally different way in which the trial judge determined the matter and then the majority in the Court of Appeal determined the matter.

GLEESON CJ: It may be that in the light of Vairy what you really have to contend with is the trial judge’s decision.

MR WALKER: Yes. The trial judge, in effect, as we put it, held that by reason of circumstances dominated by the obviousness of the risk as it would be gathered by people in the plaintiff’s position, there was no duty. There are other circumstances but they are dominated by that factor.

GLEESON CJ: What he said on page 8 in paragraph 20, line 15 was regarded by him as important.

MR WALKER: Yes, there is no doubt in particular that the second sentence of that paragraph:

He knew that [diving] would have been extremely dangerous and foolhardy -

goes to the point of making this case, in our submission, an admirably simple, non-complex vehicle to test the proper role at at least two stages, perhaps if there are three stages, three stages in a negligence case for consideration of the obviousness of the risk to somebody in the plaintiff’s position.

For the reasons which have been touched on in each of Mulligan and Vairy it is clear that I am no longer able to say that the question of obviousness and its role is a matter res integra in this Court and requiring consideration. That really could not have been said before Vairy and Mulligan either but it has been visited, we accept, recently in those decisions. What was not required in either of those decisions, however, was the discrimination, the way in which the trial judge determined this case in relation to obviousness, which is required between deciding whether there is a duty of care at all, the stage of considering its content or scope, and then the closely connected and ultimately important question as to whether or not, in light of what would have been a reasonable response to the perceived risk, clearly foreseeable, there has been a breach of the standard of reasonable care.

HEYDON J: Would it make a difference here whether it was to be rightly or wrongly viewed as either duty or breach or something cognate with breach?

MR WALKER: The proof of the pudding was that the Court of Appeal took a different approach and reached exactly the same result and based upon precisely, not approximately but precisely, the same evidence and facts.

HEYDON J: That is a nasty pudding from your point of view.

MR WALKER: It certainly means that in terms of practising or refining the exercise of discrimination to which I have referred, in this case as in every case, obviousness will play a role and that is conceded on all hands at all stages of the inquiry. But this case does provide a vehicle to demonstrate that the way in which the trial judge determined it, which was really passed over almost by way of an assumption for the purposes of argument in the Court of Appeal, is one which, in our submission, has not been dealt with by Mulligan and Vairy and does - - -

GLEESON CJ: He did a belt and braces. In paragraphs 54 and 55 on pages 18 and 19, he said, “Let’s suppose there was a duty”.

MR WALKER:

But assuming contrary to the view I have held -

at line 27, yes.

GLEESON CJ: He then dealt with the two particulars of negligence.

MR WALKER: Quite so. In our submission, obviousness, however, permeates the entirety of the trial judge’s approach. Obviousness, for example, is the reason why it became unreasonable for that which the Club had done before the accident and then did after the accident to have been carried out. That, in our submission, is a startling proposition suggestive of serious error in principle, an error of law, by treating obviousness as some kind of trump against conduct which one does not have to speculate but can see from history before the accident as well as history after the accident, available to a court, was in fact carried out.

There is no evidence on behalf of the Club that the tree lopping for which they had received routine permission, both before and after the accident and which they had carried out, involved the difficulty which was perceived in the Court of Appeal, the Court of Appeal deciding the matter as if lopping was a matter of difficulty and expertise. If so, it can be said confidently, the Club did not put forward a case that this was of such an order as to render unreasonable what I stress they had done both before the accident and after the accident, namely, lop trees.

It is for those reasons, in our submission, that confronted with a danger of which the Club was well aware, all foreseeability of the first stage inquiry is well and truly put to rest as an issue. Confronted with the danger which they had dealt with by a perfectly sensible first step, remove the rope that was the obvious temptation for people who were not as careful as they should be for their own welfare, that having failed multiple times, they having persisted, in our submission the only question was – I am only picking one particular – did it require another step in order to meet the requirement of a reasonable response to an easily perceived risk. Here is where there were red herrings in relation to control of the land which, in our submission, are neither here nor there. There was capacity to take a step more efficacious than the ones they had previously taken, the steps they had previously taken were proper and decent steps to have taken in response to a risk easily perceived.

Because the facts showed that without any demonstrated difficulty it had been done both before and after the accident, the state of affairs that we posit as being the minimum required as reasonable response, namely, lopping the particular limb – it is not a matter of all tress or nothing, there can be a graded response, step by step, to see whether the only tree that has ever been swung on is the only one that needs to be lopped just as it was appropriate to see whether it was good enough just to remove the rope at first and for those reasons one can see that obviousness was treated, both by the trial judge in his primary finding, his ratio, namely no duty, and in his fallback belt and braces approach, namely, no breach even if of duty, and by the Court of Appeal in their approach, no breach of duty in the majority. For those reasons it can be seen, in our submission, that obviousness was treated as a trumping element.

In terms of the special leave application, of course, since this application was first lodged, some members of this Court have addressed that question in both Mulligan and Vairy. However, in my submission, it is not possible to say that either Mulligan or Vairy or what might be seen realistically as their combination by reason of the cross-references between certain of the reasons in those decisions, stands at the moment against the use of obviousness plainly in the way in which, we submit, it ought, that this Court ought to say you cannot use obviousness any more than one of the factors to be taken into account in considering the content or scope of a duty or the reasonableness of the response. What you cannot do is say because this risk is obvious, there is a dispensation automatically in advance, as it were, and regardless of other circumstances, of defendants from doing that which is neither onerous nor particularly difficult to have imagined.

Why this case is such a good vehicle to test that rather important matter, particularly as people will continue to do things for recreation which are more rather than less exciting to young men, why it is important and a good vehicle is that, in this case, there are none of the doubts or complexities about the state of mind of the plaintiff or what would have been made known or been reasonably available to be known by a person in the plaintiff’s position, about the water or the circumstances in which the dangerous activity was to be undertaken, as in Vairy, for example, or even perhaps in Mulligan. In this case, that is all looked after by extremely straightforward unchallengeable matters of fact. The vehicle is enhanced as a vehicle for the point by the fact that at least at first sight those are findings against the plaintiff for the reasons the Chief Justice points out in relation to the ease with which the admission is gained that, of course, he knew it was too dangerous to dive.

For all those reasons, in our submission, this is a case which, combined with the individual justice of the case, is one which deserves a grant of special leave. Its deserts are enhanced rather than reduced by coming after Mulligan and Vairy because, as it were, if this had been before Mulligan and Vairy it would have displayed the kind of error that the Court considered committed by the Court of Appeal in Mulligan.

Of course, one has that citation at page 18 of the application book here in paragraph 53 near the passage to which the Chief Justice has just drawn attention which, in our submission, shows that both the first instance decision of Justices Whealy in Mulligan and the Court of Appeal approach by Mulligan has been used in the decisions against my client below in a way which can now be seen to be wrong, those parts of the Court of
Appeal’s approach in Vairy and Mulligan having been overruled by the majority approach by this Court in Vairy and Mulligan.

For those reasons, this is a case which, for the individual justice of the case so as to have the result determined in accordance with the law as it should have been understood deserves a grant of special leave from this Court. May it please the Court.

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

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

MR WALKER: If it please the Court.

AT 10.00 AM THE MATTER WAS CONCLUDED