CAL No 14 Pty Ltd T/as Tandara Motor Inn & Anor v MAIB [2009] HCATrans 113 (29 May 2009)

Last Updated: 1 June 2009

[2009] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H4 of 2009

B e t w e e n -

C.A.L. NO 14 PTY LTD T/AS TANDARA MOTOR INN

First Applicant

MICHAEL ANDREW KIRKPATRICK

Second Applicant

and

MOTOR ACCIDENTS INSURANCE BOARD

Respondent

Office of the Registry
Hobart No H5 of 2009

B e t w e e n -

C.A.L. NO 14 PTY LTD T/AS TANDARA MOTOR INN

First Applicant

MICHAEL ANDREW KIRKPATRICK

Second Applicant

and

SANDRA SCOTT

Respondent

Applications for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 MAY 2009, AT 10.25 AM

Copyright in the High Court of Australia

__________________

MR J. RUSKIN, QC: If the Court pleases, in these applications I appear with MR S.A. O’MEARA, for each applicant. (instructed by Richard Mole & Associates)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR C.J. BARTLETT, for the respondent, MAIB. (instructed by Bartletts)

MR S.P. ESTCOURT, QC: May it please the Court, I appear with MR R.J. PHILLIPS for the respondent Scott. (Wallace Wilkinson & Webster)

GUMMOW J: Thank you. Is there any agreement between Mr Walker and Mr Estcourt as to which of the respondents would go first, if we were to call on the respondents first?

MR ESTCOURT: We thought that Mr Walker would, your Honour.

GUMMOW J: Very well. Yes, Mr Walker, we will hear from you first.

MR WALKER: Mr Estcourt thought that was so, your Honour, so.

HAYNE J: There has been an election.

MR WALKER: Yes, there has. Your Honours, at the very outset we concede that the facts are striking. However, we seek to turn that to advantage in resisting special leave for this reason. The similarly striking facts were of course the subject of consideration by the Court in Cole. The reasons for decision in Cole, though they differ in the way both well understood in the Full Court in this case and accurately, with great respect, noted by the applicants in this case nonetheless unite, in our submission, on this one common feature that circumstances will alter cases and that there ought not to be a generalisation which forbids the imposition of liability in circumstances where, on any view of it, the injured, or in this case killed person, voluntarily drank to intoxication.

In particular, one can illustrate that by paragraphs 14 and 17 of Chief Justice Gleeson’s reasons in Cole but it is implicit in all of the reasoning of all the Justices in Cole that it depends upon the concrete factual foundation or, to put it another way, it is the particular relationship of the parties which will govern the outcome.

Now, the particular relationship of the parties in this case will distinguish it from many other cases, and perhaps most other cases, bearing in mind the way in which population is distributed in this country. This is a small town. This is a hotel at which, by what appears to be some hereditary skill, the publican was used to ringing wives, always wives, apparently, to come and collect somebody because he is a handful.

In this case husband and wife could be said to have sufficiently been united in the prudence that the self-induced intoxication required in anticipation of it in that the husband, the dead man, was willing, involved in, made an arrangement for the very purpose which was ultimately frustrated by his own intoxication. Now, the very purpose was that the motorcycle would remain in the custody of the hotel. There is not only the locking of it in the hotel precisely because it was expected before he drank himself to intoxication that it would be left at the hotel overnight because he certainly would not be riding it home, but also the keys to the motorcycle are kept by the publican behind the counter, not in the pocket.

So that the arrangement - the relationship as we need to put it – between the publican and the customer explicitly looked forward to the very position which came about with his deteriorating rationality. In advance of losing his wits through drink he said, “Guard me against the obvious risks that we are all aware of” and explicitly so on this evening because it appears that the fear of a breathalyser unit operated by the police inspired this decision not to have the motorcycle available. The obvious risk – “guard me against the obvious risk by keeping my motorcycle” - in our submission, that is such a highly peculiar relationship in a small town in a hotel, the publican of which had skills and experience in dealing with people by asking for their nearest and dearest to come and collect them.

All of that, in our submission, makes this such a special case on the facts that nothing which is likely to advance the body of doctrine beyond what is found in Cole is likely to come from a decision of this Court, be it to uphold or dismiss an appeal on the facts. It is for those reasons, in our submission, that there is nothing which makes this a special leave case quite regardless, and in fact for the reasons I have tried to put, indeed because of, the highly special, the striking facts. It is for those reasons, in our submission, that you should not regard this as a case appropriate for the grant of special leave.

HAYNE J: In what facts rests the duty of care?

MR WALKER: The way in which the Full Court puts it, it starts - - -

GUMMOW J: There is a majority, is there not?

MR WALKER: Yes, there is the majority in the Full Court, Justices Evans and Tennent. Combined, we would select these as the facts, your Honour, and this is an unashamed paraphrase, you do not find this neatly set out, but all the components are there, including, as your Honours appreciate, by reference to the facts as more fully expounded by the Chief Justice and adopted by the majority.

One, the defendants are conducting a hotel business, that is, their business is selling intoxicating liquor. Two, the concern was explicit and current – that is, it happened that day – with the risks of being on the road while intoxicated. They include the risk of being yet again caught for drunken driving or riding, but also, obviously for the very purpose of there being such laws, the danger to yourself and to others constituted by being intoxicated in charge of a motor vehicle. So that was explicit between the parties as a risk to be guarded against. Three, and most peculiarly, the fact that founds the relationship and thus justifies the imposition of a duty in this case was what is called the arrangement.

HAYNE J: So it is the voluntary assumption of a duty, is it?

MR WALKER: Yes. The law imposes - - -

HAYNE J: That is a large proposition that should be examined, is it not?

MR WALKER: If one cannot do anything to qualify that, the short answer is yes, but I was about to say, no, that is an excessively abstract and far too elevated conceptual way of putting it. There is a voluntary assumption of a relationship underlying most cases of common or garden negligence. It is not like contract where one voluntarily assumes the obligations but it is voluntary in the sense that one voluntarily, for example, approaches a pedestrian crossing, et cetera – as a motorist, I mean.

The voluntariness is no objection and is not in itself something that is remarkable enough to justify special leave because it will underlie many or most of the relationships upon which then the law imposes, if you like, involuntarily a duty of care. However, we accept that one needs to consider how the fact of the arrangement was said by the majority in the Full Court to have resulted in the imposition of a duty of care and, in our submission, it can be seen by the highly peculiar and utterly explicit reference in the arrangement symbolised by the keys, the two sets of keys - the lock on the shed, the keys behind the counter – that this was intended to prevent, among other things, not only vandalism to the bike – theft or vandalism to the bike, but also to prevent the man who knew and was known by the publican, likely to become too drunk to look after himself, and the interests of others, from undertaking that very risky engagement.

That, in our submission, is (a) factual and (b) is an arrangement into which once the publican had entered upon that role it can hardly be said that simply because he could have said at the outset, “No, leave your bike in a parking yard. That is entirely a matter for you. I’m not going to have anything to do with it. I’m not going to help you. By the way, can I serve you a drink in my friendly hostelry?”, in our submission, the choice made by the publican was an unremarkable choice of a kind made by people who thereupon enter into a relationship in light of which then the law involuntarily imposes a duty of care.

It is for those reasons, in our submission, that a factual foundation giving rise to the duty of care in the reasoning of the majority of the Full Court, though striking because of those facts, is really only a one-off application of principle which will not be affected one way or the other, in our respectful submission, by the way the Court would determine any possible appeal.

GUMMOW J: In response to a question from Justice Hayne, you formulated a principled basis for the Full Court decision. Is that articulated in the Full Court decision? I ask you because you may, looking ahead, be getting yourself into a notice of contention area.

MR WALKER: I do not think so, your Honour, though with great respect, I take that point. At page 30 in Justice Evans’s reasons, and

particularly paragraph 50 in the middle of that page and in particular with respect to the arrangement creating or underlying this relationship, I draw to attention the sentence in the middle of the paragraph:

Patently this arrangement was made so that Mr Scott would not ride the motor cycle home whilst affected by alcohol.

Now, it is the explicit reference to or basis of that risk and the acceptance by the publican of a role he could play in obviating that risk, a risk, after all, created by the substance that he was making a profit selling to the customer. In this case there is a finding that the publican came to the point where the statutory duty no longer to serve an intoxicated person, to refuse service to an intoxicated person, it appears was reached - certainly, the blood alcohol analysis would suggest it must have been reached – and he did refuse service.

It is at that point that talk of lack of coherence with the law of detinue or the like, et cetera, in our submissions becomes, for the reasons touched on by Justice Tennent, in the majority, really quite unrealistic. This was somebody whose state of intoxication had got to the point where, I am bound to concede, a bit like Mrs Cole, he had refused, apparently truculently, the offer of the facility to ring the wife. However, you do not need the authority of a husband to telephone his wife. There is no invasion of right involved and for the reasons put by the majority that was not merely a reasonable thing to do in the circumstances of this case. It was the understanding from the practice and custom as to what would happen in just such a case.

So, in our submission, yes, you do find in the majority a principled exposition of this peculiarly factual basis throwing up the duty in this case, just as was envisaged in the reasons in Cole could happen, according to special circumstances, and page 30 is where one finds it perhaps most clearly put.

GUMMOW J: Yes. Mr Estcourt.

MR ESTCOURT: Yes, thank you, your Honour. Your Honours, I endorse, of course, the submissions made by my learned friend. There are two additional matters I would like to address which are raised by way of the applicant’s special leave application. They are the nonfeasance point and the personal autonomy point. This, with respect, is not a nonfeasance case. Mr Kirkpatrick’s agreement to lock up the motorcycle and the keys materially increased the risk of harm to Mr Scott in that he then continued to drink uninhibited by responsibility, so a special leave point which agitates the misfeasance, nonfeasance dichotomy does not arise, in my submission.

GUMMOW J: Where do we see this in the proposed grounds?

MR ESTCOURT: We do not because Stuart v Kirkland-Veenstra was only decided by the Court after the application for special leave was made and I think after the draft notice of appeal, but it is agitated in the applicant’s reply to both respondents’ summaries of argument.

GUMMOW J: Where do we see that?

MR ESTCOURT: In the application book, your Honour, at page 99, in particular - - -

GUMMOW J: Paragraph 3 of the reply?

MR ESTCOURT: Yes, paragraph 3. The very suggestion that the duty that was imposed carries with it a duty to take some affirmative action against the exercise of personal autonomy raises this point. But, in any event, your Honours, it is our submission that this is not a nonfeasance case. True it is that the action identified by Justice Evans in the majority might have literally involved some affirmative step but it is not a nonfeasance case in the classic sense in that the publican himself increased the risk of harm by Mr Scott in participating in this arrangement to lock up the motorcycle, in taking on a role, as my learned friend has emphasised. Insofar as personal autonomy is concerned, your Honours, it is our submission that Mr Scott had already relevantly exercised his personal autonomy by having Mr Kirkpatrick lock the motorcycle away. May it please.

GUMMOW J: We do not hear from you, Mr Ruskin, generally, but specifically, there will be a grant of special leave. The notices of appeal require some fine tuning.

MR RUSKIN: Yes, we would be happy to do that, your Honours. We will have our draftsmen look at that immediately.

GUMMOW J: What would be the nature of the finetuning?

MR RUSKIN: The finetuning requires some addressing perhaps of two things. First – which has not been raised – is we say there has been an error in the reasons of – respectfully we say this – Justice Tennent where she says right at the end this – if we just might ask the Court to look at this for a moment. That is on page 36 of the book. It is quite important but at 75 her Honour says this, three lines down:

Mr Scott had requested Mr Kirkpatrick to lock his bike away to prevent Mr Scott driving in circumstances where he might be

breathalysed, Mr Kirkpatrick had thereafter continued to serve Mr Scott alcohol, Mr Kirkpatrick knew Mr Scott intended to drive rather than ring his wife, and there was no evidence Mr Kirkpatrick was under any sort of threat –

The facts were that it was not Mr Scott, the deceased, who requested it, it was the friend. Our learned friend said at the beginning that the arrangement was, “Guard me against”. There was no such arrangement. The arrangement was that the deceased’s friend, Mr Kube, said, “I think there is a breathalyser around. Would you mind locking up Shane’s bike?”

So we submit there has been an error about that and to say there was simply no evidence of any threat is something we might wish to agitate because he was “aggro” – to use the words of the findings. He had used that rather colourful Anglo-Saxon expression with considerable force. So we might say something about that. We have not said anything about autonomy. Here the real point is that there has been an imposition of a duty of care to protect a patron from self-harm - that is what it came to – from intoxication which was a voluntary and deliberate act and we would wish, perhaps, to refine the appeal to raise the correctness of that.

GUMMOW J: Very well. There will be a grant of leave in each of these applications. The notices of appeal will be amended as indicated by Mr Ruskin to the Court this morning. The appeals will be heard together and it will be a one-day case.

MR RUSKIN: Indeed, your Honour.

MR WALKER: May it please the Court.

MR ESTCOURT: Thank you.

AT 10.47 AM THE MATTERS WERE CONCLUDED