Stewart & Ors v Ackland [2015] HCATrans 226 (11 September 2015)

Last Updated: 15 September 2015

[2015] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
No C3 of 2015

B e t w e e n -

PATRICK JOSEPH STEWART AND BERYL ANN VICKERY (NEE STEWART) AND MICHAEL PATRICK STEWART

Applicant

and

BENJAMIN ALLAN ACKLAND

Respondent

Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 SEPTEMBER 2015, AT 12.37 PM

Copyright in the High Court of Australia

MR J.E.SEXTON, SC: May it please the Court, I appear for the applicant. (instructed by Lee and Lyons Lawyers)

MR P. WEBB, QC: May it please the Court, I appear with my learned friend, MR L.T. GREY, for the respondent. (instructed by Maurice Blackburn Lawyers)

GAGELER J: Mr Sexton.

MR SEXTON: Thank you, your Honours. Your Honours, my learned friend has provided me with copies of the photograph which appears at page 196 of the application book. Would it be convenient if I hand those up to your Honours now? It makes what we are talking about a little bit more clearly apparent.

GAGELER J: Thank you.

MR SEXTON: Your Honours, the two issues which justify a grant of special leave are conceptually related in that each concerns liability for harm resulting from the plaintiff voluntarily engaging in a recreational activity where there is no defect in the equipment or the facilities in a sense that something was broken or broke during use. There was nothing hidden about the physical properties of the jumping pillow, which is what your Honours are looking at in that photograph.

GAGELER J: So the dangerous recreational activity appears to have been identified by the parties not as jumping on the jumping pillow but as doing a back flip on the jumping pillow.

MR SEXTON: That is so, your Honour and that is consistent - there is previous authority in this State in which, for example - I was in a case called Vreman in which riding a bicycle, per se, was not regarded as a dangerous recreational activity but riding a bicycle in a concrete skateboarding park and doing jumps on the bicycle was regarded as a dangerous recreational activity which defeated that plaintiff’s claim.

The applicants in this case do not at any stage contend that merely jumping up and down on the jumping pillow was a dangerous recreational activity any more than, for example, running around in a grassy park would be a dangerous recreational activity. It was the particular circumstance of attempting to perform an inverted manoeuvre which resulted in the activity being categorised as a dangerous recreational activity.

That proposition was accepted by the primary judge and by the majority in the Court of Appeal. The point of departure from the reasoning of the decision of both first instance and in the Court of Appeal was whether, in circumstances where the risk which makes the activity a dangerous recreational activity is a risk that comes home, it can be said that that risk is not an obvious risk of the activity. That is the first issue which, in our submission, warrants consideration by this Court.

There are two decisions in New South Wales - one is Streller which we have referred to in our written submissions, the other is a decision in Sharp v Parramatta Council which was handed down last week. I provide your Honours with copies of that decision. That was a case in which the plaintiff had jumped from a 10 metre high diving platform in a council operated swimming pool and suffered a compression fracture of one of her vertebrae.

There are a number of issues in the case, one of which was the applications of sections 5F and 5L, and that is dealt with succinctly at paragraphs 37 to 43 of the decision and if I could draw your Honours’ attention to the last sentence in paragraph 42 which deals with the question of whether the activity was a dangerous recreational activity and then the first two sentences in paragraph 43 where the Court of Appeal held that because the risk which materialised was the risk:

which made the activity of jumping from the platform relevantly “dangerous” –

then section 5L applied. Could I take your Honours to - - -

KEANE J: Do you submit that this decision is in conflict with the present decision?

MR SEXTON: Yes, your Honour, and prior to making that point, because of this recent decision, we had said, as your Honours will appreciate from the written submissions, that the issue of whether there is a distinction between obviousness of serious harm and obviousness of minor harm, for the purposes of 5L, was not a point that had been determined in New South Wales, which is where most of the decisions about these statutory provisions have been decided, and that the concept of the distinction between seriousness and minor harm when one is considering the very risk which makes the activity dangerous is, in our submission, a surprising result.

The legislation is found at pages 184 and following of the application book, but can I take your Honours first to section 5L which is at 186 and then work backward. Section 5L provides that:

(1) A person (“the defendant”) is not liable in negligence for harm suffered by another person (the plaintiff”) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

Now, that language and the distinction between “risk” and “activity” and “harm” we accept contemplates that in certain circumstances the obvious risk which comes home may not be the same risk that makes an activity dangerous and that was a point that was considered in New South Wales in Fallas v Mourlas.

That was a case involving a recreational shooter being shot by one his companions but Justice Ipp, with whom Justice Tobias agreed, accepted that in certain circumstances, and the example that was given was playing cricket, it may be a dangerous recreational activity because of the danger to the batsman. It may not be contemplated that it is dangerous because of the possibility of being hit by a ball thrown in by a fieldsman but, nevertheless, if that is the risk that comes home and somebody is injured, then that can be an obvious risk.

GAGELER J: Well, as I understand the finding here, it was to the effect that there was an obvious risk of physical harm from doing a back flip on this device, but not an obvious risk of catastrophic injury.

MR SEXTON: Yes, your Honour.

GAGELER J: So you, I understand, challenge the factual finding.

MR SEXTON: Well, it is not a factual finding.

GAGELER J: The conclusion.

MR SEXTON: It is a conclusion which is, in our submission, more a matter of impression than - - -

GAGELER J: Yes.

MR SEXTON: - - - a matter of factual finding, but yes, we - - -

GAGELER J: So that is one limb of your argument.

MR SEXTON: Yes, your Honour.

GAGELER J: But you also have a limb that is focused on the identification of the risk.

MR SEXTON: Yes, your Honour.

GAGELER J: You say that the risk should be identified independently of the degree of harm. Is that right?

MR SEXTON: No, your Honour, but once there is a risk which is identified with a sufficient degree of harm to satisfy the definition in section 5K of what a “dangerous recreational activity” is, that is that there is a significant risk of physical harm, once that step has been taken and determined favourably for the proposition that there is a dangerous recreational activity, then if that significant risk of physical harm comes home, then that must be an obvious risk for the purposes of section 5L. That is our point.

GAGELER J: We might be assisted by hearing from Mr Webb at this stage.

MR SEXTON: If your Honour pleases.

MR WEBB: Could I just deal with Streller, your Honour - I am sorry, Sharp? Mr Sexton took you to the first sentence of paragraph 43 and mentioned the preceding paragraphs. They demonstrate that what his Honour did in the preceding paragraphs was to go through the factual evidence concerning whether the risk was obvious and that is consistent with the other cases. There is no inconsistency here.

We say that the process that is demanded by this legislation is a two-step process. First of all you have the determination of whether what is happening is a dangerous recreational activity and then secondly, whether there is an obvious risk of the materialisation of that dangerous recreational activity and it is an entirely separate question and depends on the factual matrix. There is no challenge to any factual finding by the trial judge at all in this case, your Honour. So, there is a two-step process.

What Mr Sexton suggests in this analysis or this proposition of the leave point is that there should be a gloss put on this statute about the mechanism of the activity and, your Honour, we say it is quite clear from, without going into the history of all of these precedent cases, and they are consistent with the Court of Appeal decision in Queensland as well, that once you have the determination that there is a dangerous recreational activity, and we lost that point before the trial judge 2:1 in the Court of Appeal, then you look to see whether a reasonable person in the position of the plaintiff would have perceived that it was an obvious risk.

As you can see from the photo, the pillow is in the middle of an entertainment area. The evidence, unchallenged, was that when the plaintiff came to this entertainment area there were people, including children, performing back flips on this pillow and that during the day many different people, including colleagues of the plaintiff, also jumped and performed back flips on this pillow. There was alternative, additional evidence that many of the plaintiff’s colleagues had themselves jumped and back flipped on similar pillows in different locations and that was the evidence that the trial judge accepted in terms of obvious risk, notwithstanding the technical evidence of the engineer that the activity was a dangerous recreational activity. So, we say, your Honour, that Sharp and, indeed, Streller are consistent with the preceding cases. There is no inconsistency there at all.

GAGELER J: There will always be an issue as to the level of generality with which a risk is identified.

MR WEBB: Yes, your Honour.

GAGELER J: Is it the case here that the level of generality was treated as different in asking is this a dangerous recreational activity on the one hand, and in asking is this the materialisation of an obvious risk on the other?

MR WEBB: Yes, your Honour, and to suggest that the statute should be construed as meaning that, in effect, the obviousness of some minor injury, a strain or a bruise or something of that kind, could then translate itself into an obvious risk of a catastrophic injury we say is not an available proper construction of the section.

KEANE J: But that does seem to be the view that was taken of it, of that question in Sharp.

MR WEBB: Well, your Honour, as I said, with respect, that is not right, your Honour. If you look at paragraphs 41 onwards, you will see that this was a fairly simple case. This was a case where there was a warning at the bottom of the diving platform. There was a guard up at the top of the platform. The plaintiff herself expressed herself as being very nervous and had to be persuaded to do the dive. There was ample evidence here that there was an obvious risk of the materialisation of the - - -

KEANE J: Well, if one looks at paragraph 41 in Sharp:

The particular risk which materialised and caused the appellant’s injuries was that of impact with the water surface from a height and in an uncontrolled or unintended way . . . That risk would have been clearly apparent to and understood by a reasonable adult in the appellant’s position.

Then reference is made to Streller. Why could it not be said that risk which materialised and caused your client’s injury was that of impact with a hard surface in an uncontrolled or unintended way.

MR WEBB: Well, your Honour, the evidence which the trial judge accepted was that it was not the hard surface that the engineer provided that that was not an obvious consequence of the notional reasonable man looking at the scene. It appeared to be, and the other evidence established this, that it appeared to be equivalent, broadly speaking, to jumping up and down on a trampoline. So the technical engineering evidence established the first point. It was the range of evidence concerning the obviousness that determined the second point.

GAGELER J: The risk being identified in that first sentence of paragraph 41 does appear to be the mechanism by which injury is caused, rather than the precise degree of the injury that is caused in the particular case.

MR WEBB: Well, your Honour, there is no reference by his Honour to any distinction being drawn between the line of authority which precedes it. There is just nothing in this judgment, apart from those paragraphs, which deals with the preceding authority. Dederer was a case - I do not know whether your Honours remember it - where a young man dived from a bridge, a very great distance - so that there was no question and I do not think there was even any technical evidence in the case - there was no question that impact with the water from the distance from which he dived was capable of being injurious.

So, it is an entirely different - what his Honour has done there is to translate a factual finding that was accepted in Dederer into this situation. Your Honour, with very great respect to the argument, it is just not tenable to suggest that he is going against a very long line of authority which precedes it.

GAGELER J: Thank you, Mr Webb. Is there something more you wanted to say?

MR WEBB: Your Honour, Mr Sexton did not get to supporting his second point about personal autonomy. I do not know whether you want us to say anything about that.

GAGELER J: Yes, I think you should address that.

MR WEBB: Your Honour, we say that there is no principle of personal autonomy for the reasons set out in our written submissions, that in fact it

was not even argued until the Court of Appeal hearing but regardless of that it is used as, in these submissions, some kind of basis upon which the existence of a duty should - - -

GAGELER J: Well, if you just leave the label aside for a moment and if we were persuaded that the section 5L point is of sufficient importance to be examined by this Court, would it also be useful to do that in the context of considering the scope of the duty of care in this case?

MR WEBB: Yes, your Honour.

GAGELER J: It would.

MR WEBB: Well, the point is limited to this question of personal autonomy.

GAGELER J: Yes, I understand.

MR WEBB: We have said what we want to say about that, your Honour.

GAGELER J: Yes. It is not entirely divorced from the question of obviousness of injury.

MR WEBB: Well, with respect, it is, your Honour, because the authorities which are said to support this notion do not support it at all. They talk about a notion of personal autonomy but they do not talk about it in relation to the question of the scope of duty.

GAGELER J: Yes, thank you very much. We do not need to hear you in reply, Mr Sexton. There will be a grant of special leave subject to a question about costs. Is there any issue as to the conditions on which special leave might be granted?

MR WEBB: Yes, your Honour, I would ask - - -

MR SEXTON: There is no issue about that, your Honour. Your Honour is asking me about the usual condition that the costs be paid in the event?

GAGELER J: Yes.

KEANE J: And that the orders below not be disturbed.

GAGELER J: You are prepared to submit to that condition?

MR SEXTON: Yes, your Honour.

GAGELER J: Well, subject to that condition, there will be a grant of special leave in this matter. Would it be a one-day case, gentlemen? Yes.

MR WEBB: Maybe a little more, your Honour.

GAGELER J: All right, we will take that into account. Thank you.

AT 1.01 PM THE MATTER WAS CONCLUDED