Secretary to the Department of Natural Resources & Energy v Harper [2000] VSCA 36

Court of Appeal (Vic)|2000-03-29|Before: TADGELL, CALLAWAY and BATT, JJ.A.

For the reasons I have given, I would allow the appeal and substitute a judgment for the appellant, as substituted defendant below. I would dismiss the cross-appeal. Subject to any submissions counsel may make, I would give the appellant costs both here and below.

[2] The correct analysis may be that it was a duty of care at common law modified to the extent provided in of the , but that need not be decided.

[3] This is confirmed by the reasons for judgment of Tadgell, J.A., which I have had the benefit of reading in draft. His Honour has done the necessary statutory research.

[6] (1998) 192 C.L.R. 431 at 439-440, 451, 472 and 487-488

[14] Compare the observations in Stusser v. City of Melbourne (unreported, Court of Appeal, 16 September 1997), pp.1 and 2 and Kocis v. S.E. Dickens Pty. Ltd. [1998] 3 V.R. 408 at 409, 411 and 427. In South Australia Part IB of the Wrongs Act 1936 (SA) operates as a code which, so far as material, displaces the common law by virtue of s.17E(1), though s.17c(1) requires liability of an occupier to be determined "in accordance with the principles of the law of negligence": Errington v. Target Australia Pty. Ltd. [1995] SASC 5332; (1995) 65 S.A.S.R. 378, F.C., at 381-382; Hermsen v. Olasz (1996) 187 L.S.J.S. 106, F.C. ..

[15] As to which, however, s.23(3) of the Crown Proceedings Act 1958 is to be noted.

[16] See, for instance, Lyver v. State of Victoria [1983] VicRp 107; [1983] 2 V.R. 475 at 478 and 482 and cases cited.

[17] The remarks of Barwick, C.J. in Schiller at 120 do not, I consider, lead to a different view.

[18] As to it, see Crosthwaite v. Pietila [1999] VSCA 110 at [8].

[20] No point was made by the appellant of the fact that the tree which fell was not in the reserve, but was growing outside it. Nor did the appellant suggest that s.14B(3), with its references to "the state of the premises", did not apply in relation to the tree which fell. The appellant was, after all, the occupier of the State forest in the eastern side of the river.

[21] Relevant to this paragraph are the first passage from Kirby, J.'s judgment in Romeo cited in [49] and the second passage from that of Hayne, J. there cited.

[22] The relevant mental state may really have been attentiveness or preparedness to take remote risks, for, when speaking generally, Williams showed his awareness when he said, "I guess trees fall down." I doubt the finding that Williams (to use his Honour's words) "had not appreciated the risks until the accident" or "was unaware of potential dangers of falling trees until after the accident." Rather, to my mind Williams' evidence simply means that he was less careful or less attentive to danger before the accident than after it.

[24] at [123] and [124], with footnotes omitted

[25] at 47-48. There, in respect of the common law duty, his Honour had said, amongst other things, that the perception of the reasonable response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.

[26] at [128], [129] and [130], with footnotes omitted

[29] [1999] Aust. Torts Reports 81-157 at [18]

[30] Mason, J.'s expression in Wyong Shire Council at 48-49

[33] But see Chappel v. Hart (1998) 195 C.L.R. 232 at 246, per McHugh, J. (diss.) and at 272-273, per Kirby, J.

[34] [1996] FCA 1483; (1996) 66 F.C.R. 246. (A motion to set aside the orders pronounced by the Full Court of the Federal Court was dismissed: Qantas Airways Ltd. v. Cameron (No.2) (1996) 68 F.C.R. 367.)

[36] It is unnecessary to consider whether certainty is always required, but in the present case one might reasonably expect that the minimum precaution which the duty was said to require could be identified.

[38] I do not regard this as a case where the respondent could rely on an evidential presumption of causation arising from proof of breach and injury (discussed in Hamer, "Chance would be a Fine Thing: Proof of Causation and Quantum in an Unpredictable World", (1999) 23 Melb. Univ. Law Rev., 557 at 616-628). Nor was that argued.

Two aspects of his Honour's reasoning on causation call for comment. First, there was no evidence bearing directly upon what the respondent would have done had a notice been erected at one or more locations in the reserve. The question was not put to her. It is clear from the passages which I have cited from the judgments of Kirby, J. in Romeo and Lindgren, J. in Qantas Airways that there are different views about the usefulness of doing that. It may well be, as the trial judge said here, that the answer would have been a reconstruction of doubtful utility, but it is undoubtedly the case that the question is often asked. Be that as it may, as the cases show, there can be evidence from other sources than a plaintiff that bears directly on the point, such as evidence that precautions of the kind in issue are frequently effective; but none was led here. His Honour, however, was entitled to draw inferences from other evidence if such inferences were open. He was, I think, entitled to find that the respondent was a person of common sense. But, when regard is had to her life history, which I have not troubled to summarise but which includes accidents, and risky pursuits and pastimes, I am doubtful whether he was entitled to find that she had a heightened sense of self-preservation, notwithstanding the evidence she gave as to the stand of trees opposite the sandy beach. Even if he was so entitled, I respectfully consider that it was not open to him on the evidence to infer on the balance of probabilities that, if the respondent had been warned, "she would have taken notice". In my opinion, it cannot be said that according to the course of common experience the more probable inference from the circumstances proved was that she would have taken notice. I accept the appellant's submission that there were at best conflicting inferences of equal degree of probability so that the choice between them was a mere matter of conjecture: Holloway v. McFeeters [1956] HCA 25; (1956) 94 C.L.R. 470 at 480-481, citing Bradshaw v. McEwans Pty. Ltd. (unreported, High Court of Australia, 27 April 1951). I would add that I do not take his Honour to have relied upon Mr. Williams' greater carefulness after the accident as a pointer to the respondent's likely response to a warning sign. The appellant's criticism of such reliance is therefore, I consider, misconceived.

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