A very interesting decision of the WA Court of Appeal in Town of Port Hedland v Reece William Hodder by next friend Elaine Georgina Hodder[No 2] [2012] WASCA 212 (26 Oct 2012) decisions.justice.wa.gov.au/supreme/supdcsn.nsf/PDFJudgments-WebVw/2012WASCA0212/%24FILE/2012WASCA0212.pdf (thanks to the invaluable Benchmark alert service.) A very sad case involving a disabled plaintiff who had dived off the diving blocks which had carelessly been left in place by the local Council at the shallow end of the town swimming pool. The very interesting legal issue was whether the plaintiff's damages should be reduced on account of his contributory negligence or not. The trial judge held that he had to apply the standard of a person without the plaintiff's mental disability to the issue and ordered a reduction of 10%.

On appeal the reduction of 10% was overturned but for two opposite reasons! Martin CJ gave a very strongly worded decision in which he argued that the law should allow the mental disability of the plaintiff to be taken into account in setting the standard for contributory negligence. To give a taste of the judgment, speaking of the trial judge's decision at [156]:

The problem with this decision, of course, is that it goes contrary to what has long been regarded as the common law rule (and also seems to contradict provisions of the Civil Liability legislation in both WA and NSW). His Honour argues strenuously that some of those previous decisions are wrong or do not stand for what they are thought to stand for. He acknowledges that the key judgement of McHugh J in Joslyn v Berryman stands in the way. He is able, however, to rely on a decision of Bell J (then a trial judge in the NSW Supreme Court, now of course on the High Court) in Russell v Rail Infrastructure Corporation [2007] NSWSC 402, holding that disability can be taken into account. However, as other members of the WA Court of Appeal note, that decision relied on the then-authoritative Cook v Cook, which has now been over-ruled by Imbree v McNeilly.

The other two members of the WA Court of Appeal disagree with Martin CJ on the issue of whether the law on contributory negligence should be changed to allow the taking of a plaintiff's disability into account. However, McLure P holds that even applying the "ordinary person" standard what the plaintiff did here was not contributory negligence (given that the presence of the diving blocks amounted to an implied invitation from the pool owners for people to dive from them.) Murphy JA, however, holds that the trial judge was right to find contributory negligence on standard principles and would not have disturbed the 10% reduction.

The result is that the plaintiff succeeded in having his full award, but the law is still in some uncertainty! One would have to say that there was no majority for the change in the law that Martin CJ suggests. Whether there is scope for appeal to the High Court is unclear- it would be interesting to see if Bell J would uphold her former ruling, and of course we don't really know how the newly appointed Gageler J will rule on torts issues. (His Honour has not held judicial office formerly and I am not aware of anything he has written extra-judicially, whether as Solicitor-General or in any other capacity, on the topic.) (His recent swearing in is here, for those who are interested: http://www.austlii.edu.au/au/other/HCATrans/2012/258.html ).

I was at first puzzled when reading this decision that I could find no reference to James Goudkamp, who (as with most other areas of "defences" lately) has written on this topic: "Insanity as a Tort Defence" Oxford J Legal Studies (Winter 2011) 31 (4): 727-754. But ironically I see that his work does feature in the judgment: James was the revising editor of ch 12 in the 10th ed of Fleming's Law of Torts and there is a full quote from para 12.160 in the decision of Murphy JA at [344]. I say ironically since the view that was put forward in that paragraph, as it should, represented the view of the law as it is, but not (as I read it) the view of the law as James thinks it should be.

Regards

Neil Foster