LAST WORD

calculus; n [orig. Latin meaning a small stone used in reckoning with an abacus] a particular method or system of calculation or reasoning.

What do a woman hit by a cricket ball in 1947 while standing outside a cricket ground in Manchester[1], damage by fire to two ships in 1951 in Mort Bay Sydney Harbour[2] and a water skiing accident in Tuggerah Lakes[3] in 1967 have to do with the COVID-19 pandemic?

These three cases, two from the Privy Council and one from the High Court of Australia, examine what does a reasonable person do in response to risk.  Each of these cases reveals an attempt to identify a fair response and how the common law has developed.

In Bolton v Stone, Lord Porter said:

“The hitting of a ball out of the grounds is an incident in the game and indeed one which the batsman wished to bring about, but in order that the act may be negligent there must be not only a reasonable possibility of it happening, but also injury being caused.  … It is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must also be such as a reasonable man would contemplate, before he can be convicted of actionable negligence.  Nor is the remote possibility of injury occurring enough; there must be a sufficient probability to lead a reasonable man to anticipate it.  The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken.”[4]

The evidence in the trial below was that only six cricket balls had been hit out of the ground onto the adjacent road in twenty eight years. However, the road was not greatly frequented and no previous accident had occurred.[5]  The cricket club was not found to be negligent.

In Overseas Tankship (UK) Ltd v The Miller Steamship Company Pty Ltd & Anor(Wagon Mound No.2)r[6], Lord Reid, delivering the judgment of the Board of the Judicial Committee[7], reached a different result to that found for the unlucky Miss Stone as she walked by the cricket ground in Manchester. The facts in Wagon Mound No 2 concerned a fire on two ships on Mort Bay in Sydney Harbour after the discharge of oil into the harbour by another ship.  His Lordship stated thus:

“If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense.”

The severely injured water skier on Tuggerah Lakes who strayed into shallow water despite an ambiguous sign stating  ‘Deep Water’ (but where?), led Justice Mason in Wyong Shire Council v Shirt, with the majority, to formulate what has been referred to since,  as the Shirt calculus:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man’s 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.”[8]

Justice Mason went on to say importantly:

“It is sufficient for me to say that the jury’s conclusion that there was a foreseeable risk of injury was not unreasonable and that there was a conclusion which was open on the evidence.  In saying this I am mindful that the foreseeability of the risk in the instant case is a question on which minds may well differ, as indeed they have done.  It is not a question which a judge is necessarily better equipped to answer than a layman.”[9]

This now leads to the connection between the development of these legal principles and the response to the current COVID-19 pandemic. Clearly there is a foreseeable risk of infection across the world and various countries and states have taken different measures in response to the risk.  The Economics Editor of The Australian, Adam Creighton, writing on 5 October 2020,  strongly opposes the actions of the ‘lockdown zealots’ . He points to those countries which have taken different measures to those taken across Europe, many US States and of course in the state of Victoria.   Creighton questions the lockdown decision as necessary to divert disaster, the effect of which has been to  “crush commerce by fiat and suspend civil liberties indefinitely”. Without reference to it he in effect relies upon the Shirt calculus in asking whether such actions were necessary in response to a condition which for those who catch has a survival rate for people under seventy years of 99.9% (that is if they get the virus).

Creighton is particularly critical of the actions of the State of Victoria. He questions whether the severe economic lockdown in that State, including curfews, arrests for Facebook posts, not straying more than a 5km radius from one’s residence and mandatory enforcement of face masks, are reasonable responses to such risk. One also wonders whether the draconian measures implemented and enforced by the Victorian government were in response to its failure of the hotel quarantine program which appears to be the fons et origo of that State’s pandemic crisis.

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No doubt the pandemic and responses to it will spurn much litigation probably on a ‘class action’ basis. Claims in negligence will perhaps start with the Ruby Princess fiasco and develop more significantly to target the Victorian hotel quarantine failure. In the latter potential litigation, particulars of negligence could include, failure to use experienced security guards, failure to train security guards and failure to supervise them, et cetera. Economic claims for loss of revenue by businesses because the lockdown measures went too far are far more problematic. More problematic still are claims involving so-called ‘industrial manslaughter’

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A couple of years ago in Workplace Review[10], I reviewed journalist, Alex Mitchell’s, book “Come the Revolution”.  Mitchell had worked as a journalist both in the UK and in Australia at various times working for Rupert Murdoch.  Mitchell must be Australia’s most active and well known Trotskyist

In his website, also called Come the Revolution Mitchell has recently written about the attempted assassination of Labor leader Arthur Calwell during the height of the 1966 Federal election campaign.  A disturbed young teenager, Peter Kocan, shot Calwell as he was sitting in the front seat of a Commonwealth car after a campaign meeting held at, of all places, the Mosman Town Hall. Kocan was chased down the street by some Labor supporters, caught and handed over to the Police. Bob Gould, another famous Australian Trotskyist, was originally attributed to having chased Kocan down the street and wrestling him to the ground. However, Mitchell notes that Gould says the credit for that manoeuvre was former judge of the NSW Industrial Relations Commission and Court, Wayne Haylen, who ran after and actually tackled Kocan. Mitchell writes that Haylen, the son of a left wing Federal MP Les Haylen, had been on the Industrial Relations Commission bench for about 12 years.  He recalls the young Haylen burnt his National Service Registration Card at a rally in Belmore Park in 1966.  My memory of Haylen as a barrister and judge was of a person of great intelligence and mischief.   His sense of mischief was made manifest one day when he was appearing in a case, before Justice Michael Moore in the then Australian Industrial Relations Commission, which involved a demarcation dispute in the telecommunications industry.  During a rather long, meandering cross-examination by opposing counsel after lunch on a Friday, Haylen to show his ennui ostentatiously at the Bar table read a racing guide called ‘Punters Pal’ much to the chagrin of the presiding judge.   Mitchell notes that in retirement  Haylen continues his contribution to the racing industry.

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Still dealing with the New South Wales Industrial Relations Commission and its now abolished Industrial Court, it is with great sadness I note the passing of two great lawyers who adorned that Bench, both of whom died within a few days of each other in July of this year.  First, that of Russell Peterson QC (1944-2020) and secondly, that of Brian Hill QC (1928-2020).

Peterson was called to the Bar in 1974 and was appointed Queen’s Counsel in 1986.  He was a judge of the Industrial Court and Presidential Member of the Commission from May 1992 to August 2004.  Prior to his appointment he had been a Deputy President of the Australian Industrial Relations Commission.  Over the years I had a number of cases against Peterson and also in some in which he led me.

I vividly recall one case before Justice Frank Liddy in Grafton. On the day of hearing I missed the only morning flight to Grafton from Sydney. Being acutely aware of Liddy’s martinet-like reputation I knew somehow I had to get to Grafton that day. Undeterred, I managed to catch a plane to Armidale with the intention of driving across to Grafton by hire car. A half an hour after take-off the captain announced that Armidale was fogged in and the plane had been diverted south-west to Tamworth, much further away from Grafton, not an easy drive by car. Upon landing in Tamworth, operating both with fear and ingenuity I knocked on a hangar door and found a pilot with a light plane whom I hired to fly me to Grafton.  He flew me to Grafton, only to find that Grafton Airport was also now fogged in. As we circled hoping for a break in the low cloud the pilot said “I know there’s a little strip south of Grafton.”  Shortly thereafter we dove towards this strip only to see a cow grazing next to it. , After a few flyovers  a lady coming running out of a nearby house and shooed the cow away. A taxi duly delivered me to court house at 10:15am where I met a hitherto unknown and very nervous instructing solicitor. The case before Liddy against Peterson for the respondent duly started  at 10:30am.  The whole first day was spent with criticism and thunderbolts hurled at me from the Bench. No offers to settle from the respondent   My case finished early the following morning perhaps observing the reaction by Bench to it and me in tatters. The Grafton solicitor thought he had made a huge mistake briefing this unknown, hapless counsel whose every words seem only further to enrage the judge.

Peterson rose to present his case and then his Honour,a World War Two veteran turned with rapid fire his judicial Bren gun at Peterson. Perhaps there was method to Liddy’s behaviour as the case was settled in favour of the applicant for good value and costs before lunch.

Brian Hill came to the Bench after a long distinguished career at the Bar commencing in in 1956 (18 months after I was born).He was appointed Queen’s Counsel in 1974.  Hill was appointed to the Industrial Relations Commission and Industrial Court on 1 August 1988 and served until his retirement in August 1998.  Both Hill and  Peterson, were a joy and delight for counsel to appear in their courts.

Like Haylen, Hill had a mischievous sense of humour. In a case involving the infamous Secretary of the New South Wales Branch of the Federated Storemen and Packers’ Union, Frank Belan his Honour’s wit was on show.

Taken from the transcript.

KENZIE, QC with KIMBER; Your Honour, we require Mr Belan for cross-examination.

HIS HONOUR; OK, where is Mr Belan, Mr Whitlam?

WHITLAM, QC; Mr Belan is not here today.

HIS HONOUR; Why is he not here?

WHITLAM, QC; He is unwell and cannot come to court today.

HIS HONOUR; How is that?

WHITLAM, QC: Unfortunately, your Honour Mr Belan has been bitten by a spider.

HIS HONOUR; How’s the spider?

Jeffrey Phillips, SC

State Chambers.