Leyden v Caboolture Shire Council
[2006] QDC 183
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Leyden v Caboolture Shire Council[2006] QDC 183
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Leyden v Caboolture Shire Council[2006] QDC 183
Leyden v Caboolture Shire Council[2006] QDC 183
DISTRICT COURT OF QUEENSLAND
CITATION: | Leyden v Caboolture Shire Council [2006] QDC 183 |
PARTIES: | SCOTT RODERICK LEYDEN Plaintiff V CABOOLTURE SHIRE COUNCIL Defendant |
FILE NO/S: | D4380/01 |
DIVISION: | |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 28 June 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13, 14 February 2006 |
JUDGE: | McGill DCJ |
ORDER: | Judgment for the defendant with costs. |
CATCHWORDS: | NEGLIGENCE – Public authorities – park with BMX track – whether failure to maintain – jump altered by others – no duty to plaintiff NEGLIGENCE – Dangerous premises – occupier’s liability – park with BMX track – jump altered by others – no duty to user aware jump so altered NEGLIGENCE – Volenti non fit injuria – risk from static condition of premises – plaintiff 15 – aware of condition and of risk. Ghantous v Hawkesbury City Council (2001) 206 CLR 512 – cited. Lanyon v Noosa District Junior Rugby League Football Club Inc [2002] QCA 163 – applied. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 – cited. Neindorf v Junkovic [2005] HCA 75 – cited. Pascoe v Coolum Resort Pty Ltd [2005] QCA 354 – cited. Percy v Noosa Shire Council [2002] QCA 245 – cited. Rigby v Shellharbour City Council [2005] NSWSC 86 – distinguished. Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 – cited. Rundle v SRA of NSW [2002] NSWCA 354 – applied. Trustees of Roman Catholic Church for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161 – applied. Vairy v Wyong Shire Council [2005] HCA 62 – cited. Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 – applied. |
COUNSEL: | D. J. Kelly for the plaintiff R. W. Morgan for the defendant |
SOLICITORS: | Carter Capner Solicitors for the plaintiff HBM Lawyers for the defendant |
- [1]In May 1999 the defendant council constructed a BMX track on some land within Bluebell Park, Caboolture, a large park where a range of facilities were provided by the defendant. On 15 July 1999 the plaintiff while using the track fell and suffered a significant injury. Quantum has been agreed between the parties at the sum of $115,000 (p 2) but the defendant denies any liability for the plaintiff’s injuries. Although the accident happened not all that long after the park opened, the plaintiff’s case was not advanced on the basis that there was any deficiency in the design or construction of the track.
- [2]There was no dispute that at the time of the plaintiff’s injuries the particular jump on which he fell was different from the way it had been constructed by the defendant, because of changes made by a person or persons outside the control of the defendant. Nor was it alleged that there was any failure to warn the plaintiff about the state of the relevant jump. There was no dispute that the plaintiff was quite aware at the time of the state of the altered jump. In essence the plaintiff’s case was advanced on the basis that the defendant ought to have taken more vigorous steps to detect alterations to the jump, and to reinstate the jump to its previous condition.
Background
- [3]A BMX bike is a particular type of bicycle intended to be ridden over unsealed surfaces and over obstacles, and relatively rough terrain: p 19. It is a more compact type of bicycle, which as a result is more agile: p 18. Such use specifically as a BMX bike involves riding over an obstacle course, in the process of which it can become airborne. A BMX track is therefore not simply a flat track around which one can ride a bicycle; the whole point of the exercise is to provide a series of obstacles over which one can ride. Evidently, part of the attraction of riding a BMX bike is being able to ride at some speed at small humps so that the bicycle and rider become briefly airborne. This is referred to as “doing a jump” and the hump or mound which is used in order to become airborne is referred to as the “jump”.
- [4]This particular track was U-shaped, and began at a starting ramp. There were a couple of mounds in a row, followed by a 180 degree turn involving the construction of a berm to provide some camber, so that the turn could be executed at a faster speed. There were then two double jumps on the second straight stretch, and it was on the second of these that the plaintiff fell. All of the jumps were made out of soil.
- [5]A photograph of the jump in its modified state became Exhibit 1. This was date stamped 10 July 1999, but there is no evidence that the stamp was accurate. However, the plaintiff said that that represented the state of the jump at the time of his accident: p 10[1]. His evidence was that it had been in more or less that state for at least a few days. The plaintiff also gave some evidence about the height of the jump. In that state it had a take-off ramp followed by a dip before a landing ramp which was not quite as high, and I suppose not as steep (p 10); evidently the intention was that a rider would ride quickly up the take-off ramp, become airborne, and carry over to the landing ramp.[2] Exhibit 1 shows someone other than the plaintiff in the process of undertaking the jump. The plaintiff said that he had been given the photograph by that person: p 10. The photograph was taken at an angle which was closer to head-on to the jump than to side-on. I know from my experience of photography[3] that a photograph taken at that angle is not likely to give a realistic appreciation of the actual slope of the ramps, or indeed the distance between the peaks.[4]
- [6]The last jump was modified by someone who lived nearby (p 41), a Mr Perkins, who is now a professional BMX rider: p 40.[5] In 1999 he was just getting started as a professional. He said that he modified the last double jump, by taking the sides out and adding extra height, a foot or foot and a half of dirt on top: p 41. He said the work was done over a period of time, with assistance, particularly from one particular mate (not the plaintiff). He used shovels[6], one of which “just probably lived in the bush there” (p 45) and the other was brought by his friend. He also said that Exhibit 1 showed essentially the state of the jump at the time of the plaintiff’s crash: p 43. He had his own BMX jumps at home (p 45) that he and some other local kids used to jump on, but for variety he also used to come to the park and use this jump to practice various tricks. For someone of his ability it is not just a matter of becoming airborne and landing again, he used to do various tricks while airborne: pp 40, 42. Evidently, the jump was modified in order to give him sufficient time while airborne to perform such tricks.[7] One of the ways this was done was by making the take-off angles steeper: p 43.[8]
The plaintiff
- [7]The plaintiff was also an experienced BMX rider, though not as skilful as Mr Perkins. He had been riding a bicycle since he was four or five (p 16) and had been riding a BMX bicycle since he was 10: p 18. At the time of the accident he was 15: p 7. The plaintiff had over time built up his skill level by doing longer, higher and more difficult jumps: p 20. He said he had had a few previous crashes while riding the BMX bike[9], but no previous serious injuries: p 14. He was an enthusiastic BMX rider, and said that prior to the accident he would attend the track three to five times a week: p 7. He would stay there for one to two hours: p 8. He frequently attempted jumps: p 30. Unsurprisingly, in these circumstances, he was aware of the changes being made to the last jump: pp 9, 28.[10] They had the effect of changing what had been a table-top jump (that is a jump involving a mound with a flat top) into a double jump or a canyon, where there was a gap between the first and second mounds: pp 10-11. He said (p 9) that when it was modified:
“You had to be extremely careful. You had to increase your speed, like to 100 percent to make the jump. It was a long way between the two landing and start ramps.”
- [8]He said that he and others would ride around rather than over the second last jump to get more speed to clear the last jump: p 10. On a previous occasion[11] at a time when the jump was very similar to what was shown in the photograph Exhibit 1, he had jumped it maybe five times: p 11. He said he had to go as fast as he could pedal to get up to the speed necessary to make the other side: p 11. It required as much speed as possible to make the jump: p 12. He knew at the time if he did not make it he would probably crash (p 26), and it was going to take some effort, and that he was going to need a lot of speed to complete the jump: p 15. He knew it was difficult but was confident he could do it: p 24.
- [9]On 15 July 1999 he had been to school, come home, then changed and gone back to the BMX track about 3.30: p 13. He met some friends there, and rode around the track, which included taking the last jump successfully.[12] There was then a bit of a break, before he rode it again, and this time his attempt of the last jump was unsuccessful. He could not explain what went wrong on this occasion: p 14. Mr Perkins said he was actually present at the time of the plaintiff’s accident, about 10 feet away: pp 45, 51. He said the plaintiff came in a little short, hit and bounced and ended up in quite a bad way.
- [10]On 21 September 1999 solicitors for the plaintiff wrote to the defendant giving notice of the impending claim: Exhibit 10, which gave the date of the accident as 16 July 1999. The following day a property officer, Ms Burton, visited the site (Exhibit 11) and took a number of photographs: Exhibit 8.[13] Unfortunately the letter Exhibit 10 did not identify the jump from which the plaintiff fell, and there was no particular attention paid to the last jump. A series of “panorama” views of the whole track were taken, and can be viewed in sequence from left to right in the following order: 8G, 8K, 8J, 8H, 8I. Exhibit 8G shows the starting ramp to the left, the first jump in the foreground, and the last jump in the background, with its take‑off ramp obscured by a tree; Exhibit 8K shows the first jump in the foreground, and a slightly better view of the last jump in the background. Exhibit 8A shows a better view of the last jump. Exhibit 8B shows in the foreground the second last jump; this view is taken from the opposite side of the jump from the view in Exhibit 8J. Ms Burton also observed[14] that some children had nearby built some small dirt mounds, an even less challenging “do‑it‑yourself” BMX track.
Duty of care
- [11]The defendant was in occupation and control of the track, it was aware of and consented to the use of it by members of the public such as the plaintiff, and was authorised to maintain and repair the track. I accept that the council had a practice of inspecting BMX parks weekly, because of their potential for accidents: p 74. The council was aware that youths were modifying the jumps on BMX tracks prior to the accident: pp 74, 89. Council understood that more advanced riders required a steeper sort of jump to achieve what they wanted to do, and would carry out maintenance to return them to original condition. Accordingly, one of the purposes of the inspections was to detect alterations, so that they could be changed back: pp 57, 78.
- [12]There is no doubt that in a general way the defendant, as a public authority invested with statutory care, control and management of public land, had a duty to take reasonable care to safeguard the persons entering that land such as the plaintiff from physical harm.[15] However, it is necessary to have regard to the content of the duty of care, which will not be identical in all cases:
“The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which existed between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertence of the entrants.”[16]
- [13]In the ordinary case people who use facilities provided by the council in a public park are relying on the council to take reasonable care, both in terms of their original construction and their subsequent maintenance, to ensure that the facilities will be reasonably safe. But the position of the plaintiff in this case was different.[17] In relation to this particular jump, he was not in any sense relying on the council to provide a jump which was reasonably safe. He knew that the jump was in the state it was in, not because of anything the council had done, but because of the actions of others.[18] He also knew that the effect of the actions of others had been to make the jump more hazardous. In these circumstances he was really relying only on the ability of those who modified the jump to produce a jump which was able to be used as such, and on his own ability successfully to execute it.
- [14]There is I think some analogy with the position of the liability of local authorities in relation to hazards in footpaths. I think it is now established that a local authority having the control and management of a footpath will not be liable for obvious hazards in the footpath[19], although the position will be different in the case of hazards which are not obvious to the ordinary user, but of which the council knew or ought to have known.[20] The same would I think apply to the ordinary occupier of private premises, to the duty of which there is I think some analogy.[21] There is no duty to warn or otherwise protect entrants against hazards which are or ought to be obvious, given the nature of the premises being entered.[22]
- [15]In the present case it is unnecessary to consider whether, from the point of view of someone who came upon this jump without prior knowledge, its appearance alone ought to have been sufficient to make it an obvious hazard. The plaintiff was thoroughly familiar with it, and as a regular user of the BMX track at the park, had observed its modification. Although he claimed never to have seen anyone actually modifying the jump, he conceded that he knew that the jump was being modified by others, and he knew from experience just how difficult a jump it was to complete successfully. He was, although not an adult, an experienced BMX bike rider, and was I think sufficiently mature to be able to assess these matters for himself. In my opinion in these circumstances there was no duty on the defendant council to intercept the modification of the jump so as to prevent this plaintiff from injuring himself by attempting it.
- [16]The fact that the council officers said that they did inspect the park to detect any modification of the jump, and that had they detected this modification it would have been remedied, is not to the point. I am concerned with the content of the duty to this plaintiff. There may well be many other potential entrants, who were younger, or less familiar with the situation of this track, or less experienced BMX riders, in respect of whom the council may well have a duty to inspect and if necessary reinstate the jump. In any case, whether there is a duty of care and its content is a question of law[23] and therefore does not depend on whether the council officers behaved as though they had a duty.
- [17]I do not think the fact that the plaintiff was a child alters this situation. Although not an adult, the plaintiff at 15 was an experienced BMX rider, and he was thoroughly familiar with this park, and he was in my opinion sufficiently mature to be able to exercise his own judgment as to whether or not to attempt this particular jump in the state it was in.[24] This was not a situation where the defendant owed a duty to prevent someone, who through immaturity could not reasonably be expected to take reasonable care of his or her own safety, from engaging in behaviour which involved significant risk of injury.
- [18]Accordingly in my opinion there was no duty owed by the defendant to this plaintiff in the circumstances of this case to intercept the modification of the jump before the plaintiff unsuccessfully attempted to execute it on 15 July 1999. The plaintiff’s case must be advanced on that basis, because it is only if there was such a duty that the defendant’s breach could have caused the plaintiff’s injury. The plaintiff’s case was that the defendant ought to have undone the modification of the jump before it had been in existence for long enough for him to have suffered the injury when he did.
- [19]This argument seems to me to be somewhat artificial, in circumstances where no doubt it was essentially fortuitous that the plaintiff suffered his injury on his seventh attempt at the jump (having completed the other six successfully) rather than his first. Presumably the first attempt was made much closer to the time when the jump was modified into this state than the seventh. But to the extent that the plaintiff’s argument depends upon there having been more time elapsed between the first attempt and the seventh during which the defendant had more opportunity to detect this modified jump and to do something about it, that seems to be an unsatisfactory basis to distinguish a case where a plaintiff is successful from one where the plaintiff is not. That is perhaps particularly so in circumstances where there is no clear evidence as to the period within which the jump was in the state shown in Exhibit 1, or something close to that.
- [20]In these circumstances, the plaintiff’s action must fail. Nevertheless, in case a different view may be taken elsewhere, I shall make precautionary findings in relation to the question of breach of duty, and in relation to some defences raised by the defendant.
Breach of duty
- [21]The plaintiff’s case was advanced essentially on two bases: that the system of inspection on a weekly basis, with problems then observed being remedied, was inadequate, and that in any case the system broke down, because this jump had been in this state for longer than a week, so that either the inspections were not properly carried out weekly, or those who carried out the inspections did not respond appropriately to the obvious modification of the jump.
- [22]There was evidence that the inspections that were undertaken were not sufficient to prevent modification of the jumps. Indeed, one of the council workers involved in the process said that they could come upon a modified jump and fix it, and within a couple of hours it could have been modified again: p 90. That in my opinion does not show that the policy of inspecting weekly is inadequate; rather, it tends to show that no reasonable degree of inspection would have been adequate to prevent any modification of the jumps. If that evidence is correct, and it may be that there is some element of exaggeration in it, it suggests that the only effective way to prevent modification to these jumps would be to station someone permanently at the site to guard them. That in my opinion would not be reasonable.[25] Although there is no doubt some element of danger necessarily involved in the use of a BMX track[26], it has not been shown that the dangers involved are so great that anything like that sort of intensive supervision is required.[27]
- [23]If a plaintiff alleges the system in place was inadequate, it is necessary for him to show what the system was which ought to have been provided, and to show that the failure to provide that system amounted to a failure to take reasonable care.[28] There was virtually no evidence as to what system ought to have been provided in the present case[29], and in those circumstances it is not of assistance to the plaintiff to point to an absence of evidence from the defendant that it could not have done more. The defendant had in place a system of inspection, and if the plaintiff challenges the reasonableness of that system it is necessary for the plaintiff to prove by evidence that it was not reasonable. In my opinion the plaintiff has not done so.
- [24]The alternative basis upon which breach was alleged was that there was a failure of the system in the present case. There was some examination of the records, but there was also evidence that there could well be inspections of this park, and particularly this track, which were not recorded.[30] The defendant did not ever undo the modification to the jump shown in Exhibit 1. Following the plaintiff’s accident[31], one of his older brothers went to the park and further modified the jump, but in a way which made it much lower and less hazardous: p 36, Exhibit 3. Had this not occurred, it might have been of assistance to see when some rectification work was actually done by the defendant.
- [25]At p 10 the plaintiff said that Exhibit 1 showed the jump in a state very similar to the state at the time of this accident. He said it showed the jump “just beforehand”. At p 11 he said that he had previously jumped this jump “a few weeks beforehand”, at which time it was very similar to what was shown in Exhibit 1. At p 22 he said that the jump looked as it looked in Exhibit 1 for between two and four weeks before his injury, but he had said at p 9 that he noticed it changing around July 1999 and at p 21 that he had noticed it changing in “early July, late June”. He also said that it changed gradually: p 22. These various statements cannot be reconciled. I think it unlikely that, if the jump had been in the state shown in Exhibit 1 for any great length of time before 15 July, there would have been only one previous occasion on which the plaintiff had jumped it in that state, particularly when he was regularly at the track. There was no clear evidence from Mr Perkins about how long the jump was in this state prior to the plaintiff’s accident.
- [26]Because of the inconsistency in the plaintiff’s evidence as to how long the jump had been in the state shown in Exhibit 1, and the inherent improbability of part of it, I cannot regard it as reliable. Neither the plaintiff nor Mr Perkins made any reference to any earlier occasion on which any rectification work was done by the council to the jumps on this park, but on the evidence of the council officers there must have been occasions prior to the plaintiff’s accident when modifications of the jumps, and particularly this last jump, were undone. On this point, I prefer the evidence of the defendant’s witness. Exhibit 1 looks to me like the photograph of something which has not long been in that state, or at least has been subject to some fairly recent work. On the whole, I am not prepared to find that this jump was in the state shown in Exhibit 1 for more than one week before the date of the accident, and it is not even clear that it was in this state for as long as one week.
- [27]Responsibility for maintenance of BMX tracks at the relevant time came under the construction section of which Mr Battis was foreman: p 73. He said that within the shire there were approximately 180 parks with facilities in them, and other parks or reserves without facilities. There were six to eight BMX tracks in the shire at the time, including this track. BMX tracks were inspected weekly, compared with playgrounds, which were inspected monthly: p 74. He was aware that there was an ongoing problem with the jumps being modified at BMX tracks to make the jumps steeper. As a result his crew were instructed that if they saw something they were to turn it back into what it was: p 78. He said his crew would remedy minor things themselves with a shovel, and for something more major they would book a bobcat to reconstruct the jumps: p 78.[32] When shown Exhibit 1 he said that it looked to have been altered, to produce something which was not a reasonable jump, which would be dangerous from medium school level down: p 80. He would expect that if his crew saw something in that state they would take steps to reduce it. He said that if it had been in that state for more than two weeks it should have come to his attention.
- [28]Mr Battis’s team was in two groups[33], and the leading hand of the group responsible for maintaining playgrounds at the relevant item was Mr Ash: p 86. It was his team who did the inspections of BMX tracks among other things: p 87. The men operated in pairs, each with a utility with equipment: p 88. He said modification began at the Bluebell Park jumps within a couple of weeks after it was built: p 89.[34] He said that on weekly inspections if they saw some modifications they would try to knock the tops off them with hand tools, and if it was more than they could cope with they took the bobcat out: p 90. All they could do by hand was take the top off. He said that the kids could have a jump completely modified within an hour and a half: p 90.
- [29]He said he never saw the final jump at Bluebell Park in the state shown in Exhibit 1; if he had, he would have taken the top off and then got the bobcat in to reshape it properly: p 92. He added that the kids could put it back like that in less than two hours: p 93. He agreed that in this state it posed a safety risk: p 93. He said there was no chance they could have missed seeing the jump in this state if it had been like that when visiting the park: p 92. Checks were normally done before or after the weekend: p 92. Visits were not always recorded. He said that he went at least once a fortnight: p 93. When asked whether it could have been there for two weeks he said he very much doubted it because it was not something one would miss: p 94. Mr Ash would not accept that the jump had been in the state shown in Exhibit 1 for as long as two weeks but said that if that did happen then his crew had missed something: p 95.
- [30]Mr Fenwick was one of the men working in the team maintaining the parks: p 110. He said the BMX tracks were inspected weekly, because there was a fair amount of damage to them with kids digging them out: p 111. He said that after the Bluebell Park track was opened there were unauthorised modifications of the jumps quite often. If he came on this he would either rectify it by hand, or arrange for a bobcat. He was shown Exhibit 1 and said that if he had seen the jump in that state he would have knocked the top off it and arranged for a bobcat with a levelling bar to come out: p 113. He said that it looked dangerous to him: p 114. He would expect a bobcat to be there within a day or two.
- [31]Mr Fenwick referred to his diary from 1999 (Exhibit 13), which showed that on 14 July 1999 he had commenced an inspection in division3 (where Bluebell Park was situated[35]) and completed his inspections the following day: p 112. He said the jump definitely did not look like Exhibit 1 when he was at the BMX park on 14 or 15 July: p 114. He identified a document he had signed in respect of an inspection of this park, on 15 July 1999: Exhibit 14, p 116. This is a curious document, because of the different dates on it. It is dated “15/7/99” and said to be the inspection form for the month of “July”, but it also has the date “14.6.99”. It lists three problems with the playground equipment, including the reference “slippery slide burnt”, which is then followed by “scraped 14.6.99”. That is not necessarily inconsistent with the other dates; it may be just recording that on the previous visit on 14 June he scraped the slippery slide so as to smooth it off. The document contains no reference to the BMX park. There is no particular category for this; it is a form specifically for playground equipment. Nevertheless, MrFenwick said that he signed the form on 15 July and that it follows that he inspected the park on 15 July. He thought that possibly the date after “scraped” may have been a mistake: p 120. In any case, this seems to be essentially consistent with the diary entries, and suggests that MrFenwick was at the park on 15 July 1999.
- [32]Accepting that Exhibit 14 shows that Mr Fenwick was at the park on 15 July, it does not show when he was there during that day. I accept that for most of that day the last jump looked essentially like it looks in Exhibit 1. But it is possible that he visited the park after the plaintiff had his accident and after the jump had been modified again by his brother. By that time there would have been nothing dangerous in the appearance of the jump, and nothing would have registered as requiring additional work by the council. It is also possible that he was there between the time of the plaintiff’s accident and the time when the jump was modified but did not notice the state of the jump. That would be a failure to take reasonable care on his part, but it would not have been causative of the plaintiff’s injury. On the whole, however, I think it is more likely than not MrFenwick was there before the plaintiff injured himself, which was after school and was therefore well into the afternoon, and would have been towards the end of his working day. As well, if the 14June date ought to be 14 July and the inspection was actually the previous day, although the form was not completed until the following day, that would also indicate that Mr Fenwick was at the park before the accident.
- [33]It is more likely than not that if Mr Fenwick was at the park, or either 14 July or 15 July before the plaintiff had his accident, and had examined the jump, he would have seen either what was shown in Exhibit 1 or something like it. He claimed not to have seen anything like that, and evidently there was no particular action taken to rectify the jump at that time. It may be, of course, that MrFenwick did see something like that, did some superficial work with a shovel (which Mr Perkins or someone else then “repaired”) and reported it as requiring attention from a bobcat, but by the time the bobcat turned up the jump had already been substantially altered by the plaintiff’s brother. It is not at all clear that that would have produced any records, though it is not clear that that would not have produced records. On the whole, however, I think the more likely explanation is simply that Mr Fenwick, perhaps preoccupied by the sorry state of the playground equipment, did not carefully inspect the BMX track and failed to realise that there was a significant modification to the last jump.
- [34]The defendant also called the leading hand of the mowing section, Mr Stehbens, who said that he used to go to Bluebell Park to mow it in 1999, as part of a team of three: p 103. The work would include brush cutting and spraying around the BMX track: p 104; it is apparent from the photographs that there was not much grass to mow in the vicinity of the track. While in the park he would keep an eye out for vandalism and things like that, and notify the foreman of anything out of the ordinary. His diary for 1999 shows that his team went to Bluebell Park on 7 July 1999. When shown Exhibit 1 he said he could not recall observing a jump in that state; if he had seen it in that condition he would have contacted the foreman. It is of course possible that the jump was in a modified state on 7 July 1999, though not as substantially modified as on 15 July, and there was nothing about its state then which attracted Mr Stehbens’ attention. He was not specifically asked about Mr Perkins’ assertions that the mowing crew would sit and watch him doing tricks on the jump (p 42); as I have indicated elsewhere, I do not accept Mr Perkins’ evidence anyway.
- [35]In these circumstances, the case in relation to breach of duty becomes one of system failure. Shortly before the accident someone from the defendant was at the park and ought to have observed that the jump was unsafe, and ought to have done something about it, but apparently did not do so. On the basis of the evidence of the defendant’s witnesses, he ought to have done so, and in those circumstances if there was a duty there was a breach of the duty because of a failure on that occasion properly to examine the BMX track.
- [36]If there was such a failure, that gives rise to a question about causation. If Mr Fenwick had seen the jump and had appreciated that something needed to be done, all that he would have done was some fairly superficial work, knocking the top off it with a shovel. It is unlikely that more substantial work, involving the use of a bobcat, would have taken place prior to 15 July. Mr Perkins was apparently at the scene on 15 July, and if the top had been knocked off by Mr Fenwick, may well have repaired it and reinstated it prior to the time when the plaintiff had his accident. The issue is essentially hypothetical, and it is difficult to know exactly what would have happened if Mr Fenwick had taken some action on that day.
- [37]I do not accept Mr Perkins’ evidence that if the council had done something to rectify the modifications he would not have rebuilt it (p 52); I think it more likely that there had been earlier work by council employees rectifying the modifications, which was one of the reasons why changes to the jump were relatively gradual. I do not think that the defendant’s witnesses who gave evidence to that effect were all just making this up. Accordingly, it is quite possible that anything done by Mr Fenwick would have been undone again. It may be, however, that it would not have been undone that day, or that anything done that day would have produced a jump which was not quite as demanding, and therefore there was less risk of the plaintiff’s failing to take it successfully. The issue is by no means clear, but on the whole I think it more likely than not that, had Mr Fenwick observed the jump and done something to modify it on 15 July, the plaintiff would not have suffered his injury as and when he did.[36] Accordingly if there were a duty of care, the defendant breached it and is liable.
Defences
- [38]I should say something about a couple of the issues raised in paragraph 7A of the defence, which are the factual basis for the defences of volenti and contributory negligence. It will be apparent that I find paragraph 7A(i), (iii), (iv) and (v) proved. As to the allegation that the plaintiff himself participated in the alteration of the jump, this comes only from Mr Perkins, and only from the statement that he signed in August 2005: Exhibit 7 para 12. In the witness box he denied that that paragraph was accurate: p 52. The plaintiff also denied this: p 11. As to the allegation that the plaintiff was warned not to attempt to do the jump again but did so anyway, this also comes from Mr Perkins, and appears both in his statement Exhibit 7 paras 6 and 19, and in his oral evidence: pp 46, 59. The plaintiff also denied this: p 37.
- [39]This raises issues as to the credibility of Mr Perkins and the plaintiff. On the whole I was not impressed with Mr Perkins as a witness. There were evidently difficulties in obtaining a statement from him, because apart from the signed statement Exhibit 7 there was an earlier version which he had refused to sign (Exhibit 6), and there was apparently an even earlier version which he said also had things which were wrong. Nevertheless, he claimed that some of the things – paragraphs 11 and 12 – in Exhibit 7, which he signed, were still not correct, although he had said at p 49 that he signed the statement he signed because it was “all done right”.
- [40]He claimed at p 48 that he had a memory “as good as a sieve”. It seemed to me that his claim that when he was modifying the jump he did not make it too demanding so as not to be beyond the capacity of the other kids who used to jump at the track (p 44) was essentially an exercise in self-justification. It seemed to me that he was keen to minimise his own responsibility for the plaintiff’s injury, which would be consistent with his claiming that he had warned the plaintiff not to attempt the jump prior to the plaintiff’s falling. His evidence that the council never knocked down the jumps that had been modified (p 52) is inconsistent with the evidence of the defendant’s witnesses. In the witness box he seemed at times not to be taking the whole process very seriously. On the whole, I did not regard Mr Perkins as a reliable witness, and where there is a conflict between his evidence and that of the plaintiff, I generally prefer the evidence of the plaintiff.
- [41]With regard to the evidence of the plaintiff, I am prepared generally to accept it, though I am wary about some parts of it. I have already commented on the different accounts that he gave in relation to how long the jump had been as it was shown in Exhibit 1 and I do not accept his evidence that it had been in that state for any great length of time. There was also some inconsistency in relation to his evidence about the height of the jump.[37] On the whole I was a little wary of the plaintiff’s evidence, but there are few definite indications of specific unreliability.
- [42]In these circumstances, I am not prepared to accept either that the plaintiff himself participated in the alteration of the jump, or that the plaintiff was warned by Mr Perkins immediately or shortly before he jumped on the last occasion not to attempt the jump again.
Volenti
- [43]This defence was pleaded and pressed on behalf of the defendant. On behalf of the plaintiff it was submitted that the plaintiff had not and could not have appreciated all of the risk given his age and previous successful experience with the jump. I have referred already to the plaintiff’s evidence about how difficult and demanding this particular jump was. His answer at p 11 line 40 shows that he was actually aware of the specific risk that he faced, that of failing to make the other side, that is not jumping long enough to land properly on the landing ramp. Although the plaintiff was not able to give an account of how the accident occurred, the most likely explanation is that the plaintiff came down too soon, and clipped the top of the landing ramp rather than landing on it, so that he was thrown forwards. It is apparent from his evidence that he was aware of that specific risk.
- [44]It may be that his earlier successful completion of the jump had led him to conclude that this was a risk he could overcome, or avoid, but I do not think that that is to the point. He was aware of the risk of injury from BMX jumping, having suffered some previous injuries himself, and he would often wear a helmet because of the risk of injury from falling: p 20. The fact that he may not have anticipated as severe an injury as he suffered is not, I think, crucial to a defence of volenti. This is a case where the risk was one posed by an existing risky condition, the state of the jump, not something which depended upon some future risky action of another. The plaintiff was in a good position to assess the risk involved, he had sufficient experience to enable him to do so properly, and he had the appropriate subjective appreciation of the risk; it was not just that he ought to have appreciated that it was risky. In all the circumstances, if it were necessarily to determine this point, I would hold that the defence of volenti had been made out.
Contributory negligence
- [45]The submissions on the part of the plaintiff accepted that there should be some finding of contributory negligence, but submitted that in view of his age and the previous successful completion of the jump the amount apportioned to the plaintiff should only be low. In my opinion there was certainly a failure on the part of the plaintiff to take reasonable care for his own safety in attempting this jump, notwithstanding his previous success; his previous attempts seem to have demonstrated to him that it was a very difficult jump for him to complete successfully. I think there was a failure to take reasonable care for his own safety, but in circumstances where I have found that there was no duty on the defendant in the circumstances to prevent this plaintiff from attempting this jump on this occasion, and therefore necessarily no breach of duty, any attempt at apportionment on a precautionary basis would be artificial and inappropriate.
- [46]There will therefore be judgment for the defendant in the action with costs.
Footnotes
[1] See also Perkins p 43.
[2] The plaintiff said it was desirable to land on the back wheel first, or both together; if the front wheel landed first, you were likely to go over the handlebars: p 23.
[3] For example, compare the views of the first jump in figures 4 and 5 of Exhibit 5, and the different views of the jump in Exhibit 3.
[4] The plaintiff’s estimate of this distance was 3-4 metres: pp 10 and 31. Mr Perkins said 6-7 feet: p 66.
[5] See also plaintiff p 27. Mr Perkins was 18 in 1999: p 40.
[6] See also plaintiff: p 29.
[7] See also plaintiff pp 14-15. Mr Perkins at p 61 described it as a good jump, and spoke of it as a popular jump.
[8] Mr Perkins at p 43 demonstrated an angle close to vertical, and referred to going straight up. The plaintiff at p 111 also said the take-off ramp was almost vertical: p 14. This must be an exaggeration, as there must be still forward momentum to carry over the jump. The angle on the very high and long jump illustrated at p 9 of Exhibit 5 was only about 40 degrees: see Exhibit 5 p 8.
[9] And he had seen other riders crash: p 19.
[10] He said the changes occurred gradually, at different rates: p 22.
[11] He said that this was a few weeks beforehand: p 11. I doubt whether it was as long before as that, if only because I doubt that he would jump it a number of times and then go for as long as two weeks before he attempted it again.
[12] In 2001 he told MrKing that he had taken it successfully twice that day: Exhibit 5 p 8. Other people were jumping it that afternoon: p 29, and see Perkins: p 59.
[13] One of these has a date imprint “22.9.99” and some of the others are printed “23.9.99”. She said there was only the one site visit (p 99), and the position appears to be that the camera changed to “23.9.99” early, possibly at midday. This just illustrates that dates printed on photographs are not necessarily reliable.
[14] And photographed: Exhibit s 8D, 8E, 8F.
[15] Vairy v Wyong Shire Council [2005] HCA 62 at [20], [117].
[16] Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [123] per Kirby J. It is necessarily to consider the content of the duty to the particular plaintiff: Kochler v Cerebos (Aust) Ltd [2005] HCA 15 at [35]
[17] Compare Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [22]
[18] This distinguishes this case from Rigby v Shellharbour City Council [2005] NSWSC 86; it is also distinguished by the facts that that plaintiff was younger and inexperienced.
[19] Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Percy v Noosa Shire Council [2002] QCA 245
[20] Brodie v Singleton Shire Council (2001) 206 CLR 512.
[21] Notwithstanding the comment in Ghantous at [148], which I regard as showing that the measure of the duty on a local authority occupier will not necessarily be as great as the duty on a private occupier, or indeed employer: Pascoe v Coolum Resort Pty Ltd [2005] QCA 354.
[22] Neindorf v Junkovic [2005] HCA 75; Phillis v Daly (1988) 15 NSWLR 65; Gondoline Pty Ltd v Hansford [2002] WASCA 214
[23] Vairy v Wyong Shire Council [2005] HCA 62 at [62] per GummowJ.
[24] See Rundle v SRA of NSW [2002] NSWCA 354 at [36] per Heydon JA
[25] The test is what a reasonable person in the position of the defendant would do by way of response to the risk of injury: Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at [39]; Lanyon v Noosa District Junior Rugby League Football Club Inc [2002] QCA 163. The defendant had 180 parks with equipment (pp 73, 87) including 6-8 BMX tracks (p 73) and only eight employees in park maintenance (p 73) who also had other duties: p 75.
[26] Rigby v Shellharbour City Council (supra) at [27]. Both the plaintiff (p 20) and Mr Perkins had previously suffered minor injuries: p 66.
[27] There had been no other reports of injury at any BMX track controlled by the defendant in 1999: Cozens p 82.
[28] Trustees of Roman Catholic Church for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161 at [13], [14]
[29] Exhibit 5 referred only to “an audit/maintenance system” (p 13) and “a regular inspection” (p 19).
[30] Ash p 92; Fenwick p 111
[31] Possibly the same day: Perkins Exhibit 7 para 14.
[32] Mr Battis had access to a bobcat as part of his crew: p 78.
[33] Eight involved in playground maintenance (and other things: pp 75 and 88) and eight in mowing: p 73.
[34] That is consistent with the evidence of Mr Perkins: p 45.
[35] Battis: p 73. Mr Fenwick could not recall this: p 114.
[36] And that is sufficient to establish causation for the purposes of the action: Chappel v Hart (1998) 195 CLR 232
[37] He gave a height of 160 centimetres at p 8, and 170 centimetres at p 10, and had told a doctor in February 2003 that the landing ramp was 1.2 metres high (p 31) when the photograph shows that it is not much lower than the take off ramp.