Aston v Redcliffe City Council

[2006] QCA 480

SUPREME COURT OF QUEENSLAND

CITATION:

Aston v Redcliffe City Council [2006] QCA 480

PARTIES:

STEVEN ANTHONY ASTON
(plaintiff/respondent)
v
REDCLIFFE CITY COUNCIL
(defendant/appellant)

FILE NO/S:

Appeal No 6128 of 2006
DC No 2388 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2006

JUDGES:

Williams and Keane JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed1.   

Defendant to pay the plaintiff's costs of the appeal2.   

CATCHWORDS:

TORTS - NEGLIGENCE - PROOF OF NEGLIGENCE - GENERALLY - plaintiff alleged defendant had been negligent - plaintiff was riding bicycle - plaintiff alleged piece of broken glass was thrown into tyre of bicycle by a mower operated by employee of defendant - plaintiff alleged glass caused tyre to deflate and plaintiff to suffer personal injuries - whether there was sufficient basis in the evidence for the learned trial judge's finding that the accident occurred because of glass thrown out by lawnmower - whether there was sufficient basis for conclusion that the defendant's employee was negligent in his operation of the lawnmower

Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301, cited
Holloway v McFeeters (1956) 94 CLR 470, cited
 

COUNSEL:

S T Farrell for the appellant
R J Lynch for the respondent

SOLICITORS:

Barry & Nilsson for the appellant
Trilby Misso Lawyers for the respondent

1. WILLIAMS JA:  The relevant facts are set out in the reasons for judgment of Keane JA and I will not repeat them.  I agree with all that Keane JA has said, but add some brief observations of my own. 

1. The appellant's case at trial was a shambles.  Up to and including the first day of trial the appellant's contention was that on the day in question Fielding was operating a John Deere 8100 green-coloured mower.  Photographs of that mower were put into evidence on the first day of trial.  Under cross-examination the respondent said that the mower in question was not green-coloured but was a colour like a darker red.  It was also put to the respondent during cross-examination that Fielding was not mowing the area referred to by the respondent at the time the incident occurred.  That was vehemently denied by the respondent. 

1. On the second day of trial further records of the appellant were put into evidence, and it then had to concede that Fielding was operating on the day in question a Toro 300D mower having a colour which matched that referred to by the respondent in evidence the previous day.  It further had to concede that the area referred to by the respondent was being mowed at the material time.

1. Various photographs were put into evidence as part of exhibit 3.1.  Photograph 17 showed the paved footpath and the fence.  The mower was cutting the grass in the area between the fence and the footpath; there was no evidence as to the distance from the fence to the nearest edge of the paved footpath.  But one can make an approximation of that distance from a consideration of the photograph.  Because of the appellant's confusion as to the type of mower being operated at the time, only photographs of a John Deere 8100 were in evidence; there are no photographs of the Toro.  If one assumes that the Toro was of comparable width to the John Deere then it is obvious that the edge of the mower would have been very close to, if not slightly overlapping, the concrete.  That would put the mower and a pedestrian or cyclist in very close proximity.

1. The appellant was clearly aware that there was a potential danger from objects being thrown up by a mower of the type being used (whether John Deere or Toro).  There was a warning notice (probably attached by the manufacturer) on the John Deere; it is shown in photograph 6.  Not only does it warn of "danger" and "thrown objects", but it depicts a person being struck by objects thrown out by the mower.  Significantly that depiction indicates the possibility of objects being thrown up to head height.  Undoubtedly because of that the appellant issued an instruction to employees operating such mowers to "clear the area to be mowed of all objects that could be thrown up by the blades."  That instruction also advised operators to "use extreme care for pedestrians and passers-by".  Those warnings are found in the written instructions exhibit 3.3.

1. There was also the instruction referred by Keane JA in his reasons that the operator should disengage the blades on becoming aware of a pedestrian passing by.

1. The appellant was clearly aware of the potential danger to passers-by associated with the operation of such a mower.  That risk was greater when the mower was being operated in close proximity to a passer-by.  Here the appellant must have been aware that pedestrians or cyclists were likely to use the concrete pathway which would put them in extremely close proximity to the mower, and in consequence at risk from objects thrown up by the mower.  In those circumstances there was clearly an obligation on the appellant to take steps to limit the risk of injury to a passer-by.  That could be done in many simple, cheap ways.  One way would be, as Keane JA has suggested, by putting up a notice closing the footpath and directing pedestrians and cyclists to the other side of the road.  It could not be said that putting up such a simple sign would be too costly.  In fact the appellant did put up signs indicating men at work (photograph 12). But a sign indicating a workman shovelling a pile of dirt did not alert a passer-by to the dangers resulting from the use of the mower in close proximity to the footpath.

1. Whilst the reasoning of the learned judge at first instance cannot be accepted in its entirety, the appeal should be dismissed.  The findings made by the learned judge at first instance clearly support a conclusion that the appellant was negligent in exposing the respondent to a risk of injury of which it was well aware. 

1. The appeal should be dismissed with costs.

1. KEANE JA:  On 19 February 2002, the plaintiff was riding his bicycle on the footpath along Deception Bay Road, Rothwell.  The plaintiff alleged that a piece of broken glass, thrown by a Toro ride-on lawnmower being operated on the same footpath by Mr Fielding, an employee of the defendant, struck the front tyre of the plaintiff's bicycle.  This, it was alleged, caused the tyre to deflate; the plaintiff fell to the ground, suffering personal injuries as a result.  The plaintiff sued the defendant for damages for negligence.  The plaintiff's claim was upheld at trial on the basis that the defendant was vicariously liable for the negligent operation of the lawnmower by Mr Fielding.  The plaintiff recovered damages of $60,801.10.

1. On the hearing of the appeal, the defendant advanced two contentions: 

(a)        that there was no sufficient basis in the evidence for the learned trial judge's finding that the accident occurred because of glass thrown out by the lawnmower; and

(b)        that there was no sufficient basis for the conclusion that Mr Fielding was negligent in his operation of the lawnmower. 

1. I will discuss the defendant's contentions after first summarising the plaintiff's case and the findings of the learned trial judge.

The plaintiff's case

1. The plaintiff's pleaded case was that, while the plaintiff was riding past Mr Fielding (who was mowing grass), a beer bottle "ricocheted" from the blades of the mower and landed "directly in the path of the Plaintiff, causing an impact and causing the Plaintiff to fall heavily from his bike".  As will be seen, the case so pleaded was somewhat different from that which the learned trial judge found to be established by the evidence.

1. The plaintiff's injuries were alleged to have been caused by the "negligence of the Defendants (sic), their servants or agents", particularised as:

(a)        a failure to fix a guard to prevent flying debris;

(b)        a failure to warn the plaintiff of the presence of flying debris from the footpath;

(c)        a failure to erect a physical barrier around the area that was being mowed;

(d)        a failure to take all reasonable precautions for the plaintiff's safety in the circumstances, and;

(e)        exposing the plaintiff to a risk of injury of which the defendant knew or ought to have known.

The findings of the trial judge

1. The learned trial judge found that Mr Fielding was mowing long grass between the fence line of the footpath and the cement path.[1]  The trial judge apparently accepted the possibility that a piece of glass, already broken, might have been caught by the blades of the mower and "ejected in any direction – not necessarily … only out the discharge chute" with which the lawnmower was fitted.[2] 

   [1]Aston v Redcliffe City Council, unreported, No D2388 of 2002, June 2006 at [11].

   [2]Aston v Redcliffe City Council, unreported, No D2388 of 2002, June 2006 at [13].    

1. His Honour found that the lawnmower operated by Mr Fielding was fitted with a deflection guard in accordance with the manufacturer's instructions.[3]  His Honour, therefore, rejected the plaintiff's claims that the defendant had failed to fix an appropriate guard to the lawnmower.[4]

   [3]Aston v Redcliffe City Council, unreported, No D2388 of 2002, June 2006 at [11].

   [4]Aston v Redcliffe City Council, unreported, No D2388 of 2002, June 2006 at [15].

1. His Honour found that the plaintiff observed the lawnmower in operation moving towards him as he rode towards it.  That it was in operation, and the nature of that operation, was obvious.  Accordingly, the learned primary judge rejected the plaintiff's allegation that the defendant had failed to warn the plaintiff of flying debris.[5] 

   [5]Aston v Redcliffe City Council, unreported, No D2388 of 2002, June 2006 at [15].

1. The trial judge also rejected the allegation that the defendant had been negligent in failing to erect a physical barrier around the area of the lawnmowing operation.  His Honour's reason for this conclusion was that "the cost of doing so, on a daily basis, would be quite high".[6]

   [6]Aston v Redcliffe City Council, unreported, No D2388 of 2002, June 2006 at [15].

1. His Honour concluded, however, that the plaintiff's allegation that the "defendants, its servants or agents" had "exposed the plaintiff to a risk of injury" was a sufficient basis to entitle the plaintiff to succeed.  His Honour found that Mr Fielding had failed to obey an instruction by Mr Williams, the defendant's work gang supervisor, that Mr Fielding bring the machine to a halt and disengage its blades until approaching pedestrians or cyclists had passed by.[7]

   [7]Aston v Redcliffe City Council, unreported, No D2388 of 2002, June 2006 at [15].

The defendant's contentions on appeal

1. The plaintiff's case was pleaded in terms which were wide enough to set up a case of vicarious liability based on the negligence of employees of the defendant.  While Mr Fielding's negligence was not particularised as a failure to obey Mr Williams' instruction, the defendant had not sought particulars of this broad allegation, and no adjournment was sought by the defendant on the ground that it was surprised by the case which the plaintiff sought to make.  The defendant was content to seek to meet that case at trial.

1. As to the plaintiff's first contention, it is true, as the defendant submits before this Court, that his Honour did not explicitly find that a glass fragment was thrown out by the mower as the plaintiff rode by; but it must be accepted that his Honour's final conclusion on the issue of liability was consistent only with that view of the evidence.  His Honour must be taken to have acted upon the plaintiff's evidence in this regard. 

1. On that evidence, the plaintiff was travelling at between 20 and 25 kph, while the lawnmower (which was visible from a distance which was not made clear by the evidence but may have been between 30 to 50 metres) was travelling towards him at approximately five to 10 kph.  The plaintiff said that he was next to the lawnmower when he heard, but did not see, glass shattering near the lawnmower.  He heard something clattering in the spokes of the front wheel of his bicycle.  As he passed the lawnmower, his front tyre went flat.  He fell off his bike about four to six metres from it.  The plaintiff then complained to Mr Fielding that the mower had ejected glass causing him to fall from his bicycle.  It was common ground between the plaintiff and Mr Fielding that the plaintiff made an immediate complaint to this effect.  After this conversation, the plaintiff saw pieces of broken glass on the footpath.

1. His Honour found that the cutting deck of the mower was so low that it would have been "very unlikely, even impossible" that a beer bottle could have made its way under the mower.[8]  Further, the mower's discharge chute was at the rear rather than at the left of the mower's cutting deck.  It may be that there was, therefore, little scope for a glass bottle to be thrown sideways, or even forwards, as a result of the operation of the mower.  Nevertheless, the evidence did not exclude the possibility that a piece of already broken glass was thrown onto the pathway so as to deflate the bicycle's front tyre.  Mr Fielding, in cross-examination, said that there was in place a procedure of stopping the mower and disengaging the blades while pedestrians or motorists passed by.  Mr Williams conceded that the instruction was given to the defendant's employees to prevent injury from a projectile thrown by the blades of the mower.  The circumstance that there was a procedure in place to guard against such a risk demonstrates, in a strong practical way, the recognition by the defendant that the configuration of the mower and its guards was distinctly not fail-safe and that there was a real risk that objects, dangerous to passers-by, could be thrown out by the blades of the lawnmower.  The defendant's recognition of this risk confirms that the view taken by his Honour as to the cause of the accident was a rational inference open to him.   

   [8]Aston v Redcliffe City Council, unreported, No D2388 of 2002, June 2006 at [12].

1. The inference drawn by his Honour is a more reasonable inference than, for example, that there was broken glass on the footpath which was not thrown out by the lawnmower.  There was no evidence at all, from either Mr Fielding or the plaintiff, to support the latter suggestion.  If one accepts, as the learned trial judge plainly did, that the plaintiff's evidence as to the circumstances of the accident was substantially reliable, then his Honour's view of how the accident occurred must be accepted.  The defendant argued that it strains credulity too far to suggest that the plaintiff could have heard the glass being thrown out by the blades of the mower over the noise of the lawnmower.  This is a point, however, in which an appellate court should defer to the findings made by the trial judge based on the trial judge's assessment of the credibility of the witnesses in the absence of a compelling reason to the contrary.  There is no such reason here.  His Honour was entitled to infer that the most probable cause of the deflation of the front tyre of the plaintiff's bicycle was contact between glass thrown onto the footpath by the mower.[9]

   [9]Cf Holloway v McFeeters (1956) 94 CLR 470 at 477.

1. The thrust of the defendant's second contention is that, in the circumstances evidently found by his Honour in reliance on the evidence of the plaintiff, Mr Fielding was not found to have had a sufficiently meaningful opportunity to disengage the mower upon the plaintiff's approach to justify regarding his failure to do so as a failure to obey Mr Williams' instruction or as exhibiting a want of reasonable care on his part for passers-by.[10]

   [10]Cf Derrick v Cheung (2001) 181 ALR 301 at 305 [13].

1. The plaintiff's evidence was that Mr Fielding was looking down as the plaintiff approached the mower on his bicycle.  Mr Fielding's attention was upon his operation which, at that point, was, according to the evidence of the plaintiff, "a very bumpy rough patch of ground with long grass".  As his Honour noted, Mr Fielding was obliged to look out for litter, look out for pedestrians and cyclists and to ensure that the mower did not foul the fence near where he was operating.

1. To accept that Mr Fielding was so focussed on the task in hand that he did not see the plaintiff approach means that Mr Fielding could not be said to have disobeyed Mr Williams' instruction to stop mowing to allow approaching passers-by to proceed in safety.  Mr Fielding could not be said to have disobeyed the instruction to stop mowing if he was unaware of the approach of a pedestrian or cyclist.  His Honour's findings do not support the conclusion that Mr Fielding had a meaningful opportunity to obey or to disobey the instruction to disengage his mower. 

1. On behalf of the plaintiff, it is argued in response to the defendant's contentions that whether or not Mr Fielding had time to stop the mower and deactivate the blades of the lawnmower is irrelevant.  That is said to be because Mr Fielding was not looking out for pedestrians.  This, it is said, was also in contravention of the instruction which had been given to Mr Fielding by Mr Williams.

1. The plaintiff thus seeks to sustain the judgment in his favour on a basis different from that on which the learned trial judge found in the plaintiff's favour, and a basis that is, arguably, beyond the plaintiff's particulars of negligence.  On this argument for the plaintiff, the focus of debate shifts to a consideration of whether Mr Fielding disobeyed an instruction to keep a proper lookout, or failed to exercise reasonable care to do so to ensure that he would be able to disengage his mower in sufficient time to remove the risk of injury to passers-by.

1. To demonstrate that Mr Fielding was negligent by reason of a failure on his part to heed Mr Williams' instruction to be "aware of his surroundings", the plaintiff must make good the proposition that Mr Fielding had a real opportunity to observe the plaintiff's approach.  While it is easy to say that Mr Fielding should have "kept an eye out" for approaching pedestrians or cyclists, it must be recognised that, in practical terms, the exigencies of the operation of the lawnmower in long grass over bumpy ground or, even occasionally in short grass over flat ground, may well mean that the operator's attention sometimes has to be focussed, even if only for very brief periods, upon the actual operation of the lawnmower.  The learned primary judge recognised that there were real claims on Mr Fielding's attention other than the possible approach of pedestrians or cyclists.  His Honour did not make any findings to the effect that the nature and extent of Mr Fielding's opportunity to focus on approaching pedestrians or cyclists rather than the other matters that claimed his attention should reasonably have caused him to be alert to the plaintiff's approach.

1. In my respectful opinion, there is real difficulty in accepting the attempt on behalf of the plaintiff to support the judgment on the basis of Mr Fielding's failure to keep a better lookout for approaching pedestrians or cyclists.  That difficulty is not so much that it requires an unduly high standard of care on the part of an operator in Mr Fielding's position, but, rather, that there is no sufficient basis in his Honour's findings, or the evidence of the plaintiff, to conclude that, in the moment of time when the plaintiff's approach could have been seen by Mr Fielding, the latter had a meaningful opportunity, consistent with the safe operation of his mower in the particular terrain in which he found himself, to turn his attention to the possibility of an approaching cyclist.  Pedestrians could be expected to approach at a pace at which Mr Fielding would have a real opportunity to observe their approach.  Cyclists, on the other hand, approach much more quickly and, unless they sound their bell, quietly.  There is no suggestion that the plaintiff sought to attract

   
   

   Mr Fielding's attention by sounding his bell or otherwise.

1. No doubt, an employee of the defendant in the position of Mr Fielding must exercise reasonable care to keep a lookout for both approaching cyclists and pedestrians, but the question whether he has failed to observe that standard must be addressed taking into account the other legitimate claims upon the operator's attention.  The evidence in this case did not permit his Honour to make findings in this regard.  It is, therefore, hardly surprising that his Honour made no such finding.  That deficit is a problem for the plaintiff who bore the burden of proof of negligence.  In the absence of evidence on which a finding in the plaintiff's favour could rationally be made, the plaintiff cannot sustain the basis on which he seeks to answer the appellant's argument that Mr Fielding was neither disobedient of instructions nor unreasonable in his operation of the mower.

1. In my respectful opinion, the judgment in favour of the plaintiff cannot be sustained on the basis that this Court is able to conclude in the plaintiff's favour that

   
   

   Mr Fielding failed to keep a proper lookout for passers-by.

1. The question then arises as to whether the judgment can be sustained on some other basis.  The trial judge rejected the proposition that the defendant was negligent in failing to erect a physical barrier around the area being mowed by Mr Fielding.  The only reason given by his Honour for this conclusion was that the exercise of reasonable care for users of the footpath did not require the defendant to incur the expense, "on a daily basis", of erecting a barrier around the area of the lawnmowing operation.

1. The evidence adduced by the defendant on this issue addressed only the use of a water filled barrier.  It can readily be accepted that establishing and moving such a barrier would be unduly expensive and inconvenient having regard to the low magnitude of the risk involved.  But no such expense or inconvenience would have been involved by placing other forms of temporary barrier, for example, trestles at each end of the area of footpath being mown, with a sign directing pedestrians to use the other footpath.  The defendant's only answer to the contention that the defendant was negligent in failing to erect a temporary physical barrier depended upon the assumption that a substantial water filled barrier would have been required to meet the exigencies of the situation.  The defendant thus set up a "straw man" which it then proceeded to demolish.

1. In my respectful opinion, the evidence adduced by the defendant did not establish that an effective barrier could not have been cheaply and conveniently erected and moved as an effective way of guarding against a real risk of injury to users of the footpath.  The very point that operators in Mr Fielding's position may not have a meaningful opportunity to obviate the risk of injury to cyclists by their own vigilance serves to confirm that some form of barrier, although temporary, was necessary to address the risk of injury from the lawnmowing operation in order to take reasonable care for users of the footpath. 

1. It was not argued on the defendant's behalf that it was not open to this Court, as a matter of procedural fairness, to act upon this basis for sustaining the judgment.  It is arguable that the plaintiff should have filed a notice of contention in order to argue that the judgment should be sustained on the footing under discussion, but whether or not such a notice should have been given, it was not suggested that the defendant was prejudiced in any way by the plaintiff's reliance on this point.

Conclusion and orders

1. In my respectful opinion, the defendant has not demonstrated that the decision of the learned primary judge cannot be sustained.  The appeal should be dismissed.

1. The defendant should pay the plaintiff's costs of the appeal.

1. FRYBERG J:  This appeal should be dismissed with costs.  I agree with the reasons of both of my colleagues.  The correct conclusion on the evidence and the findings below was that the defendant was liable to the plaintiff in negligence.