Australian Capital Territory v Chorlton
[2004] ACTCA 23
AUSTRALIAN CAPITAL TERRITORY v CHORLTON
[2004] ACTCA 23 (26 November 2004)
NEGLIGENCE – contributory negligence – appeal from finding rejecting contention that respondent guilty of contributory negligence – roller-blade accident on cycle path – whether termination of path presented hazard not avoidable by exercise of reasonable care by respondent.
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Warrener v ACT [2004] ACTCA 9 (28 May 2004)
Vance v Daramalan College Limited [2003] ACTCA 13 (6 August 2003)
O’Meara v Dominican Fathers [2003] ACTCA 24 (5 December 2003)
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 38 - 2003
No. SC 125 of 2002
Judges: Higgins CJ, Gray and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 26 November 2004
IN THE SUPREME COURT OF THE ) No. ACTCA 38 - 2003
) No. SC 125 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE AUSTRALIAN CAPITAL TERRITORY
Appellant
AND:DEBORAH ANN CHORLTON
Respondent
ORDER
Judges: Higgins CJ, Gray and Lander JJ
Date: 26 November 2004
Place: Canberra
THE COURT ORDERS THAT:
This appeal be dismissed with costs.
IN THE SUPREME COURT OF THE ) No. ACTCA 38 - 2003
) No. SC 125 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE AUSTRALIAN CAPITAL TERRITORY
Appellant
AND:DEBORAH ANN CHORLTON
Respondent
Judges: Higgins CJ, Gray and Lander JJ
Date: 26 November 2004
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from a decision of Master Harper handed down on 14 November 2003. The learned Master had entered judgment for the respondent/plaintiff against the appellant/defendant in the sum of $140,654.00 and costs.
The appellant filed Notice of Appeal on 14 November 2003. The grounds of appeal, as amended on 5 March 2004, challenged the Master’s findings as to liability, including his decision rejecting the appellant’s contention that the respondent had been guilty of contributory negligence. There is no challenge to the assessment of damages.
The facts relied upon and found by the Master to support his findings as to liability were not disputed.
On the date she suffered injury, 21 February 1999, the respondent was aged 28 years. Her date of birth was 24 November 1970. The respondent was an experienced roller-blader. She was then living at Spence, a Canberra suburb. She met regularly with a friend, Claire Abrey, and would skate with her on a route commencing at Ms Abrey’s home in Ngunnawal looping through Nicholls, around Gungahlin Pond and back again, a journey of about 1 hour’s duration. Ms Abrey was much less experienced as a roller blader.
On 21 February they decided to try a new and shorter route. The respondent, driving to Ms Abrey’s home, had observed an area where new roads had been constructed including works such as underpasses and pedestrian/cycling paths. Those works led into a new suburb named Casey.
The Master described the events leading to the respondent’s injury in the following terms -
On 21 February 1999 the plaintiff drove to Ms Abrey’s home, and the two friends commenced to follow a concrete path on their roller blades, in a westerly direction just north of and parallel to Gungahlin Drive. This took them past Gold Creek Homestead towards the roundabout at the junction of Horse Park Drive, where the path turned north to follow Horse Park Drive on its eastern side. They reached a junction on the path near Gera Place. The path continued north, but it was joined by a branch on their left, which wound down a slope and through an underpass beneath Horse Park Drive. The plaintiff skated down the path at her normal speed. Ms Abrey was some distance behind her: she was much less confident on slopes, and walked sideways on her roller blades down the steeper part of the slope.
On the Ngunnawal side of the underpass, another path joined the path on the left, but went only a few metres over a stormwater drain. It would have been obvious to an approaching skater well before reaching this path that it went nowhere.
On the Casey side of the underpass, it would have appeared to a skater approaching the underpass from the east that the path divided into two, one going north and the other south. The path did not go straight ahead: there was a steel pipe fence, apparently to prevent users of the path from continuing over a drop into a drain beyond.
In fact, the path continued only for a very short distance to the north and south, stopping abruptly. Beyond was the natural paddock grassland of the undeveloped Casey area. The evidence of the plaintiff and Ms Abrey was that the grass was quite long.
The plaintiff assumed, incorrectly as it turned out, that if she turned left she would find herself on the path which she thought linked up with the path she had seen from Clarrie Hermes Drive. She skated through the underpass, accelerating because she expected the path to rise on the other side. She wished to build up some momentum to get her up the slope. As she emerged from the underpass and curved to the left, she suddenly realised that she had come to a dead end. She made a split-second decision to turn around. I accept that she would not at that time have taken in the fact that the path ran out to the north also, and that she may have formed the intention, almost at a subconscious level, to take the path north. As soon as she turned she must have become aware that the north fork was also a dead end. She probably tried to turn again or stop. In the process she lost her footing and fell heavily, landing on her coccyx. She injured the sacro-coccygeal and also fractured her T7 vertebra. The plaintiff’s evidence was that she spun around because she formed the view that she did not have time to brake and thought perhaps she could go the other way, but found she could not. There were stones and glass on the path. She was trying not to hurt herself, and saw it as preferable to stay on the path rather than hit the fence or go onto the grass. She thought it likely that if she ran into the grass she would hurt herself.
She said that the impact hurt beyond anything she had ever felt before. She rolled onto her side. She screamed and moaned. Very shortly her friend Claire arrived on the scene. Claire ran off the end of the path into the grass and bushes, fell over, fortunately without injury. The plaintiff was unable to get up for about fifteen minutes. After some time, she and her friend made their way back on the path the way they had come, with the plaintiff hanging onto Ms Abrey for support. It was downhill most of the way back, and the plaintiff’s evidence was that whilst she was able to make her way back on roller blades, she would have been unable to walk. At Ms Abrey’s home she was given Panadol, and ice was applied to her chest and tailbone. Her husband came a little later and picked her up. She had to lie in the back of the car on the trip home, and took Panadeine Forte. Shortly after the fall she had a sensation that it was getting dark, though in fact it was not.
The appellant called as a witness, Ms Jennie Milton. The latter was accepted as being an extraordinarily talented and experienced roller blader. She inspected the site of the respondent’s accidental fall. She participated in the making of a video showing her skating, at various speeds, along the path the respondent had taken. She was able to stop before the fence across the intersection beyond the underpass. She was able to turn left and roll to a stop on the grassed area beyond the end of the pavement.
The Master noted that the grass shown in the video was short, as if recently mown. It had been long and unkempt on 21 February 1999.
Ms Milton expressed the opinion that it would be unwise to accelerate coming out of the underpass with the intention of gaining momentum for the approaching rise in the path, unless one could see that the path ahead was clear. There could be cyclists or even a pedestrian in the way.
However, though the Master accepted her evidence, he felt it was not of much assistance to the appellant’s case. Ms Milton was well aware that she was attending the scene of a roller-blading accident and the reason for its occurrence. She was, therefore, quite reasonably expecting to find the hazard in question. In any event, her level of skill and ability was far beyond even that of the respondent.
The Master could also have added that the grassed area to the left, off the end of the path, was more obviously safe to roll onto when the ground could be seen, but not when the ground was concealed by long grass.
Indeed, Ms Abrey did allow herself, after having seen the respondent fall, and travelling at much less speed, to roll onto the grassed area but fell, though she suffered no injury.
The respondent’s account of her fall, after noticing that the path to the left ended abruptly was -
“I didn’t have time to stop because I was leaning too far forward so I spun around to stop which is another way. There’s a few methods of stopping, you can spin around or you can use your brakes on your roller-blades, but on roller-blades they’re on the back of your roller-blade which means you’d have to put your foot in front of you, and bend your left leg to brake. Sort of in a squatting position. I didn’t have time to do that so I spun around and I thought I could perhaps go the other way, because of my speed. But there was no other way, because that side, the right side, ended as well”.
Even though Ms Abrey exited slowly, the respondent observed that -
“…She exited right and then she fell over at the end of the path into the bushes because the grass was quite long. You didn’t really know what was in the grass”.
The grass was of similar length to the left of the junction.
The appellant conceded that it was responsible for the design, construction, care, control, management and supervision of the path in question and that there was no lawful reason for the respondent not to have used the path as she did.
However, the appellant submitted before the Master as it did before us, that the facts of this case are so analogous with those considered by the High Court in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 that it should not have been found liable to the respondent.
Each of those two cases had concerned the duty of a public authority towards road users. Brodie involved the partial collapse of a bridge whilst a heavy truck was using it. Ghantous involved a pedestrian who tripped over the protruding edge of a concrete path. The protrusion of some 50mm had resulted from subsidence of adjacent soil.
The High Court for each case, considered the so-called “non-feasance” rule. By majority (Gaudron, McHugh, Gummow and Kirby JJ) it decided to abandon that rule in favour of a rule applying the ordinary test of negligence in determining liability.
Gaudron, McHugh and Gummow JJ, in their joint judgment, reflected on the duty of a public authority in relation to design and construction of public works, as opposed to the repair and maintenance of such works [206 CLR 512, 578-9]:
[153]Issues may arise as to whether there was a foreseeable risk of harm arising from the design or the method of construction employed and whether, in choosing or performing the design and construction or in failing to take preventative measures or to put into place warning signs, the authority responsible failed to exercise reasonable care.
[154]There will be variations respecting the manner in which a road, as designed and constructed, may be dangerous and likely to cause injury. The laws of physics may dictate that an ordinary road user is subject to forces making use of the road dangerous. For example, the road may be improperly cambered on a curve, or the road, its sides or shoulders may be inadequate to support vehicles which may reasonably be expected to stop or travel upon it. The pattern and path of the road may present a danger, often as a result of the terrain through which it must pass, from sharp curves, a steep incline or the like. The design of the road may be such that natural forces or elements may create a danger. For example, natural watercourses may make the road surface slippery or uneven, or the design of the road may allow natural forces to deposit dangerous quantities of gravel upon it. The road markings may create, conceal or mislead as to the existence of a danger in the road surface, or the design of the road or structures on it may present a concealed danger.
[155]The question whether “due care and skill” was taken in design and construction will require consideration of all the circumstances of the case. The circumstances will include the type and volume of traffic expected. Different roads will serve different purposes and need not be constructed to the same standard. Thus, one would not expect all country roads to be sealed. The costs and practicality of an alternative and safer design, if one be available, may be weighed against the funds available to the construction authority. This may involve striking a balance between competing designs or methods of construction.
[156]It may also be that, although a road is in a dangerous condition, the authority will have discharged its duty of care by taking reasonable steps to minimise any danger or to prevent it arising. The authority may have provided adequate warning to users of the road by erecting appropriate signs (so that, if exercising due regard for their own safety, users are able to avoid the danger), or by building into or adding to the road features such as safety devices or fencing which tend to minimise the danger.
In Ghantous, the authority had not created the hazard. The hazard was not, as it had developed, of such a kind that it posed a risk to the safety of a person exercising reasonable care.
In Brodie, however, the authority was aware that the bridge had become in need of repair but had failed to properly inspect it and, hence, to execute effective repairs. The bridge had the appearance of being safe to cross, thus the finding denying liability was set aside. The facts were capable of establishing liability.
Ghantous was applied by this Court to the factual situation in Warrener v ACT [2004] ACTCA 9 (28 May 2004). It was likewise a depression in the surface of a pedestrian pavement. Liability was found established in the case of Vance v Daramalan College Limited [2003] ACTCA 13 (6 August 2003) where the hazard was created by building rubble, and was concealed by inadequate lighting. That case was analogous to Brodie.
In the present case, the appellant had designed and constructed a path which, as the Master described it,
“…came to a dead end to right and left at the end of an underpass at the foot of a downhill slope. The dead ends to the left and right could not be seen by a person using the path until well through the underpass tunnel. Although the tunnel has been described as a pedestrian underpass, the defendant must be taken to have been well aware that the path would be likely to be used by cyclists and roller-blade skaters. The defendant could have extended the path beyond the underpass in both directions, far enough for it to be obvious to a user of the path that it was coming to an end, in sufficient time to do something about it. Equally, the defendant could have erected signs beside the path, warning users that they were coming to a dead end. The risk of someone in the position of the plaintiff suffering injury was, in my view, foreseeable”.
Having viewed the video and photographs tendered before the Master, it seems to me/us that, despite the contention to the contrary, there is no error in the description or assessment of the circumstances in which the respondent suffered injury. Indeed, the description seems to me/us to be correct.
It was also correct to suggest, as the Master did, that the risk so identified could have been alleviated without undue expense not only at the construction phase, but even subsequently. The evidence of Ms Milton did not lead to a conclusion that the ordinary reasonably experienced roller-blader would not have been put at risk by reason of the abrupt termination of the path. Like the bridge in Brodie, the appearance of the path, until too late, seemed suitable and safe for use by the roller-blading respondent.
In the end result, the question in these proceedings was whether the appellant had breached the duty of care it owed to the respondent. At [150], the majority expressed the duty to [road] users to be:
‘Where the state of a roadway, whether from design, construction, works or nonrepair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.’
The Master found that path posed a risk to the class of persons of which the respondent was a member.
The appellant had the power to remedy the risk by had not done so. The Master found that the path could have been made safe for roller-bladers. Because the respondent had not exercised its power to make the path safe it had, therefore, failed in its duty to the appellant. The Master’s findings are determinative of this aspect of the appeal.
It was necessary for the Master to turn to the issue of contributory negligence. The issue was whether the termination of the path presented a hazard not avoidable by the exercise of reasonable care on the part of the respondent. On this aspect the Master said,
“I am not satisfied on the evidence that the plaintiff was not looking where she was going, or that she did not respond quickly enough when she became aware that she had come to the end of the path. Nor am I persuaded that she acted inappropriately, considering that she was faced with an emergency and had to make a split-second decision and then implement it. I do not accept that she should have slowed down as she emerged from the underpass and the path curved to her left. Users of such paths are entitled to assume that other users will behave responsibly, and that those using the path at speed will keep to their correct side, unless the user observes something inconsistent with that assumption.”
In contrast with O’Meara v Dominican Fathers [2003] ACTCA 24 (5 December 2003), there was nothing the plaintiff did or omitted to do which either exacerbated the risk or placed her in a position from which, had she not done so, she might otherwise have avoided that risk or suffered a lesser or no injury. She was appropriately equipped and experienced. Her only failing, if it be one, was that she was not as skilled (and forewarned) as Ms Milton. Nor was there anything she did or omitted to do which exacerbated the injury she sustained (eg: failure of a driver to wear a seat belt or, in this case, knee pads – if injury had been to the knees). The Master declined to find that the respondent had been travelling at excessive speed. That conclusion was open to him. The plaintiff’s evidence was that she maintained her momentum not that she was travelling at an excessive speed. In any event, it was not apparent that the risk of opposing traffic was real or could be causally connected with the plaintiff’s fall. As was noted, although travelling much more slowly, Ms Abrey fell due solely to the terrain.
It follows, in our view, that the Master’s decision was correct. The appeal should be dismissed with costs.
I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 26 November 2004
Counsel for the Appellant: Mr D Higgs SC
Solicitor for the Appellant: ACT Government Solicitor
Counsel for the Respondent: Mr BJ Salmon QC
Solicitor for the Respondent: Higgins Solicitors
Date of hearing: 13 May 2004
Date of judgment: 26 November 2004
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