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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] ACTCA 23
Decision Date

CaseChat Overview and Summary

The Australian Capital Territory Court of Appeal heard an appeal from a decision of the Master of the Supreme Court of the Australian Capital Territory. The appeal concerned a claim in negligence brought by Deborah Ann Chorlton against the Australian Capital Territory. Ms Chorlton suffered injuries when roller-blading on a cycle path constructed and maintained by the Territory, which terminated abruptly without adequate warning. The Master had entered judgment for Ms Chorlton, and the Territory appealed, challenging findings on liability, particularly the rejection of its contention that Ms Chorlton had been contributorily negligent.

The primary legal issue before the Court of Appeal was whether the Territory had breached its duty of care to Ms Chorlton by designing and constructing a path that posed a foreseeable risk of harm, and whether Ms Chorlton's actions constituted contributory negligence. The Court was required to consider the principles established in *Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council* regarding the liability of public authorities for the design and construction of public works, and whether the hazard presented by the path was avoidable by the exercise of reasonable care by Ms Chorlton.

The Court of Appeal affirmed the Master's findings, holding that the Territory had breached its duty of care. The Master had correctly identified that the abrupt termination of the path beyond an underpass, concealed until the last moment, presented a foreseeable risk to users such as roller-bladers. The Court agreed that this risk could have been alleviated through reasonable measures during construction or subsequently, such as extending the path or installing warning signs. Furthermore, the Court upheld the Master's finding that Ms Chorlton was not contributorily negligent. Her actions, including accelerating to gain momentum out of the underpass and her subsequent attempt to turn when she realised the path ended, were considered a reasonable response to an emergency situation. The Court found no evidence that she was not looking where she was going, that she failed to respond quickly enough, or that she acted inappropriately given the split-second decision required. Her experience and equipment were deemed appropriate, and her fall was attributed to the hazard created by the Territory, not her own lack of care.

Consequently, the appeal was dismissed with costs.

Orders