Australian Capital Territory v Kitt - [2004] NSWCA 444

NEW SOUTH WALES COURT OF APPEAL

CITATION: The Australian Capital Territory v Kitt [2004] NSWCA 444

FILE NUMBER(S):
40198/04

HEARING DATE(S): 9 November 2004

JUDGMENT DATE: 29/11/2004

PARTIES:
THE AUSTRALIAN CAPITAL TERRITORY (Claimant)
Timothy Allen KITT (Opponent)

JUDGMENT OF: Sheller JA Giles JA Santow JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 86/02

LOWER COURT JUDICIAL OFFICER: O'Reilly DCJ

COUNSEL:
S H PILKINTON (Claimant)
R F WILKINS (Opponent)

SOLICITORS:
The Australian Capital Territory Government Solicitor by their New South Wales Agents, Campbell Paton & Taylor (Claimant)
Boyd & Longhurst (Opponent)

CATCHWORDS:
NEGLIGENCE - Leave to appeal - Was claimant, "Territory", liable for injuries suffered when opponent road his motorcycle trail bike around a blind corner upon off-road track occupied by the Territory into a pile of dirt and rubble of which the Territory was aware - Whether Territory as occupier of the land breached a duty of care to opponent by failing to erect a warning sign - Whether there was a failure to consider at all whether the alleged breach of duty caused the injury.

LEGISLATION CITED:

DECISION:
Leave to appeal granted. See orders at [38].

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40198/04
DC 86/02
SHELLER JA
GILES JA
SANTOW JA
29 NOVEMBER 2004

THE AUSTRALIAN CAPITAL TERRITORY v Timothy Allen KITT

Judgment

SHELLER JA: I have had the benefit of reading the judgments prepared by Giles JA and Santow JA. I agree with the orders proposed by Santow JA for the reasons given in their Honour’s judgments.
GILES JA: The facts are set out in the reasons of Santow JA, which I have had the advantage of reading in draft.
The Territory was held liable as occupier. The judge’s only statements of its breach of duty were, after reference to a pleaded allegation of “failing to warn by notices or other means”, that “all that was needed was a simple sign” and “a simple precaution would have been to put up a sign”. The pleaded allegation was in fact of failure to warn by notice or other means of the “presence and/or position” of the obstruction constituted by the pile of dirt and rubble. Other than inferentially from the allegation, the judge made no findings as to what the sign should have said and where it should have been placed.
On the facts of this case, the Territory could not have been held to have been in breach of duty without attention to what the sign should have said and where it should have been placed. I do not suggest that, with that attention, it should have been held to be in breach of duty: it is unnecessary to decide. For that reason alone, the judgment in favour of the respondent can not stand.
The only evidence from the respondent material to the absence of a sign was, in his evidence in chief, that he saw no sign when turning onto the dirt track from the Monaro…

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] NSWCA 444
Decision Date: 29 November 2004

CaseChat Overview and Summary

The Australian Capital Territory (the Territory) sought leave to appeal a decision of the Supreme Court of the Australian Capital Territory, which found the Territory liable for injuries sustained by Mr Kitt when he rode his trail bike into a pile of dirt and rubble. Mr Kitt had been riding on an off-road track known to be used as a shortcut by trail bike riders, which the Territory occupied and was aware contained the obstruction.

The legal issues before the court were whether the Territory, as the occupier of the land, had breached its duty of care to Mr Kitt by failing to erect a warning sign about the pile of dirt and rubble, and whether any such breach of duty caused Mr Kitt's injuries. The Territory also raised grounds of appeal concerning the trial judge's finding of liability and the duty to warn.

The court granted leave to appeal, finding that the trial judge erred in law. The reasoning was that Mr Kitt, as the plaintiff, had failed to establish on the balance of probabilities that the erection of a warning sign would have deterred him from riding on the track or caused him to slow down sufficiently to avoid the accident. The court noted that Mr Kitt's own evidence indicated he was approaching a blind corner at a speed that should have alerted him to potential dangers, and there was no precise evidence as to the distance of the obstruction from the corner that would have been mitigated by a sign.

Orders

Orders of the court

Leave to appeal granted. See orders at [38].

Background

Background to the litigation

The challenge is essentially to the trial judge’s conclusion that the claimant breached a duty of care to the respondent, in failing to erect a warning sign so as to bring about a breach of duty causing the opponent’s injury. SALIENT FACTS The salient facts below are not in dispute. Mr Kitt lived in Orange NSW and was visiting a friend in Canberra, taking with him a trail bike on a trailer. When the incident occurred he and his friend where riding their motorcycle trail-bikes from his friend’s house to the house of a third person. They were riding together. They diverted from the dual carriageway of the Monaro Highway, which has a large median strip, crossing over an unbroken white line to do so, near the urban fringe of the southern part of Canberra. This was a semi-rural area, mostly fenced, with sheep and cattle. As Mr Kitt was unfamiliar with the area where they diverted, he had agreed to follow his friend. When his friend diverged to the left onto a dirt track, Mr Kitt merely followed him. There were no warning signs or barriers facing them or on the track itself. They then proceeded along the dirt track on the left intending to take a shortcut to Jerrabomberra Avenue. The track was not a designated road, but the Territory was aware that it was used as a shortcut for trail-bike riders. Mr Kitt knew, or would have soon become aware, of the grossly unsatisfactory surface of the track, certainly once Mr Kitt’s friend became bogged in some muddy water. That slowed his friend down, with the consequence that Mr Kitt overtook him before the blind corner. The rough state of the track is apparent from the photographs exhibited before the trial judge, and seen by this Court along with a short video. It was then in places “in a fairly muddy, slushy condition”; T, 24.23. Mr Kitt kept going (“I was a bit more of an experienced rider than him”) though he could see the track with mud on it. He continued on around a blind corner (at 40 to 50 km/h). He denied that he was going too fast for the conditions as he “felt safe”; T, 21.45. He was then confronted by a pile of dirt of considerable height, first noticing it when “roughly” “20 to 30 metres from it”; T, 21.50. According to Mr Kitt, the mound was the result of illegal dumping by third parties and dumping of road-base by the Territory (also referred to as “the Council” by its witness an employee Mr Mercieca). This dumping was a practice which had been going on for a number of years prior to the accident, to the knowledge of the Territory. He tried to go around the pile but his bike hit it and he was propelled over the handlebars, so suffering injury to his wrists. His evidence was that he did brake and that his speed when he fell from his bike was reduced to “30 to 20 kilometres [per hour], maybe”; T, 22.20. Mr Kitt had not seen any signs warning about the pile of dirt. However, he was not asked what he would have done if he had seen any such signs. He agreed in cross-examination that after he had fallen he saw signs on Jerrabomberra Avenue in the opposite direction advertising that the road was closed. Indeed it was closed, being the old Monaro Highway replaced some 15 years ago by the new one from whence they had diverted.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The uncontradicted evidence was that there had been no complaints or reports of injury of people using the track as a shortcut to Jerrabomberra Avenue. First Instance Judgment The first instance judgment is an ex tempore one expressed with informal brevity. It concludes that the plaintiff made out his case, but on the basis that there was to be a reduction to the verdict of 30%. This was by reason of Mr Kitt’s contributory negligence consisting of “failing to keep any proper lookout” and “driving at a speed that was excessive”; Judgment at 2. The judge otherwise appears to have accepted the evidence of Mr Kitt; Judgment at 7. The judgment made clear that the Territory was not sued in its capacity as a highway authority but purely as occupier of the land, a matter not in dispute; Judgment at 3. It was common ground that the Territory also had the role of a council. After referring to various cases, the trial judge concluded thus: “I suggest that a simple precaution would have been to put up a sign. Especially in the knowledge that the defendant had that the area was used by trail bike riders” (Judgment at 9). After deducting the 30% for contributory negligence, he awarded the sum of $52,766, hence the need for leave to appeal. Draft Notice of Appeal The grounds of the draft Notice of Appeal are as follows: Ground 1:The Judge erred as a matter of law in finding in favour of Mr Kitt. Ground 2:The Judge erred in law in finding that the Territory as occupier of the land where Mr Kitt suffered injury was in breach of its duty of care to him. Ground 3:The Judge erred in law in finding that the Territory had a duty to warn Mr Kitt by the erection of a sign. Ground 4:The Judge erred in law in failing to consider at all whether the alleged breach of duty caused Mr Kitt’s injury. DISPOSITION I would grant leave to appeal and uphold the appeal for reasons which can be shortly stated. There was simply no evidence that the respondent would have been deterred from the course he took leading to his accident by the erection of a sign. The onus lay on Mr Kitt as plaintiff to satisfy the trial judge, on the balance of probabilities, that if a sign suitably worded warning of the danger had been erected either at the commencement of the track or near the blind corner, Mr Kitt would have either (a) refrained from driving on the track at all, or (b) would have done so more slowly so as to avoid the accident that befell him when he turned the blind corner. There was no precise evidence as to the distance of the mound from the blind corner beyond the evidence from Mr Kitt. His evidence was that he first noted the pile when “roughly “20 to 30 metres from [the mound]”. This rough estimate was, moreover, made when travelling at 40 to 50 kilometres on a rough and muddy dirt track on his trail bike. The fact that he was approaching a blind corner should have alerted him to an obvious danger and caused him to slow down earlier. That danger was that there could be an obstruction of whatever kind in that semi-rural area, one which he would only be able to see after he turned the corner.

Ratio Decidendi

Legal Principle Established

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