Buttita v Strathfield Municipal Council

[2001] NSWCA 365

CITATION:	Buttita v Strathfield Municipal Council [2001] NSWCA 365
FILE NUMBER(S):	CA 41039/00
HEARING DATE(S):	8 October 2001
JUDGMENT DATE:	8 October 2001
PARTIES :	Paul Buttita - Appellant Strathfield Municipal Council - Respondent
JUDGMENT OF:	Spigelman CJ at 1; Giles JA at 2; Fitzgerald AJA at 15

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 06761/97
LOWER COURT JUDICIAL OFFICER :	Garling DCJ

COUNSEL:	B H K Donovan QC - Appellant M J Joseph SC & S Glascott - Respondent
SOLICITORS:	Maurice Marshman, Five Dock - Appellant Phillips Fox - Respondent
CATCHWORDS:	NEGLIGENCE - slope at rear of green on a golf course - wet after rain - plaintiff slid on slope - whether defendant took reasonable care to make course safe - wet slope not a hidden hazard - no negligence. D
CASES CITED:	Agar v Hyde (2000) 201 CLR 552; Franklins Self Serve Pty Ltd v Bozinovska (CA, 14 October 1998, unreported); Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; State of New South Wales v Steed (2001) NSWCA 178.
DECISION:	Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41039/00
DC 06761/97

SPIGELMAN CJ

GILES JA

FITZGERALD AJA

Monday 8 October 2001


BUTTITA v STRATHFIELD MUNICIPAL COUNCIL

Judgment

1 SPIGELMAN CJ: I invite Giles JA to give the first judgment.

2 GILES JA: The respondent owned and operated a public golf course. The appellant was a frequent player at that course. Early on 9 September 1995 the appellant paid his green fees and undertook a round of golf. Although the weather was fine at the time, there had been heavy rain overnight and the course was wet with water lying around.

3 On the 16th hole the appellant’s approach shot carried over the green and ended up at the bottom of a moderately steep downward slope at the rear of the green. The appellant began to go down the slope to reach his ball. He slid and fell, and broke his ankle. The appellant sued the respondent. Garling DCJ dismissed his claim.

4 There were a number of grounds of appeal but I do not think it necessary to enumerate them. The appeal is, I think, best approached through the submission of law directed to the question of negligence (tortious or contractual) to which greatest attention was devoted, the submission being that the judgment was flawed because his Honour adopted a duty of care with too limited a content. It was submitted that his Honour adopted a duty of care to make the course as safe as practicable in the light of known risks, whereas he should have adopted a duty of care appropriate to a contractual entrant, to make the course as safe for the purpose of playing golf as reasonable care could make it.

5 I am far from persuaded that his Honour's judgment is flawed in this manner. He does refer to a duty of care to make the course as safe as practicable, which arguably is a higher duty of care than a duty of care to make the course as safe as reasonable care can make it. He does not, on my reading of the reasons, confined it to a duty of care of protection against known risks, but rather uses the knowledge of risks as a factor in determining what taking reasonable care requires. However, assuming the duty of care urged by the appellant to be a correct statement of the duty of the care and applying it for myself, I am quite satisfied that the respondent did not breach a duty of care to make the course as safe for the purpose of playing golf as reasonable care could make it. My reasons for that view are as follows.

6 Golf courses are not nurseries. They have grass, dirt and slopes, and because golfers brave the weather the grass, dirt and slopes may be slippery during and after rain. Reasonable care to make a course safe for the purpose of playing golf does not require that every slope which may be slippery either is not initially constructed, or is re-configured, or is barricaded off or signposted. It is obvious to golfers as an ordinary incident of their golfing life that a slope such as that on the back of the 16th green, even on the appellant's case not dangerous when dry, may be slippery during and after rain.

7 The appellant submitted that there was more to this particular slope. He said that this slope looked to be safe when it was not, so that it presented what used to be called a concealed trap, and that it was not safe because what happened was not just slipping on the surface of the slope but the ground giving way. Emphasis was placed on the appellant's description of his fall at one point as a slide and it was said that this was different from slipping. The appellant referred in particular to photographs of the marks left by his slide, saying that they showed that the grassy surface itself was disturbed, and to some evidence from his expert witness in which the slope was described as unstable.

8 The trial Judge did not make findings of this nature, and I suspect that the case below was not run as a ground giving way case, as distinct from a slipping case to the extent to which on the facts there could be a difference. His Honour found that whilst the appellant was walking down the slope "his feet slipped and he slid a distance down the embankment sustaining injury". Be that as it may, I do not share the interpretation that the photographs showed the ground giving way in any sense other than that in sliding or slipping the appellant left marks on the ground. In my opinion the expert meant by instability that the slope was conducive to slipping, not that the ground was prone to give way in some more radical sense.

9 So I come back to where I was, there was nothing unusual about this slope in relation to the potential for sliding (if that term be preferred) in the manner the appellant slid. Although the appellant suggested that it was of no relevance, it seems to me that it is relevant as a matter going to what reasonable care required that in well over 50,000 rounds of golf played prior to the appellant's fall, no fall or complaints of unsafety in relation to this slope had been reported to the course professional and there was no evidence of any other report of a fall or complaint of slipperiness.

10 It must then be asked, what was required of the respondent in fulfilment of the duty of care earlier assumed as a response to such risk as was posed by the slope and its potential for sliding or slipping? In my opinion different construction, re-configuration, barricading off or signposting of this slope was not called for. Golfers could see the steepness of the slope, that there was grass and undoubtedly dirt beneath the grass, and on this occasion that the slope was wet and the ground was water laden. The potential for sliding or slipping was there to be seen, and I do not accept that this was, avoiding the old words of a concealed trap and using words later adopted by the appellant, a hidden hazard. The appellant could have walked to the side and approached his ball by going around the edge of the green instead of going down the slope, which was not a very long additional walk at all. This is one ground of distinction from State of New South Wales v Steed (2001) NSWCA 178 on which the appellant placed considerable reliance. The other is that in that case turf relatively recently laid on a slope but not sufficiently bonded to it did slide when the plaintiff stepped on it. That is not this case.

11 It seems to me that in this case it must be firmly borne in mind that it is not necessary that an occupier guard against any and every foreseeable risk, or against risk arising from an entrant deliberately behaving in a foolhardy manner. In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 it was emphasised, albeit in a different context, that the required response to a foreseeable risk is a reasonable response, not one of absolute protection. It is all the more necessary to bear this in mind when one is dealing with the playing of a sport, because as Agar v Hyde (2000) 201 CLR 552 clearly demonstrates participation in sport involves an appreciation of the risks of that participation, here the risks of negotiating wet slopes on a golf course. In the end it seems to me that the felicitous statement of Mason P in Franklins Self Serve Pty Limited v Bozinovska (CA, 14 October 1998, unreported) is pertinent, namely:

"In some circumstances the danger is so obvious that, when coupled with the likelihood that persons will exercise reasonable care for their own safety, the duty is satisfied by letting the plainly obvious speak for itself."

12 The respondent was not the appellant's nursemaid, and there was no breach of a duty of care. The same considerations, in my view, lead to the conclusion that there was no breach of the equivalent duty of care in contract, no cause of action in nuisance, and no contravention of s 42 of the Fair Trading Act 1987 or breach of any warranty which might have been implied under s 74 of the Trade Practices Act 1974, they being various other ways in which the appellant's case was put below.

13 In my opinion the appeal should be dismissed with costs.

14 SPIGELMAN CJ: I agree.

15 FITZGERALD AJA: I agree.

16 SPIGELMAN CJ: The order of the court will be that the appeal is dismissed with costs.

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