Chapman v Indoor Raceways Pty Ltd

[1998] QCA 118

IN THE COURT OF APPEAL	[1998] QCA 118
SUPREME COURT OF QUEENSLAND

Appeal No. 9242 of 1997

Brisbane

[Chapman v Indoor Raceways P/L]

BETWEEN:

DAVID CHAPMAN

(Plaintiff) Appellant

AND:

INDOOR RACEWAYS PTY LTD

ACN 055 411 722

(Defendant)	Respondent
McPherson JA Thomas J Lee J

Judgment delivered 2 June 1998

Joint reasons for judgment of Thomas and Lee JJ, separate reasons of McPherson JA concurring as to the order made.

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	TORTS - Negligence - occupier - go-kart racing - guard-rail barrier in vicinity of track - whether barrier should have been removed - argument not raised at trial where the issues were first whether there was a defect in the steering, and second, whether the barrier should have been covered with protective tyres - insufficient evidence in any event to establish negligence on that ground.
Counsel:	Mr T.C. Somers for the appellant Mr W. Sofronoff QC with him Mr K. Holyoak for the respondent
Solicitors:	Keller Nall & Brown for the appellant Phillips Fox for the respondent
Hearing Date:	21 May 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9242 of 1997

Brisbane

Before McPherson J.A.
Thomas J.
Lee J.

[Chapman v. Indoor Raceways P/L]

BETWEEN:

DAVID CHAPMAN

(Plaintiff) Appellant

AND:

INDOOR RACEWAYS PTY LTD ACN 055 411 722

(Defendant) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 2 June 1998

I agree with the joint reasons of Thomas and Lee JJ., which I have had the advantage of

reading.

On appeal, the plaintiff’s case was presented on the basis that the defendant was at fault in

permitting a solid object to remain in close proximity to the go-kart track. The object in question was

the Armco barrier which, so far as can be gathered, was intended to shield certain trees that grew

behind it; or (one does not really know which) to protect drivers who accidentally left the track from

colliding with those trees.

The problem with that approach to the matter on appeal is that it was not the case presented

at the trial; and, if it had been, the defence would no doubt have made some attempt to adduce evidence

to meet it. Whether it would have satisfactorily explained the presence of those objects is a matter

which we are not now in a position to know or even speculate about.

It would, however, be quite wrong for this Court now to try to determine the action on that

basis in the absence of evidence, or of an opportunity for both sides to present evidence, to enable that

question to be properly determined. It is evident that at the trial the only two matters litigated were (1)

the allegation that the steering of the vehicle was defective; and (2) the further allegation that the Armco

barrier was not cushioned sufficiently to prevent injury to anyone who had the misfortune to be thrown

towards or against it. On both of those issues the plaintiff failed at the trial, and must also do so here.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9242 of 1997

Brisbane

Before McPherson JA
Thomas J
Lee J

[Chapman v Indoor Raceways P/L]

BETWEEN:

DAVID CHAPMAN

(Plaintiff) Appellant

AND:

INDOOR RACEWAYS PTY LTD

ACN 055 411 722

(Defendant) Respondent

JOINT REASONS FOR JUDGMENT - THOMAS & LEE JJ

Judgment delivered 2 June 1998

This is an appeal against a judgment of a District Court Judge dismissing a plaintiff’s claim for

damages. The learned judge found that the plaintiff had failed to prove that his injuries were caused by

the defendant’s negligence.

The appellant’s claim was based upon the alleged negligence of an occupier. It should be

immediately mentioned that the main point which the appellant sought to argue in this court was not

clearly exposed by the notice of appeal. That point does not appear to have been argued before the

learned trial judge either, although it was open on the pleadings.

The appellant was injured while participating as a kart-driver at the respondent’s go-kart track

at Ipswich Road, Oxley on 11 November 1994. He lost control of a kart which left the track and hit

a guard-railrail some metres off the track. In the result the appellant was thrown from the kart some

distance into the air and landed on the ground on his hands and head. Fortunately he was wearing a

helmet. He received hospital treatment for a fracture of the talar bone of the right foot, and he suffered

bruising of the neck, chest, testicles and thighs.

The track in question consists of a bitumen surface in a relatively flat area. It includes some

straight stretches and some bends. The contestants were travelling around the circuit in an anti-

clockwise direction. Some distance before the relevant point, they negotiated a left-hand bend. For

some reason that was not able to be satisfactorily identified, the appellant’s kart “speared off” the track

and came into contact with a low metal fence referred to as the Armco barrier situated some distance

(the subject of varying estimates) off the right hand side of the track. The respondent’s plan suggests

it to be about six metres off the track to the right, whilst the appellant’s estimate is that he collided with

it at a point about four metres off the track. Very little evidence was devoted to the relevant topography

or position of the barrier or the reason for its existence. The most likely reason for its presence would

seem to be to prevent drivers coming into contact with a clump of trees situated a little further away.

The point raised by counsel for the appellant is that the Armco barrier should not have been

there at all - that it was too close to the track and also constructed at an angle so that a kart such as that

of the appellant which left the track at this point would run into it at almost a right-angle. Counsel

conceded however that the elimination of this barrier would not reduce the danger unless the adjacent

trees were also eliminated. His submission was that these objects were sufficiently close to the track to be an obvious hazard and that expert evidence was not necessary to enable a court to find that the

respondent breached its duty to the appellant by failing to eliminate these objects.

However the case run at trial was based on two points only. Firstly it was alleged that the kart

(for which the respondent was responsible) had a defective steering mechanism; and secondly that an

energy-absorbing barrier (such as a raft of tyres) should have been placed along the front of the barrier.

As to the first point, the appellant did not inspect the vehicle after the accident, and the expert evidence

(called by the defence) of examination subsequent to the incident justified Her Honour’s finding that the

steering was not defective. On the second point, Her Honour accepted evidence of the appellant and

his witness to the effect that there were no tyres in position at the place where his go-kart hit the railing.

Reference was made to the following statements in the karting manual of the Australian Karting

Association (AKA):

“Energy absorbing barriers shall be designed to rapidly decelerate an out of control kart with minimum damage to both kart and driver. Barriers constructed of automotive tyres securely bound in a manner that forms a continuous structure (i.e. tied side by side as well as up and down) have been found to be satisfactory.” (para.195(i))

“Solid objects should be removed where possible, if not possible, then protection is required. Any structure or solid object of any type must have energy absorbing barriers and catch-traps to protect karters.” (Para.193(ii))

On this second point the appellant failed on the question of causation. The evidence was that

the collision caused him to be projected out of the vehicle for a substantial distance, passing over the

guard-rail and landing some distance beyond on the ground. In this situation it would be impossible to

conclude, in the absence of other evidence, that his injuries would have been materially less if the point

of commencement of the catapult had been the tyres rather than the guard-rail. The notice of appeal challenged Her Honour’s findings on this issue in a number of respects, but counsel for the appellant did

not argue these points on the appeal.

It is necessary therefore to turn attention to the argument actually presented, and consider

whether it is available to the appellant at this stage, and in any event whether it could be made out.

The plaint included the following particulars:

“10. . . . [The defendant] . . .

(f)          failed to provide sufficient safety barrier; and

(g)         supplied a race-track in poor condition which had been poorly designed and laid out in a dangerous manner.”

Further particulars included the following:

“The plaintiff says that the grounds were overgrown with weeds and there was paper and rubbish everywhere. The track was rough and bumpy in spots and there was dirt and debris on the track. The safety barriers were in dangerous positions in relation to the track and seemed to run in the wrong direction.”

It was not suggested at trial that the trees and barrier should have been eliminated, although

having regard to the particulars such a case may have been presented at least in relation to elimination

of the barrier. If it had, this would inevitably have exposed the question whether the trees should be

eliminated. As their elimination may well have raised additional questions of fact, such an issue was

probably one which should in any event have been identified by pleadings. However the question

whether amendment was necessary was never reached because no suggestion was made that the barrier

should have been eliminated. The closest counsel came to this was a reference to the above particulars

in the course of a submission on the relevance of certain evidence to which objection had been taken.

The evidence in question was to the effect that after the accident the respondent ran meetings at which

tyres were affixed to the barrier and the direction of travel around the circuit was changed from anti-

clockwise to clockwise. The evidence was admitted, but counsel for the appellant did not seek to make out a case (at trial or here) that the respondent was negligent in failing to run the race in a clockwise

direction. In the end the point relied on was that in the circumstances the respondent should have

cushioned the barrier.

The evidence that was called did little more than provide a simple description of the incident.

The appellant had been travelling at about 60 km per hour before leaving the track. There was

however no evidence of the stopping distance upon deceleration, or of other braking capacities of the

karts. No facts were supplied which would enable informed assessment to be made of the distance

beyond the track which should in the interests of safety be devoid of obstacles, either generally or in this

particular area. There was no suggestion that the track was too narrow, no evidence of the corner being

too tight, and no evidence to support the existence of any tendency for vehicles to spear off in this

particular area. There was no reliable plan made or submitted showing the precise configuration of the

barrier or its distance from the track. No photographs were taken at any relevant time, and those

tendered, which were taken much later, make it very difficult for a court to obtain a clear picture of the

situation as it was at the time.

It is not necessary to decide whether expert evidence would have been necessary to assist the

Court in reaching a determination that the barrier and the trees should have been eliminated. The use

of the area beyond the trees was not canvassed and the issue simply was not litigated. There was

insufficient evidence to justify a finding of negligence on this basis even if the issue had been squarely

raised. Having read the entire record, we are satisfied that Her Honour was justified in stating as she

did in her reasons for judgment:

“There were specific allegations of negligence, which at the end of the day came down
to two: a defect in the steering and the lack of a tyre barrier on the railing.”

No error has been demonstrated in Her Honour’s approach in determining that the appellant failed on

each of those issues.

It must also be mentioned that while the notice of appeal raises specific complaints about Her

Honour’s findings in relation to the absence of the tyre barrier and on the question of causation, it fails

to disclose the point which was sought to be argued. The paragraph in the notice of appeal which

comes closest to revealing the point is the following:

“j. The learned trial judge erred in failing to make a finding that the Respondent, being an occupier who admitted the Appellant to its premises for reward for a mutually contemplated purpose (go-kart racing) had failed to ensure that the premises were as safe for that purpose as reasonable care and skill on the part of the Respondent can make them”.

That is a mere statement of the duty which the respondent is said to have breached, and greater

particularity would be required in the present circumstances to raise such a point, particularly when it

had not been raised before or dealt with by the learned primary judge. The evidence in any event was

inadequate to support such a ground.

The appeal should be dismissed with costs.