Gladys Joyce Fitzpatrick v Maroochy Shire Council

[1999] QDC 236

IN THE DISTRICT COURT

HELD AT MAROOCHYDORE
QUEENSLAND

[Gladys Joyce Fitzpatrick v. Maroochy Shire Council]

[Before Dodds DCJ]

Plaint No 262 of 1998

BETWEEN:

GLADYS JOYCE FITZPATRICK

Plaintiff

AND:

MAROOCHY SHIRE COUNCIL

Defendant

Judgment Delivered:  2 September 1999

Catchwords:  NEGLIGENCE – Breach of Duty – plaintiff was swimming in a flagged area of beach supervised by the defendant – plaintiff was injured in a collision with a child on a boogie board.

Counsel:Dr K E Tronc for the plaintiff

Mr M Grant-Taylor for the defendant

Solicitors:Shine Roche McGowan for the plaintiff

Heiser Bayly & Mortensen for the defendant

Hearing Dates:  16, 17 August 1999

Reasons for Judgment

This was an action for damages for personal injury to the plaintiff allegedly due to the negligence and/or breach of statutory duty of the defendant, it’s servants or agents. 

On 20 December 1996 at about 8.30am, a young, male child on a body board (also called a boogie board) collided with the plaintiff in the flagged swimming area at Maroochydore beach.  The plaintiff had just entered the water and was making her way out.  She turned side on to a wave, saw the approaching surfer a very short distance from her and raised her left arm in an automatic protective gesture.  She was struck in the region of her left elbow.  She suffered a displaced fracture of her left humerus and a fracture of her left radial neck.

The plaintiff was born on 10 September 1923.  She was 73 years of age when injured.  She is 75 years of age now.  She is right handed.  She lives in Toowoomba.  She and her husband had come to the beach for a holiday.  She and her adult son and at least one of her grandchildren had walked some distance to the flagged area to swim.

The injury, which the plaintiff suffered, has adversely affected the declining years of her life.  The evidence established that she was an active woman with no apparent disabilities or health problems before this occurred.  She played golf from time to time and occasionally bowled.  She considered herself a good swimmer and enjoyed swimming.  She looked after the house and her husband.  She had at an earlier time been a professional hairdresser and she cut her husband’s and grandchildren’s hair and looked after her own hair.  She enjoyed doing some oil painting and making tapestries. 

The plaintiff no longer does a lot of things she did pre-injury due to the consequences of the injury to her left arm.  She apparently told Dr Downes, an orthopaedic specialist who saw her in February 1999, that her main problem was frustration at not having a normal range of movement in her left arm and having weakness in the arm.

I find that when the injury was done to the plaintiff she experienced very considerable pain.  She went to the first aid room at the Maroochydore Surf Club, then by ambulance to the Nambour Hospital and then by private motor vehicle to the Toowoomba Hospital where she was admitted.  An open reduction and internal fixation of the humerus fracture was done.  I would not doubt that during the period until the open reduction was performed, she continued to experience quite a deal of pain.  After the reduction her arm was fixed in a backslab plaster in a flexed position.  I would expect there was some discomfort initially after the reduction and further discomfort when the plaster was removed and she undertook some physiotherapy and other treatment to regain movement in her arm.  I have no doubt she found the period with her arm in plaster frustrating.

The evidence included reports from two orthopaedic specialists, Dr White who saw the plaintiff on 17 February 1998 and Dr Downes who saw the plaintiff on 26 February 1999.  I accept the evidence of both doctors.  There appears to have been some slight improvement in the condition of the plaintiff’s left arm between the two consultations.  Dr White thought the condition of her arm could “perhaps be improved to a degree” by removing the internal fixation devices and a bony cartilage covered protuberance on her olecranon.  Dr Downes did not think removing the internal fixation hardware would make any difference and thought the procedure suggested by Dr White unnecessary in a woman of the plaintiff’s age.  Ultimately of course it is the plaintiff’s decision.  However her attitude was not canvassed in the evidence.

I find that due to the injuries done to her the plaintiff has been left with a permanent disability in her left arm due to stiffness in her left elbow some loss of pronation and some weakness.  She has lost about five degrees of flexion and about ten degrees of extension.  She cannot straighten her left arm.  Its reach is consequently shorter than her right arm.  She also experiences discomfort in the area of the fractures in cold weather.

Special Damages

Special damages claimed in Exhibit one are not challenged.  I assess these damages in the amount shown in the exhibit $4370.45.  I assess interest on $1830 of this amount which I round off in the sum of $194.

Need for Assistance

The injury and its consequences created a need in the plaintiff for some help.  There was no evidence about what it would cost to hire the sort of help the plaintiff needed and continues to need.  However, I find an amount $10 per hour is a reasonable sum to satisfy the need.

I find that for about a three month period after she was discharged from hospital her husband had to care for her and do most things that she would have formally done for herself.  I find she needed help to the level described in the evidence.  For this period of time I assess damages of $1000.

For the balance period to trial I assess damages in the sum of $5000.  That seems to me to be a reasonable sum to cover the whole of that period.  I have based this amount on an average of four hours per week over 127 weeks.  I assess interest on the pre-trial damages in an amount of $320.

Post trial I assess a sum of $3000 damages.  I have taken a ten year period at an average of one hour per week to take account of advancing age, adopted a present value and discounted for other contingencies.

Pain, Suffering and Loss of Amenities

I have already referred to the consequences of the injury for the plaintiff.  The plaintiff’s son and her husband said that following the injury the plaintiff changed from being a busy and active woman.  She has experienced pain and discomfort.  She experiences frustration that she cannot do things as she used to.  She experiences discomfort in the injured area in cold weather.  What has happened to her has permanently affected her life.  Counsel for the defendant submitted a fair award would be $20,000.  That sum is, I think, at the top of the range in this case.  I assess damages under this head in the sum of $20,000.  Twelve thousand dollars of that amount relates to the period pre-trial.  I assess interest on that amount in the sum of $640.

Future Surgery

The plaintiff sought damages for future surgery.  There was no evidence about this other than the diverging opinions of the two orthopaedic specialists.  It remains a possibility but I think it less than likely.  I assess the sum of $500 for the chance of future surgery.

Liability

In her plaint, the plaintiff alleged the defendant was in breach of its duty to her because of its negligence, because of its breach of its statutory duty pursuant to provisions of the Workplace Health and Safety Act 1995, the Workplace Health and Safety Regulations 1997 and the provisions of its bathing by-laws.  She provided various particulars of the alleged breaches. She abandoned reliance on the Workplace Health and Safety Act and Regulations during the trial but continued with an allegation that the defendant failed to properly or at all implement the provisions of its by-laws.

The plaintiff’s case was that she was struck by the body board.  Body boards are not of a type or construction commonly called surfboards which are those whose riders typically stand or attempt to stand when surfing a wave.  These surfboards have a hard, fibreglass skin, invariably have a fin or fins underneath and these days are often pointed at the front.  They are heavier than a body board and are banned from flagged areas.  A body board is usually used by its rider to lie on to surf a wave.  It is typically smaller and lighter than a surfboard, has no fin and is rounded or squared off at its front.  It is constructed of a light material such as coolite or polypropylene and usually covered on the top and sides with a cloth and/or rubber like material.  Many are entirely covered with similar material.  Some however have a hard, smooth, plastic type sheeting on their bottom surface to improve their performance. Body boards are commonly seen on surf beaches and in flagged swimming areas.  The performance type of body board is more expensive and usually used by experienced surfers.  There are many different types of body boards.  The body board that struck the plaintiff, according to the plaintiff’s son had a smooth, hard bottom surface that curled up over the front of it.

The defendant called evidence from two witnesses, a lifeguard Heath Collie who was on duty at the flagged area on Maroochydore beach at the time the plaintiff was injured and Haydn Kenny who at the time was employed by the defendant as the supervisor of its employed lifeguards within its local authority area.  Collie was a relatively experienced lifeguard at the time.  Kenny had extensive experience of surf life saving and surfing.  Both gave evidence that the use of body boards, whether the cheaper type or the performance type, was permitted within the flagged bathing areas in the shire.  They were not considered to be dangerous because they had no significant hard or sharp parts likely to make contact with other swimmers.

There was a conflict in the evidence about the type of body board that was involved.  The plaintiff’s son said he saw it immediately after the collision.  He pushed it aside.  He said he also saw it further as he was helping his mother from the water.  His description is of a performance type of body board.  Collie said he saw the child he believed was involved and his mother later when they approached him on the beach.  He said that the board then with them was not the performance type of body board but the cheaper type.

The plaintiff’s son said he saw that the material on the bottom of the board rolled up over the front of it.  If that were so it presented a front edge of hard material. His description otherwise is of a commercially produced board rather than a home made board.  He produced Exhibit three, a brochure showing many different commercially produced body boards.  He indicated one as similar at the front to the one involved in the collision with the plaintiff.  It was not necessarily identical.  It is the only one in the brochure that is described as having a nosepiece.  The brochure does not describe the composition of the nosepiece.  There was no other evidence about this.

The defendant introduced two body boards into evidence; one a performance type and the other a cheaper cloth-covered type, Exhibit 5A and 5B.  Kenny when he examined them said he thought the performance board in evidence was the upper limit of boards that should be allowed into the flagged area.  Examination reveals it is heavier than the cheaper type of body board.

The performance board in evidence which is not said to be the same as the one involved in the collision has a hard material on its bottom terminating only a couple of millimetres from its front.  Whilst there is some cover of this by softer rubber like material it potentially presents an edge where the force of an impact may be concentrated.  Kenny said that was where a rider’s hands would normally be.

Collie’s credit came under attack about what type of body board had been involved, about whether blue and white flags were erected outside the red and yellow flags and about whether a green (safe bathing) flag or a yellow (swim with caution) flag was erected between the yellow and red flags.  I am not persuaded as suggested that Collie was involved in some sort of coverup.  To the contrary, I consider he gave evidence honestly to the best of his recollection.  Collie was an experienced lifeguard at Maroochydore and his weekly and monthly reports for the period contain information about conditions including prevailing winds.  I accept his evidence about the blue and white flags being in place.  Blue and white flags are erected outside the red and yellow flags to delineate a buffer zone between the flagged area for swimmers and body board riders and areas available for users of other surf craft. The erection of flags was a part of the normal procedure of preparing the swimming area at the beach every day.  In point of fact whether or not the blue and white flags, or a green or yellow flag, was erected is irrelevant to the issues in the trial. As to the erection of the green or yellow flag Collie’s notes on his weekly report sheet, Exhibit 7, on the face of them tend to suggest that wind conditions in the early morning of the day in question were reasonable unlike other days that week but deteriorated later in the day.  However they note rips, inshore holes and bluebottles.  The plaintiff’s case was a green flag was erected.  Collie said it was the yellow flag.  I think Collie’s evidence more likely to be correct.

Despite Collie’s evidence, I find on the balance of probabilities that the board being used by the child was the performance type of body board.  I have come to that view because I think in the circumstances the plaintiff’s son would probably recollect the appearance of the board.  It does not appear that Collie at that time had any pressing reason to take particular note of it.

Collie gave evidence there were a number of body boards in the flagged area at the time the plaintiff was injured.  He was generally aware of them and was observing the flagged area at that time.  He had no concern because to his observation all of the boards that were in the flagged area were of the body board type with which he was familiar and which were permitted in the flagged area.  I accept this evidence. 

Collie saw the plaintiff emerging from the surf holding her arm and in apparent distress.  She was taken to the First Aid Room where he attempted to provide what treatment he could.  An ambulance was called and the plaintiff left the area in it.  I mention these matters specifically because it seemed to be implied as part of the attack on Collie’s credit that he failed as the lifeguard on duty to respond to the plaintiff’s injury in an adequate fashion.  Without attempting to resolve who called the ambulance or whether Collie met the plaintiff half way down the beach or further up near the clubhouse, I am satisfied that Collie did as much as he could to respond to the plaintiff’s injury once he became aware she was injured.  There was a relatively large number of people in the water in the flagged area.  He could hardly be expected to see the collision with the plaintiff unless he was looking at the precise place where it happened, immediately before it happened. He could be expected over time to notice a board that because of its obvious shape or size may be dangerous or which was being used in a dangerous manner.  There was no evidence showing how long the child had been in the water surfing on his body board.

I find on the balance of probabilities that the fractures to the plaintiff’s arm resulted from impact by a relatively solid object.  The possibilities are a bony part of the child or some part of the body board.  On the balance of probabilities I find it was a part of the body board.

Implicit in the defence evidence was a view that body boards posed no more risk of injury to other swimmers than a body surfer.  I accept this provided a body board’s construction does not contribute significantly to the mass involved if a user being propelled by a wave collides with another swimmer and provided there are no hard surfaces of the board which are likely to come into contact with the swimmer collided with.  In speaking of hard surfaces in this context I am not so much speaking of a broad area of surface, rather a surface where the force is concentrated, such as the edge of a board.

Considerable effort is put into encouraging people intending to swim in the surf to swim within flagged areas which are selected by experienced lifeguards as being the least dangerous areas and where lifeguards are on duty with equipment to assist people who get into difficulties or are injured.  The defendant conceded that having set aside flagged areas for surfers who are encouraged to swim in these areas, its’ duty was to take reasonable care and adopt reasonable precautions to avoid foreseeable injury to them.

“There is no doubt that a public authority may be liable for the negligent acts of its servants or agents in carrying out their duties or exercising their powers within the operational area, although if the performance of their duties or the exercise of their powers involves the exercise of a discretion an act will not be negligent if it was done in good faith in the exercise of and within the limits of the discretion”.  TheCouncil of Southerland v. Heyman & Anor (1984-5) 157 CLR 424 at 442 per Gibbs CJ.

Pursuant to its by-laws the defendant had power through its lifeguards to control activity within these flagged areas.  It may prohibit the use of particular bathing appliances in the flagged area.  Its lifeguard may order a person to stop using a body board that in his or her opinion could cause inconvenience or dangers to bathers, by-law 5(c); or may set aside some other area for the use of persons using boards of some kind to surf on, by-law 5(f).  There is power to seize and detain items such as boards being used in contravention of the by-laws, by-law 8.

There are pitfalls in all sorts of activity in every day life that may result in injury.  Risks involved in swimming in the surf are apparent to any person of reasonable foresight. There may be rips and sweeps.  It is notorious that drownings occur in the surf and that waves may cause a swimmer's body to hit the bottom resulting in injury ranging from abrasions to serious spinal injury. Swimming in the surf in a flagged area will considerably reduce the risk of drowning.  It will however often introduce the risk of collision with other swimmers who may be moving in a relatively uncontrolled manner due to wave action.  The inevitable crowding of people within flagged areas raises an obvious risk of collisions occurring between people being moved about by the force of the water from breaking or broken waves. The risk will increase as the number of swimmers in a particular area and/or the extent of the wave action increases.  Persons body surfing on waves pose an obvious risk of collision.  The extent of a flagged area is in large part constrained by beach conditions.

There was plainly a foreseeable risk of injury to persons swimming in a flagged swimming area from collision with other swimmers whether body surfers or body board surfers.  That risk was obvious to any person including those who entered the water to swim in the flagged swimming area. It is not shown that the risk of collision was increased by body boards being used in a flagged swimming area.  Was it shown however that the risk of injury from collision was increased by the use of a body board?  If so, was the risk foreseeable by the defendant, its’ servants or agents? Was the defendant in breach of its’ duty of care to the plaintiff and was that breach a cause of her injury?

There was no evidence about whether a body board increases the mass involved in a collision to any significant degree.  There was no evidence that the use of a body board to surf a wave toward the beach contributes to a lesser degree of control of the momentum and direction of travel then when body surfing.  Kenny in fact gave evidence to the contrary, that the rider of a body board may have more control and a better lookout than a body surfer.  Kenny said, and I accept his evidence about this, that he had never known or heard of an injury being caused by a body board of the type that allegedly struck the plaintiff. There was no other evidence about this.  He did not say he had never heard of a collision between a surfer using a body board and another surfer.  I note that the users of body boards may be younger children which may mean they have less ability to control the board than an older persons does.  The flotation of a body board may allow a young person to surf waves, which without its support and assistance they could not manage.

As I have mentioned a body board which has a concentrated area of hard surface likely to come into contact with another in the event of a collision in the surf does present an increased risk of injury.  It was implicit in the uncontradicted evidence from the defendant’s witnesses that to their knowledge body boards did not meet that description.  If it be supposed some did, a critical question is whether it is established by the evidence that the defendant through its’ lifeguards or otherwise knew or ought to have known body boards of that description were commercially available.  There is no evidence in this case to establish that.

Apart from that, it is not sufficient merely to show a foreseeable risk of injury.  Before breach of the duty of care may be established a number of other matters must be considered.  “The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk”: Hackshaw v. Shaw (1984) 155 CLR 614 at 663 per Deane J.

As Sharp J said in Glasheen v. The Council of the Municipality of Waverly (1990) ATR 81-016 an action arising out of injury caused by a surfboard rider in a flagged area, “it is trite to say that the council’s duty is to exercise reasonable care to prevent foreseeable damage: it is not to insure every member of the public using their facilities against risk of injury” at 67,717.

“The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.” Wyong Shire Council v. Shirt (1980) 146 CLR 41 at 47-8 per Mason J.

A possible step available to the defendant to reduce the risk of collision between riders of body boards and other swimmers could be to prohibit the use of body boards particularly the performance type board in the flagged areas for swimmers and to remove them if they trespassed.  The power to do this is provided in the bathing by-laws.  However, unless a separate flagged and patrolled area was selected and set aside for body boarders they may enter the water where assistance may not be readily available if they experienced difficulties or were injured.  Many users of these body boards may be children.  Kenny said the question of a separate flagged area for body boarders had been considered in the past and not proceeded with.  There was no further evidence about this in the plaintiff’s case.  It would no doubt involve extra expense.  Another possible step may be to introduce some system of inspection of all body boards being used in a flagged area. This would seem to present problems of supervision and enforcement in crowded swimming areas.  There was no evidence about this in the plaintiff’s case nor about any practicable way in which the defendant’s lifeguards could immediately identify one or more apparently commercially produced body boards being used in the flagged area as inherently dangerous.

To succeed in the action, the plaintiff must prove her claim on the balance of probabilities. In addressing the particular allegations in her plaint setting out why she alleged the defendant failed in its duty of care to her, I will not deal specifically with particulars (a), (b) and (e) because they consist merely of general assertions about failing to take precautions to protect her, failing to keep a lookout and failing to take reasonable care.  They are dealt with generally in what I have already said and in what follows.

Particular (c) alleged that the defendant “failed to provide a separate designated area for boogie board users apart from the area designated for bathers”.  I have already discussed considerations material to this. Apparently some consideration had been given to this previously but it had not been proceeded with.  There was no further evidence about this, for instance, dealing with its practicability.  In the absence of evidence I am unable to consider whether this alleged failure amounted to a breach by the defendant of its duty of care to users of the flagged area.

Paragraph (d) alleged that the defendant “failed to observe that the plaintiff was in a position of peril in the circumstances”.  I have already discussed considerations material to this.  The plaintiff had only just entered the water.  There was no evidence showing how long the child had been in the water. There is no evidence that the child on the body board was acting in a way that should have attracted the attention of Collie.  It cannot be found that this alleged failure amounted to a breach by the defendant of its duty of care to users of the flagged area.

Paragraph (f) alleged the defendant “failed to adequately supervise bathers within the bathing area in order to ensure that bathers were not at risk of injury from boogie boards or other such bathing appliances”.  Similar considerations apply to this particular as apply to paragraph (d). 

Paragraph (g) alleged that the defendant “failed to warn the plaintiff that boogie boards were being used in the said bathing area”.  Body boards were apparent in the flagged area when the plaintiff entered the water.  Collie said so.  So did the plaintiff’s son.  He warned the plaintiff about them.  A warning that body boards were present in the flagged area was superfluous.

Paragraph (h) alleged that the defendant “permitted and/or allowed the plaintiff to swim in the said bathing area in which boogie boards were being used by other bathers when it knew or ought to have known that to do so could cause a risk of injury”.  This particular of negligence raises matters already discussed: whether failure to exclude body boarders from flagged areas amounted to a failure by the defendant in all the circumstances to take reasonable care to prevent injury to other swimmers in flagged areas.

Paragraph (l) alleged that the defendant “allowed bathers to use fibreglass boogie boards within the area specifically designated for swimmers”.  I am not persuaded on the evidence that the child who came into collision with the plaintiff was riding a fibreglass body board.  As I have already indicated, I find the board being used was or appeared to be one of the commercially produced performance type body boards of the type of construction I have mentioned.

The allegation that the defendant failed to properly, or at all, implement the provisions of its bathing by-laws does not assist the plaintiff.  The defendant was empowered by its by-laws to determine whether a bathing appliance would cause harm or inconvenience to other swimmers, to prohibit the use of such a bathing appliance in the flagged swimming area and to order a user of any such bathing appliance in the flagged swimming area to discontinue using it in that area and to enforce such an order by seizure of a bathing appliance.  However it is apparent from what I have said earlier that Collie not doing any of these things does not take the defendants claim any further.

I find that the plaintiff has not proven her claim.  I give judgment for the defendant against the plaintiff.