Hornberg v Horrobin, Horrobin and Warroo Shire Council
[1998] QCA 283
•18/09/1998
IN THE COURT OF APPEAL [1998] QCA 283 SUPREME COURT OF QUEENSLAND Appeal No. 10477 of 1997.
Brisbane
[Hornberg v. Horrobin & Ors.]
BETWEEN:
TANYA ANNE HORNBERG
(Plaintiff) Appellant
AND:
BRIAN CHARLES HORROBIN and SHERRY JOSEPHINE HORROBIN
(First Defendants) First Respondents
AND:
COUNCIL OF THE SHIRE OF WARROO
(Second Defendant) Second Respondent
___________________________________________________________________________
Pincus J.A. Demack J. Chesterman J.
___________________________________________________________________________
Judgment delivered 18 September 1998
Separate reasons for judgment of each member of the Court, Demack J. dissenting.
___________________________________________________________________________
APPEAL DISMISSED WITH COSTS
___________________________________________________________________________
CATCHWORDS: PERSONAL INJURIES - tetraplegia - appellant sustained injuries after
diving into public swimming pool - whether appellant was participating in dangerous game - whether trial judge was wrong in rejecting appellant’s account of how injury occurred.
NEGLIGENCE - causation - whether respondents breached duty of care - amount of supervision required - whether duty to warn appellant of danger in playing game - whether such warning given by respondents - immediacy of warning - whether appellant ignored warning - whether warning sign would have prevented appellant’s injury.
Zuvela v. Cosmarnan Concrete Pty Ltd (1996) 71 A.L.J.R. 29
Whiteley Muir & Zwanenberg Ltd v. Kerr (1966) 39 A.L.J.R. 505
Abalos v. Australian Postal Commission (1990) 171 C.L.R. 167
Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40
Jaenke v. Hinton [1995] Aust. Torts Reports 81-368Nagle v. Rottnest Island Authority (1993) 177 C.L.R. 423
Counsel: Mr K Fleming Q.C. with him Mr P Sacre for the appellant.
Mr J Clifford Q.C. with him Mr M Daubney for the first respondents.
Mr J Griffin Q.C. with him Mr R Dickson for the second respondent.Solicitors: Anderssen & Company for the appellant.
Quinlan Miller & Treston for the first respondents.
Standish Partners for the second respondent.Hearing date: 11 June 1998. IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 10477 of 1997.
Brisbane
Before Pincus J.A. Demack J. Chesterman J.
[Hornberg v. Horrobin & Ors.]
BETWEEN:
TANYA ANNE HORNBERG
(Plaintiff) Appellant
AND:
BRIAN CHARLES HORROBIN and SHERRY JOSEPHINE HORROBIN
(First Defendants) First Respondents
AND:
COUNCIL OF THE SHIRE OF WARROO
(Second Defendant) Second Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 18 September 1998
I have read and agree with the reasons of Chesterman J.
I think it desirable to make some additional comment, about an argument which was, briefly,
advanced on the basis that the trial judge’s conclusion as to the way in which the appellant was injured
was accepted; that conclusion was that the appellant sustained her injury, not in the course of playing
"cut the corner", by striking her head on the side of the pool at the conclusion of a dive across a corner
of the pool. The argument was to the effect that precautions should have been taken to prevent or
discourage such a dive.
The precautions put forward were, in substance, continuous supervision or erection of suitable
warning signs - supplemented, perhaps, by oral warnings. As Chesterman J. points out, this aspect of
the matter - whether the appellant could succeed if the injury was caused by diving as the judge found
- received little attention below. There was evidence that efforts were made to stop people playing the
game "cut the corner", but the issue as to whether the appellant was entitled to succeed on the basis I
have mentioned was not in truth litigated. That was so because it was no part of the appellant’s case
below that she was injured in the way ultimately found by the primary judge; the appellant was, for
example, not even asked in what way she thought she would have reacted to attempts to discourage
her from performing such a dive.
The judge found that the first respondent recognised that a person playing the game "cut the
corner" incurred a risk of injury, if his or her head came into contact with a wall of the pool. The judge
also expressed the view that if there had been a person in constant attendance at the poolside the
accident "may well" have been averted. His Honour said that there were "all sorts of potentially
dangerous activities" in which people at the pool might engage and to these dangers those in charge of
the pool might have reacted by constantly supervising activity at the pool, or erecting appropriate signs.
It was also found that children attending the pool at the time of the appellant’s injury knew that they
were forbidden to cut the corners, but continued to do so. The judge was not prepared to find that the
erection of signs prohibiting playing the game of "cut the corner" would have had the desired result.
As to the question of constant supervision, the judge found that this did not take place but was
not satisfied that such supervision would have prevented the accident. Lastly, on what he described as
the difficult question, as to whether reasonable supervision was required, after an elaborate examination of the matter the judge concluded that it had not been shown that there was any breach of a duty of care
involved, with respect to the degree of supervision.
The findings which I have mentioned were made chiefly with reference to the question of
stopping the game "cut the corner", rather than the narrower issue of preventing or discouraging people
diving across the corners of the pool. They have, nevertheless, relevance as to that narrower issue.
The findings I have summarised are not, in the main, conclusions of primary fact, but depend
upon the conclusions which should be drawn from the findings of primary fact. The most recent
pronouncement in the High Court as to the proper attitude to a challenge on appeal to findings of that
sort is, I think, the decision in Zuvela v. Cosmarnan Concrete Pty Ltd (1996) 71 A.L.J.R. 29. That was
a personal injury case in which the primary judge found for the plaintiff but was reversed by the New
South Wales Court of Appeal. Restoring the decision at first instance, the Court quoted with approval
a passage from Whiteley Muir & Zwanenberg Ltd v. Kerr (1966) 39 A.L.J.R. 505 at 506, to the effect
that an appellate court should not too readily interfere with inferences drawn from primary facts. That
passage includes the following:
"It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong".
The court in Zuvela went on to say:
"Of course, if the relevant fact is an inference to be drawn from the established facts,
the Court of Appeal may be in as good a position as the judge at trial".It would in my opinion have been wrong, on the part of the primary judge, to have held in favour
of the appellant on the basis that the signs put up were inadequate; I have nothing to add to the
treatment of this topic in the reasons of Chesterman J.
As to the question of continuous supervision, it is evident that young people are, often enough,
let play in swimming pools or in other situations of potential danger without continuous supervision by
adults. The appellant was at the time she was injured 17 years of age and suffering from no disability.
As to such a person, the question whether there was an obligation continuously to observe her to make
sure she did nothing dangerous can in my respectful opinion receive only one answer, being the one the
primary judge gave.
If the respondents had to supervise people such as the appellant playing around a public
swimming pool, that would presumably apply to adults in control of a private pool in and about which
young people such as the appellant are playing. Absent some special danger, no-one would think it
unreasonable to fail to exercise continuous supervision in that situation.
11 Then there is the difficulty for the appellant, on this aspect of the matter, that the judge was
in the end unpersuaded that continuous supervision would have prevented the appellant’s accident.
On that issue, the primary judge had the advantage of having heard the evidence relevant to the
reaction of children at the pool, and in particular the reaction of the appellant, to attempts made to
stop the playing of the game "cut the corner". To revert to the Whiteley Muir & Zwanenberg tests,
the matter is not one in which any specific error made by the judge in arriving at his conclusion is
pointed out, nor is the "available inference in the opposite sense to that chosen by the trial judge . .
. so preponderant" that one can say that the trial judge’s conclusion was wrong. So far from that,
it is my respectful opinion that his Honour’s view on the likely effect of continuous supervision was
for the reasons he gave correct.
12 For the reasons expressed by Chesterman J. and those set out above, I agree that the appeal
should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 10477 of 1997
Brisbane
Before Pincus J.A. Demack J.
Chesterman J.
[Hornberg v. Horrobin & Ors.]
BETWEEN:
TANYA ANNE HORNBERG
(Plaintiff) Appellant
AND:
BRIAN CHARLES HORROBIN and SHERRY JOSEPHINE HORROBIN
(First Defendants) First Respondents
AND:
COUNCIL OF THE SHIRE OF WARROO
(Second Defendant) Second Respondent
REASONS FOR JUDGMENT - DEMACK J.
Judgment delivered 18 September 1998
1 Tanya Hornberg (“Tanya”) was born on 9 August 1974. Sometime before 6pm on
17 December 1991, she entered the Surat swimming pool (“the pool”) owned by the
Council of the Shire of Warroo (“the Council”). Shortly afterwards she was seen floating
in the pool. Subsequent medical diagnosis disclosed that she had been rendered
tetraplegic. She sued the Council and the lessees of the pool, Mr and Mrs Horrobin.
She claimed that she had dived off a starting block at the shallow end of the pool. The
trial judge rejected that contention. He found that she had struck her head on the wall at
the end of the pool when she had dived across the corner of the pool. He found that Mr
Horrobin had often stopped young people from playing a game called “cut the corner”
which involved such a dive. He found that Tanya was one of those told not to cut the
corner. He assessed damages at $3,292,036.40, but dismissed the action. Tanya
appeals both in respect of the issue of liability and the measure of damages.
2 The pool is 25 metres long and 10 metres wide. Its depth at the deep end is 8 feet
9 inches, and at the shallow end, 3 feet 6 inches. Halfway along its length its depth is
6 feet 1 inch. These depths were marked in imperial measurements on the exposed
wall of the pool. The pool was part of a fenced complex which also included a wading
pool, a kiosk, toilet blocks, pump house/filtration plant and barbecue area.
3 The Council commissioned the pool in 1966. From that time onwards, there have
been starting blocks at each end of the pool to serve the six lanes into which the pool
could be divided for competitive swimming. The blocks are 45 cm high and rest on the
raised edge of the pool which is 15cm above ground level.
4 Mr and Mrs Horrobin were required to clean and carry out daily maintenance of the
pool and its surrounds and to supervise its use when open to the public. They were paid
by the Council and also were entitled to the admission charges paid by adults and
children who used the pool.
In her statement of claim, Tanya alleged that she had dived from the 4th or 5th starting block at the shallow (northern) end of the pool. She alleged that the defendants
5
knew the shallow end was too shallow for safe diving and that the defendants had a duty
of care which they had breached in various particulars which the trial judge summarised
(P 2447):-
“It is her case essentially that they failed -
(a) to give her adequate warning that it was dangerous to dive into the pool where and in the way she did which led to her injury and/or prohibit such diving; and
(b) To adequately supervise the use of the pool to ensure that she did not dive where and in the way she did which led to her injury.”
6 The Council in its pleadings raised the issue that, at the time she was injured, Tanya
was playing the game, “cut the corner”, which entailed running around the surrounds of
the pool and entering and exiting the water at or near each corner. Consequently, a
good deal of the time taken by the trial concerned the circumstances in which Tanya was
injured. This evidence came not only from the people in the pool area at the time, but
from medical specialists experienced in treating spinal injuries caused by diving
incidents and from an experienced diving coach.
7 One unusual feature of Tanya’s injury was that it involved crush features of C4, C5
and C6. This suggested that significant force was applied along the line of the cervical
spine, yet there was no damage to the skull or the scalp. The three medical specialists,
Dr Vernon Hill, Dr William Davies and Dr John Yeo, were all questioned at length about
how this could happen. The difficulty in giving an answer was explained to some extent
by Dr Yeo (p. 663):-
“And I take it then, if you had your arms in the normal diving position, that you would have your head bent forward, so to speak, beneath the line of your
arms?-- Yes. I mean, the intriguing thing that I’ve never understood myself entirely is why don’t the arms prevent this injury occurring in every case, because very few people would dive into the water without their arms out front, and it is amazing that we still have not yet determined, in my mind, scientifically, anyway, as to what stage the arms get flung aside by the forces at work when you enter the water, and the head then becomes the object of impact to the bottom of the pool. I have to acknowledge to the Court that I believe that - while we describe this as the most likely mechanism of flexion, rotation and compression - because that’s what we hear described of other patients often, we still haven’t visualised that - I mean, how do you visualise it - to prove the point that that is exactly how it occurs.
In her case there was crushing of the three vertebrae on the anterior aspect?--
Yes.
Does that suggest that her head was gradually forced down so that her chin
went into her chest?-- In that direction, not necessarily the full way, because, as
I mentioned earlier in evidence, if there’s a full flexion, then usually the spine
becomes dislocated at one level. That’s a very - quite common appearance in
a diving injury. In this lady’s case, I’m suggesting that while the spinal curve
unfolded into an almost straight position, slightly flexed only, that she had this
impact through on the three vertebrae, and as you quite correctly say, on the
anterior part of the bodies of those three vertebrae.”8 Dr Vernon Hill was not only involved in Tanya’s treatment, but had also inspected
the pool. He and Dr Davies had received a history of a dive which resulted in Tanya
striking the bottom of the pool with the top of her head. He had the same unanswered
question about her arms which Dr Yeo raised. The doctors were questioned about a
possible striking of the head against the side of the pool and gave varying responses.
9 This evidence assumed considerable significance because the learned trial judge
rejected Tanya’s evidence that she could remember standing on a starting block ready
to dive. No one else saw her enter the water. Consequently, he was left with the task
of drawing inferences from the evidence which he accepted.
He found that Tanya and her sister Georgina and three boys had been playing “cut the corner” prior to Tanya’s injury. He was not satisfied Tanya was playing the game
10
when she was injured. He accepted Mr Horrobin’s evidence that he had told the young
people to stop playing “cut the corner” that afternoon. He accepted that they did then
stop playing, but that two of the boys resumed after Mr Horrobin went away from the pool
to the kiosk.
11 He arrived at these findings after a very careful analysis of the evidence. The
incident had occurred almost six years previously. Several of the witnesses were
children in 1991 and the analysis of their evidence shows that, to a significant degree,
the findings were based on the impression those young people made while giving their
evidence.
12 In reaching his conclusion that Tanya dived across the corner of the pool, the
learned trial judge also carefully considered the evidence of the three medical experts
and the evidence of Mr Hall, the diving instructor. He also considered the evidence of
the position Tanya was in the pool when she was seen floating. This was controversial
evidence because Georgina, who was first to notice Tanya’s difficulties, described a
different location from that of other witnesses. Georgina’s evidence was rejected.
13 Consequently, the finding that Tanya injured herself when she dived across the
north-western corner of the pool from its western side bringing her head into contact with
the northern end of the pool was reached only after a lengthy and detailed analysis of the
evidence and took into account the impression the various witnesses made on the trial
judge. To attack this finding on the basis that it is against the evidence and the weight
of evidence, as Mr Fleming Q.C. did, is rather bold.
14 The attack was based on the assertion that the only reasonable inference from the
facts found by the learned trial judge was that Tanya suffered the crushing blow to her
spine by entering the shallow water vertically with her full weight behind her, driving her
into the bottom of the pool. Reference was then made to evidence given by Dr Davies
of tests which had shown that it was necessary to apply force of 600 pounds per square
inch upon the spine along its length to crush a vertebra. The relevant passage is in
cross examination (p930):-
“Can you just explain that?-- In diving, force, understandably, is axial, from top down, but there’s nearly always an element of flexion at impact. There tends to be a reflex that people pull their head down and in when they dive. Not always. I mean, occasionally we get them bent backwards or to the side, but nearly always the combination of forces - deforming forces are flexion with compression.
As a result, we have in this case the crumbling of the frontal faces of those cervical bones?-- The lines of force tend to converge on the middle of the neck or junction of the middle and lower third of C5, and that’s the one that usually gives away and it breaks this anterior block part of the vertebrae - it is fragmented and compressed.
And that’s as has occurred in this case?-- In this case it was somewhat worse
because the one above and one below were also fractured - so that’s C4, C5
and C6.
What does that tell us? Just that there was more force, or that the head was at
a particular angle, or what?-- You would assume that there was quite a
significant force. In fact, the forces are really quite great. Work in wet
preparations some years ago by Silecki in Sydney calculated the force at the
- the congregation of forces, about 600 pounds per square inch.
And the blow is to the top of the head, is it, to get that sort of injury?-- Yes sir.
. . . . . . . . . .
Would have been applied, what, directly to the top of the head?-- Well, to the
wet specimen, but in the accident, yes. In this particular accident, if you are
describing that, the assumption is that the force was applied from the top of the
head in the - along the axial spine.
Would the axial spine then have had to have a relationship of something like
right angles with the surface of whatever she dived into or on to?-- Pretty much.
I mean, one can never - I mean, it would be a presumption of me to say exactly
the attitude of the head and neck at the time of impact, but it would be towards
90 degrees”.15 Dr Hill was the first of the spinal injury specialists to give evidence. Dr Davies was
the last. Consequently, by the time Dr Davies was asked the last question quoted, the
question of whether Tanya struck the bottom of the pool or the end of the pool had been
well canvassed. Indeed, the point was well summarised by the trial judge later in the
cross examination of Dr Davies (p959):-
“HIS HONOUR: Well, as far as the injury is concerned, it doesn’t matter whether she struck the side of the pool or the bottom of the pool, it just depends what her body was doing when the head came into contact with whatever it struck, doesn’t it?-- Yes, sir. I mean, at the time of dealing with it, it was not relevant to me”.
16 The issue in question at that point was the history Dr Davies had received. As
previously mentioned, both he and Dr Hill had received a history of Tanya striking the
bottom of the pool. The injury to her spine was consistent with that. So it is not
surprising that when Dr Hill began his evidence he spoke of the main force being “a
vertical blow with a component of flexion” (p301). However, in that answer, he was
speaking from his general experience of a number of people who had injured their
spines in diving incidents. He, in fact, knew of only one such injury occurring when a
swimmer struck his head against the end of a pool. He had difficulty visualizing
circumstances in which such an event could happen unless the head struck the wall at
right angles (p305).
17 In addition to the crushing of C4, C5 and C6 vertebral bodies, there was radiological
evidence of a slight displacement of the body of C4 to the right in relation to C5. This
naturally excited the interest of the counsel and Dr Hill was asked (p 345):-
“Now, wouldn’t that be consistent with an approach to the side of the pool at a slight angle?-- It could equally be that she sort of went into the bottom at a slight angle. I don’t think that really can be - it is hypothetically possible, certainly, but the mechanism that I still think we have to consider most likely is that it is a vertical compression force, and albeit she may have tilted her body - it could have been tilted one way or the other - again, if you even sort of do experiments on bone and crush them, there is often - you know, the tissue will go one way or the other for reasons that we don’t really know”.
18 Although Dr Hill still used the expression vertical force, it is not clear in that answer
that he meant any more than axial force, ie. force applied along the axis of the spine.
However, the answer seems to recognise that the injury was consistent both with the
striking of the bottom of the pool or the side of the pool.
19 After he had carefully reviewed the medical evidence, the learned trial judge
expressed the opinion that it was “equivocal” (p. 2508). The passages quoted support
that opinion which was, of course, expressed after a review of all the evidence. The
medical evidence does not compel a finding that the only way Tanya could have
sustained her injury was by a vertical dive which brought her head in contact with the
bottom of the pool. There are unexplained factors in the incident of the kind Dr Yeo
mentioned in the first passage quoted. There are unpredictable interactions between
bone and tissue when violent forces are applied to a human body, as Dr Hill observed
in the last passage quoted. Taking these matters into account, the trial judge had to
make findings on the balance of probabilities about the circumstances in which Tanya
was injured. He did that, and nothing has been shown on the appeal which
demonstrates error in his findings.
20 Having found that Tanya was injured when she dived across the corner of the pool,
he then considered the duty that the defendants had, and whether that had been
breached. This was a difficult area, in the light of his basic finding. The primary thrust
of the plaintiff’s case concerned the starting blocks and the lack of warning about the
danger of diving into the shallow end. Supervision had also been an issue, but it had not
dominated the trial. The finding about diving across the corner of the pool kept alive the
question whether there should have been warnings about the danger of diving into the
shallow end. It also brought the issue of supervision into sharper focus.
21 In respect of that later issue the learned trial judge posed the following questions (p.
2518):
“The disposition of the plaintiff and other children attending the pool to disobey the well known rule against cutting the corner when they could get away with it was well known to the first defendants who were also well aware that serious injury might be sustained if a child (or adult) dived into a wall in the course of doing so. Were then the first defendants under a duty to provide continuous supervision in an effort to prevent disobedient children (of whatever age) from injuring themselves in the course of obviously dangerous diving practices which they knew to be prohibited and might (or would) lead to their exclusion from the pool in some circumstances if observed by the people supervising the pool?”
22 Mr Horrobin said he made one rule about conduct at the pool - no running on the
cement (p 1075). As the game “cut the corner” involved running on the cement, he
stopped it whenever it was played. It seems to have been a popular game. He was not
always within sight of the pool so the game could start if his back was turned. It seems
to have been a noisy game and so it would come to his attention. He knew that it was
a dangerous game because of the possibility of hitting the side of the pool (p 1094), but
he does not seem to have told the young people not to play the game for that reason.
The emphasis was on the risk of slipping on the concrete. The learned trial Judge found
(p 2505):-
“Although he said in evidence that he was aware that there was a danger of their injury should children come into contact with the wall as they cut the corner, the evidence does not persuade me that he did specifically direct their attention to this aspect of the danger in the warnings he gave on the day of the plaintiff’s injury. He certainly directed it to the danger generated in playing the game which of course also involved running along the side or end of the pool before diving in across the corner.”
23 He further found (p 2515):-
“Mr Quinn, who took over from the first defendants as pool manager, says that he succeeded in enforcing prohibition of the game and some of the children gave evidence to the effect that after the plaintiff’s injury the game was not played. It is more than likely that the plaintiff’s injury illustrated more effectively the dangers involved in the game than all the “traditional” warnings and directions which had failed to prevent the children from playing it “when they could get away with it.”
When those two paragraphs are read together, the question of the nature of the
warnings that should have been given in respect of ‘cut the corners’ is clearly raised.
That issue was not dealt with in any detail either in the judgment or in the appellant’s
arguments on appeal. In the judgment, the matter was approached essentially by a
consideration of the reasonableness of the supervision provided. Because the primary
thrust of the plaintiff’s case was rejected, it is not surprising that the nature of the warning
about diving across the corners was not explored. However, the question of an
“adequate warning that it was dangerous to dive into the pool where and in the way
Tanya did” was said by the trial judge to be one of the issues at the trial.
In Nagle v Rottnest Island Authority (1993) 177 CLR. 423, the plaintiff struck his head on a rock when he dived off a natural rock formation in a swimming area under the
24
control of the defendant. The trial judge expressed the opinion that the relevant
circumstances were “not to be viewed as so usual or expected as to require no
warning”. At p431, the majority of the High Court said:
“In our view, the giving of a warning that the ledge was unsafe for diving was the action that a reasonable person in the respondent’s situation would have taken to guard against the foreseeable risk of injury which existed. True it is that the particulars might have been more specific by stating the form of notice, for example, “Diving from anywhere in this area is prohibited”, with or without reference to the presence of dangerous rocks and by identifying the place or places where the notice might be located. But the particulars sufficiently drew to the respondent’s attention the relevant omission which constituted the alleged negligence, that is, the failure to warn of the danger of diving at the place where the accident occurred. A notice prohibiting diving is one form of notice - perhaps the most effective form of notice - warning of the danger of diving.”
25 While the quoted words deal both with the issue of the adequacy of pleadings and
the nature of the duty to warn, they do not give much guidance about what is required by
way of warning. Simply to state that diving is prohibited does not describe the risk to
which a diver is exposed. This really was the trial judge’s dilemma in this action. The
game was prohibited but played. Should a more specific warning about the risk
associated with diving across the corner of the pool have been given?
His Honour posed a similar question (p2532):-
“It was the playing of the game by children together which seems to have been forbidden. It is not at all clear on the evidence that had the plaintiff at a time she was neither chasing another child nor being chased by another child simply dived across the corner - even taking a couple of steps beforehand to make it a “running dive” - that the first of the first defendants would have had any reason to notice or anticipate what she was about to do. Perhaps if he had observed her make such a dive on a number of occasions with indications that she intended to continue to do so, as a matter of precaution he would have drawn her attention to the obvious danger involved in doing such a thing. Upon the
evidence however that is a hypothetical question and it is unnecessary to determine whether his failure to do so would have involved a breach of duty to warn her - particularly if the observed dives were “long dives” posing less danger than “short” ones.”
26 With due respect, the detailed analysis of the whole event has obscured the
essential issue. “Cut the corner” exposed its participants to the risk of serious injury if
it involved diving across the corner of the pool. If the participants were adequately
warned of the serious consequences that could follow if a diver’s head struck the side
or the end of the pool, the warning would cover the activity in which Tanya was engaged.
The likelihood of injury occurring may have increased if there were many children
involved, but the risk against which the defendants should have warned Tanya
concerned the individual diver striking the end or side of the pool. That risk was not
clearly addressed by Mr Horrobin, and, in failing to do that, he breached his duty of care
to Tanya. His breach is one for which his wife and the Council are vicariously liable.
That was not put in issue.
27 If the warning had been given, would Tanya have taken any notice of it? Generally,
the finding against her was one of “persistent disobedience of pool rules formulated to
discourage such obviously dangerous behaviour.” (P. 2533).
28 The difficulty in a failure to warn case is that a significant event which should have
happened in the past did not happen. There is a tendency to look at a plaintiff’s conduct
in the absence of that event and to assume the missing event would not have made any
difference. So in Nagle v. Rottnest Island Authority, the trial Judge held that, as the plaintiff was aware of the presence of the rocks, the warning would not have averted the
danger. In the West Australian Full Court, Wallace J. dealt with that issue as follows
(177 C.L.R. 433):-
“Whilst the appellant was aware of the existence of rocks in the area, he was at pains to dive where he thought the water was clear. Had there been an appropriate sign forbidding diving from the wave platform because of the existence of rocks not readily detectable, knowledge of the existence thereof would have given way to knowledge of the danger of diving because of that fact. Clearly the existence of the rock which the appellant struck was not apparent.” (Emphasis added).
29 The majority of the High Court said (p 433):-
“Notwithstanding the deference which ought to be paid to the findings of the trial judge, we do not agree with his conclusion that the Board’s failure to erect a sign giving an appropriate warning would not have prevented injury to the appellant. The appellant’s uncontradicted evidence, accepted by the trial judge, revealed him to have taken a cautious approach to diving. He entered the water in the way he did because he believed he had passed all submerged rocks. In our view, the likelihood is that he would have been deterred from diving by an appropriate warning sign.”
30 In an employer’s liability action, Gibbs C.J. observed (Sheen v. Fields Pty Ltd
(1984) 51 A.L.R. 345, at 350):-
“I feel bound to add that I could not accept the findings of the learned trial judge that even if goggles had been provided the plaintiff would not have worn them. It is true that the appellant in fact had safety goggles of his own in his tool box at the time, and did not use them, but it does not follow that he would not have worn safety spectacles if they had been given to him by his employer with instructions that he should use them.”
31 The reason for this was stated succinctly by Mason J. (as he then was) in
Duyvelshaff v. Cathcart & Richie Ltd (1973) 1 A.L.R. 125, 143:-
“In general it would be easy to draw the inference that the plaintiff would use a safety belt if it were available, that being the course which a reasonable person mindful of his own safety would take.”
32 In that case, Mason J held that the plaintiff would not have used the safety belt, but
the basic premise must be sound. If it were not so, there would never be any point in
requiring the warning.
33 Tanya was asked (p 169):-
“Now, we will go right back to when you were 17, attending the swimming pool.
If somebody had said to you, “Don’t dive into the shallow end because you
could do yourself an injury.”, what would you have done?-- I would have heeded
their advice.
If you saw a sign saying, in effect, “Don’t dive into the shallow end because you
could do yourself an injury.”, what would you have done?-- I wouldn’t have
dived.”34 That evidence must be tempered with the trial Judge’s findings about credibility.
However, the passage from the judgment about the effect Tanya’s injury had on the
playing of “cut the corner”, which has been quoted, encourages the view that, if a warning
of the serious risks involved in diving across the corners of the pool had been given, it
would have been heeded by Tanya.
35 On appeal, the finding that the supervision was reasonable was attacked, but it has
not been shown to be in error.
It follows then that the relationship between the plaintiff and the defendants gave rise to a duty of care in the defendants, the discharge of that duty required the giving of a
36
warning that there was a serious risk of injury involved in diving across the corners of the
pool, the defendants failed to discharge that duty and as a result Tanya suffered injury.
37 The question of contributory negligence was considered by the learned trial judge
in this way (p 2538):-
“Had I been persuaded that there was any breach of duty it would have been necessary to consider the question of contributory negligence on the part of the plaintiff. In the light of the findings I have made, she would obviously have been required to bear a very significant share of the blame for her injury. On any basis I should have thought that the injury she suffered resulted very substantially from her own negligence and persistent disobedience of pool rules formulated to discourage such obviously dangerous behaviour. In the light of the findings I have made however, it is unnecessary and indeed, undesirable to make any hypothetical allocation of responsibility for contributory negligence.”
38 The “persistent disobedience of pool rules formulated to discourage such
dangerous behaviour” concerned rules against playing “cut the corner”. The risk of injury
to which the participants’ minds were directed was of injury caused by falling on the
concrete. As has been said, the risk of injury caused by striking the end of the pool in
the course of diving was not mentioned. Further, his Honour found (p 2483):-
I am persuaded on the evidence that on the day of her injury the plaintiff and her sister and other children had been playing the “cutting the corner” game for an appreciable length of time, and that the first of the first defendants had come out of the kiosk area and told them to stop playing it. Whether or not he told them to stop playing the game “cut the corner” in express terms, he certainly told them to stop playing the game they were playing which involved running and which was regarded as an essential component of the game. I find that in fact disregarding this warning given by the first of the first defendants, the children including the plaintiff and her sister and Bernadette Osborne continued to play that game for some time until they tired of it for the moment. I am persuaded that at the time of the plaintiff’s injury at least Mundy and Walsh were probably still involved in playing that game with some other children - not necessarily
involving either the plaintiff or Bernadette Osborne or the plaintiff’s sister.”
39 After a careful review of the evidence, his Honour added (p 2516):-
“I accept the evidence of the children generally as to the persistence of the game and the fact that some of them were playing it - even in a half hearted fashion and not in the noisy, boisterous way in which they sometimes played it - for some time before and more or less at the time of the plaintiff’s injury. I infer that the game was much more subdued then that it had been when the noise it was generating had earlier in the afternoon attracted the attention of the first of the first defendants and he went out to the pool and told them to stop. I am unpersuaded however on the probabilities that either the plaintiff or her sister or Bernadette Osborne were members of a group of children playing the game at the time the plaintiff suffered her injury.”
In the course of cross examination of the medical experts, the suggestion was made that
Tanya may have taken a few steps before diving. This, it was suggested, would
increase the force with which she struck the end of the pool. There does not seem to
have been a specific finding about this, although his Honour mentioned it in the passage
quoted from p 2532.
40 In these circumstances can it be said that the damage Tanya suffered was the result
partly of her own fault? She was not injured while playing a forbidden game. She was
not injured by diving headfirst into the shallow end where she had stood on a number of
occasions so that she must have known the depth of the water. Should it be said that
the risk of hitting her head against the end of the pool whilst diving across the corner of
the pool was so obvious that she should have guarded against it? The passage quoted
earlier from the evidence of Dr Yeo highlighted the unexplained factors in diving
incidents. The usual diving action is to have arms extended and in such circumstances
a diver might well expect the arms would protect the head. Why this does not happen in the case of serious spinal injuries caused by diving was an unexplained puzzle for
three experienced spinal injury specialists. Should a seventeen year old understand
what the experts cannot explain?
41 Because the injury Tanya suffered was caused by the striking of her head against
the end of the pool in the circumstances which have been found, no relevant want of care
on Tanya’s part contributed to that injury.
42 It follows then that Tanya should recover damages against both defendants.
43 There was debate among the defendants about the responsibility they should bear
for the injuries. His Honour said (p 2532):-
“Had I been persuaded that there was a breach of duty it seems to me that there would be little reason to distinguish between the responsibility of the first and second defendants in the apportionment proceedings between them.”
44 If the basis for the finding of negligence were the failure to erect signs, the
apportionment made in Inverell Municipal Council v. Pennington (1993) A.T.R. 81-234
of 85% against the Council would be appropriate. However, in this case, Mr Horrobin
knew of the relevant risk and gave no relevant warning. The game “cut the corner” had
been played before Mr and Mrs Horrobin became managers of the pool, so the risk was
also known to the Council. The approach suggested by the learned trial Judge is proper
in the circumstances.
45 Tanya appealed in respect of two components of the assessment of damages. To
these components in context, the tabulated findings about the measure of damages
should be set out (p 2561):-
“General Damages for Pain Suffering and
Loss of Amenities of Life................................................................................$200,000.00
Interest on $45,000 of that sum at 2% per annum for 6.65 years................$ 6,000.00
Pre-trial Loss of Income and Superannuation Entitlements........................ $ 83,000.00
Interest thereon at 5% per annum for 6.65 years......................................... $ 27,597.50
Loss of Future Earning Capacity (Income and Superannuation
(Contribution from Employer).........................................................................$284,396.48
Special Damages ...........................................................................................$280,245.51
Interest thereon at 3% per annum for 6.65 years......................................... $ 55,908.98
Past Griffith v Kerkemeyer care....................................................................$198,840.00
Interest at 2% per annum for 5½ years ......................................................... $ 21,872.40
Cost of future care.............................................................................................$ 1.25 M
Additional costs of building residence for plaintiff ......................................$125,000.00
Present Value of recurrent costs etc. ............................................................ $ 43,000.00
Additional costs incurred in provision of motor vehicle ............................... $ 58,000.00
Cost of future aids ...........................................................................................$220,000.00
Future occupational therapy............................................................................$ 6,500.00
Cost of future physiotherapy............................................................................$ 7,000.00
Cost of future medication ...............................................................................$145,000.00
Cost of future psychological counselling........................................................$ 4,500.00
Cost of future daily hospital visits ...................................................................$ 5,250.00
Cost of hospitalization in the future................................................................ $ 70,000.00
Cost of future Cystoscopies........................................................................... $ 15,000.00
Cost of future IDP or Ultrasound treatment....................................................$ 3,750.00
Loss of Expectation of Life..............................................................................$ 3,000.00
Cost of Dietician assistance...........................................................................$ 246.00
Cost of restoration of some function to the right hand -
Operative Treatment etc.................................................................................. $ 52,000.00
Travelling Expenses for that treatment........................................................... $ 67,500.00
Maintenance costs for arm implants etc. ........................................................$ 8,653.50
Cost of Replacement of Equipment ............................................................... $ 28,845.00
Travelling Costs for Replacement of Transducers........................................ $ 20,931.00
TOTAL......................................................................................................... $3,292,036.40"46 The first component that needs to be considered is cost of future care. His Honour’s
findings in that respect began with the acceptance of the evidence of Ms Stephenson
in preference to that of Ms Coles. No challenge is made to that finding. This evidence
allowed for the provision of two live-in carers so that one was available twenty-four hours a day. His Honour also allowed for food and accommodation for the carer. It was
assumed that only one carer would live in at a time. He then allowed for “lifestyle care”
which involved organising social and outdoor activities for ten hours a week. In addition,
the defendants conceded that a “commercial on-cost” of 18.5% should be added. The
total of these amounts was $1469.40 per week. Dr Hill expressed the view that Tanya’s
life expectancy was 47 years, so that the raw sum for future care was $1,412,828. His
Honour discounted this to $1.25M.
47 The basis of the challenge to this finding is two fold. First, it is said that the kind of
care allowed for was inadequate. Personal medical care was needed from a trained
nurse for eight hours a day. Secondly, it was submitted that a new industrial award was
soon to come in which would make care much more expensive.
48 The first submission is based largely on the evidence of the medical experts. It is
clear enough that the care which Tanya needs every day to maintain the level of hygiene
which will ensure continued good health is extensive and intrusive. This is particularly
so in respect of bladder and bowel function. Is it necessary that there a trained nurse
available, for example, to insert a catheter? His Honour did not discuss this but said he
had regard to the evidence of Dr Max Murray about the nature of the support which he
had been given over the years since he became tetraplegic (p 2553).
49 Dr Murray was formerly Associate Professor in Animal Science at James Cook
University. He became a Doctor of Philosophy in Animal Science in 1973 and
commenced as a lecturer in Tropical Veterinary Science at James Cook the following
year.. He sustained spinal injuries in 1980. He returned to part time lecturing in 1982
and continued to lecture at the University until 1994. With his wife, he developed a
business, “Access Designs”, giving information to architects, engineers and builders on
providing access for people with disabilities. When he gave evidence, he was fifty eight
years old. He had resigned from his university post to concentrate full-time on Access
Designs. Dr Murray has also been very active in a number of associations concerned
with quadriplegia. His disability was virtually the same as Tanya’s except he has a
slightly better wrist action. Although he had employed various carers over the period
since his injury, his wife has provided the great bulk of the care since he resigned from
the University.
50 In the time since she returned home, Tanya has been cared for largely by her mother
who has been taught to perform all the necessary tasks. This has been done very well.
This means that the necessary skills can be taught to a person who is not a qualified
nurse. Consequently, it cannot be said that the basis for assessment chosen by his
Honour was not in accordance with the evidence. Certainly, he could have accepted the
evidence that qualified nurses were needed, or he could have taken the approach he
did. It cannot be said on appeal that he was in error in the approach he took.
51 In relation to the industrial award, the learned trial Judge said (p 2549):-
“I am unpersuaded that I ought assume that an award will become law in this State within the next few years which would so drastically affect the cost of procuring inhouse care and assistance of the sort to which the witness Leveritt referred as having become quite common over the years as to put it beyond the financial capacity of those unfortunate people who need and can currently afford it.”
52 In other words, the issue was considered by his Honour and was considered to be
such a remote possibility that it could be ignored. That was an opinion open to him, and
the way in which he reached that opinion is compelling. He was giving judgment during
a period when “market forces” are seen as having a profound influence upon industrial
practices. It would be strange, in those circumstances, to come to the conclusion that
an upward spiral in wages will be achieved in the face of market forces. Rather, his
Honour could proceed on the basis that carers will be paid what handicapped people
can afford to pay, according to standards existing at the time of the judgment.
53 There is then no basis for altering the assessment made for future care.
54 The second challenge to the assessment is in respect of the failure to allow for the
provision of a nanny to care for Tanya’s children if she has any. His Honour’s opinion
in this respect was (p 2534):-
"For all practical purposes it will not be possible for the plaintiff to have children in the future if she desires to do so. A good deal of evidence was called concerning the possibility of her adopting children and/or the possibility of her sister acting as surrogate mother for an embryo produced with the participation of the plaintiff.
I have reservations about this aspect of the plaintiff’s case. It seems on the evidence quite unlikely that the exercise of any necessary discretion to facilitate or approve the adoption of a child by the plaintiff would disregard her inability to do anything for the child because of her infirmity. Indeed part of her case involved the claiming of future expenses to be incurred in employing one or more nursemaids and providing them with accommodation so that they might look after a child which the plaintiff might either adopt or acquire through the surrogacy of her sister. Unsurprisingly, the future costs of providing services for such nursemaid assistance were significant and I rather suspect that that was the object of the evidence rather than any real intention on the part of the plaintiff to embark upon such an enterprise, particularly having regard to the deleterious effect it would be likely to have on a
child reared in such circumstances.
In any event, in my view every plaintiff is required to minimise the loss suffered by virtue of a defendant’s negligence. Far from minimising her loss, expense the plaintiff incurred by embarking upon the adoption of a child or children at a time when her capacity to care to them or indeed even to hold them has been substantially destroyed would involve a failure to mitigate loss and for that reason not be recoverable. In my view it could not be said that the incurring of such expense would be reasonable having regard to the physical incapacity of the plaintiff to give even the most token physical care required by a child.
In my view the correct way to compensate the plaintiff of her inability to have and/or to care for children is to take that into account in the award of general damages for pain, suffering and loss of amenities of life.”
55 It is not immediately clear why reference was made to the duty to minimise loss.
The injury which Tanya sustained has grossly interfered with her capacity to do and enjoy
the ordinary things of life. She is to be compensated for that loss. If she has additional
expense because of her injuries she is to be compensated for that. Consequently, in
Sturch v. Wilmott (1997) 2 Qd. R. 310 an injured woman recovered the cost of the care
of her children because she was unable to care for them. That was not the case here.
The learned trial Judge was required to assess the degree of probability of a future
event occurring: Malec v. J.C. Hutton Pty Ltd (1990) 169 C.L.R. 638.
56 At the time of trial, Tanya was aged 22 years and unmarried. The medical
evidence, which tended to be based on generalities rather than on clinical tests, was to
the effect that it was possible she could conceive naturally. It was also possible that
conception could be assisted. There was evidence about the difficulties of pregnancy
which were specific to tetraplegics. There was evidence also about the possibility of
adoption, although the relevant officer from the Department of Families, Youth and
Community Care agreed that it was “highly unlikely” an application for adoption by Tanya would succeed.
57 The fact that there are three possible ways in which Tanya could become a mother
means no more than that every woman has the same three opportunities. What is
significant here is the extent of Tanya’s capacity to have a child and to discharge the
responsibilities of motherhood. Dr Murray’s evidence makes clear how much the well
being of a tetraplegic who is married depends upon the partner. He said that the incidence
of break downs in marriages for spinally injured people is very high (p 433). This is
because of the stress caused by the high level of involvement in the care of the
handicapped partner. This would seem to apply even more so if there is thought of
bringing a child into that relationship. When these matters are considered it would follow
that the possibility of Tanya becoming a mother is slight. She would need to find a partner
who would support her and then go along the three possible paths to motherhood. It is
significant that the claim made is in respect of the care of two children during their pre-
school years. Any care after that period would be provided either by Tanya’s partner or her
paid carer. In the sober light of day, away from the excitement of building up a claim for
damages, common sense could well dictate that it would be a far too difficult a task to
undertake.
58 The total amount claimed in the appellant’s outline is $99,800. If her loss should be
determined in this way and the chances are assessed as slight, the appropriate amount
could be $20,000. Rather than allow for the cost of caring for children, the learned trial
judge took the view that he should compensate Tanya for her inability to have and/or to care
for children by including an unspecified amount in the award for pain, suffering and loss of
amenities of life. In view of the allowance of $200,000 under this head, it can be assumed that a significant sum, possibly more than $20,000, was included under this aspect of
Tanya’s loss. Consequently, the approach taken by the learned trial judge has provided
fair compensation for this aspect of Tanya’s loss.
59 It follows then that the award of $3,292,036.40 should be upheld.
60 The appeal should be allowed. Judgment for the defendant should be set aside and
in lieu there should be judgment for the plaintiff against the defendants for $3,292,036.40.
The first defendants should bear one half of the judgment and the second defendant the
other half.
61 The parties should have liberty to make submissions in writing about the appropriate
orders for costs, both in the court below and on appeal.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 10477 of 1997
Brisbane
Before
Pincus JA Demack J Chesterman J
[Hornberg v. Horrobin & Ors]
BETWEEN:
TANYA ANNE HORNBERG
(Plaintiff) Appellant
AND:
BRIAN CHARLES HORROBIN AND SHERRY JOSEPHINE
HORROBIN
(First Defendants) First Respondents
AND:
COUNCIL OF THE SHIRE OF WARROO
(Second Defendant) Second Respondent
REASONS FOR JUDGMENT - CHESTERMAN J
Judgment delivered 18 September 1998
1. This appeal is brought from a judgment dismissing the appellant’s claim for damages for
negligence against the respondents. The essential facts out of which the claim arose were described by
the trial judge:
“On the afternoon of 17 December 1991 the (appellant) suffered severe injury to her cervical spine when she dived into the shallow end of a public swimming pool at Surat, a small country town about 400 kilometres due west of Brisbane. As the result of that injury she is now tetraplegic.
The Surat swimming pool ... is ... about 25 metres long by 10 metres wide. At its deep
end it has a depth of 8 feet 9 inches and at its shallow end one of 3 feet 6 inches. ...
There were accurate depth markings at the shallow end, the middle and the deep end
in imperial measurements.
...The pool was owned and maintained by (the second respondent) ... It was managed by the (first respondents) whose obligation was to clean and carry out daily maintenance of the pool and its surrounds and to supervise its use when open to the public.”
2. The appellant’s case was that she dived into the shallow end of the pool from “starting blocks”
which were masonry blocks raised above the level of the pool surrounds, striking her head on the
bottom. The negligence was said to consist of:
(a) failing to warn of the dangers of diving into shallow water by means of signs displaying
such a warning; and
(b) the presence of the starting blocks which both invited and facilitated a dive at the
shallow end.
3. The appellant had swum in the pool several times prior to the occasion on which she was
injured. She knew the depth of the water at the shallow end. She was seventeen years of age, about
six feet in height and about eighty kilograms in weight.
The appellant’s case, as finally pleaded, was that the respondents were negligent in:
(a) failing to remove the starting/diving blocks from the shallow end (northern end) of the swimming pool when reasonably prudent persons would have done so;
(b) failing to provide warning signs cautioning against diving into the swimming pool when reasonably prudent persons would have provided such warning signs;
(c) failing to provide warning signs cautioning against diving into the shallow end (northern end) of the swimming pool when reasonably prudent persons would have provided such warning signs;
(d) failing to provide warning signs cautioning against diving into the shallow end (northern end) of the swimming pool from the said starting/diving blocks when reasonably prudent persons would have provided such warning signs;
In the same case Williams J (at 62,811) quoted with approval the remarks of White J in Bartlett v.
Robinson (1981) 27 SASR 342 at 347:
“The law of negligence is concerned with reasonable standards of conduct - reasonable care for the safety of others, showing reasonable foresight in the circumstances. What is reasonable varies not only with the particular circumstances or relationship, but with community standards from place to place and decade to decade.”
24. In my view, if there were a foreseeable risk that the appellant might injure herself by diving
across the pool when not taking part in the game, a reasonable response did not require her constant
supervision (and therefore constant supervision of every other non-adult occupant of the pool). The
finding of the trial judge that an alert adult supervising the occupants of the pool when the appellant was
injured would not have prevented the injury is supported by such evidence as there was on the topic.
In my view there is no basis for disturbing the findings and conclusions of the trial judge. The
appeal should be dismissed.
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