Keperra Country Golf Club v Salmon

[1992] QCA 324

[1992] QCA 324

COURT OF APPEAL

McPHERSON JA
DAVIES JA

MOYNIHAN J

CA No 127 of 1992

KEPERRA COUNTRY GOLF CLUB	Appellant (Defendant)
and
FRANCIS BRIAN SALMON	Respondent (Plaintiff)
BRISBANE ..DATED 14/09/92
JUDGMENT

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McPHERSON JA: This is an appeal by the defendant against a
judgment for damages awarded to the plaintiff in an action
in the District Court. The defendant is the owner and
occupier of the Keperra Golf course which includes or is
traversed by a creek. The plaintiff was injured on 12
January 1990 when the golf buggy he was driving left the
earth pathway between the 25th green and the 26th tee and
toppled over the embankment, falling down to the creek level
some 10 or 12 feet below. It is acknowledged that the
plaintiff came onto the property of the defendant in the
character of a contractual entrant, with the consequence
that in law the defendant was bound to ensure that the
premises comprising the golf course were as safe for their
purpose as they could, by the use of reasonable skill and

care, be made.

The trial Judge found that the earth strip or path along
which the plaintiff was travelling on the buggy was uneven,
wet and muddy, and specifically that there was a pool of
water lying across the path ahead of and in the direction of
the plaintiff’s line of travel. Not unnaturally - or, as
his Honour found, not unreasonably - the plaintiff elected
to go round rather than through this puddle and he steered

the buggy to the left of the path. This took him into an

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area of longish grass which is visible at the left of the
photographic
exhibits 14 and 21. The fact is that the edge of the
embankment begins, or at this time in 1990 began, only a
foot or so beyond this area of long grass.
The plaintiff was not aware of this. He went a little too
far. The left front wheel of the buggy went over the edge
and he crashed down the embankment. There is, of course, to
reason at all to suppose that the plaintiff in fact knew of
the proximity of the embankment and the fall in level or
that

he deliberately ventured over or so perilously close to it.

On appeal it was submitted on behalf of the appellant

defendant that His Honour should have found that the
plaintiff ought to have been aware of its proximity. On this
point the judge's finding is stated in the following terms:
"I find the earth strip was uneven and wet and muddy and
that there was a pool of water across the path some distance
ahead of where Mr Salmon entered and exited the bare earth
strip.

This not unreasonably, in my view, caused Mr Salmon to steer the cart across the strip towards the other - or creek side.

I find that at the time he was generally aware that there

was a water course through the golf course but not that its

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embankment commenced immediately in long grass adjacent to
large trees and shrubbery into which he allowed the left
front wheel of the cart to run. I accept Hill's evidence
of the nature of the long grass in that area that at ground
level individual tufts commenced in a narrow crown, but the

leaves fanned out, as it were, in a wide area at the top.

There is no evidence that mowing was done precisely to the
commencement of the fall away of the soil into the creek,
and the nature of the grass could easily give the impression
that it was growing on the land at the same level as the
mown area." For the appeal to succeed, it is necessary that
the defendant begin by at least displacing this finding. It
was suggested first that the plaintiff had previously played
on the Keperra course and so should have known of the
danger. However, although he had twice played golf there in
1989, his evidence was that he had done so only on the first
9 holes, or perhaps the second, and not the third, which was
where this accident occurred. Before 1989 the plaintiff had
previously played there as long before as about 1949 but not
thereafter. No reason for doubting his testimony on these
matters appears

from the record.

The second point that was advanced was that the course, or

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the sequence of play between the 24th and 25th holes, would
earlier have taken the plaintiff out over the creek and then
along the same path or route as he was traversing at the
time the accident took place. However, it must be said that
the plaintiff would have been moving in the opposite
direction to that previously travelled, and there is no
reason why anyone concentrating on the play in hand should
have paid particular attention to the topography beside or
ahead of him so as to retain a recollection of it specific
enough to enable him to appreciate the dangers when he later
came to travel along the route which he was following when
the accident occurred.

In any event, the trees and other thick vegetation that is visible in exhibits 14 and 21 would have blocked any clear view of the creek or the embankment and the fact that those features were so close at hand. What surely is more important than all this is that the land on which the grass was growing at the end of the embankment was capable of creating the impression that it was at the same level as the path, whereas the fact was that the grass masked the steep fall in gradient over the embankment. That is really the tenor of the finding made by the trial Judge in the last sentence of the passage I quoted earlier.

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There is thus no basis in any of these matters for disturbing His Honour's conclusions of fact, whether they are approached in their character as findings of credibility, or of primary fact, or as inferences of negligence or want of reasonable care on the part of the defendant.

As to the latter, the Judge thought that the defendant should have provided a sign, or perhaps a series of marker pegs, so as to warn users of the proximity of the dangerous slope. For my part, I would have thought something more substantial would be required in order fully to discharge the duty of care; but, in any event, even the modest precaution thought by the Judge to be necessary was not provided by the defendant.

The only other point advanced on appeal concerned the
refusal at the trial to require plaintiff’s counsel, when
requested to do so by defendant's counsel, to tender notes
from which one of the defendant's witnesses claimed to
refresh his memory and on which he was then cross-examined
at the trial. As to this, it is enough to say that having
perused the notes, which are exhibit "C" for identification,
there seems to me to be no way at all in which their

exclusion, even if it was erroneous, could be said to have

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led to a substantial miscarriage of justice, or any
miscarriage of justice at all.

In all the circumstances, it is my view that the appeal should be dismissed with costs.

DAVIES JA: I agree.

MOYNIHAN J: So do I.

DAVIES JA: The order is as Mr Justice McPherson has indicated.

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