Martin, Shane v State Sport Centres Trust (Ruling)
[2009] VCC 1500
•9 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-04248
| SHANE MARTIN | Plaintiff |
| v | |
| STATE SPORT CENTRES TRUST | Defendant |
| (ABN 93 640 295 102) |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18, 19, 20, 21, 22, 25 and 26 August 2009 |
| DATE OF RULING: | 9 September 2009 |
| CASE MAY BE CITED AS: | Martin, Shane v State Sport Centres Trust (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1500 |
RULING
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Catchwords: Civil trial – Motion for judgment notwithstanding the jury verdict – Non Obstante
Veredicto.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G J Burns | M W Law |
| For the Defendant | Mr B R McTaggart | Deacons |
| HIS HONOUR: |
1 In this proceeding, without objection from counsel for the plaintiff, I reserved to the defendant the right to move for judgment notwithstanding the jury’s verdict in the proceeding.
2 Subsequently, on 25 September 2006, the jury returned a verdict in favour of the plaintiff, and the defendant now moves for a judgment notwithstanding that verdict.
3 The circumstances giving rise to the proceedings may be summarised as follows:
•
On 9 April 2006, the plaintiff attended the Melbourne Sports and Aquatic Centre with his two daughters.
•
Whilst at the centre, the plaintiff’s youngest daughter wished to ride on the waterslide. She did not however meet the minimum height restriction for users of the slide and for that reason the plaintiff was required to accompany his daughter on the ride.
•
The ride commences from an elevated level. The rider travels along an enclosed tube containing a stream of running water which snakes around and down and terminates in a pool known as the run-out pool.
•
The system employed by the defendant to supervise the operation of the slide was to station one lifeguard at the entry to the slide. The role of the lifeguard was to prevent the risk of users of the slide colliding with each other by ensuring that the next user of the slide did not commence their ride until the previous user had exited from the run-out pool.
•
The plaintiff rode the slide with his daughter. Having completed their ride both the plaintiff and his daughter stepped out of the run-out pool. As they walked away the plaintiff’s daughter threw back to the plaintiff the goggles which she was wearing, he failed to catch them and the goggles fell into the run-out pool.
•
In the course of retrieving the goggles the plaintiff placed his left leg into the run-out pool and whilst he was in that position he was struck by a subsequent user of the slide. The force of the impact was such as to break the plaintiff’s leg.
4 The defendant acknowledges that at all material times it owed to the plaintiff a duty of care which arose by reason of its occupation of the Melbourne Sports and Aquatic Centre and the provision by it at the centre of a waterslide (“the slide”) for the plaintiff’s use. It is the defendant’s submission that there was no evidence upon which the jury could have found that it was in breach of the duty of care which it owed to the plaintiff.
5 In moving for judgment, the defendant relies on the following submissions:
(a)
That having regard to the history of no prior incidents associated with the use of the slide, whilst the injury may have been foreseeable the risk of its occurrence was insignificant.
(b)
That the actions taken by the defendant to guard against the risk of injury to persons using the slide were reasonable, having regard to the compliance with the recommendations made by the Royal Life Saving Society as to the level of supervision which should be employed in association with the use of a waterslide, and the signage which it had erected which warned patrons to leave the run-out pool without delay.[1]
(c)
That the defendant was entitled to rely upon the concept of “normative behaviour” as described by Robert Andronaco in the course of his evidence.
(d)
That the only evidence relevant to the issue of enclosing the run-out pool by a fence, was that this measure was ineffective and not practical.
(e)
That there was no evidence upon which the jury could find that there were precautions that the defendant should have taken which would have prevented the occurrence of the accident.
[1] In this regard it was submitted on behalf of the defendant that this warning, appearing in three signs, led to an irresistible inference that there was a danger if users re-entered the pool after exiting from the pool as occurred in the present case.
6 In response, it was submitted on behalf of the plaintiff that there was an abundance of evidence upon which the jury was entitled to make a finding against the defendant, and I have been provided by counsel for the plaintiff with a number of transcript references which, it is submitted, support this assertion.
The Approach to be Taken in Considering a Motion for Judgment notwithstanding the Verdict of the Jury
7 In Naxakis v Western General Hospital,[2] McHugh J, at paragraph 40, observed:
“When the defendant submits that there is no evidence to go to the jury, he or she raises a question of law for the judge to decide. The question for the judge is not whether a verdict for the plaintiff would be unreasonable or perverse but whether the plaintiff has adduced evidence which, if uncontradicted, would justify and sustain a verdict in his or her favour.”
[2] (1999) 197 CLR 269
8 His Honour continued at paragraph 41:
“... the trial judge must consider those parts of the evidence which, if accepted, could reasonably establish negligence — whether directly or inferentially. If such evidence has been tendered, it matters not that other evidence has been tendered that may contradict it even if the contradictory evidence comes from a witness, part of whose evidence is relied on to prove the negligence. It has long been established that a plaintiff is entitled to ask the jury to accept part — even a small part — of the evidence of a witness and to reject the rest of the witness’ evidence.”
9 And further, at paragraph 42:
“Evidence given by a witness including the plaintiff in support of the claim of negligence will ordinarily have to be taken into account on a no case submission even if that evidence may appear to be contradicted or qualified, as a result of cross-examination.”
10 It is not in issue that the approach outlined by McHugh J is the one which I should adopt in deciding this application.
The Effect of the Provisions of the Wrongs Act
11 Section 48 of the Wrongs Act 1958 as amended (“the Act”) provides as follows:
“(1) A person is not negligent in failing to take precautions against a risk
of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. (3) For the purposes of subsection (1)(b)—
(a) insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and (b) risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.”
12 In considering the application made by the defendant, I will approach the issue by considering each of the factors set out in s.48(1) of the Act as they are qualified by the provisions of ss.48(2) and 48(3).
Was the Risk Foreseeable?
13 The defendant does not take issue with the fact that the risk was foreseeable. Having regard to the evidence of Daniel Brookes at T 308 Line 9 and T 337 Lines 4-23, this is clearly an appropriate concession by the defendant.
Was the Risk Not Insignificant?
14 Whilst the likelihood of the risk was described at various times as being very unlikely,[3] and inherently against the fundamentals of the operation of the splash-pool,[4] Mr Brookes gave evidence that he had, prior to the accident, seen people lose their goggles in the run-out pool and retrieve them by reaching in and fishing them out. His evidence on this issue was as follows:[5]
[3] Mr Brookes - T 308
[4] Mr Andronaco - T 279
[5] T 339
“Q: Had you ever had an instance where they looked as if they might be
about to get back into the water?---A:
Yes I’ve seen people – similar to this – lose their goggles in there, but on those occasions they’ve just reached in and fished them out.
Q: They didn’t get back into the water?--- A: No. Q: Were you up the top when that occurred?--- A: Yes. Q: Were you in a position to take action if they had got back in the
water?---
A: Yes, basically yell at them from the top of the waterslide.”
15 In Wyong Shire Council v Shirt,[6] Mason J said, at p.47:
“A risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable.”
[6] (1980) 146 CLR 40
16 The comments of Mason J to which I have referred provide guidance as to the interpretation of the words used by the Parliament in s.48(3)(a). Whilst insignificant risks include risks which are far-fetched or fanciful, they would not in my opinion include risks which are extremely unlikely or remote.
17 I am of the opinion that the evidence adduced in the case was not such that it was inevitable that a jury must have taken the view that the risk to which the plaintiff was exposed was not insignificant, having regard to the description of the likelihood of the risk given by both Mr Brookes and Mr Andronaco to which I have referred, and in particular the evidence given by Mr Brookes that he had seen people lose their goggles in the run-out pool and reach in to fish them out.
18 I am satisfied in these circumstances that the jury may well have taken the view that the actions of the plaintiff in stepping back into the pool to retrieve goggles which had been lost were by no means far-fetched or fanciful.
Was there Evidence which would Permit the Jury to Conclude that there Were Precautions that the Defendant Should have Taken which on the Balance of Probabilities would have Prevented the Plaintiff’s Injury?
19 In putting its case to the jury, the plaintiff relied on three arguments:
(i) An additional lifeguard should have been employed to specifically supervise the area of the run-out pool. (ii) The area of the run-out pool should have been enclosed by a fence. (iii) The plaintiff was not warned immediately before commencing his ride that he should leave the run-out pool. 20 A number of the factors which are relevant to the consideration of this issue are set out in s.48(2). These factors, however, are not exhaustive, and the court is required to consider all relevant matters. I find it convenient, however, in considering whether the plaintiff has adduced evidence which, if uncontradicted, would justify a verdict in his favour on any of the bases upon which the plaintiff went to the jury, to commence my analysis of this issue by dealing with each of the factors set out in s.48(2).[7]
[7] I note that the factors set out in s.48(2) are virtually identical to those set out in s.14B(3) which are also germane to my consideration, and I take those factors into account.
Should an Additional Lifeguard have been Employed?
21 The factors which require consideration by the Act in this regard are as follows:
(d) The social utility of the activity that creates the risk of harm
(a) The probability that the harm would occur if care were not taken – was low if this issue was assessed only on the basis of the history of the defendant’s operation of the waterslide.[8] Given the evidence by Mr Brookes at T 339 to which I have earlier referred however, it was open to the jury to take the position that the history of the use of the pool was not the only factor to take into account when considering the probability of the occurrence of harm.
[8] In the 10-year history of the operation of the centre a similar incident had never occurred.
(b) The likely seriousness of the harm – occurring if a collision occurred in the run-out pool.[9] I am of the view that the jury was entitled to weigh this factor as being the most significant of the factors which it was required to consider.
[9] T 337
(c) The burden of taking precautions to avoid the risk of harm – increase in the admission fee charged to persons entering the pool of no more than 10 cents would have met the cost associated with the employment of an additional lifeguard to supervise the run-out pool.[10] It was open to the jury in these circumstances to find that the burden of taking the relevant precaution, when considered in terms of the seriousness of the risk of harm, was not a significant one.
– by the defendant, I am of the opinion that it was open to the jury to find that the social utility associated with the activity was not a significant factor in all the circumstances, particularly having regard to the likely seriousness of the harm.
(e) The likelihood of the injury being prevented – extra lifeguard would have prevented this injury. I note the concession in this regard made by Mr Adam Luscombe at T 145-8 to 23.
[10] The cost of employing such a lifeguard was approximately $100,000 per annum – T 93. The pool had in excess of one million entrants per annum – T 91.
22 I am particularly cognisant of the evidence adduced by the defendant that the slide was unique in that it was the only waterslide which did not employ a lifeguard to supervise the run-out pool.[11] In addition, there was evidence that the run-out pool was located in an area which was open to the public, accessible to young children[12] and, that people had previously been observed to approach the run-out pool and stand beside it not only to retrieve goggles but to watch the operation of the slide.
[11] Whilst the defendant asserted that this was an appropriate approach to take given the location of the run out pool , it was open to the jury not to accept this position.
[12] T 98
23 In these circumstances I am satisfied that it was open to the jury to find:
(i)
That the defendant should have employed an additional lifeguard who was stationed beside the run-out pool.
(ii)
That had a lifeguard been stationed at the run-out pool, on the balance of probabilities the plaintiff’s injury would have been avoided.
Should a Pool Fence have been Erected?
24 In considering this aspect of the plaintiff’s case, identical issues are raised to those which I analysed in considering the issue of the employment of an additional lifeguard, with the exception that the burden of taking precautions to avoid the harm, and the effectiveness of those precautions if they were taken, require separate analysis.
(a)
The burden associated with erecting a fence so as to avoid the harm and the effectiveness of a fence
25 At T 105 Mr Luscombe accepted that the area in question could quite easily be fenced off with a non-return gate, that this would not be a very expensive exercise in the scheme of operating the pool, and that this exercise would have prevented people such as the plaintiff inadvertently going back into the pool. Whilst these concessions were subsequently qualified by Mr Luscombe, it is clear that the jury was entitled to accept that evidence, and not to accept its subsequent qualification.
26 In these circumstances, I am satisfied that it was open to the jury to find:
(i) That the defendant should have erected a fence to guard the run-out pool. (ii) That had a fence been erected around the run-out pool, the plaintiff’s accident would have been avoided. (b) The failure to administer a warning to the plaintiff at the time at which he commenced his ride and the relevance of the omission 27 Mr Luscombe gave evidence that immediately before commencing his ride, the plaintiff should have been given a direction that he should leave the run- out pool immediately after he finished the ride. It was submitted on behalf of the plaintiff that the jury could make use of the failure to administer this warning to support a finding that, in the presence of such a warning, the plaintiff would not have re-entered the pool.
28 In circumstances in which:
(i)
it was the plaintiff’s evidence that he had not read the three signs which contained similar warnings to the one which Mr Luscombe said should have been given to him orally;[13]
(ii)
the defendant specifically put to the jury that the effect of a warning to immediately leave the pool at the completion of the ride was a clear warning:
[13] It was open to the jury to find that in these circumstances the plaintiff was not aware of the defendants’ instructions to this effect.
“that there was a risk of something occurring if you were to get
back in”,[14][14] T 369
I am of the opinion that the jury was entitled to make use of the defendant’s failure to provide the plaintiff with an oral warning to immediately leave the run out pool as a failure which caused the plaintiff’s injury.
29 In these circumstances, I rule against the defendant’s motion for judgment, notwithstanding the verdict of the jury.
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