McLellan v Queensland Rail

[2001] QCA 487

SUPREME COURT OF QUEENSLAND

CITATION:

McLellan & Anor v Queensland Rail [2001] QCA 487

PARTIES:

JOHN THOMAS McLELLAN
(first plaintiff/ first appellant)
MATTHEW BRAYTON
(second plaintiff/second appellant)
v
QUEENSLAND RAIL
(defendant/respondent)

FILE NO/S:

Appeal No 3939 of 2001
DC No 8 of 1997
DC No 40 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Gympie

DELIVERED ON:

9 November 2001

DELIVERED AT:

Brisbane

HEARING DATE:

10 October 2001

JUDGES:

McMurdo P, McPherson JA, Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeals dismissed with costs to be assessed.

CATCHWORDS:

TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – where the respondent was conducting a controlled burn along a railway corridor – where respondent was aware that trail-bike riders used the railway corridor without authorisation – where the appellant children rode into the burn-off and suffered injuries  – where the appellants were unsuccessful in claiming damages in negligence

TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – SUFFICENCY OF EVIDENCE - where the appellants' case at trial was that no smoke or fire was visible until they were suddenly engulfed in flames – where the judge found that smoke and flames were visible from some distance and the appellants deliberately rode into the burn-off – where the evidence supports this finding

TORTS – NEGLIGENCE – DUTY OF CARE – PARTICULAR CASES  - AFFECTING MINORS – whether the duty of care owed to children is higher than the general duty – where it is accepted that children can sometimes be expected to act less responsibly than adults – where the evidence was that the appellants appreciated the risk of riding into the flames – where the respondent owed a duty to the appellants to take care to conduct the burn-off in a way so as to not expose them to unreasonable risk – where the duty did not extend to taking steps to prevent the appellants from deliberately riding into the fire

TORTS – NEGLIGENCE – STANDARD OF CARE – GENERALLY – whether the respondent should have denied access to the corridor by erecting demountable barriers – where the judge found that barriers could hinder escape or assistance and were unnecessary to prevent people from entering areas of obvious rural fires – where the respondent's duty of care did not extend to the erection of demountable barriers to prevent the appellants from deliberately riding at speed into an obvious, controlled and supervised rural fire

Council of the Shire of Wyong v Shirt (1979-1980) 146 CLR 40, referred to
Harper v The Secretary to The Department of Natural Resources and Energy [2000] 1 VR 133, referred to
Derrick v Cheung [2001] HCA 48, 9 August 2001, referred to
Gough v National Coal Board [1954] 1 QB 191, referred to
Huges v Lord Advocate [1963] AC 837, considered
McHale v Watson (1965-1966) 115 CLR 199, referred to
Mitchell v Government Insurance Office (NSW) (1991-1992) 15 MVR 369, referred to
Omrcen v Paxman (1996) 24 MVR 469, referred to

Romeo v Conservation Commission of The Northern Territory (1997-1998) 192 CLR 431, considered

COUNSEL:

R J Lynch for the appellants
J C Bell QC with R P S Jackson for the respondent

SOLICITORS:

Sciaccas for the appellants
Phillips Fox for the respondent

1. McMURDO P:  During the 1995 September school holidays Queensland Rail (the respondent) conducted a controlled burn along its railway corridor near Curra north of Gympie.  The burn was to reduce both dead vegetation left by winter frosts and extensive green growth so as to reduce the risk of accidental fire.  The work was conducted by seven of the respondent's employees.

1. John McLellan (the first appellant) aged 12 and Matthew Brayton (the second appellant) aged 14 were travelling on their trail bikes to a waterhole about six kilometres from their home at Curra.  The route they chose traversed the area of the controlled burn.  Tim Anderson, also 14, travelled as a pillion passenger on John's bike.  The boys travelled along a public road, through private property and along a track which merged with the access road within the railway corridor where the respondent was conducting the burn.

1. They travelled north at approximately 45 kilometres per hour for about one kilometre before reaching a crest in the access road which provided a clear view of the road ahead. The burn was plainly visible from the crest and the boys could not have failed to notice the fire and smoke: the fire produced considerable smoke and flames which would have been visible from Gympie, 18 kilometres away. They travelled some distance from the crest before entering the fire at speed; their bikes were found 220 to 250 metres from the crest.

1. As John's bike approached the fire at 60 kph, Tim, appreciating that John intended to ride the bike into the fire, escaped by jumping from the fast-moving bike.  Tim did not give evidence.

1. The respondent's employees controlled the burn as follows.  The supervisor slashed vegetation at the fence line, lit the fire and directed it northwards from the fence line, on an angle towards the access road and the railway embankment.  The supervisor walked ahead, regularly checking the fire.  Another worker cleared burning logs and vegetation with a tractor which also held a 600 litre water tank and high pressure hose for use if the fire jumped the break.  A third worker drove a second tractor and slasher 100 metres to the south.  The boys rode past and probably saw the tractors.  The remaining four workers were with the gang truck preceding the fire, ready to extinguish any unwanted fires with the 2000 litres of water in the truck or with the water in their backpacks.  There was some wind but this was not a significant factor.  Warning signs were not warranted because the controlled burn was obvious to all; it is unnecessary to warn people not to enter an obvious rural fire. 

1. The respondent was aware that trail bike riders and others used the railway corridor without authorisation.

1. These findings of fact are unchallenged.

1. Mr R J Lynch, who appears for the appellants, contends that the respondent ought to have known that juvenile trail bike riders used the railway corridor, especially during the school holidays.  The duty of care owed to children is higher than the general duty of care; children cannot be expected to act with commonsense or responsibility; the respondent created a controlled burn which involved the dangerous and unpredictable element of fire, an attraction to children who may not act reasonably in caring for their own safety; the precise accident need not be foreseeable if some harm to the children was foreseeable.

1. The appellants claim that the learned trial judge did not give any significant consideration to these matters in his reasons for judgment.  This is hardly surprising because the appellants' case at trial was that they saw almost no sign of fire or smoke along their route until they were suddenly and unexpectedly engulfed by flames and smoke shortly after leaving the crest.  Had they been warned of the fire, they claimed they would have taken another route to the waterhole: John said he would not have gone on had he known there was a fire ahead and Matthew said he appreciated it would have been foolish to ride into a fire.  The appellants' evidence on these matters was rejected by the learned trial judge. 

1. The appellants contest the learned primary judge's finding that barricades could hinder escape or assistance and were unnecessary to prevent people from entering obvious areas of rural fires.  Mr Lynch submits that the respondent should have denied access to the corridor by the use of barriers; he emphasises that one month after the incident one of the respondent's workers built a barbed wire fence on his (not the respondent's) land, blocking the access route taken by the boys.

1. Mr Lynch places some reliance on the case of  McHale v Watson[1] but this is of limited relevance in that, unlike this case, the issue for determination was whether the 12 year old alleged tortfeasor had exercised reasonable care in throwing scrap metal at a post, which missed or ricocheted off the post, hitting and injuring a nine year old child.  The High Court there found that the age of the child was a relevant consideration in determining liability in negligence; this question required the court to look at the reasonable foresight and prudence of an ordinary boy of twelve.[2]  The issue here is the duty of care owed to children, not by children.

   [1](1965-66) 115 CLR 199.

   [2]At 211, 229.

1. More apposite is  Hughes v Lord Advocate[3] where workers maintaining underground telephone equipment were found negligent when they left unattended a tent covering an open manhole surrounded by paraffin lamps; an eight year old boy was burned when he entered the tent and knocked or lowered one of the lamps into the hole, causing an explosion.  The House of Lords found that the source of danger, the lamp, was foreseeable even though the lamp acted in an unpredictable way in exploding; the defendant owed a duty to the child to protect against the type or kind of occurrence which in fact happened and which resulted in the injuries; the defendant was not absolved from liability because of a failure to envisage the precise circumstances which led to the accident.[4] 

   [3][1963] AC 837.

   [4]At 850, 853, 856, 857.

1. In considering the duty of care owed to children, courts have accepted that young people can sometimes be expected to act less responsibly than adults.[5]  Within the framework of a universal motor vehicle insurance scheme, a 14 year old trail bike rider was found to be 50 per cent contributorily negligent for the injuries he received when he darted across the highway into the path of an oncoming vehicle whose driver had seen the child about 100 metres before the accident.[6]  Drivers must take special care when they know or ought to know that children are near the highway,[7] but there are limits to this duty: Derrick v Cheung.[8]

   [5]For example, the National Coal Board was found liable in negligence for the injuries received by a six and a half year old child while playing on an unfenced, unguarded and unattended slow moving coal tram-truck in a mining village: Gough v National Coal Board [1954] 1 QB 191, 201, 205-206, 209-210.

   [6]Mitchell v Government Insurance Office (New South Wales) (1991-1992) 15 MVR 369, 371-375. See also Omrcen v Paxman (1996) 24 MVR 469 and Griffiths v Doolan [1959] QdR 304.

   [7]Ibid, 372.

   [8][2001] HCA 48, 9 August 2001.

1. This case is distinguishable from those relied on by the appellants because of the undisputed finding of fact against the appellants that they deliberately rode their bikes into the fire.  This uncontested finding was supported by the obvious smoke, flames and tractors and by the desperate actions of the pillion passenger.  Neither common sense nor Tim's dramatic flight suggest that boys of this age will commonly deliberately ride at speed into an obvious fire.  The appellants' actions go beyond the irresponsible,  careless conduct of 12-14 year old children. 

1. Mr Warren Edwards, District Inspector for the Rural Fire Service, whose evidence was accepted by the learned trial judge, did not favour the use of barriers because they could hinder both escape and assistance should the fire change direction.  The appellants emphasise Mr Edwards concession that plastic barriers would be less of a hindrance as they could easily be knocked down; they contend that plastic barriers would have been appropriate here.  But the irresistible inference on the evidence is that just as such barriers could be removed to escape or obtain assistance, they could also be removed by juvenile bike riders like the appellants who chose to deliberately ride into rural fire.  The evidence does not support a conclusion that such barriers would have saved the appellants from injury.  Nor is it likely that the barbed wire fence built by one of the respondent's workers would have stopped the boys from deliberately riding into the fire; there were many other potential trail bike access points into the railway corridor.

1. The respondent owed a duty of care to the appellant children to take care to conduct the burnoff in a way which did not expose them to unreasonable risk.  The respondent concedes that the risk of injury to the appellants was foreseeable.  Even accepting the appellants' contention that the respondent ought to have known that children as young as 12 or 14 may ride their trail bikes in the railway corridor where the burnoff was being conducted, the respondent's duty of care did not extend to erecting barriers to prevent the appellants from deliberately riding at speed into an obvious, controlled and supervised fire in a rural area.[9]  The appellants have failed to establish that the reasonable person in the respondent's position would have met the unlikely but foreseeable risk of injury to the appellants by erecting demountable barriers because the evidence does not establish that barriers would have been practical or effective in preventing the appellants from deliberately riding into the fire.[10]

   [9]Cf Romeo v Conservation Commission of The Northern Territory (1997-1998) 192 CLR 431.

   [10]Council of the Shire of Wyong v Shirt (1979-1980) 146 CLR 40, 47-48; Harper v Secretary to the Department of Natural Resources and Energy [2000] 1 VR 133 (special leave to appeal refused 10 August 2001).

1. The learned primary judge was entitled on the evidence to conclude that it was unnecessary for the respondent to erect barriers to prevent people, including children like the appellants, from entering obvious areas of rural fires.

1. It follows that the first appellant's appeal as to liability and the second appellant's appeal must fail.  It then becomes unnecessary to consider the first appellant's appeal against the quantum of future economic loss.

1. I would refuse the appeals with costs to be assessed.

1. McPHERSON JA: I agree that the appeal should be dismissed with costs for the reasons given by McMurdo P.  I would add only that Mr Bell QC for the respondent on appeal succeeded in persuading me that the plaintiffs’ case at trial was conducted on the basis that they came round a corner and were suddenly, and without warning, immediately confronted with the fire which they were unable to avoid driving into. In fact, as the trial judge found to the contrary, the plaintiffs had a view of the fire and smoke for some 180 metres ahead, but deliberately drove into it.  It was not until the plaintiffs’ testimony to that effect was rejected that they invoked the rather different hypothesis relied on at the appeal that the defendant was negligent in failing to erect some kind of barrier to prevent their entry into the area where the fire was taking place.

1. CULLINANE J: I agree with both of the other members of the court that the appeal should be dismissed with costs to be assessed.

1. On the findings of fact made by the learned trial judge (which are set out in the first six paragraphs of the President’s reasons for judgment) the appellants' actions had to fail.

1. The learned trial judge considered that his findings as to the presence and visibility of smoke and his rejection of the appellants' accounts constituted "a complete answer to the plaintiff’s argument".  See paragraph 16 of his reasons for judgment.               

1. His Honour having concluded that the appellants rode their trail bikes into an area where there was obviously a fire concluded that it was immaterial whether the matter was to be disposed of on the grounds that no duty existed or, if such a duty existed, no breach of it was established.  See paragraph 23 of his reasons for judgment.

1. The latter basis would seem to be more consistent with the approach of the judgments of the members of the High Court in Romeo v Conservation Commission of the Northern Territory (1998) 115 CLR 431 with the exception of Brennan CJ.

1. Applied to the circumstances of this case, the duty of the respondent did not extend to taking steps to prevent the plaintiffs from deliberately riding their trail bike into an area where there was an obvious fire.

1. There is in my view, nothing to suggest that the age of the appellants (12 and 14 at the time) was such that reasonable persons of those ages would not have been able to appreciate such an obvious risk. Indeed, the evidence of each was that they were aware of the foolhardiness of riding a trail bike into such an area.

1. The appeal should be dismissed.

ORDER:

Appeals to be dismissed with costs to be assessed.