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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McLellan v Queensland Rail

Details

AGLC: McLellan v Queensland Rail [2001] QCA 487
Case: [2001] QCA 487
Decision Date: 9 November 2001

CaseChat Overview and Summary

The respondents, Queensland Rail, were conducting a controlled burn along a railway corridor. The appellants, children who rode their trail-bikes into the burn-off and were injured, brought a claim for damages in negligence against the respondents. The trial judge found in favour of the respondents, and the appellants appealed.

The primary legal issue was whether the respondents owed the appellants a duty of care, and if so, whether that duty was breached. A secondary issue was whether the appellants had provided sufficient evidence of negligence. The court also considered whether the respondents should have taken additional precautions, such as erecting barriers, to prevent the appellants from riding into the burn-off.

The appeals court held that the respondents owed the appellants a duty of care to conduct the burn-off in a manner that did not expose them to unreasonable risks. However, this duty did not extend to taking steps to prevent the appellants from deliberately riding into the fire. The court found that the appellants had failed to provide sufficient evidence of negligence, as smoke and flames were visible from some distance, and the appellants had deliberately ridden into the burn-off. The court also held that the respondents' duty of care did not extend to erecting barriers, as these could hinder escape or assistance and were unnecessary in the circumstances.

The appeals were dismissed, with costs to be assessed.

Orders

Orders of the court

Appeals dismissed with costs to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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…