Peck v Greater Taree City Council

[2003] HCATrans 360

[2003] HCATrans 360

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S390 of 2002

B e t w e e n -

CRAIG MICHAEL PECK

Applicant

and

GREATER TAREE CITY COUNCIL

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 SEPTEMBER 2003, AT 10.42 AM

Copyright in the High Court of Australia

MS S. NORTON, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR D.G. PRICE.  (instructed by Stacks – The Law Firm)

MR P.R. GARLING, SC:   May it please the Court, I appear for the respondent with my learned friend, MR R.S. SHELDON.  (instructed by Phillips Fox)

GLEESON CJ:   Ms Norton, there is a great mystery about this case but there may be a very simple explanation.  There was a raging argument at trial about the shape and contours and so forth of this.  Did anybody ever go and just have a look at it or was it, as it were, overtaken by events in some way?

MS NORTON:   Yes.  By the time of the trial, it had been rebuilt.

GLEESON CJ:   That is the explanation.

MS NORTON:   There could not be a view because by then it had been rebuilt.  Hopefully, some photos and other evidence has turned up and I will take you to those because they make it a bit clearer.

GLEESON CJ:   Thank you.  Yes, we have those photos.

MS NORTON:   Thank you, your Honour.  The page of transcript is probably not much help, but if you go to page 2 there is a photograph and that is a photograph taken shortly after the accident and there is two photographs there of the mound in question as it was at the time when the applicant’s accident happened.  You can see there are two mounds at the top of the first photograph on page 2.  The accident occurred on the mound to the forefront of that photo but at the back of it.

The photograph on page 3 shows another view of the same mound taken from the other side of the park and you can just make out an “X” with kind of a box around it – that is the area of the accident.  Then there is a diagram and then if you go to page 7 of the photographs that were sent up, that is the new Taree skate park with different challenges entirely.  That was the skate park that was in situ at the time of the trial.

GUMMOW J:   What was the mound on page 2 composed of?

MS NORTON:   As far as I understand it, it was earth covered with a layer of cement.  In fact, there was evidence from the applicant that he and his friends referred to it as “the turtle”.  If you look at his diagram on page 4, if you look down on it the way he drew it, it in fact looks a bit like a turtle; there is a roundish body and then a small head at the front.  As the applicant and his two friends said, they had some experience at skateboarding that was not available to anybody else in the case, except, perhaps, Mr Sheldon.

This was very different than the kind of challenges that they had found in other skate parks that they had used.  That is the photographs on page 5 and 6 that were sent up.  They show the skate parks that were available at the time of the applicant’s accident at the nearby town of Wauchope and Laurieton.  That was the main thrust of the case. 

The facts are a little unusual in that the applicant sustained his personal injuries when he fell from his skateboard.  We say that in this particular case it throws up what happens when an appellate court looks at something and, as the Court has recently said, tends to look at pieces of it rather than sits back, as the trial judge did, and sees the whole case unfold, because the trial judge was very impressed with the evidence of the two lay witnesses and the applicant himself.  Skateboarding being something that we are not all familiar with, in those circumstances, it was very important evidence.

What the trial judge did was look at all the evidence saying, “I accept the plaintiff’s evidence as to how the accident happened.  I accept his friends’ evidence as to what they saw when it happened and what they saw about this skate park compared to others.  I have looked at the expert’s reports of Mr Burn and I can see from that that this skate park is different and because of its difference it can lead to the very problem which the applicant in this case suffered.”

It is a little hard to understand, and it took me a while to grasp when I did the appeal, what this two degrees of curvature referred to in the judgment means but, as I understand it in the end, most skate parks have what is basically a flat surface that way and it may go like that, it may even arch back, but what this one did was it was somewhat rounded because of its freeform, I think they called it, form.

That is a problem with a skateboard because, although they differ from boards to boards, they all have one board with a set of wheels at the front and a set of wheels at the back.  Mr Burn’s evidence that was accepted by the trial judge was that because this was unusual in its rounded shape that meant that there were times when the board could not move smoothly across it because either the front of the board would hit a rounded bit and that would stop the wheel moving or, if you are doing a jump like Mr Peck was, you will come down and the mound itself will hit between the two wheels.

GLEESON CJ:   How long had this previous turtle been in place before this accident occurred?

MS NORTON:   It had been opened in around about March and the accident – the date should be on the top of my head but it is not – was later the same year – June.  So, it was relatively quickly afterwards.

GLEESON CJ:   I just wondered how many people had ridden skateboards over the thing before this deficiency manifested itself.

MS NORTON:   Mr Nash and Mr Anderson had ridden their skateboards over it.  They said they had difficulty on this mound but on different parts of the mound.  The Court of Appeal said that evidence did not help the plaintiff’s case because it showed interference at different parts of the mound, but, in my submission, what is really important is the basic difference in the shape of the mound.  In some parts, because of its rounded shape rather than its one degree of curvature, it will not interfere with the movement of a skateboard, the wheels will be on the surface and there will be no interference with underneath, but because of its two degrees of curvature shape there are other parts of the mound where that does not happen.  That makes it, in the old terminology of occupiers’ liability type cases, an unusual danger because you can go over this mound a number of times and it will not interfere with the bottom of the skateboard.

GLEESON CJ:   Yes, but there must have been people over this mound thousands of times.

MS NORTON:   There was evidence that Mr Nash had had trouble with it, Mr Anderson had had trouble with it and then the plaintiff had trouble with it.  The only evidence was that the applicant was the first one who suffered severe injuries as a result of it.

GUMMOW J:   He was 16 at the time?

MS NORTON:   He was 16 at the time.  We say it is similar to cases, no doubt, that the Court has dealt with recently about the Court of Appeal using section 75, and there is a deal of those case have been heard, and the case of Woods dealt with sporting cases, but it seems that it is quite a while since the Court actually had a look at the question of what should someone who builds a purpose‑built sporting facility, what standard of facility should they provide?  Should they provide a facility that is safe for use for the purpose that they know it is going to be put to?

If Mr Burn’s evidence is accepted, as the trial judge accepted it, this mound was unsafe because it was unusual and because, unlike other surfaces, it would cause interference, from time to time, with the bottom of the board.  The very fact that it only did it sometimes, when you approached it at some angles, is what made it a danger and a danger that children would be unlikely to appreciate until they came to grief on it.

The Council built this particular skate park and it was purpose‑built for riding skateboards on.  It is not for any other purpose.  It is not even a dual‑purpose facility.  I suppose you could bounce a ball on it or something, but basically it was built and advertised as a skate park.  What they built, because they chose to do it very cheaply, in the first instance, was in fact nothing like what they planned, and that is the other documents that have been sent up. 

If the Court would have a quick look at the fold‑out pages.  Fold‑out page 10 shows preliminary drawings where, as you see, everything is square and straight.  Similarly, there is on the next page, page 11, the picture of Taree Park at Johnny Martin Oval.  If you look down on it, you can see two challenges that are drawn there.  Again, everything is square and straight with slopes that look like ramps, not like mounds. 

In our submission, the trial judge was the one who having heard the whole case – and he actually says in his judgment Mr Nash’s evidence was so good because it made the various motions that skateboarders go through and the things they do clear.  The Court of Appeal said this is a dangerous activity and if you come to grief in it that is to be expected.  But the trial judge was aware of that problem, himself, and he deals with it in his judgment and it would seem that the Council would have been aware of it when it built the skate park. 

If we go back to the standard tests for negligence, there is no doubt, if you build a challenge that is such that it will interfere and stop the forward movement of skateboards at certain points on the mound, it is foreseeable that people are going to be injured.  It is also obvious that the people using this skate park are going to be children, probably between the ages of about 10 and 19, the very types of people who, as the trial judge pointed out, are the ones who are going to challenge themselves, they are going to take risks. 

Now, if this had have happened when he was skating down the street and he chose to jump on a garbage bin, that would in fact be his fault, but here he is using what is supposed to be a purpose‑built facility, built for him and people like him to use in the very sport he was using it.  He was not misusing the facility. 

There was a lot of cross‑examination about how dangerous his jump was because it involved leaving the board and twisting, but there is nothing unusual in that kind of activity when you are skateboarding.  The Council

must be aware, in those circumstances, if they had have stopped to think about it, that that is why you have to make sure when you build something you give some thought to how you build it.

The obvious thing, when you look at the photos of this versus the other skateboard facilities in the area, is that that did not happen here.  It did not even end up looking like their own plans.  Although accidents can happen on skateboards, in this case we have all of the things coming together.  The accident occurred on this particular mound with the applicant doing a jump that he had done many times before and not injured himself and the reason that he and his friends said the accident occurred on this occasion was that when the board came back down to the ground it suddenly stopped.

There are a number of other explanations advanced in cross‑examination as to why a board would suddenly stop, but if you step back and look at it, it suddenly stopped on a mound that is built in a way that will, from time to time, interfere with the smooth running over it of a skateboard. 

Now, if the Council did not have the finances to build the safe jumps, the ones that were straight, had one degree of curvature, the obvious thing was to just leave it until they had the money to do it properly.  What they have done in this case is basically an allurement to children, “Come and use our skate park but, hey, we didn’t think about when we built it whether it would be safe for you to use or not”.  That is the issue that is thrown up by this case, which is slightly different from the footpath‑type cases that the Court has dealt with recently, and throws up the reason why the trial judge is really, in our submission, in a much better position to make judgments on these things than an appellate court is.  Those are my submissions.

GLEESON CJ:   Thank you, Ms Norton.  We do not need to hear you, Mr Garling.

This was a case in which the Court of Appeal overturned the findings of fact of a trial judge on issues of negligence and causation.  The case involved the application of established principles to the particular facts and circumstances and gives rise to no issue suitable to a grant of special leave to appeal.  The application is refused with costs.  We will adjourn for a short time to reconstitute.

AT 10.56 AM THE MATTER WAS CONCLUDED