Propix Pty Ltd (t/as Jamberoo Recreation Park) v Collins

[1999] NSWCA 231

CITATION:	Propix Pty Ltd (t/as Jamberoo Recreation Park) v Collins [1999] NSWCA 231
FILE NUMBER(S):	CA 40315/98
HEARING DATE(S):	29 June 1999
JUDGMENT DATE:	9 July 1999
PARTIES :	Propix Pty Ltd (t/as Jamberoo Recreation Park) Peter David Collins
JUDGMENT OF:	Giles JA at 1; Cole AJA at 2; Brownie AJA at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 11/96
LOWER COURT JUDICIAL OFFICER:	Phelan DCJ

COUNSEL:	Appellant - M T McCulloch Respondent - P Menzies QC & C P Heazlewood
SOLICITORS:	Appellant - Phillips Fox, Sydney Respondent - Griffiths Tierney, Bega
CATCHWORDS:	NEGLIGENCE - causation - riding chairlift - whether warning to lift legs would have prevented accident - whether stopping chairlift before getting on would have prevented accident - on facts, no.
DECISION:	Appeal allowed with costs; judgment for the defendant with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40315/98
DC 11/96

GILES JA
COLE AJA
BROWNIE AJA

Friday 9 July 1999

PROPIX PTY LIMITED (t/as JAMBEROO RECREATIONAL PARK)
v
PETER DAVID COLLINS

JUDGMENT

1    GILES JA: I agree with Brownie AJA.

2    COLE AJA: I agree with Brownie AJA.

3    BROWNIE AJA: The respondent was injured, when riding on a chairlift in a recreational park operated by the appellant. The trial judge, J.B. Phelan DCJ, found that the appellant was negligent and that the respondent was guilty of contributory negligence. On appeal, the debate centered upon the causal connection between the conduct of the appellant, found to have been negligent, and the respondent’s injury.

4    Ordinarily, the chairlift moved continuously. The chairs were arranged in pairs. Intending riders were admitted, two at a time, on to a loading platform. They stood in designated positions, and then, as a pair of chairs arrived, they sat down in their respective chairs, and an attendant employed by the appellant lowered a safety bar across their laps.

5    Instructions to intending riders were conveyed partly by a set of pictograms displayed on the loading platform, partly by announcements made by loudspeaker and partly by oral instructions from the attendant on the loading platform. The respondent had never previously ridden on the chairlift, but his wife, who was accompanying him, had done so. They waited together in a queue of other intending riders for a period of 30 minutes to an hour, before reaching the loading platform, and the respondent conceded that by the time he reached the platform, he knew what was expected of him: he was to stand in the designated position, and when the chair arrived, he was to sit down, lean back in the chair and raise (or extend) his legs. He also knew that he could get the attendant to stop the chairlift if he asked her to do so. He agreed in cross-examination that he had lifted one of his legs and was trying to lift the other one, when the accident happened.

6    He had previously injured his right leg, and was still disabled in that leg: he limped, and he could not bend it backwards (that is, he could not flex it fully). On this occasion, his right leg was caught between the underside of the chair, as the chair continued to move forwards, and the wooden surface of the loading platform; and he suffered a fracture of the right leg.

7    There were stop buttons situated close to the place where the attendant worked, but she did not press any of them. On the evidence, when she first became aware that the respondent was in difficulty, it was already too late: his leg had already broken.

8    There was evidence about the speed with which the chairlift moved, but on the evidence it cannot be said that the speed was causally significant. The accident happened as the respondent’s right leg was not raised (or extended) with the consequence that his shoe remained in contact with the timber deck of the loading platform, and his leg was bent backwards (or flexed), to breaking point.

9    What needed to happen, if the accident was to have been prevented, was that the respondent’s legs be raised. The crux of the case is the question whether, assuming that the appellant was negligent in failing to take some step or steps to better inform the respondent that he should raise his legs, that negligence resulted in the respondent’s injury. In my view, it did not. The respondent knew that he should raise his legs and he was trying to do so. The evidence does not establish that, had he been given some further or other advice, instruction or exhortation, he would have acted any differently. Why it was that he did not succeed in raising both his legs was not made clear by the evidence, although the appropriate inference probably is that his existing disability hindered him in this endeavour.

10    The respondent contended that the attendant should have recognised that the respondent had a disability, because of his limp. I do not think that this was established: the respondent stood in a queue for a long time, and it can hardly be said that the attendant ought to have recognised that he limped at this stage. When he reached the head of the queue, he passed through a turnstile on to the loading platform. At this stage, the respondent, his wife and the attendant were all close together. The respondent and his wife stepped up to and stood at the two positions marked on the deck of the loading platform, to wait for the chairs to arrive. The three of them were close together, and the respondent walked a few steps at most. Judging from the photographs in evidence, he walked a distance of about two metres.

11    However, even if it was thought that the attendant (and therefore the appellant) was negligent in failing to detect the respondent’s limp, the evidence does not establish that the accident happened as a consequence of this negligence. The furthest the evidence went was that the attendant would have asked the respondent whether he wanted her to stop the chairlift. Neither the appellant nor his wife thought that he would have any difficulty in getting on the chairlift.

12    I would allow the appeal with costs, and enter a judgment for the defendant with costs.

_______________