Russo v Qld Resorts P/L

[2003] QCA 537

SUPREME COURT OF QUEENSLAND

CITATION:	Russo v Qld Resorts P/L & Anor [2003] QCA 537
PARTIES:	MARIA NICOLE RUSSO (plaintiff/respondent) v QUEENSLAND RESORTS PTY LTD ACN 010 547 912 (first defendant/appellant) TREVOR GREEN (second defendant)
FILE NO/S:	Appeal No 4188 of 2003 DC No 315 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Personal Injury – Liability & Quantum
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	5 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	20 November 2003
JUDGES:	McMurdo P, Davies JA and Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.  Allow the appeal 2.  The decision of the District Court at Townsville of 17 April 2003 is set aside and instead judgment is given for the appellant with costs to be assessed 3.  The respondent is to pay the appellant’s cost of and incidental to the appeal to be assessed
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS FOR ACTION FOR NEGLIGENCE – MISCELLANEOUS MATTERS - where respondent injured in horizontal bungee competition – whether respondent suffered injury at the time or in the manner alleged – whether injuries were caused by the appellant’s negligence DAMAGES – MEASURE OF DAMAGES – IN GENERAL - where respondent awarded damages – whether damages excessive
COUNSEL:	R N Traves for the appellant G M Egan, with N H Ferrett, for the respondent
SOLICITORS:	McInnes Wilson for the appellant Grevell McLean for the respondent

1. McMURDO P:  The appellant, who operated Whitsunday Village Resort, Airlie Beach, appeals against a decision in the Townsville District Court awarding the respondent damages of $130,912 arising out of injuries received in a horizontal bungee competition held in the Resort's Magnum Bar.  The appellant appeals against a number of findings of fact and contends that the respondent did not suffer injury at the time or in the manner she alleged and, alternatively, that if she did, her injuries were not caused by the appellant's negligence.  The appellant also contends that the damages are excessive in a number of ways.

Background facts

1. The respondent was born in 1955 and was 43 years old on 24 September 1998 when the incident was alleged to have occurred.  She was employed by the appellant as a kitchen hand where her husband was the chief chef.  She attended Magnum's Bar at the resort to socialise with her family and decided to enter the horizontal bungee competition which took place between about 8.30pm and 10.00pm each Thursday. 

1. Competitors were fitted with a helmet, kneepads and harness attached to three metres of elastic latex bungee rope, which in turn was attached to a fixed portion of rope so that the elasticity of the bungee rope would normally take effect only after the competitor had run some metres; the tension would gradually increase as the competitor approached the target, either a stubby placed on the dance floor or in a foam cooler between the legs of someone sitting on a chair.  The winner of the heats then contested the men's or women's final where the winning competitor placed the target furthest from the starting point. 

1. His Honour found the respondent's injuries arose out of her participation in the final of the horizontal bungee competition.[1]

   [1]Reasons for Judgment, para [32].

Was the respondent injured in the manner she claimed?

1. It is sensible to deal first with the appellant's strongest contention, namely that the learned primary judge erred in concluding that the respondent fell because of the actions, or failure to act, of the person holding and controlling the rope to which she was attached by the harness when she fell.[2]  It is common ground that if there was no reasonable evidentiary basis for this finding, which was central to his Honour's ultimate conclusion that the appellant was negligent, then the appeal is successful and the respondent's claim fails.

   [2]Reasons for Judgment, para [34].

1. The respondent's claim was that whilst participating in the horizontal bungee competition final she "lost her footing as a result of being pulled backwards by the force of the strain on the elasticised rope and she suffered a personal injury thereby".[3]

   [3]Statement of claim, para 5.

1. His Honour found:

"[34]  An important question for resolution is whether an inference ought to be drawn that when the [respondent] fell this had a relationship to the control of the rope.  As I have said there is no evidence the [respondent] tripped or slipped.  As I indicated earlier there is evidence that there was a countdown for each competitor before starting.  The evidence did not establish that it was the invariable practice for a rope controller to play out a measured length of inflexible and flexible rope before each competitor started in the event.  Whilst the picture is unclear, I accept the [respondent] felt tension in the rope at the time she sustained injury and she had not noted any tension in her heat.  Whilst there may be competing hypotheses, I conclude the only probably [sic] inference open on the evidence is that whoever was controlling the rope failed to give the [respondent] the normal length of rope and had hold of the rope when the [respondent] fell.  I conclude this in turn caused tension when it was not expected and caused the [respondent] to sustain her injury."

1. Nobody saw the respondent fall and suffer injury. 

1. I will deal fully with the respondent's version of how she came to be injured.  She gave evidence that before the heat she put on her helmet and harness which attached her to the wall by the ropes, had her non-alcoholic jelly shot and ran as fast as she could.  She reached the stubby, won her heat, and so was in the women's final.  Before the final, she drank another jelly shot and again tried to do her best but this time she only got about a third of the way to the target.  She said:

"My foot just turned – I don't know – 180 degrees or something – I felt this crack and this terrible pain, and I just, you know, I'm sort of – I fell to the floor or whatever.
…  I took a few steps and then – I couldn't go any further. 
… My whole foot turned.
…
His Honour:  Why did you only get a couple of steps? – I don't know – I have no idea.  I just – the force of the – the rope, I think.

Right? – Just – and my foot ------

What do you want to say about the force of the rope? – The tension was a lot tighter. 

OK.  Why do you think that? – Well – after I fell, I tried to continue and crawl – I was so embarrassed, but I tried to – just no way – I just could not get any further.

Right? – The rope was so tight.

OK? – And – and then I'd got all the way the first time.

All right.  So, you told us as you were walking forward, you felt your twist? – Mmm.

Your foot twist around? – My whole foot twisted and cracked.  I heard the crack.

Okay.  When you fell over? – The pain – the pain was excruciating.  I fell – fell down somehow."

1. She said she tried to crawl a little further but could not and was helped by the assistant who earlier helped her into the helmet.  She squeezed his hand because she was in so much pain, got up with his assistance and struggled to the closest bench where she rested. 

1. His Honour further questioned the respondent:

"His Honour:  When you picked up the – the bottle of beer or what – tin of beer on the first occasion, did you feel some tension in the – in the cord as you were – as you were picking it up at the end, or did you feel no tension at all? – I remember it was just so easy the first time.

Did you feel any tension in the – in the rope the first time? – Felt any tension – I didn't feel any -------

Are you telling – telling the court that on the second occasion however, you felt tension, even after just running a few steps? – Yeah, yeah.

And was that something you didn't expect? – Definitely I didn't expect it, no."

1. In cross-examination, the respondent maintained that during the heat she was able to reach the target very easily.  She agreed that during the final she felt the strain of the rope sooner than on the first occasion.  She said:

"It was felt all in my foot, yep.  My foot got it.  My foot just twisted under me.
… It's like the floor twisted, whatever.
… I just ran as fast as I could, but I didn't get anywhere near it, anywhere near the end, 'cause my foot gave way and cracked under me.
… I didn't go over on it, I just – turned completely under me.
… I heard the crack and that's when it happened.
…
Right.  It wasn't an injury caused by you subsequently falling down? -- No, no, no.

I mean, people go over, don't they, on their ankle for any number of reasons? – Yeah.  I didn't go over ------

People go over on their ankle doing the foxtrot? – I know what you mean, I didn't go over on my ankle.  I didn't go – I know what you mean, you can – people can do that.  I didn't do that, but my whole foot just turned like that and cracked."

1. Later, the respondent was again questioned by his Honour:

"His Honour: It's right to say though, isn't it, that you did feel the strain of the rope.  You had to work against the rope to get to the – the prize? – Not really.  It was just – it was my foot that went.  I mean it was my foot."

She reiterated that she felt no strain from the rope during the heat.

1. Mr Trevor Green conducted the horizontal bungee competition at the appellant's Magnum's Bar in September 1998.  He was not employed or paid by the appellant but used this competition, with prizes including regular bungee jumps, to promote his primary business of regular bungee jumping.  He knew the respondent and her family from his contact with them at the Resort and Magnum's Bar.  He remembered her entering the competition on only one occasion.  He explained the system:

"… we look after the ladies quite well.  The cord is very light compared to the guys. … - the first time we strapped her up and then put the helmet on.  She was ready to go, explanation was given.  The technique is to run as hard as you can and lean into the – the cord, so you get your distance to get up to where the person is sitting with the cooler between their legs.  Everything went as per normal in the heat.  She got the cooler.  We said, 'Congratulations'.  Gave her a voucher for a drink.  Said, 'You'll be in the final, we'll call you up.  It'll probably be in about half an hour, 40 minutes or so.'  Once again, we did the gentleman's final first and then the lady's final after that.  There was no problem in the heat, she – she did well.  She enjoyed it.  She had a great time from what I remember.
…
… In the final, once again we strapped her up exactly – excuse me, exactly the same way.  The same cord is attached. … Maria had a go, she took off and when she got down towards the area where the – the cooler was, she'd actually got down low and was reaching out to try and place the cooler down and that was pretty much her turn.  She didn't make it, she didn't get the cooler down far enough to actually take out first place.  The guys did their normal procedure, there's one standing by on the bungee cord, one either side.  They take the load on the cord and help the lady back.  The harness came off.  Everything was pretty standard.  I didn't see anything different from every other contestant that was gone that day.  It's – we said to her – we said, 'Sorry, you didn't – you didn't make the mark, so you didn't get through to the final' – you know, 'Win the final.' "

1. He did not see her fall or lying on the ground and nor did he notice any problems; had she fallen, he would have made sure she received assistance and he would have remembered the incident.  He did not see her fall in either the heat or the final.

1. He was asked:

"… The way the mechanism was set up, would a woman running in the competition feel … a sudden onset -----? --  Not at all.
------ of tension? – Not at all.
… The whole reason we use the pure latex is because of its flexibility.  It's very gentle, it's very soft and it's a – a gradual stretch and – and it's very consistent in its stretch and that's why it was used for bungee and we used it for horizontal for that reason, because it was a very soft and consistent build up of tension.
…
… to absorb the shock so there's no sudden jolting, otherwise you'd have a lot of problems."

1. He said the competition run was the nine metre length of the dance floor area, along which a rubber mat was permanently fixed.  He always had three or four assistants.  He was usually on the microphone promoting and commentating on the event.  One assistant ensured that competitors signed the waiver of responsibility forms; this assistant could also help during the races.  One assistant would be responsible for fitting the participant into the helmet and harness.  At least two assistants were stationed along the route at approximately the six metre point where the bungee rope would start to take effect.  These assistants would follow participants from that point to the finish so as to support them once they reached the target.  As soon as there was any sign of participants stopping, falling or being pulled backwards, the assistants helped the participants.  Another assistant was permanently on standby to reduce the tension of the bungee rope by taking the strain and extending it forward where necessary.  The assistants never increased the load on the participants; the greatest load the participants had was the natural tension of the bungee rope.  Under cross-examination he explained that sometimes the assistant holding the rope would decrease the load for female participants by stretching it to help them reach the target but would never increase the load.  If an assistant held a participant back, the audience would notice this and protest about unfairness; it is much more obvious if someone pulls back rather than pushes forward on the rope.

1. In the eight or ten years that he was involved in horizontal bungee competition, he had never seen anyone suffer any injury.  He was not asked to recall this incident before early 2000, but remembered it because it was the only time that the respondent, whom he knew, took part in the competition. 

1. In answer to a suggestion that the respondent fell about a third of the way along the run, he said that the bungee rope would not have been activated at that point; the bungee rope is three metres long and is attached to another two metres of tape so the respondent would have no pressure from the bungee rope until at least five metres into the run, at which point she would not have fallen over because the assistants were there to support her.

1. When questioned by his Honour as to photographs showing the rope was not always held by an assistant, Mr Green said that whilst the rope may not always have been held, an assistant was standing by ready to act if needed to reduce the tension of the bungee rope and to stop the participant being flung backwards.  In re-examination, he emphasised that to his knowledge no assistant ever pulled back on the rope to make it harder for a participant.

1. In assessing Mr Green's evidence, his Honour found that it:

"… would make some sense to allow the tope [sic] to play out through the hand/s of the rope controlled at the start of an event to reduce the risk of a competitor entangling himself or herself in a rope simply lying on the floor. … (but) in any event … there was no fixed procedure in place.  If the task was made more simple for one competitor then there must have been an adjustment to increase difficulty for the following competitor."[4]

[4]Reasons for Judgment, para [21].

1. Ms Elizabeth Mersh, the manager of the appellant, was present on the night the respondent said she was injured.  She had taken part in the competition at least six times.  She and another staff member watched the respondent successfully compete in the heat.  Although she did not see the respondent compete in the final, she saw her soon afterwards; the respondent then appeared to be in high spirits and not upset or injured in any way. 

1. Mr Shane Finnigan was a resident manager for the appellant in September 1998 and was running Magnum's Bar.  Like Ms Mersh, he saw the respondent compete in the heat but not the final.  When she left the Bar that night, she was neither limping nor upset.  He recalled the incident because it was the first and only time he had seen the respondent take part in the horizontal bungee competition, it was unusual for her to be in the Bar and he made a note in the bar diary because she was later asked to leave and was escorted from the Bar.

1. Mr Egan, who appears for the respondent with Mr Ferrett in this appeal, contends that the evidence supports a finding that whoever was controlling the rope in the heat pushed it forward to assist the respondent but then did not do this during the final; this difference in tension created an unsafe system and caused the respondent to fall and injure herself. 

1. The respondent's evidence was that there was an increase in tension in the rope in the final when compared to the heat but her evidence did not unequivocally connect that change in tension to her foot turning, cracking and her feeling terrible pain.  The injury suffered by the appellant included fractures of the medial and lateral cuneiform with disruption of the first and second inter-metatarsal ligament.  The respondent was insistent in her evidence that the injury was not caused in the fall but was the cause of her fall.  Pulling back on the rope was unlikely in itself to have caused these injuries to her foot; it was much more likely that these injuries were caused by the subsequent fall.  The respondent's evidence as to how she was injured was confusing, implausible and unconvincing.  At the three metre point in the run, where she says she was injured, the elasticity of the bungee rope would not have been activated; it is unlikely that tension in the rope at this point was a factor in her foot turning, cracking and causing terrible pain.  There was no evidence that anyone was holding her back with the rope; the only evidence was that this did not ordinarily occur and that had it occurred it would have been noticeable to and adversely commented on by the audience.  Even rejecting Mr Green's evidence as to the established procedures in place, as his Honour did, the respondent's own evidence was much more consistent with her ankle giving way under her as she tried her hardest in the final and her injuring her foot in the ensuing fall.  On the evidence, the learned primary judge could not have been satisfied on the balance of probabilities that the respondent was injured because the person controlling the rope when she fell failed to give her the normal length of rope whilst holding the rope rather than the much more likely scenario that her foot gave way under her, causing her to fall and injure herself. 

1. It follows that the respondent did not establish at trial that any negligence on the part of the appellant caused the respondent's injury; her action must fail.  I would make the following orders:

1.  Allow the appeal.

2.  The decision of the District Court at Townsville of 17 April 2003 is set aside and instead judgment is given for the appellant with costs to be assessed. 

3.  The respondent is to pay the appellant's cost of and incidental to the appeal to be assessed.

1. DAVIES JA:  I agree with the reasons for judgment of McMurdo P and with the orders she proposes.

1. WILSON J:  I agree with the reasons for judgment of the President, and with the orders she proposes.