Shorten v Grafton District Golf Club Ltd

[2000] NSWCA 58

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Shorten v Grafton District Golf Club Ltd [2000]  NSWCA 58

FILE NUMBER(S):
41050/98

HEARING DATE(S):           20/03/00

JUDGMENT DATE:            23/03/2000

PARTIES:
Steven Shorten By His Next Friend And Father Rodney Charles Shorten (Appellant)
Grafton District Golf Club Limited (Respondent)

JUDGMENT OF:      Priestley JA Fitzgerald JA Heydon JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        9673/97

LOWER COURT JUDICIAL OFFICER:     Mahoney DCJ

COUNSEL:
Ms S. Norton / Mr D. Price (Appellant)
Mr J. Maconachie QC / Mr I. Pike (Respondent)

SOLICITORS:
Stacks - The Law Firm (Appellant)
Connery & Partners Solicitors (Respondent)

CATCHWORDS:
Negligence - omission by a golf club to warn kangaroos might attack players amounted to a breach of duty - ND

LEGISLATION CITED:

DECISION:
Appeal allowed with costs, and judgment entered for the appellant for damages to be assessed. The costs of the District Court proceeding to date to be paid by the respondent.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA  41050/98
DC  9673/97

PRIESTLEY JA
FITZGERALD JA
HEYDON JA

THURSDAY 23 MARCH, 2000

SHORTEN v GRAFTON DISTRICT GOLF CLUB PTY LTD

JUDGMENT

1. PRIESTLEY JA:                 I agree with Fitzgerald JA.

2. FITZGERALD JA:   The appellant sued the respondent in the District Court for damages for injuries which the appellant sustained while playing golf on the respondent’s course on 27 October 1996. On 8 December 1998, the appellant’s action was dismissed, with costs. The trial judge held that the respondent was not negligent. Causation was not discussed, and the appellant’s damages were not assessed. By his appeal, the appellant has sought judgment against the respondent for damages to be assessed, or alternatively an order for a new trial.

3. The appellant was born on 6 September 1983, and was 13 years old when he was injured. While he and a young friend were playing a round of golf on the respondent’s course after paying their green fees, the appellant’s friend hit a ball into the rough where the grass was about 1 metre high. Notwithstanding a mob of kangaroos feeding in the grass which his friend’s ball had entered, the appellant went in and began to search for the ball about 20 metres from the kangaroos.

4. Prior to the date in question, the appellant and his friend had played golf on the respondent’s course on a number of occasions, and the appellant had also played there with his older brother. On most if not all occasions, the appellant had encountered kangaroos at various points on the course.

5. After the appellant had gone about 3 to 5 metres into the grass, he heard a sound which the trial judge described as the “well-known Skippy signature sound from the children’s T.V. series about Skippy.” The appellant paid no attention, and continued to search for the ball. Then he heard a sound which was described as “like the growling of a dog”. He turned and saw a large male kangaroo, which was taller than he was, erect on its hind legs, looking in his direction.

6. The appellant watched the kangaroo as he backed away from it. The kangaroo hopped towards him. The appellant ran, believing that the kangaroo was “after me”. As he ran, the kangaroo continued to growl and chased him.

7. The trial judge said:

   “… . Then he became aware .. that the kangaroo’s fore legs were around his waist, and in the witness box he indicated an area higher than the belt line - roughly over the level of the lower rib cage. He tried to turn and hit the kangaroo with the golf club that he still had in his hand, and its fore legs disengaged from his torso. In the confusion, he lost hold of the golf club and fell to the ground. The kangaroo began to jump up and down on him as he was on the ground. He tried to roll into a ball and lie on his back to protect himself from the attack.

   At about this time, Mr Robert Ellison, playing golf with his two sons and having just hit off from the 5th tee, heard screaming and ran the 70 m or 80 m to where the kangaroo was attacking the [appellant]. As he approached, he yelled out at the kangaroo which then .. hopped away about 10 to 15 m from the [appellant] and then returned to the attack. Mr Ellison hit the kangaroo in the head with the driver that he had just used off the 5th tee. The kangaroo then hopped away. A man from a house which overlooks that part of the golf course arrived shortly after in his utility truck and took the [appellant] away to hospital.”

8. Kangaroos are common on golf courses in the area of the respondent’s course, and are found on other golf courses in eastern Australia. The numerous kangaroos on the respondent’s course were an “advantage in tourist patronage terms”. In the 10 years prior to the attack on the appellant, an average of approximately 42,000 rounds of golf had been played on the respondent’s course annually by members and visitors, and kangaroos had caused only a small number of problems.

9. The kangaroos on the respondent’s course were Eastern Grey kangaroos, which are generally not aggressive. Aggression is more likely during their breeding season from September to March than at other times, but even then is rare. There are observable signs of potential aggression, similar to those observed by the appellant. Children, because of their smaller stature, are more at risk from attack than adults. The respondent was aware that a large number of children used its golf course unsupervised by adults. A substantial part of the respondent’s argument in this Court was devoted to expert evidence concerning the characteristics of Eastern Grey Kangaroos and the low level of risk which they present to humans. However, the respondent’s approach to the kangaroos on its course was based on its own experience, not expert advice, which had not been sought.

10. The respondent knew that kangaroos, particularly large male kangaroos, are sometimes aggressive, and there had been four attacks by kangaroos on golfers on the respondent’s course before the appellant was injured. In addition, the respondent had sought and been granted permission to cull individual kangaroos which had exhibited aggressive behaviour a “handful of times” prior to the attack on the appellant. Other than that, it did nothing about the kangaroos on its course. It did not require employees to check for and report aggressive behaviour by kangaroos, it had not attempted to obtain available information concerning the nature and extent of the risk from kangaroos or means by which it could be eliminated or reduced, and it did not give golfers using its course any information or warning concerning the kangaroos.

11. The appellant had never experienced any difficulty with the kangaroos, and had no reason to fear them. The respondent did not submit that other golfers would have been better informed. The appellant gave evidence that, if he had been aware that there was a danger of attack, he would not have ventured as close as he did to the kangaroos on the day when he was injured. While the trial judge did not expressly accept that evidence, it was not disputed that the appellant was a credible witness. In any event, consistently with the manner in which the respondent’s defence was conducted at trial and consistently also with the probabilities, an inference that the appellant would have heeded an adequate warning by the respondent is clearly warranted.

12. After the appellant was injured, the respondent added a warning to the scorecards which it distributed to golfers using its course which was copied from the warning used by another golf course, at Yamba, namely:

    “Wildlife can be hazardous - do not approach”

13. In this Court, the respondent did not dispute that there was foreseeable risk of injury to golfers such as the appellant from the kangaroos, or that the respondent owed golfers, including the appellant, a duty of care. However, it was submitted that the respondent’s omission to take any step to eliminate or reduce the risk of injury to golfers from kangaroos, and , in particular, its omission to warn golfers of the risk which existed and of which they were unaware, did not breach that duty.

14. As the respondent correctly submitted, negligence by a defendant is not established by proof that a plaintiff who was owed a duty of care was injured. Whether or not a defendant has breached its duty depends upon a comparison between its conduct and the “measure”, “scope” or “content” of its duty. Morgan v Sherton Pty Ltd (1999) 46 NSWLR 141, 145 [19] For present purposes, the question can be formulated by asking whether the respondent’s duty included an obligation to provide golfers on its course, including the appellant, with an adequate warning of the small risk of injury from an occasional aggressive kangaroo.

15. The principal, if not the only, bases for the respondent’s argument that the trial judge was correct in answering that question in the negative were the low level of the risk of injury to a golfer from a kangaroo and the proposition that warnings are often disregarded. The example given by the respondent of a warning which was disregarded was of a warning that something should be done which was adverse to the interests of golfers (namely replacing divots), not favourable to their interests. It is obvious that warnings could have been easily notified and appropriately emphasised at virtually no cost or inconvenience to the respondent. Importantly, the respondent knew both of the risk to golfers and that most, if not all, golfers were unaware of the risk.

16. In my opinion, giving due weight to the trial judge’s opposite view, the respondent’s failure to warn golfers of a risk of injury of which they were unaware was a breach of the respondent’s duty of care to golfers, even though the risk was small.

17. Accordingly, I consider that the appellant established his cause of action against the respondent.

18. The appeal should therefore be allowed with costs, and judgment entered for the appellant for damages to be assessed. The costs of the District Court proceeding to date must be paid by the respondent.

19. HEYDON JA:  I agree with Fitzgerald JA.

LAST UPDATED:    24/03/2000