SNELGAR -v- WESTRALIA AIRPORTS CORPORATION PTY LTD [2006] WASCA 83

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 83
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:104/2003	Heard:	12 DECEMBER 2005
Coram:	STEYTLER P MCLURE JA MURRAY AJA	Delivered:	23/05/06
No of pages:	40	Judgment Part:	1 of 1
Result:	Appeal in FUL 104 of 2003 dismissed Appeal in FUL 126 of 2003 allowed
Category:	B
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Parties:	MARSHA HELEN SNELGAR WESTRALIA AIRPORTS CORPORATION PTY LTD SMARTE CARTE AUSTRALIA PTY LTD
Catchwords:	Appeal Appeal from trial Judge's findings of fact Credibility of witnesses Turns on own facts Torts Negligence Occupier's liability Personal injury after being struck by trolley Duty of care Whether introduction of "spider queues" was reasonable response Contract Third party deed of indemnity Construction of deed Plain meaning of words
Legislation:	Occupiers' Liability Act 1985 (WA), s 5
Case References:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Jones v Hyde (1989) 63 ALJR 349 Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 SS Hontestroom v SS Sagaporack [1927] AC 37 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 Wyong Shire Council v Shirt (1980) 146 CLR 40 Albert Shire Council v Vanderloos (1992) 77 LGRA 309 Allied Westralian Finance Limited v Wenpac Pty Ltd, unreported; FCt SCt of WA; Library No 950597; 8 November 1995 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Benmax v Austin Motor Co Ltd [1955] AC 370 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Black v Motor Vehicle Insurance Trust [1986] WAR 32 Bolton v Stone [1951] AC 850 Bowen v Tutte (1990) A Tort Rep 81-043 Brambles Ltd v Andar Transport Pty Ltd (2002) 5 VR 169 Broadhurst v Del Pino [2005] WASCA 82 Browne v Dunn (1893) 6 R 67 Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 Bullock v London General Omnibus Company [1907] 1 KB 264 Burke v Gillett [1996] 1 VR 196 Canada Steamship Lines Ltd v The Queen [1952] AC 192 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 Di Vincenzo v McKrill [2005] WASCA 222 Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (The Antwerpen) (1993) 40 NSWLR 206 Glenmont Investments Pty Ltd v O'Loughlin (2000) 79 SASR 185 GL Nederland (Asia) Pty Ltd v Expertise Events Pty Ltd [1999] NSWCA 62 Jones v Bartlett (2000) 205 CLR 166 Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Morrell v Mercantile Mutual Insurance (Australia) Ltd (1999) 21 WAR 451 Neindorf v Junkovic (2005) 80 ALJR 341 Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation (1989) 167 CLR 219 Schenker & Co (Aust) Pty Ltd v Maplas Equipment [1990] VR 834 Smith v Leurs (1945) 70 CLR 256 Smith v Littlewoods Organisation Ltd [1987] AC 241 Theilemann v Commonwealth [1982] VR 713 Town of Mosman Park v Tait (2005) 141 LGERA 171 Tran v Claydon (2003) 40 MVR 506 Valkonen v Jennings Constructions Ltd (1995) 184 LSJS 87 Westrac Equipment Pty Ltd v King [2004] WASCA 188 Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SNELGAR -v- WESTRALIA AIRPORTS CORPORATION PTY LTD [2006] WASCA 83 CORAM : STEYTLER P

MCLURE JA

MURRAY AJA

HEARD : 12 DECEMBER 2005 DELIVERED : 23 MAY 2006 FILE NO/S : FUL 104 of 2003 BETWEEN : MARSHA HELEN SNELGAR

Appellant

AND

WESTRALIA AIRPORTS CORPORATION PTY LTD

Respondent

FILE NO/S : FUL 126 of 2003 BETWEEN : WESTRALIA AIRPORTS CORPORATION PTY LTD

Appellant

AND

SMARTE CARTE AUSTRALIA PTY LTD

Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : FRENCH DCJ

Citation : SNELGAR - v - WESTRALIA AIRPORTS CORPORATION PTY LTD [2003] WADC 151

File No : CIV 2426 of 2001

Catchwords:

Appeal - Appeal from trial Judge's findings of fact - Credibility of witnesses - Turns on own facts

Torts - Negligence - Occupier's liability - Personal injury after being struck by trolley - Duty of care - Whether introduction of "spider queues" was reasonable response

Contract - Third party deed of indemnity - Construction of deed - Plain meaning of words

Legislation:

Occupiers' Liability Act 1985 (WA), s 5

Result:

Appeal in FUL 104 of 2003 dismissed

Appeal in FUL 126 of 2003 allowed

Category: B

(Page 3)

Representation:

FUL 104 of 2003

Counsel:

Appellant : Mr K N Allan

Respondent : Mr A O Karstaedt

Solicitors:

Appellant : Ilberys Lawyers

Respondent : Sparke Helmore

FUL 126 of 2003

Counsel:

Appellant : Mr A O Karstaedt

Respondent : Mr G R Hancy

Solicitors:

Appellant : Sparke Helmore

Respondent : Blake Dawson Waldron

Case(s) referred to in judgment(s):

Abalos v Australian Postal Commission (1990) 171 CLR 167
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Jones v Hyde (1989) 63 ALJR 349
Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
SS Hontestroom v SS Sagaporack [1927] AC 37

(Page 4)

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Albert Shire Council v Vanderloos (1992) 77 LGRA 309
Allied Westralian Finance Limited v Wenpac Pty Ltd, unreported; FCt SCt of WA; Library No 950597; 8 November 1995
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Benmax v Austin Motor Co Ltd [1955] AC 370
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bolton v Stone [1951] AC 850
Bowen v Tutte (1990) A Tort Rep 81-043
Brambles Ltd v Andar Transport Pty Ltd (2002) 5 VR 169
Broadhurst v Del Pino [2005] WASCA 82
Browne v Dunn (1893) 6 R 67
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Bullock v London General Omnibus Company [1907] 1 KB 264
Burke v Gillett [1996] 1 VR 196
Canada Steamship Lines Ltd v The Queen [1952] AC 192
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500
Di Vincenzo v McKrill [2005] WASCA 222
Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (The Antwerpen) (1993) 40 NSWLR 206
Glenmont Investments Pty Ltd v O'Loughlin (2000) 79 SASR 185
GL Nederland (Asia) Pty Ltd v Expertise Events Pty Ltd [1999] NSWCA 62
Jones v Bartlett (2000) 205 CLR 166
Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Morrell v Mercantile Mutual Insurance (Australia) Ltd (1999) 21 WAR 451
Neindorf v Junkovic (2005) 80 ALJR 341
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201
Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation (1989) 167 CLR 219
Schenker & Co (Aust) Pty Ltd v Maplas Equipment [1990] VR 834
Smith v Leurs (1945) 70 CLR 256
Smith v Littlewoods Organisation Ltd [1987] AC 241

(Page 5)

Theilemann v Commonwealth [1982] VR 713
Town of Mosman Park v Tait (2005) 141 LGERA 171
Tran v Claydon (2003) 40 MVR 506
Valkonen v Jennings Constructions Ltd (1995) 184 LSJS 87
Westrac Equipment Pty Ltd v King [2004] WASCA 188
Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139

(Page 6)

1 STEYTLER P: These appeals arise out of injuries sustained by an employee of Qantas Airways Ltd ("Qantas"), Mrs Marsha Snelgar, at Perth International Airport on 23 December 1999. She was struck on the right ankle by a luggage trolley pushed by a 9-year-old child, causing her to fall and injure her knees and back.

2 Mrs Snelgar sued Westralia Airports Corporation Pty Ltd ("WAC"), alleging that, as the occupier and entity responsible for the maintenance, safety and operation of the customer check-in area, where the accident had happened, it had owed her a duty, both under the common law and under the Occupiers' Liability Act 1985 (WA), to protect her from the risk of accident or injury and that it had acted negligently and in breach of that duty by failing to take steps designed to avoid an accident of that kind. WAC joined Smarte Carte Australia Pty Ltd ("Smarte Carte") as a third party. It relied upon an indemnity which, it contended, had been given to it by Smarte Carte under a Deed of Licence and Authority ("Deed") executed by WAC as licensor and Smarte Carte as licensee on about 9 March 2000. The trial Judge dismissed Mrs Snelgar's claim against WAC. However, she made a provisional assessment of damages and concluded, as regards the third party proceedings, that the indemnity provided for by the Deed did not extend to claims or costs arising as a result of injuries caused by the negligence or default of WAC.

3 Mrs Snelgar has appealed against the dismissal of her claim against WAC. She also challenges the provisional assessment made by the trial Judge, contending that it is too low. WAC has lodged a notice of contention supporting the primary judgment for reasons additional to those given by the trial Judge and also a cross-appeal. Its cross-appeal challenges the provisional assessment made by the trial Judge, contending that it is too high. In addition, WAC has lodged an appeal against the decision of the trial Judge concerning the indemnity, contending that she misconstrued the Deed. Smarte Carte has lodged a notice of contention raising additional points of construction of the Deed which, it contends, point against any liability on its part to indemnify WAC in respect of Mrs Snelgar's claim.

Mrs Snelgar's appeal against the dismissal of her claim

4 I propose, first, to deal with Mrs Snelgar's appeal against the dismissal of her claim.

5 Her contention, at the trial, was essentially that the accident was caused by WAC's negligence in failing to provide safety barriers in the form of designated "spider queues" (a system of metal stands and ropes

(Page 7)

directing passengers to a point immediately in front of the check-in counters) and failing to provide and maintain a system to supervise and control customers pushing heavily-loaded luggage trolleys in the check-in counter area and in particular in failing to prevent a child having control of such a trolley.

The material evidence

6 Mrs Snelgar's evidence was that, on 23 December 1999, she was working as a check-in officer at the airport. She was stationed at counter 13, being one of 14 check-in counters running from east to west on the airport terminal plan. If she stood behind counter 13 facing towards the passenger assembly area, counter 1 was on her left. She noticed that the sign indicating that the check-in counters were open for economy passengers was not switched on. She decided to switch it on. In order to do that she had to walk to counter 1. The only way in which she could do that was to walk in front of the check-in counters, traversing the area in which the passengers assembled for check-in. At that time there was, immediately in front of the check-in counters, rubber flooring extending to a white line approximately one and a half to two metres from the check-in counters. The purpose of the white line was to divide off assembling or queuing passengers from those who were actually in the process of checking in at the counter. She said that the area was then busy. Although she could not recall the path that she took in order to walk to counter 1, she remembered that, after turning the sign on and starting to return to counter 13, her path was impeded by people and luggage in front of counters 1 to 4 and so she took a detour behind them. She said that, as she was doing so, she felt a massive pain in the back of her right ankle. She said that her body weight shifted, so that her left leg crashed into her right knee and she was catapulted up into the air, landing on her right hip and right knee. She did not see what had struck her until after she had fallen, when she saw a laden baggage trolley.

7 The following exchange occurred in the course of cross-examination (transcript 129 - 130):

"From your recollection, after you had changed the sign did you walk continuously, you didn't stop, you walked continuously in the direction of your counter up until the point that you were actually hit by this trolley?---Yes. As far as I know, yes.

Isn't it possible you actually stopped, spoke to someone and then turned round and walked into the path of the trolley?---No,

(Page 8)

I can't say, sir. I don't know. I don't remember talking to anybody.

Can I ask you, is it possible that the trolley didn't go into you. You actually walked into the path of the trolley?---No, I don't think so.

You don't think so?---No.

If I suggest to you that what happened was that you were talking to someone, you turned round, walked into the path of the trolley, lost your footing and fell. Is that possible?---Anything's possible but I don't remember.

You don't remember. You're not sure the trolley actually went into you from the back, are you?---Yes, I am. I felt it on my right ankle.

But do you agree that you could have moved into its path after turning rather than it - - - ?---No, I don't agree because I didn't see the trolley."

8 Mrs Snelgar also said that, prior to the accident, there had been little supervision or control of passengers in the assembly area and that it was common to see young children "running rampant" by pushing trolleys around. After the accident, a system of spider queues had been implemented. Her evidence in this last respect was confirmed by Mr Richard Gates, the general manager of the airport. However, he said that the spider queues were introduced in order to provide for a more orderly and equitable access to the check-in counters and not in order to make the system safer.

9 The trial Judge accepted Mrs Snelgar's evidence (and also evidence given by others) that there had been frequent problems with children "running riot" with trolleys and that the introduction of spider queues had significantly reduced the problem (at [14] of the judgment). However, there was no evidence that any prior serious injury had been brought about by a trolley and Ms Genevieve Chaplin, a customer service agent who had worked for Qantas for 10 years, said that, although trolleys were used throughout all areas on the ground floor and check-in area, as well as other areas, of the airport, the only injuries which she had seen sustained as a result of impact from a trolley were either bruises or skin being scraped at the back of the ankle. On the day upon which she gave

(Page 9)

evidence she had herself been struck by a trolley in the charge of a child who was in a queue in the Customs area.

10 Mr Brett Finucane, a Qantas check-in agent, said that he recalled the accident. He was working at counter 5 or 6 at about 1 pm on the day of the accident. He saw Mrs Snelgar walking towards counters 12 and 13. He also saw that, while she was doing so, she was hit from behind by a trolley pushed by a small boy. He said that the trolley was "almost empty" and that the boy had been running with it across the check-in area (transcript 237). He said that Mrs Snelgar screamed and then fell to the ground. He said that she did not fly into the air but "just sort of went down".

11 In the course of cross-examination, Mr Finucane said that he had not told anyone what he had seen, or made any note in respect of it, until about 12 February 2003, when he learned that a colleague was to give evidence in the case (transcript 242). He was also cross-examined about the way in which the trolley had been pushed by the child. It was never put to him that the child had not been running with the trolley. However, the following exchange occurred (transcript 248):

"It was heading towards the counters. There was nothing abnormal in the way it was moving, was there?---No, it wasn't moving towards the counters. It was moving - - -

But you didn't see anything abnormal in the way it was moving, did you?---In which way?

Well, you saw nothing. It was just being pushed, just a trolley being pushed. That's all it was. Nothing abnormal about that, a baggage - - - ?---Being pushed by a young child between counters 1 and 13, behind Marsha.

So that's the most you can say about it. It was just being pushed?---By a young child."

12 Mr Ronald Szudlarski, also a customer service agent for Qantas, had been working at counter 6 or 7. He said that the departure hall was very quiet at about 1 pm, immediately prior to the accident. His recollection was that, apart from the customer service agents at the check-in counters, there were only about five or six people in the departure area. He remembered seeing a young boy pushing a trolley with two bags on it. He said that the boy was coming from his left and pushing the trolley parallel to the line of check-in counters. He did not see the collision, but looked
(Page 10)

up when he heard Mrs Snelgar scream and saw her lying on the ground, apparently trapped under the trolley.

13 Evidence was also given by Ms Tracey Spanbroek, another Qantas customer service agent. She was working at counter 7 or 8 on the day of the accident. She, too, said that, at the time of the accident, there had been very few people in the departure hall. She said that she saw Mrs Snelgar immediately prior to the accident. She said that Mrs Snelgar was standing more or less in front of her, between four to six metres away. She said that she saw a boy pushing a trolley. The following exchange then took place (transcript 295):

"You saw a boy pushing the trolley. In what direction?---He was sort of coming directly from – sort of in front of me, but from the left on a bit of an angle, coming behind her.

Behind her, towards what – in what direction was he - - - ?---Towards my direction.

Towards you. When you saw him did it appear that he was heading straight towards Mrs Snelgar?---She was standing pretty well in front of my counter, from what I recall, and he was coming from the left, over, right behind her, from what I could see, maybe checking my screen to see if it was ready to be checking in for his flight or - - -

Right, but did he look like he was going to go straight into her when you first saw him?---No.

You said that when you first saw Mrs Snelgar she was moving but while she was under your observation did she keep moving?---She was moving from my right to the left. She stood pretty well in front of me and from what I can remember she stopped and turned to look back at something and that's when the - - -

Right, so she stopped and then she turned. Did you see her do anything after she turned?---No.

Did you keep her under observation after you saw her stop and then turn?---No.

What did you do?---I was at that time preparing my counter, ready for check-in. Then I bent down and then I heard the yell."

(Page 11)

14 During the course of cross-examination, the following exchange took place (transcript 297 - 298):

"But do you say Mrs Snelgar was walking from right to left?---From what I can recall, yes.

Did she then stop?---I'm pretty sure she stopped.

Did she talk to anybody?---I think I even said hello to her.

Was she facing the counters when she stopped or was she facing away?---No, she was facing straight at me.

She spoke to you?---Yes.

Do you recall her speaking to anyone else?---I'm not too sure why she actually turned. She may have turned around and spoke to someone further down on the counter.

But when she was speaking to someone, it was facing the counter?---Correct.

And the boy at that stage, do you know what direction he was approaching in?---He was heading straight for me behind Marsha.

Then did you see Marsha turn round after she'd been speaking to the person she was speaking to; in other words to face the back of the departure hall?---No. From what I can recall Marsha turned to the right and was going to keep walking when the boy must have come.

She turned to her right?---I think.

So she continued to walk towards the right, you say; and did she move backwards at all?---I can't recall."

15 There was further cross-examination of Ms Spanbroek as regards the direction in which Mrs Snelgar had been walking immediately prior to the accident. It was put to her (transcript 299) that her evidence was to the effect that Mrs Snelgar had been walking from counter 13 to counter 1. She agreed that that was so. When asked whether or not she was sure about that, she said that she was. However, a little later in the course of her cross-examination (transcript 301), the following exchange occurred:
(Page 12)

"Mrs Snelgar's evidence was that she was going from 1 to 13 when she was hit. Do you know whether that's the case or not? You just don't know the situation or - - -?---Yes, from what I can recall, she may have been coming from 1 to 13 but I can remember her being in front and turning to her right.

Turning to her right?---Yes, I'm pretty sure.

And which way was she facing when she turned to her right?---She was facing straight in front of me."

16 In the course of re-examination Ms Spanbroek was asked how clear she was in her recollection of the fact that, when she saw the boy with the trolley, he did not look as if he was on a collision path with Mrs Snelgar. She responded that her recollection was "very clear".

The trial Judge's findings

17 Having summarised much of this evidence, the trial Judge found, first, that the departure hall had not been crowded. She accepted the evidence of Mr Szudlarski and Ms Spanbroek in that respect (at [20]). She mentioned that Mr Finucane had intimated, in the course of his evidence, that there had been a number of people present at the time and that he had had one or two customers directly in front of him, but said that Mr Szudlarski and Ms Spanbroek had been firm in their evidence in that respect (at [20]). She also mentioned (at [20]) that, although Mr Szudlarski had not prepared a written statement and had not been requested to do so immediately after the accident, "he was noted as a witness to the incident in the medical incident report form".

18 Next, the trial Judge said (at [21]) that she was not satisfied that the evidence established that the trolley had been pushed by the child in anything other than a normal and orderly manner. She went on to say:

"Although Mr Szudlarski and Ms Spanbroek were not directly asked questions in relation to that issue the whole of their evidence is consistent with that finding. Although it was not uncommon for children and young people to misuse the trolleys there is no evidence that this occurred in this case apart from the evidence of Mr Finucane. I do not accept the evidence of Mr Finucane in relation to this issue nor do I accept that the accident occurred in the manner described by Mr Finucane or by the plaintiff. Mr Finucane described the boy as 'running across the check-in area and hitting the plaintiff in the back of

(Page 13)

her legs'. In cross-examination he appeared to have resiled from that although his responses were ambiguous. His evidence is inconsistent with the inferences to be drawn from the evidence of Mr Szudlarski and Ms Spanbroek namely that the trolley was being pushed in a normal manner. I prefer the evidence of Mr Szudlarski and Ms Spanbroek to that of Mr Finucane as he did not appear to have a good recall of any details other than seeing the child run with the trolley and seeing it collide with the back of the plaintiff's legs. Given that he was not required to recall the incident until over three years later and was not even aware that there was an investigation I find that his recall is not reliable and is likely to have been influenced by an attempt to reconstruct the events in the knowledge of the nature of these proceedings."

19 The trial Judge also rejected Mrs Snelgar's evidence of the circumstances of the accident. She said (at [22]) that her evidence of having to skirt around gathering passengers was inconsistent with the evidence that there were not many people in the departure hall at the time and that her description of being thrown into the air seemed unusual and inconsistent with the evidence of Mr Finucane and Mr Szudlarski. She also mentioned that, in a report prepared by a treating surgeon dated 16 May 2000, the surgeon had made no mention of Mrs Snelgar being thrown into the air and had said only that, when she was hit from behind, this had caused her left knee "to collapse". There had been evidence to the effect that Mrs Snelgar had suffered from a pre-existing weakness to her left knee.

20 The trial Judge went on to say (at [23]):

"The plaintiff's account of being hit from behind when she was in the process of walking back to her counter is also inconsistent with the evidence of Ms Spanbroek. It is significant that in cross-examination the plaintiff conceded that she may have stopped to talk to someone just before she was hit. Taking all of the evidence into account I consider that the most likely course of events was that the plaintiff returned to her check-in counter by walking through the passenger hall rather than taking a direct route directly in front of and parallel to the check-in counter but stopped and faced towards the counters. Why she did this is uncertain but it may be that her attention was drawn by speaking to someone in that vicinity. There were few people in front of the check-in counters and there would have been no

(Page 14)

difficulty in walking almost directly back to counter 13. I find that it is most likely that she then turned to return to the check-in counter and in doing so collided with a trolley being pushed by a young child coming from the left and heading in an orderly and usual direction towards the check-in counters. This finding is consistent with the plaintiff's statement at T44 that she reached out with her hand to prevent hitting the trolley with her right arm. That position is more logically the result of turning into the trolley rather than being struck from behind and being thrown into the air. When struck by the trolley her left knee collapsed due to a pre-existing weakness and she fell to the ground hitting her right knee and dislocating it and landing on her right hip. I accept the plaintiff's evidence was on the whole given in a frank and forthright [manner.] However, I consider that it is likely that the trauma and shock of the pain from her dislocated knee may have rendered her recollection of the incidents just prior to the incident unreliable. It may well be that the fact that this was a quiet period with few passengers assembling contributed to the plaintiff's failure to keep a proper lookout and to turn into the path of the trolley. The plaintiff was well aware that there could be trolleys being pushed in that area."

21 Having made these findings, the trial Judge went on to deal with a submission which had been made to the effect that, even if the trolley had been pushed in an orderly manner, the accident had still resulted from a breach of the duty of care that WAC, as occupier of the premises, had owed to Mrs Snelgar, in that the accident could, and should, have been avoided by the existence of spider queues. Having made some observations concerning the existence of a duty of care, the trial Judge went on to say (at [29]):

"The evidence establishes that there have been numerous incidents of children or young persons misusing trolleys at the Airport. However it is also apparent from the evidence that that often occurs when abandoned trolleys are used for skylarking rather than the normal purpose of using them to transport luggage in and around and out of the Airport terminal. It is likely that the misuse of trolleys in these circumstances would constitute a danger of significant personal injury or damage to property. As a matter of common experience the orderly use of trolleys, especially when heavily laden with luggage, will be likely to result in minor collisions especially when used in

(Page 15)

congested areas where large numbers of persons are jockeying for position or crisscrossing open areas. However it seems unlikely that these kinds of collisions would cause significant personal injury. The use of trolleys in a variety of retail and transport facilities is widespread and has been for some years. As Ms Chaplin described in her evidence the usual injuries are bruising or a skinned ankle. When a trolley is being used in the normal manner although it is a substantial object if heavily laden it is also a heavy and slow one. It is not surprising then that the question of trolley safety has not been regarded as a significant issue. Although some of the witnesses have had cause to remonstrate with customers and/or children over the trolley use it appears to have been more of a nuisance factor rather than being seen as posing any significant risk either to passengers or employees working at the Airport. The fact that the plaintiff dislocated her knee, because her weak left knee gave way causing her to fall, constitutes an unusual sequelae of a relatively minor collision with the trolley. I accept the defendant's submission that it may fairly be regarded as a 'freak' accident."

22 Her Honour then turned her attention to the spider queue assembly system, saying (at [30]) that she was satisfied that it had not been introduced in order to avoid the kind of accident that had happened. She went on to say (at [30] and [31]):

"It is also the case that if the spider queue barrier system had been operating in December 1999 the plaintiff would not have been able to walk through the area as it is clear from the maps that the accident occurred in the vicinity now covered by the spider queue barriers. She would have had to walk either directly in front of the barriers parallel with the check-in counters, or alternatively to have skirted the spider queue barrier system itself and walked right around it in order to access her check-in counter. In doing so she would have exposed herself to an area in which trolleys are pushed in all directions. Apart from the fact that the presence of the spider queues would have prevented the accident taking place in the precise location that it did occur the installation of spider queues would not otherwise have prevented the accident in this case. In addition, on the basis of my finding that at the time the accident occurred the area was not congested but was in fact relatively quiet with only a few people present assembling to

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check in the plaintiff could have walked directly in front of the check-in counters. It was the fact that for whatever reason she walked further away from the check-in counters and stopped and spoke to someone in the direction of the check-out counter and then turned into the path of the trolley that caused the collision.

I am not satisfied that the absence of spider queues constituted a breach of the defendant's duty of care towards the plaintiff in the circumstances of this case nor am I satisfied that the failure to provide spider queues was causative of the accident … The use of trolleys to convey baggage to and from the Airport by passengers continues across a wide area of Airport premises and in this case by departing passengers accessing the spider queues at the entry to the Airport departure hall and in criss-crossing the area immediately in front of the check-in counters once they have reached the end of the spider queue system. Although the presence of the spider queue would prevent or reduce the opportunity for a customer or child to misuse a trolley by pushing it fast or by misusing it in that area I have found that that did not occur in this case. I am also not satisfied that the failure to supervise or control the use of the trolleys including controlling or preventing their use by children constitutes a breach of the defendant's duty of care or was causative of the accident in this case. The evidence does not establish that the trolley was being misused in any way. Supervision or control of any misuse would therefore not have prevented the accident."

Mrs Snelgar's grounds of appeal concerning the issue of liability

23 There are 10 grounds of appeal concerning the issue of liability. Omitting detailed particulars, they read as follows:

"1. The learned trial judge was wrong in fact and wrong in law in accepting the evidence of the witness Spanbroek and making any findings based on her evidence save such findings that could be verified by other evidence …

2. (a) The learned trial judge was wrong in fact and wrong in law to in lieu of the evidence of the plaintiff and Finucane rely on:

(i) Szudlarski's evidence that at the time of the accident the departure hall was not crowded and

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there were very few people assembled in the passenger check-in area because he was listed as a witness in the medical incident report form (exhibit 16).

(ii) Spanbroek's evidence that there were few people in the area at the time because she had made a written statement straight after the accident although Spanbroek was not asked if that statement was the same as her evidence.

3. The learned trial judge was wrong in fact and wrong in law in finding that the evidence of Szudlarski was inconsistent with the evidence of the plaintiff and the evidence of Finucane as to how the accident happened by reason:

(a) of the matters referred to in paragraph 1 hereof.

(b) that Szudlarski did not see the accident.

4. The learned trial judge was wrong in fact and wrong in law in finding that she was not satisfied that the evidence established that the trolley was being pushed by the child in anything other than a normal and orderly manner …

5. The learned trial judge gave no adequate reasons for accepting the evidence of Spanbroek and Szudlarski in lieu of the evidence of the plaintiff and Finucane.

6. The matters referred to in paragraphs 1, 2, 3, 4 and 5 hereof render unsafe the findings of the learned trial judge that:

(a) There were few people in the area at the time of the accident.

(b) The trolley was not pushed in anything other than a normal way.

7. The learned trial judge having made no adverse finding as to the plaintiff returning to check-in counter 13 by taking a semi-circular route through the departure hall has failed to make any or any adequate assessment of:

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(a) the plaintiff's evidence that there were people lining up in front of counters 1 - 4 and these passengers and their baggage impeded her path so that she was unable to walk back to counter 13 by walking in a direct line parallel to the check-in counter and between the white line and the counter.

(b) the presence of other passengers in the area requiring her to walk in the departure hall.

8. By reason of the matters hereinbefore referred to the learned trial judge has misdirected herself as to the most likely course of events that occurred based on the evidence of Spanbroek.

9. The learned trial judge was wrong in fact and wrong in law in accepting the evidence of the witness Gates rather than the evidence of the witness Bebich that safety was not a factor in the installation of the spider queues …

10. The learned trial judge was wrong in fact and wrong in law in finding that the plaintiff had failed to establish that the defendant had failed to discharge his duty of care to the plaintiff and the learned trial judge has failed to give any or any adequate consideration to the provisions of section 5 of the Occupiers' Liability Act 1985 ('the Act')."

24 In its notice of contention, WAC supports the finding of the trial Judge on the question of liability on a number of grounds additional to those given by her. It is unnecessary to set them out.

Grounds 1 to 4

25 I propose, first, to deal with grounds 1 to 4 of the grounds of appeal. Because they challenge findings of fact which are based, in part, upon the credibility of witnesses, I should comment on the applicable principles.

26 The disadvantage that an appellate court has in overturning findings of that kind has often been commented upon. Courts have traditionally cited the following extract from the judgment of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47:

"[N]ot to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge,

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and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it."

27 In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 at 327 [88], Kirby J rejected the suggestion that an appellant, in order to succeed, must show affirmatively that the trial Judge "misused his advantage" in assessing the credibility of a witness. He said that this was "redolent of a time when appeal, particularly on factual determinations, was a novel phenomenon". He went on to say:

"At that time, appeal was still sometimes regarded, so far as it required the re-examination of facts, as beneath judicial dignity (Lord Holt CJ in

R v Earl of Banbury

(1694) Skinner 517 at 523 [90 ER 231 at 235]). Such re-examination was a painful and uncongenial obligation. In the context of modern appellate rights, now so long established by statute, such attitudes can safely be consigned to the history books. Many injustices may lurk in factual mistakes – probably more than in errors of law."

28 Accepting this, there is no doubt that caution must nevertheless be exercised in overturning findings of fact which are based upon the credibility of a witness. In Jones v Hyde (1989) 63 ALJR 349 at 351 and Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179, McHugh J said that, when a trial judge resolves a conflict of evidence between witnesses, "the subtle influence of demeanour on his or her determination cannot be overlooked" (see also Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 and Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at 1836). In Fox v Percy (2003) 214 CLR 118 at 125 - 126 [23], Gleeson CJ, Gummow and Kirby JJ said that one of the limitations under which an appellate court labours is the disadvantage which it has when compared with the trial Judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which, they said, an appellate court, reading the transcript, cannot always fully share.

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29 Of course, where the trial Judge's decision is glaringly improbable or contrary to compelling inferences, the fact that the trial Judge has been influenced, in her conclusion, by an opinion concerning the credibility of witnesses will not mean that an appellate court may not interfere. Rather, in such a case, so long as it makes due allowances for the advantages available to the trial Judge, the appellate court is obliged to give effect to its own conclusion: Fox v Percy at [28] - [29] and Waterways Authority at 1846 [176].

30 The challenges made by grounds 1 to 4 to the factual findings of the trial Judge essentially come down to four propositions, as follows:

1. The trial Judge should not have accepted Ms Spanbroek's evidence concerning the circumstances of the accident because:

(a) she had mistaken the direction in which Mrs Snelgar had been walking and that in which she must have turned, if she had turned at all (grounds 1(a)(i) and (ii) and 1(d));

(b) the cross-examination of Mrs Snelgar had proceeded upon the assumption that the accident had happened while she was returning to her station (ground 1(b));

(c) the trial Judge was in error in finding that Mrs Snelgar had made a significant concession that, just prior to the accident, she had been speaking to somebody (ground 1(a)(iii)); and

(d) Ms Spanbroek's evidence had been that she did not see the accident (ground 1(c)).

2. The trial Judge should have preferred the evidence of Mrs Snelgar and Mr Finucane to that of Ms Spanbroek and Mr Szudlarski as regards the number of people who were in the departure hall at the time (ground 2).

3. The trial Judge was wrong to find that the evidence of Ms Spanbroek and Mr Szudlarski was inconsistent with that of Mrs Snelgar and Mr Finucane when Ms Spanbroek's evidence was unreliable and neither she nor Mr Szudlarski saw the accident (ground 3).

4. The trial Judge erred in finding that she was not satisfied that the evidence established that the trolley was being

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pushed by the child in anything other than a normal and orderly manner, in circumstances in which Mr Finucane was not cross-examined on behalf of WAC as regards the manner in which the trolley was being pushed, or by Smarte Carte as regards his evidence that the boy had been running with the trolley across the check-in area (ground 4).

31 As to the first of those propositions, the trial Judge accepted (at [23]) that Mrs Snelgar was injured on her way back to her station. It is consequently true that Ms Spanbroek was mistaken in her initial evidence to the effect that Mrs Snelgar had been moving from Ms Spanbroek's right to her left. As will be apparent from what I have earlier said, she acknowledged, in the course of cross-examination, that she may have been mistaken in that respect, although she maintained that she was "pretty sure" that Mrs Snelgar had turned to the right, after standing and facing her direction, immediately prior to the accident. However, the more significant aspects of her evidence (and those which might be thought to have imprinted themselves more clearly upon her memory) related to the position in which Mrs Snelgar had been immediately prior to the accident. She appears to have been confident in her recollection that Mrs Snelgar had then been stationary and facing the counter. As I have said, she was also "very clear" in her recollection that the boy with the trolley had not been on a collision path with Mrs Snelgar. There is no reason why the trial Judge, having seen and heard her evidence, should not have accepted it, in respects other than as regards the direction in which Mrs Snelgar had previously been walking. It was also open to the trial Judge to rely upon Ms Spanbroek's evidence notwithstanding that she did not see the accident itself, given that she had seen the events which immediately preceded it.

32 Counsel for Mrs Snelgar also contended that the trial Judge erred in accepting that Mrs Snelgar had turned to her right at the time of the collision (her cross-examination had proceeded on the assumption that she had turned to her left). He submitted that this finding appears from the trial Judge's acceptance of the fact (at [23]) that Mrs Snelgar had reached out with her hand to prevent hitting the trolley with her right arm and contends that that could only have been so if she was then opposite counter 13, a finding which would be inconsistent with the other evidence. As I read the trial Judge's reasons, she made no specific finding as regards the place when the accident occurred. However, if she did, or if she was in error in finding that Mrs Snelgar had turned to her right rather than to her left (and it should not be overlooked that Ms Spanbroek's recollection

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was that Mrs Snelgar "had turned back to look at something" or perhaps to speak to someone "further down on the counter"), it seems to me that any such error was not material to her conclusions that the trolley had been pushed in an orderly manner and that Mrs Snelgar had turned into its path, those having been the critical features of the evidence accepted by her.

33 Finally, so far as this first proposition is concerned, I am not persuaded that the trial Judge made any error in saying that it was significant that, in cross-examination, Mrs Snelgar had conceded that she may have stopped to talk to someone just before she was hit. I have earlier mentioned that, in the course of cross-examination, Mrs Snelgar said that, while she did not remember talking to anybody, she could not say and did not know whether or not she had stopped in order to do so. The trial Judge was entitled to regard this as a concession of this possibility by Mrs Snelgar, and to accord significance to it.

34 As to the second proposition, ground 2 contends that the trial Judge was wrong to rely upon the evidence of Mr Szudlarski because he was listed as a witness in the medical incident report form. She is also said to have been wrong to rely on that of Ms Spanbroek because she had made a written statement straight after the accident, when she had not been asked if that statement was the same as her evidence. On my reading of the judgment of the trial Judge, she did not rely exclusively upon these matters in preferring the evidence of Mr Szudlarski and Ms Spanbroek to that of Mrs Snelgar and Mr Finucane. Indeed, in making her finding in that respect (at [20]), she did not refer to the making of a written statement by Ms Spanbroek and her reference to the fact that Mr Szudlarski was noted as a witness to the incident seems merely to reflect her Honour's view that, because he had identified himself as a witness, he might have had more reason than Mr Finucane to recall the incident in question. More importantly, it is apparent from what was said by the trial Judge in par [20] of her reasons that her principal reason for relying upon the evidence of Mr Szudlarski and Ms Spanbroek in this respect was that their evidence had been detailed and "firm". She also said (at [20]) that Mr Finucane had not been directly questioned as to the number of persons who were in the general vicinity at the time.

35 As to the third proposition, I have already said that there is nothing in the matters raised in the grounds of appeal which should lead to the conclusion that the trial Judge should not have relied upon Ms Spanbroek's evidence in making findings as to the circumstances in which the accident occurred. I have also said that the trial Judge's finding is not in any way vitiated by the fact that Ms Spanbroek did not see the

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accident happen. In my opinion, the same is true of Mr Szudlarski. While he did not see the accident, he did see the boy and the trolley immediately prior to the accident and his recollection of how Mrs Snelgar had finished up, after the collision, was inconsistent with her evidence.

36 As to the fourth proposition, it is true that Mr Finucane was not cross-examined on behalf of WAC as regards the manner in which the trolley had been pushed by the boy. It is also true that the cross-examination by Smarte Carte's counsel was ambiguous in this respect. However, there had been no plea, in the statement of claim, to the effect that the child had been running and that issue appears to have emerged, for the first time, in the evidence of Mr Finucane. In these circumstances, the absence of unambiguous cross-examination in this respect did not preclude the trial Judge from preferring the evidence of Mr Szudlarski to that of Mr Finucane. She said in that respect that she relied, not only on the evidence of Mr Szudlarski, but also on that of Ms Spanbroek (at [21]). Moreover, she said (also at [21]) that she preferred the evidence of those two witnesses to that of Mr Finucane because he had not, otherwise, appeared to have a good recall of any details (he had been incorrect in saying that there had been no baggage in the luggage tray of the trolley and that the child had been about 5 years old (he was, as I have earlier mentioned, 9 years old)) and because he had not been required to recall the incident until over three years later.

37 Grounds 1 to 4 have consequently not been made out.

Ground 5

38 It is settled that, when deciding between competing versions of the facts, it is necessary for a trial judge to refer to relevant evidence and, when one set of evidence is accepted over a conflicting set of significant evidence, to set out, in a logical and understandable way, her findings as to how she has come to accept the one over the other: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443 - 444; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at 1830 and Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at 283.

39 It will be apparent, from what I have already said, that the trial Judge gave full and appropriate reasons for preferring the evidence of Ms Spanbroek and Mr Szudlarski to that of Mrs Snelgar and Mr Finucane. I have already said what her reasons were for preferring the evidence of Mr Szudlarski and Ms Spanbroek to that of Mr Finucane. It is also

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apparent, from the extracts from the judgment of the trial Judge set out earlier in these reasons, that she said that Mrs Snelgar's description of being thrown into the air seemed unusual and that it was not consistent with the evidence of Mr Finucane. The trial Judge also took account of the fact that what Mrs Snelgar had said to her treating surgeon differed from her evidence at the trial. In those circumstances, and having regard for the additional reasons given by the trial Judge in par [23] of her judgment, quoted earlier in these reasons, there is no basis for the contention that her reasons were inadequate.

40 Ground 5 has consequently not been made out.

Ground 6

41 Ground 6 relies upon grounds 1, 2, 3, 4 and 5. Those grounds having failed, this ground fails also.

Ground 7

42 As to ground 7, the trial Judge plainly rejected Mrs Snelgar's evidence that she took a semi-circular route through the departure hall because passengers and baggage impeded her path. I have earlier quoted par [23] of her reasons, in which she found that Mrs Snelgar would have had no difficulty in walking "almost directly" back to counter 13 and that the reason for her detour was uncertain, but that it might have been that her attention was drawn by speaking to someone in the vicinity.

43 There is consequently no substance to this ground.

Ground 8

44 Ground 8 is merely consequential upon the earlier grounds. This ground, too, has accordingly not been made out.

Ground 9

45 I have earlier mentioned that the trial Judge was satisfied that the spider queue assembly in use at the time of the trial had not been introduced in order to avoid the kind of accident that occurred (at [30]). She had earlier referred (at [12]) to the evidence of Mr Richard Gates, who, as I have said, was the airport general manager, to the effect that the purpose of the introduction of the spider queues was to enhance passenger movement and to ensure a more equitable access to the check-in counters by passengers. He said that the system had been introduced on a trial

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basis in approximately January 2001 and it was only after the trial had been successful that the system was permanently introduced.

46 The only contradictory evidence was that given by Mr Nikola Bebich, a customer service supervisor for Qantas. It was obvious from Mr Bebich's evidence that the principal purpose behind the introduction of the spider queues or, as he called them, "snake" queues was that of orderly people management. He gave evidence, at some length, of the "chaos" in that respect which had been brought about by the absence of such queues. He did not raise the issue of safety until asked a leading question in that respect during his evidence-in-chief. The relevant exchange was as follows (transcript 166):

"Was the question of safety of people within a terminal a consideration for the introduction of the snake queues?---It was always there in the sense that staff would always, you know, it was an ongoing thing with staff complaining that they had to fight their way through passengers to get access to the service desk and to client airlines and whatever, but you know, no-one really took much heed of that. You tried to work the best; the pressure was on to get the passengers in and whatever, you know. It was just a situation saying, well, how can we kill more than two birds with one stone in trying to alleviate all the problems."

47 Ground 9 contends that the trial Judge erred in accepting the evidence of Mr Gates rather than that of Mr Bebich. However, that misunderstands what was found by her. She referred to the evidence of each of these witnesses (respectively at [12] and [13]). Then (at [30]) she found, as I have said, that the spider queue assembly system had not been introduced "in order to avoid the kind of accident that occurred to the plaintiff". That finding was not inconsistent with the evidence of Mr Bebich. As will be apparent, the only safety issue to which he had referred was one arising out of airport staff having "to fight their way through passengers".

48 Ground 9 has consequently not been made out.

Ground 10

49 Ground 10 challenges the trial Judge's finding that Mrs Snelgar had failed to establish that WAC had failed to discharge a duty of care owed to Mrs Snelgar. It also contends that the trial Judge failed to give

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adequate consideration to the provisions of s 5 of the

Occupiers' Liability Act 1985

(WA).

50 I have earlier rejected ground 4 of the grounds of appeal, which contends that the trial Judge was wrong to be satisfied that the evidence established that the trolley was being pushed by the child in anything other than a normal and orderly manner. Consequently, ground 10 need only be considered in that context. That is to say, the relevant question, so far as the first aspect of ground 10 is concerned, is whether the trial Judge should have found that WAC had breached a duty of care owed to users of the departure hall by failing to prevent the possibility of injury resulting from the normal and orderly use of trolleys. The only omission of which complaint is made in this respect is that of the failure to introduce spider queues.

51 In supporting ground 10, counsel for Mrs Snelgar relies upon the findings made by the trial Judge that it was reasonably foreseeable that injury could be caused by the use of trolleys (at [28] of the judgment), that, as a matter of common experience, the orderly use of trolleys, especially when heavily laden with luggage, was likely to result in minor collisions (at [29]) and that the presence of spider queues would reduce the risk of a collision (at [31]). He also contends that the trial Judge failed to have regard to the fact that the premises were used by people of all ages, infirmities and predispositions and hence that there would be some, amongst those users, who might suffer substantial injuries from even minor collisions. He submitted that the cost of avoiding the risk, by way of the introduction of spider queues, was insignificant. Finally, he submitted that the trial Judge was wrong to find that the accident was a "freak" accident and that Mrs Snelgar's injuries were an unusual consequence of a relatively minor collision.

52 I am not persuaded that the trial Judge made any error. It was open to her to find that the usual injuries brought about by the use of trolleys were merely bruising or a skinned ankle. The trial Judge accepted the evidence of Ms Chaplin, referred to earlier in these reasons, to that effect. I have also quoted from par [29] of the judgment of the trial Judge in which she said that, because a heavily laden trolley is also a heavy and slow object, it is not surprising that the question of trolley safety has not been regarded as a significant issue. As her Honour said, the use of trolleys in a variety of retail and transport facilities is widespread and has been for some years (at [29]).

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53 Negligence consists in conduct involving an unreasonable risk of harm. As Mason J said, in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48:

"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

Central to the process of evaluating a reasonable response in this case is the weighing of the utility of the conduct in question against the gravity of the risk posed. As J Fleming

The Law of Torts

(9th ed) 1998 at 129 points out, additional safety might be procured at too high a price in terms of general convenience: see also

Mercer v Commissioner for Road Transport and Tramways (NSW)

(1936) 56 CLR 580 at 589. As the trial Judge found (at [31]), trolleys are used in a number of areas of the airport where there are no spider queues as, for example, the entry to the departure hall and the area immediately in front of the check-in counters. I have also referred to the evidence of Ms Chaplin to the effect that she was struck by a trolley in the Customs area. The evidence of Mr Gates was that the total area in which trolleys are used, including the car parks, reclaim and departure areas of the domestic and international airports, is about 14 hectares (transcript 67). He said that only 10 per cent of those departing from the airport used trolleys (a $2 fee was levied in each case) whereas 70 per cent of incoming passengers used trolleys (they were free of charge in their case). Mr Gates also said that, in the 14 years that he had worked at the Perth airport, this was the first safety issue concerning the use of a trolley of which he had heard (transcript 71). He had been to, and worked at, other airports but was unaware of any safety measures that had been implemented in respect of trolley use, other than in the case of airports in which travelators were fitted on inclines. In those cases, brakes were fitted on the trolleys (transcript 75 - 76). When asked whether, from his understanding of "the industry" and the airport, it was possible to implement measures to control the use of trolleys, he said that he thought that "it would be very difficult and with the area the trolleys are used within the airport impractical" (transcript 71).

(Page 28)

54 All of this evidence was taken into account by the trial Judge who referred to, and applied, what had been said in Wyong Shire Council. It was open to her to conclude, as she did, that the magnitude of the risk was so small and, in effect, that the difficulty and inconvenience of attempting to impose some system, throughout the airport (no relevant distinction can be drawn between the departures hall and other areas of the airport as, for example, the arrivals hall), designed to prevent the risk of injury from the orderly use of trolleys, whether by the introduction of spider queues or otherwise, was so great, that WAC owed no duty in that regard. I am not persuaded that she made any error in that process.

55 As to the Occupiers' Liability Act, while the trial Judge did not specifically refer to the various factors identified in s 5(4), it is plain, from her judgment, that she took into account all of the material factors and that she balanced them in an appropriate manner.

56 Ground 10 has consequently not been made out.

WAC's notice of contention

57 Given the conclusions of which I have arrived concerning Mrs Snelgar's appeal on the issue of liability, it is unnecessary for me to deal with WAC's notice of contention.

Mrs Snelgar's appeal concerning the provisional assessment

58 Although it is also unnecessary to deal with Mrs Snelgar's appeal concerning the provisional assessment, I will deal briefly with it in any event.

59 The trial Judge was satisfied by medical evidence that, at the time of trial, Mrs Snelgar could not undertake activities involving heavy lifting or squatting such as were required in the occupation of a customer service agent (at [45] of the judgment). She considered it appropriate that the issue of loss of earning capacity should be approached on the basis that, as a result of the accident, Mrs Snelgar had been unable to resume her pre-accident employment ([46]). She also accepted that, were it not for the accident, Mrs Snelgar would have stayed at Qantas, either as a customer service agent or in some other employment, until the age of 65. However, she also found (at [49]) that the medical evidence strongly supported a finding that Mrs Snelgar was able to work on a full time basis if she avoided heavy lifting. She said that Mrs Snelgar's work experience had been almost exclusively in the secretarial/clerical area and that it was only the need to handle luggage as a customer service agent that had

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prevented her from returning to her pre-accident job. She referred to evidence that Mrs Snelgar had given to the effect that she regarded herself as able to do clerical work and that she thought that she would be able to find such a position. The trial Judge went on to say that, while Mrs Snelgar's decision to leave work in October 2002 had been, in part, influenced by a lifestyle choice (she had wanted to care for her unwell husband), she was obviously in a position to pursue alternative employment if she should choose to do so, although her age would have to be factored into an assessment of her ability to find appropriate fulltime employment.

60 Counsel for Mrs Snelgar had provided to the trial Judge a summary of the loss claimed by way of "Loss of Future Earnings and Entitlements". This gave rise to a total of $324,032.84, comprising $265,718.50 by way of loss of earnings, $22,105.44 by way of loss of superannuation and $36,208.90 by way of loss of "travel benefits". The trial Judge, having made the findings to which I have referred concerning Mrs Snelgar's residual earning capacity, went on to say (at [49]):

"Taking all these circumstances into account I consider that the plaintiff's loss of earning capacity should be assessed in accordance with the Schedule of Loss of Future Earnings and Entitlements provided by the plaintiff but reduced by 50 per cent to reflect her retained earning capacity. In deciding on a figure of 50 per cent I have taken into account that the plaintiff's claim for past economic loss will be assessed up to 18 February 2003 in accordance with the schedule of past economic loss provided by the plaintiff. It is likely that if the plaintiff had sought alternative employment she would have been able to obtain a position either with Qantas or with another employer in the period from October 2002 to February 2003. In addition to the discount of 50 per cent for retained earning capacity there will be a further discount of 10 per cent for the usual contingencies including the fact that the plaintiff may have chosen to retire from the work force at an earlier age than 65 particularly in the light of her husband's illness and her need to care for him. Reducing the final balance of the Schedule for Loss of Earning Capacity by 60 per cent results in the sum of $129,613. I would have awarded the plaintiff the sum of $130,000 for loss of earning capacity."

61 This assessment is challenged by ground 11 of the grounds of appeal, which reads as follows:
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"The provisional assessment by the learned trial judge of the sum of $130,000.00 for future loss of earning capacity was wholly insufficient and unreasonable and below the limits of a sound discretionary judgment by reason that having accepted that the plaintiff's loss of earning capacity should be assessed in accordance with the plaintiff's Schedule of Loss of Future Earnings namely in the sum of $324,032.84 she has then reduced such sum by 50% to reflect the plaintiff's retained earning capacity and by a further 10% for the usual contingencies including the fact that the plaintiff may have chosen to retire from the work force at an earlier age than 65 particularly in the light of her husband's illness and her need to care for him."

62 In submissions made in support of this ground, counsel for Mrs Snelgar contended that, when regard has had to the trial Judge's findings as to the limitations on Mrs Snelgar's earning capacity and her age, the 50 per cent deduction was unjustified. He submitted that WAC had an onus, which it had not discharged, to show that Mrs Snelgar could have found work and also to show what she would have earned in the course of that work.

63 I am not persuaded that the trial Judge made any error in her approach. There is no challenge to the trial Judge's finding that Mrs Snelgar was able to work on a full time basis if she avoided heavy lifting. Moreover, she accepted Mrs Snelgar's own evidence to the effect that she regarded herself as able to do clerical work and that she thought that she would be able to find such a position. In those circumstances it was open to the trial Judge to allow a discount of 50 per cent for retained earning capacity.

64 Counsel for Mrs Snelgar also contended that the 10 per cent discount for contingencies was too high, and higher than is ordinarily allowed. However, it is obvious from the trial Judge's reasons that she was influenced, in arriving at the figure of 10 per cent for the usual contingencies, by the fact that Mrs Snelgar may have chosen to retire from the workforce at an earlier age than 65 in the light of her husband's illness and her need to care for him (at [49] of the judgment). In these circumstances a discount of 10 per cent was appropriate.

65 Finally, counsel for Mrs Snelgar contended that, in calculating the loss, the trial Judge had made no allowance for loss of travel benefits of $36,208.80. That is not correct. I have mentioned that, in the schedule

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provided to the trial Judge, a total of $324,032.84 was claimed in this respect, including the amount of $36,208.90 by way of lost travel benefits. Forty per cent of the total sum of $324,032.84 amounts to the figure of $129,613 calculated by the trial Judge.

66 Ground 11 has consequently not been made out.

The cross-appeal concerning the provisional assessment

67 In its cross-appeal, WAC challenges the provisional assessment made by the trial Judge on three grounds (two other grounds were abandoned). These grounds read as follows:

"(c) The finding that the Appellant would have remained in the employ of Qantas until the age of 65 should be overturned and replaced by a finding that the Appellant would have retired from Qantas no later than at the age of 60.

(d) The award of damages to the Appellant in respect of loss of earning capacity should be reduced to reflect that the Appellant would have retired from Qantas no later than at the age of 60.

Particulars of grounds of contention in relation to (c) and (d)

The only evidence before the Court as to the retirement age from Qantas was the evidence of Ms Lisa Scubin [sic] which was to the effect that the retirement age was 60.

(e) In the event of the Respondent being liable to the Appellant, the Appellant's damages should be reduced to the extent that her injuries were caused by her contributory negligence."

68 Because I have concluded that Mrs Snelgar's appeal on the issue of liability should be dismissed, it is unnecessary to consider the cross-appeal. However, I will comment briefly on it.

69 As to grounds (c) and (d), the only evidence of the retirement age from Qantas was given by Ms Lisa Sgubin, who was employed by Qantas as a human resources manager. Contrary to what is asserted in the particulars to grounds (c) and (d), she did not say that the retirement age at

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Qantas was 60. When asked whether there was "a retiring age" she responded by saying, "You can retire – let me make sure I say this correctly. There's the normal age that you retire which I believe is 60". She was then asked "60 or 65?". She responded, "Yes. Yes". Consequently, it seems plain that she was giving evidence only of the "normal" retiring age and, even then, appeared to be equivocal as regards the question whether this was 60 or 65 (transcript 223). In that circumstance, and given Mrs Snelgar's evidence (transcript 19) to the effect that, were it not for the accident, she "would still be … [at Qantas] today", it was open to the trial Judge to conclude that she would not have retired until age 65.

70 As to ground (e), it is apparent from the provisional assessment made by the trial Judge that she made no allowance for any contributory negligence on the part of Mrs Snelgar, notwithstanding that at par [23] of her judgment she referred to Mrs Snelgar's "failure to keep a proper lookout". It seems to me, with due respect, that the trial Judge overlooked this issue in making her provisional assessment. Had I arrived at a different conclusion as regards the issue of liability, I would have ordered that the matter be referred back to her Honour for reconsideration in this respect.

WAC's appeal in the third party proceedings

71 So far as the third party proceedings are concerned, the trial Judge concluded that, if she had found that WAC was liable in negligence, this would have been upon the basis that it had been negligent in failing to implement a system of spider queues in the departure hall, or on the basis that it had failed to supervise and control customers pushing luggage trolleys and, by inference, that it had failed to prevent a child misusing a trolley in such a manner as to constitute a risk to Mrs Snelgar. She went on to say (at [60]) that, if a finding had been made on either of these grounds, she would not have found that Smarte Carte was liable to indemnify WAC because, as I have foreshadowed, she did not read the indemnity provision as extending to claims or costs arising as a result of injuries caused by the negligence or default of WAC (at [57]). I should mention, in this respect, that, although the Deed is admitted in the pleadings to have been made on about 9 March 2000, after the date of Mrs Snelgar's accident, there was no dispute at the trial, or at the hearing of the appeal, concerning its possible application to Mrs Snelgar's claim.

72 There are three grounds of appeal. They read as follows:

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"1. On a proper construction of the written licence and authority agreement between the Appellant and the Respondent stamped on 9 March 2000, and in particular Clauses 3.2 and 3.14 thereof, the Respondent is liable to indemnify the Appellant against the Plaintiff's claim in the District Court action including all costs incurred by the Appellant in defending the Plaintiff's claim and the costs of the third party proceedings against the Respondent.

2. Even if (contrary to the Appellant's submission) the indemnity provisions in cl 3.14 did not extend to situations where the Appellant was negligent, it having been found that the Appellant was not negligent, the Respondent should have been held liable to indemnify the Appellant in respect of its costs in defending the plaintiff's action and of the third party proceedings against the Respondent.

3. Order 5 of the learned Judge's orders was in any event contrary to the provisions of cl 3.15 of the said Licence and Authority Agreement."

73 In its notice of contention, Smarte Carte contends that, in addition to the grounds relied upon by her, the trial Judge should have held that:

"1. The trolley was not being pushed by a 'customer' of the respondent for the purposes of clause 3.14(c) of the Licence and Authority Agreement.

2. There was not a 'danger' created by the respondent or its customers for the purposes of clause 3.14(d).

3. The plaintiff's injury was not caused by 'the operation of any equipment, machinery or thing, by any person' for the purposes of clause 3.14(e)."

74 Clause 3 of the Deed is headed "Licensee's Covenants" and provides that, in consideration of the grant of the Licence, the Licensee covenants and agrees with WAC to do the things set out in clauses 3.1 to 3.40. Clauses 3.2, 3.14 and 3.15 read as follows:

3.2 Accept Responsibility

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To be totally responsible and liable for the Licensee's and the Licensee's customers' acts matters and things concerning in any way with [

sic

] the Permitted Use.

…

3.14 Indemnity

That the Licensee shall indemnify and keep indemnified WAC, its servants and agents, from and against all claims, actions, liabilities and losses arising from, and any costs, charges and expenses incurred in connection with:

(a) loss of or damage to any property; or

(b) injury or death to any person,

caused by:

(d) some danger created by the Licensee or the Licensee's customers employees or agents (whether or not the existence of that danger was or ought to have been known to the Licensee); or

(e) the operation or [sic] any equipment, machinery or thing by any person (other than the negligent operation of any equipment, machinery or thing by an employee or agent of WAC);

(f) any other act or thing other than the negligence or default of the Licensor which may arise from or in relation to the use of Perth International Airport by the Licensee or the Licensee's customers employees or agents.

3.15 Release

That the Licensee hereby releases and forever discharges WAC, its servants and agents, from and against all claims, actions, liabilities and losses arising from, and

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any costs, charges and expenses incurred in connection with:

(a) loss of or damage to any property; or

(b) injury or death to any person;

which the Licensee or any person claiming through the Licensee or under statute or otherwise now has or at any time hereafter and at all times but for the execution of this Licence might have had against WAC, its servants and agents, caused by:

(d) some danger created by the Licensee or the Licensee's customers employees or agents (whether or not the existence of that danger was or ought to have been known to the Licensee); or

(e) the operation or [sic] any equipment, machinery or thing by any person (other than the negligent operation of any equipment, machinery or thing by an employee or agent of WAC);

(f) any other act or thing which may arise from or in relation to the use of Perth International Airport by the Licensee or the Licensee's customers employee or agents."

75 It is also pertinent to set out the provisions of cl 5.8, as follows:

"5.8 Baggage Trolley Fee

The Licensee shall be entitled to charge a hire fee for the use of a baggage trolley at the rate of $2.00 per baggage trolley per use or at such other fee as may be approved or required by WAC from time to time PROVIDED HOWEVER THAT the baggage trolleys for use in the airside arrivals area of Perth International Airport shall be available for hire and use at no fee."

76 In my opinion, Mrs Snelgar's claims against WAC, and the action that she brought against it, plainly arose from an "injury … to any person"
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(Mrs Snelgar) caused by "an act … of … [Smarte Carte's] customers" (the pushing of the trolley into Mrs Snelgar) and, hence, fell within cl 3.14(c). It also seems to me to be plain that Mrs Snelgar's injury was caused by "the operation" of "any equipment … or thing by any person" and that her claims in that respect consequently fell within cl 3.14(e). Finally, it seems to me to be plain that the costs incurred by WAC in defending Mrs Snelgar's actions were "costs, charges and expenses" incurred "in connection with" Mrs Snelgar's injury.

77 The contrary construction, advanced on behalf of Smarte Carte, rested on six propositions, as follows:

(a) it is apparent, from the provisions of cl 3.14(e) and (f) that the indemnity was not intended to respond in the case of negligence on the part of WAC;

(b) the words "caused by" in cl 3.14 mean "caused solely by";

(d) the use of the trolley could not be described as the "operation" of any "equipment … or thing";

(e) the words "costs, charges and expenses incurred in connection with … injury to any person" do not comprehend legal costs in defending an action arising out of such an injury; and

(f) any ambiguity in the indemnity provisions should be construed against WAC.

78 As to proposition (a), the converse seems to me to be true. As I read cl 3.14, the plain meaning of the words used is that each of cl 3.14(c) and (d) applies regardless of whether or not there was any negligence on the part of WAC. There would otherwise be no point in the exclusions appearing in cl 3.14(e) and (f). There is, in this respect, no basis for reading the words "caused by", in cl 3.14, as meaning "caused solely by", as contended for in proposition (b). Had that been intended, the word "solely" could easily have been included. In any event, there would inevitably be many instances of damage to property or injury to a person which have more than one cause. Contributory negligence is an obvious example. It could hardly have been intended that, in a case in which there was contributory negligence on the part of the person injured through an act of Smarte Carte or one of its customers, employees or agents, or as a
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result of a danger created by one of those persons, there would be no indemnity.

79 Moreover, the construction which I favour is supported by the context in which cl 3.14 appears. The scheme of the Deed seems to me to be that of making Smarte Carte "totally responsible and liable for" the acts of itself and its customers "concerning in any way … the Permitted Use" (defined by cl 1.1 of the Schedule to the Deed to mean, relevantly, the "conduct [of] the business of a provider of baggage trolleys serving the … Airport") unless the Deed provides otherwise. That seems to me to be the effect of cl 3.14 and cl 3.15 when read with cl 3.2. The only exceptions which are provided for are those in cl 3.14(e) and (f). As will be apparent, cl 3.14(e) excludes liability in the case of the negligent operation of any equipment, machinery or thing by an employee or agent of WAC and cl 3.14(f) excludes liability in the case of negligence or default of WAC in respect of any other act or thing (than those provided for in cl 3.14(c), (d) and (e)) which might arise from or in relation to the use of the airport by or on behalf of Smarte Carte.

80 Counsel for Smarte Carte contended in this regard that the word "claims", in the second line of cl 3.14, could not have been intended to comprehend claims arising from WAC's negligence as, otherwise, that word would have a different meaning for the purposes of cl 3.14(e) and (f) than it would have for the purposes of cl 3.14(c) and (d). He said that this is apparent from the fact that, because cl 3.14(c) and (d) focus on the conduct of the Licensee and its customers, employees and agents, those clauses could not have contemplated any negligence on the part of WAC, unlike cl 3.14(e) and (f) which focus on conduct generally. I am unable to accept this submission. As will be apparent, it seems to me to be plain that the word "claims" encompasses any claim, however it might arise from one of the events referred to in cl 3.14(a) and (b), so long as the event was caused by one or other of the matters referred to in cl 3.14(c) to (f), subject only to the limited exclusions expressly referred to in cl 3.14(e) and (f). It is noteworthy, in this respect, that it is not only "claims" that are to be the subject of the indemnity but, amongst other things, liabilities and losses arising from, and any costs, charges and expenses incurred in connection with one of the events referred to in cl 3.14(a) and (b).

81 Proposition (c) seems to me also to be unsustainable. The expression "Licensee's customers" necessarily comprehends persons who use Smarte Carte's trolleys, but have not had to pay for them. It is inconceivable that the parties to the Deed could have intended that the indemnity provided

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for by cl 3.14(c) and (d) would only operate, as regards "the Licensee's customers", in the case of persons who had actually paid a hire fee (a construction which would exclude, even, a member of the direct hirer's family). That this was not intended seems to me also to be apparent from the provisions of cl 5.8, which provides that trolleys in the airside arrivals area of the international airport are to be "available for hire and use at no fee".

82 I should add, in any event, that cl 3.14(e) refers to the operation of any equipment (it was common cause that the word "or" should read "of"), machinery or thing "by any person". While, as I have said, counsel for Smarte Carte contended (proposition (d)) that the pushing of a trolley was not comprehended by the phrase "operation of any equipment, machinery or thing", I am unable to accept that that construction is tenable. The word "operate" is very wide in its meaning. The Shorter Oxford English Dictionary includes, amongst its meanings: "exercise influence, produce an effect, act"; "To effect by the exertion of force or influence"; "To cause or actuate the working of; to work (a machine, etc.)"; and "To direct the working of". The word is consequently wide enough to encompass the pushing of a trolley. That a wide meaning was intended seems to me to be underlined by the fact that the words "operation of" relate not only to equipment and machinery, but also to a "thing". I cannot accept that, in a deed which provides for the permitted use of the provision of baggage trolleys, the pushing of a trolley is not the operation of equipment or a thing. That a trolley is an item of equipment for the purposes of the Deed is supported by the terms of cl 3.38, which provides that, during the continuance of the Licence, Smarte Carte is to keep in repair, amongst other things, "all fittings and equipment installed … [in the licensed premises] including … baggage trolleys".

83 As to proposition (e), counsel for Smarte Carte contends that legal costs incurred in the course of defending a claim or action are not "costs, charges and expenses incurred in connection with … injury to any person". It seems to me that, to the extent that the costs in question are those claimed by a successful plaintiff in a personal injury action against WAC, they would be comprehended within the expression "all claims, actions, liabilities and losses arising from … injury … to any person". A claim for costs is as much a "claim" as any other claim. Moreover, an order for the payment of costs to a successful plaintiff is a liability. The claim or liability would arise from the injury, just as the action itself would do so. Moreover, it seems to me that the costs incurred by WAC in defending an action brought in respect of a personal injury would be costs, charges and expenses incurred "in connection with" injury to any person.

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The words "in connection with" are wide in their connotation and seem to me to have been intended to encompass legal costs incurred in that way.

84 Finally, as to proposition (f), I am not persuaded that there is any ambiguity that should result in a construction adverse to WAC (as to which see Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424). As I have said, the construction at which I have arrived seems to me to follow from the plain meaning of the words used.

85 I would consequently allow WAC's appeal and substitute for the finding made by the trial Judge in par [60] of her reasons a finding that, if the issue of liability had been determined in favour of Mrs Snelgar, WAC would have succeeded in its third party claim against Smarte Carte for an indemnity in respect of any judgment, including an award of costs, in favour of Mrs Snelgar. It seems to me, further, that WAC is entitled to an indemnity in respect of the costs incurred by it in defending Mrs Snelgar's claim, to the extent that those costs are not recovered from her. It follows from this conclusion that it is unnecessary for me to consider a further submission, made on behalf of WAC and described by its counsel as a "fall-back position", that Mrs Snelgar should be made liable for any costs payable by WAC to Smarte Carte. It is also unnecessary for me to consider ground 3 of the grounds of appeal

Conclusion

86 It follows that I would dismiss Mrs Snelgar's appeal in FUL 104 of 2003 and that I would allow WAC's appeal in FUL 126 of 2003. In matter FUL 126 of 2003 I would substitute for the finding made by the trial Judge, at par [60] of her judgment, findings:

(a) that, had the issue of liability been determined in Mrs Snelgar's favour, WAC would have been entitled to an indemnity from Smarte Carte in respect of any judgment, including an award of costs, in Mrs Snelgar's favour; and

(b) that WAC is entitled to an indemnity in respect of the costs incurred by it in defending Mrs Snelgar's claim, to the extent that those costs are not recovered from her.

87 The dismissal of the appeal in FUL 104 of 2003 makes it unnecessary to deal with the cross-appeal in that matter. However, it seems to me that the appropriate order is one dismissing the cross-appeal.

88 I would hear further from the parties as regards any ancillary orders that should now be made.

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89 MCLURE JA: I agree with Steytler P.

90 MURRAY AJA: I have had the advantage of reading in draft the reasons of Steytler P. I agree with them and would make in respect of both appeals the orders proposed by his Honour.

Snelgar v Westralia Airports Corporation Pty Ltd

[2006] WASCA 83

23 MAY 2006

SNELGAR -v- WESTRALIA AIRPORTS CORPORATION PTY LTD [2006] WASCA 83