Sutherland Shire Council v Kukovec and 1 Or; Elouera Surf Lifesaving Club Inc v Kukovec

[2001] NSWCA 165

CITATION:	Sutherland Shire Council v Kukovec & 1 Or; Elouera Surf Lifesaving Club Inc v Kukovec [2001] NSWCA 165
FILE NUMBER(S):	CA 40610/00; 40654/00
HEARING DATE(S):	05/06/01
JUDGMENT DATE:	5 June 2001
PARTIES :	Sutherland Shire Council v Joseph Kukovec & Elouera Surf Lifesaving Club Inc; Elouera Surf Lifesaving Club Inc v Joseph Kukovec
JUDGMENT OF:	Meagher JA at 31,33 & 34; Hodgson JA at 32; Ipp AJA at 1

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	4756/97
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

COUNSEL:	M T McCulloch (Appellant CA 40610/00) J D Hislop QC/M O'Brien (1st Respondent CA 40610/00 & Respondent CA 40654/00)) A Hewitt SC/E Cox (2nd Respondent CA 40610/00 & Appellant CA 40654/00)
SOLICITORS:	Phillips Fox (Appellant CA 40601/00) Di Lizio & Associates (1st Respondent CA 40610/00/Respondent CA 40654/00) Curwood & Partners (2nd Respondent CA 40610/00/Appellant CA 40654/00)
CATCHWORDS:	NEGLIGENCE - Action against council and lifesaving club for injury caused by surfboard rider - Vicarious liability of council and club for actions of lifeguards - Whether the facts show there was a breach of duty - Whether a reasonable person in the position of a lifeguard would have taken steps to guard against a foreseeable risk of injury - Facts did not disclose a foreseeable risk of injury - Negligence not proved on balance of probabilities - No negligence of lifeguards or vicarious liability of council or club. - APPEAL - Interference with trial judge's findings of fact - Findings and inferences not based on evidence. ND
CASES CITED:	Nagle v Rottnest Island Authority (1993) 177 CLR 423
DECISION:	Ordered in CA No 40610/00: (1) Appeal allowed. (2) Judgment against appellant set aside. (3) Verdict and judgment be entered against 1st respondent in favour of the appellant. (4) Order that the 1st respondent pay the appellant's costs of the appeal and of the hearing at first instance, but to have a certificate under the Suitors Fund Act; Ordered in CA 40654/00: (1) Appeal allowed. (2) Orders below set aside. (3) Order that there be judgment for the appellant against the respondent. (4) That the respondent pay the costs of the appellant both in this appeal and at first instance, but to have a certificate under the Suitors Fund Act.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40610/00

CA 40654/00

DC 4756/97

MEAGHER JA

HODGSON JA

IPP AJA

Tuesday 5 June 2001

SUTHERLAND SHIRE COUNCIL v JOSEPH KUKOVEC & 1 OR

ELOUERA SURF LIFE SAVING CLUB INC v JOSEPH KUKOVEC

JUDGMENT

1    IPP AJA: Mr Joseph Kukovec brought two actions, one against the Sutherland Shire Council and the other against the Elouera Surf Life Saving Club Inc, for damages he sustained on 9 February 1997 at Elouera Beach when he was hit in the eye by a surfboard while he was standing in the ocean. A boy aged 10 to 13 years had jumped on to the surfboard an it had shot forwards and upwards and had struck Mr Kukovec.

2    Mr Kukovec asserted that his injuries were caused by the negligence of the Council and the Club. It does not appear to have been in dispute that the Council was responsible for the control and management of the beach and, at the relevant time, had agreed with the Club that its members would patrol the beach and would monitor beach and water safety.

3    Dodd DCJ upheld Mr Kukovec’s claim and found that the members of the Club who were on duty on the beach on the day in question “should have taken steps to get the board rider out of or away from the flagged swimming area”. Dodd DCJ found that the Club was vicariously liable for the individual negligence of its members who were on duty. As regards the Council, he found that the Club and its members were acting as the agents for the Council in carrying out its obligation to keep the beach safe and the Council was vicariously liable for their negligence. His Honour awarded Mr Kukovec a verdict in the sum of $193,058.20.

4    The Council and the Club appeal against the decision of Dodd DCJ. They have raised several issues. The Club contends that it did not owe Mr Kukovec a duty of care and asserts that it is not vicariously responsible for any negligence on the part of its members. The Council asserts that Dodd DCJ wrongly held that it was vicariously responsible for the negligence of the Club. Both the Club and the Council challenge the quantum of damages awarded by his Honour. In the light of the conclusions to which I have come, however, it is only necessary to address the question whether - assuming that the Council is vicariously liable for the negligence of the Club, and the Club is vicariously liable for the negligence of its members, and that its members owed Mr Kukovec a duty of care - the members breached that duty.

5    No notice of contention was filed on Mr Kukovec’s behalf. Accordingly, the question before this Court is whether Dodd DCJ correctly held that the members of the Club who were on duty at the time should have observed the young boy holding the surfboard and taken steps, as the learned judge put it, to get him away from that area before he had an opportunity of jumping on to his surfboard and injuring Mr Kukovec.

6    On the day in question, to facilitate safe swimming in the sea, members of the Club who were on duty demarcated by red and yellow flags an area on the beach as safe for swimming. On each side of the boundary flags there was a safety or buffer zone. There was no evidence as to the width of safe swimming zone so demarcated, but each buffer zone was 25 to 50 metres wide. At the further edge of each buffer zone a sign was erected won which was written “surfcraft prohibited”. Surfing with fibreglass surfboards was prohibited in the flagged safe swimming area and the buffer zones. The fibreglass surf boards had pointed ends and were particularly dangerous. Surfing with boards was allowed outside the buffer zones.

7    There were between 1000 to 2000 people on the beach that morning and about 400 swimming in the sea. They were not all swimming between the flags but were swimming over the whole stretch of the beach. There were 17 or 18 members of the Club on duty in the lifeguards tower, patrolling the beach and in the sea. Their task was to police the designated flag area and the buffer zones to ensure that proper safety practices were being complied with. The members of the Club who testified accepted that it was their task to keep surfers with fibreglass surfing boards out of the designated swimming area. They would do so by using megaphones or whistles or simply going into the water and directing surfboard riders who were in the swimming area to move out of it. They were empowered if necessary to impound surfboards.

8    The area that received the greatest vigilance was the safe swimming area between the flags. Generally, the members of the Club on duty paid particular attention to the safety of young children. They were well aware of the danger from surfing and surfboards and attempted to police the use of surfboards with care.

9    On the morning in question Mr Kukovec arrived at the beach at about 10.45 am with his two children aged 7 and 9 years respectively. With a child on each side of him he walked into the water in the area demarcated by the red and yellow flags. He stood about 3-4 metres from the boundary where the buffer zone commenced. He and the two children were just below knee deep in the white wash of the sea, about a metre or so from the sand and were playing in the water. He noticed a young boy between 10 and 13 years of age, as he put it, “strolling out of the surf”. Mr Kukovec said “he might have been about 10 metres ahead of me - in front and heading out towards the beach”. Mr Kukovec described what happened next as follows:

“He’s thrown the board out in front of himself, ran and jumped on to it, he’s fallen back and the board’s taken flight and hit me in the eye”.

10    When Mr Kukovec first saw the boy walking towards him the boy was carrying his board under his arm. This did not alert Mr Kukovec to any risk of danger to himself or his family. He said that there was no particular reason for him to pay any attention to the boy.

11    Such an attitude was perfectly understandable. The boy was plainly on his way back to the beach and he was only some 10 or so metres away from it. The water was shallow at that point. As the boy had his surfboard under his arm there was nothing to suggest that he would commence surfing again, particularly at that shallow point so close to the beach. He seemed plainly on his way back to the beach and the reasonable inference one would draw from his behaviour was that he was leaving the water and carrying the board back to the beach. What he did was entirely unexpected.

12    Members of the Club who testified said that had they seen the boy in the flagged area walking out of the surf with the board under his arm they would have taken no steps to say anything to him of a warning nature. Their general practice was not to intervene if they saw a person carrying a surfboard within the flagged or buffer zones. Plainly, surfers might pass through the flagged swimming and buffer zones carrying their boards and this was not regarded as conduct that created a risk of harm to others. At trial this approach was not criticised, and it is difficult to see how it could have been.

13    In these circumstances, the only basis on which it could be said that the members of the Club were negligent is if the boy had been surfing with the board in the flagged area or the buffer zone for sufficiently long period for the members, assuming they were keeping a proper look out, to have seen him behaving in such a dangerous way.

14    This was indeed the basis of the decision of Dodd DCJ. According to Dodd DCJ the boy was a “very inexperienced board rider” who (because he was so inexperienced) had set out to be close to what he was familiar with, namely the flagged swimming area and probably family or friends in that area. His Honour found that the boy had not walked to the flagged area from the legitimate board riding area, nor had he walked from some point in the buffer zone. From these findings his Honour inferred that the boy entered the surf with his board within or near the flagged area at some time before Mr Kukovec entered the water. He found further that the boy engaged in some activity either of riding the board or indicative of an intention to ride the board.

15    On this basis, his Honour found that the Club members were negligent in not noticing the boy earlier and failing to take steps to remove him from the surf. Mr Hislop QC, senior counsel for Mr Kukovec sought to support these findings.

16    Dodd DCJ found that the boy was an inexperienced surfer, largely because of his clumsy attempt to surf on the board in the shallow water. Whether that justifies such a finding is open to question. There was no expert evidence on the issue, and there was nothing to suggest that youthful and careless surfers, who were nevertheless experienced, would not be likely to do the same thing.

17    The inference then drawn by the learned Judge, namely, that because the boy was inexperienced he was likely to have surfed in the flagged area as he wished to be close to familiar surroundings and family and friends, is sheer speculation. Even if he was inexperienced, there was no evidence that his family and friends were swimming in the flagged area or were nearby, or indeed were there at all. Also, even if the boy were inexperienced, it would not follow at all that he would wish to surf with his board in an area where that was prohibited, rather than surf where all the other surfers were busy. In my view this inference cannot be drawn.

18    The inferences so drawn by Dodd DCJ then formed the basis of further findings that the boy had not walked to the place where the accident occurred from the designated surfing area or from a buffer zone. His Honour proceeded to infer that the boy entered the surf with his board within or near the flagged area at some time before Mr Kukovec entered the water and engaged in some activity either of riding the board or indicative of an intention to ride the board. I stress that there was no direct evidence to support these findings. Once the base inferences were incorrectly drawn, as in my view they were, the rationale for these findings disappears.

19    Mr Hislop in a brave attempt to justify the proposition that the members of the Club on duty at the time should have seen the boy earlier and warned him to get out of the sea, made the following submissions:

(a) As the boy was walking out of the surf carrying a board, the inference was that he had been surfing on the board before and had been surfing for “some time”.

(b) As the boy was coming out of the flagged area, albeit, very near the buffer zone, the inference is that he had been surfing close by, that is in the flagged area or the buffer zone.

(c) As the boy on this basis had been surfing in the prohibited areas for some time he should have been seen and warned to stop.

(d) As the club members on duty had not observed the incident at all, and had not even known that Mr Kukovec had been injured despite the fact that he had bled severely and been taken to the first aid station, the inference is that they were not keeping a proper look out.

20    I accept that the reasonable inference from the known facts is that the boy had been surfing on the board for “some time” before he was first seen by Mr Kukovec.

21    The critical question, however, is whether it is probable that, because the boy was coming out of the flagged area, it is to be inferred that he had been surfing for some time, sufficient to be noticed by a club member on duty, in the flagged area or the buffer zone.

22    Another scenario is that is that the boy had been surfing in the legitimate surfing area, some 30 to 55 metres away. He then surfed towards the shore, entered the buffer zone on his board, and took another wave with the consequence that after a couple of seconds he entered the flagged area. He then commenced to walk to the shore. On this scenario the boy would only have been surfing in the buffer zone for a a few seconds. He would then have commenced walking towards the beach with his board under his arm, apparently obeying the rules like any good citizen. No action in these circumstances, would have been called for.

23    Yet another possible scenario involves the boy surfing in the legitimate surfing area, surfing to a point where he could stand and walking across to the flagged area towards the beach where he was first seen by Mr Kukovec.

24    A further aspect of the matter is that there is nothing to suggest that, generally, the members of the Club on duty were not carrying out their duties properly. I am not persuaded that the mere fact that they did not notice that Mr Kukovec had been injured shows some lax behaviour on their part. One does not commence the inquiry by assuming that those on duty were not watching out for surfers in the prohibited areas.

25    In my opinion, the scenario relied on by Mr Hislop is no more likely than the scenarios I have outlined. On that basis Mr Kukovec does not establish his case on a balance of probabilities.

26    Whether there was a breach of the duty of care which I have assumed depends upon “the action that a reasonable person in [Club’s] situation would have taken to guard against the foreseeable risk of injury which existed” per Mason CJ, Deane, Dawson and Gaudron JJ in Naglev Rottnest Island Authority (1993) 177 CLR 423 at 431.

27    In my opinion, at the stage the boy was seen to be walking out of the surf with his surfboard under his arm there was no foreseeable risk of injury. A reasonable person charged with the duty of ensuring safety on the beach and in the sea in the area in question would not have taken any steps in regard to the boy’s presence. Further, in my opinion, Mr Kukovec did not discharge the onus of proving that, before the accident, the boy had surfed in the flagged area or the buffer zone for sufficiently long a period for members of the club on duty to have noticed him as a potential source of danger. Indeed, as I have indicated, Mr Kukovec did not prove that, before the accident, the boy had surfed in the flagged area or the buffer zone at all.

28    Accordingly, in my opinion, Mr Kukovec did not prove that the members of the Club on duty at the time were negligent.

29    Hence, no vicarious liability can attach to the Club or to the Council.

30    In the circumstances, I would uphold the appeal, set aside the orders made by Dodd DCJ, grant judgment in favour of the Club and the Council, dismiss Mr Kukovec’s claim and order that he pay the costs of the trial and the appeal.

31    MEAGHER JA: I agree.

32    HODGSON JA: I also agree. This appeal concerns whether certain primary facts found by the trial judge could support inferences establishing negligence by the appellant club. Accordingly, it is a case where an appeal court may properly intervene if it is satisfied that the primary facts cannot support those inferences. For reasons given by Ipp AJA I am so satisfied.

33    MEAGHER JA: The orders of the Court will make therefore in matter number 40610, which is the Sutherland Shire Council matter, the appeal is allowed, the judgment against the appellant be set aside, verdict and judgment be entered against the first respondent in favour of the appellant and order that the first respondent, Mr Kukovec, pay the appellant’s costs of the appeal and of the hearing of first instance but to have a certificate under the Suitors Fund Act.

34    In matter number 40654, that is the action against the surf lifesaving club: (1) the order is the appeal is allowed; (2) orders below be set aside; (3) an order that there be judgment for the surf lifesaving club against Mr Kukovec; (4) that Mr Kukovec pay the costs of the appellant both in this appeal and at first instance but to have a certificate under the Suitors Fund Act.

35    Those are the orders of the Court.

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