Toutounji v the Girl Guides Association (SA) Inc No. Scgrg-98-336 Judgment No. S6954

TOUTOUNJI v THE GIRL GUIDES ASSOCIATION (SA) INC
[1998] SASC 6954

Full Court: Millhouse, Olsson and Debelle JJ

MILLHOUSE J. Douglas Scrub is an 82 hectare property at McLaren Flat owned by the Girl Guides Association, the respondent. As the name implies it is mainly bushland (with a few buildings for accommodation) and is used for camping and outdoor activities. Douglas Scrub is primarily for Guides and Brownies but the respondent does allow its use, for a fee, by other people.
In November 1993, the Waldorf School for Rudolph Steiner Education Inc (a successful defendant in the District Court but not joined as a respondent on appeal) arranged to use the property for a couple of days for a camp by its Year 2 boys and girls. Accompanying them were teachers and five parents who had volunteered to help on the camp. One of the parents was the appellant, Mrs Margaret Mona Toutounji.
There is, at Douglas Scrub, what is called an Adventure Trail. Along the trail are a number of activities. Those who want to go on the trail walk from one activity to the next.
The activity relevant is a flying fox over a creek, or perhaps more accurately, narrow water course. By November 1993 the flying fox had been in use, by both children and adults, for a number of years. Apparently there had only ever been one accident: when a man was shewing off on the flying fox, fell and broke a leg. The caretaker of the property, Mr Watkinson, thereafter at the direction of the relevant committee, carried out some improvements to the flying fox itself and to the revetments of the creek banks immediately below it.
On the afternoon of 25 November 1993 about 30 Waldorf School children, supervised by a teacher and accompanied by four of the parents, went on the Adventure Trail. All the children using the flying fox did so successfully. The appellant, towards the back of the party as it moved from activity to activity, had never been on a flying fox before but thought she would cross on it.
There were other means available in order to cross the water course. A wooden plank had been put across the water course close by and it would have been possible to use that to cross. Alternatively it would not be difficult to clamber down the bank into the creek bed and up the other side.
Somehow, no-one knows for sure just what happened, Mrs Toutounji fell off the flying fox as she was crossing. She fell on her back into the bed of the watercourse. Her feet were against the revetment on the far side and her head against the revetment on the near side: her body was bent like a banana. Unfortunately she sustained painful injury.
At trial the appellant advanced argument on a number of grounds that the Guides and the School should have done more to reduce the risks of injury when using the flying fox. On appeal Mr Stephen Walsh QC with Mr John Wadlow for the appellant argued that the duty of the respondent was to have made the crossing safer by providing some cushioning on the bed of the watercourse: a soft landing in case someone fell as the appellant had done. Suggestions of cushioning in some way or another had been put to Mr Watkinson in cross-examination. Mr Watkinson asserted that each suggestion, for one reason or another, was impracticable. The learned trial judge accepted this. I may say that the appellant did not call any expert evidence to shew just how the flying fox and its surrounds could have been made safer. With respect, I agree with the learned judge about the impracticability of doing anything, either by putting something permanently in place or putting anything there only when the flying fox was being used.
Yet there is a wider consideration. This is an "adventure trail". The very name implies that there will be some risk. The Macquarie Dictionary defines "adventure" as:-
"1. an undertaking of uncertain outcome; a hazardous enterprise. 2. an exciting experience. 3. participation in exciting undertakings or enterprises: the spirit of adventure. .....7. to risk or hazard. 8. to take the chance of; dare. 9. to take the risk involved."
It is the risks and the challenge of successfully overcoming them, which makes an "adventure trail" fun and worth doing. Were we to accept Mr Walsh's argument, any risk in using the flying fox would disappear. The exciting experience would be gone. Acceptance of the undertaking would take the "Adventure" out of the Trail. It would simply become a dull walk.
Mrs Toutounji did not need to use the flying fox to get across the creek. She could have walked along the plank or simply have crossed what was a dry creek bed at the time on foot. Instead she decided to try out the flying fox, voluntarily assuming the risk of so doing.
Authorities such as Wyong Shire Council v Shirt (1980) 146 CLR 40 and Australian Safeway Stores v Zaluna [1987] 162 CLR 479 shew how one should approach such a situation as this. The principle was succinctly put in Hackshaw v Shaw (1984) 155 CLR 614, cited with approval in Australian Safeway Stores Proprietary Limited (@ 488):
"... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would in the circumstances, do by way of response to the foreseeable risk."
There is no doubt that the requisite relationship of proximity existed between Mrs Toutounji and the Girl Guides Association. Equally, there was a foreseeable risk of injury to someone in the class of persons including Mrs Toutounji. There is always an inherent risk of injury in the use of a flying fox. The question is whether the Girl Guides Association had taken all reasonable steps in order to discharge their duty in response to the foreseeable risk. Mr Watkinson told the court what precautions he had undertaken to make the flying fox safe: revetting of the creek banks, the use of materials to soften the end of the landing platform, a tyre to cushion landing and constant maintenance involving checking the flying fox each time before it was used. The respondent had done everything in relation to the flying fox that was reasonable in the circumstances. To suggest more would be unreasonable.
During argument we were reminded of our decision in Chicco v City of Woodville (1987) 150 LSJS 89. That too, was a case about a flying fox but the complaint was that it had not been built to a sufficiently high standard of safety, so the point was not quite the same. Nevertheless, some of what I said (@ 94-95), is pertinent in this case too:
" With any equipment, in any situation, there is always some risk of injury to someone. One can't guard against every risk of injury. Children can't just be wrapped in cotton wool and told to be good. How far do we go in protecting ourselves against ourselves? ... There must be a balance between guarding against risk and being fool hardy in building play equipment. If the balance be tilted too far in favour of guarding against risk either no equipment at all is built or at least the equipment is so dull that there is no fun for anyone in playing on it. On the other hand, for example, the platform could have been built twice as high so that the risk of injury from jumping or falling off the platform was the greater and the flying fox whizzed down the wire faster, again making the risk of injury greater. That would have been foolhardy! Those are extremes. In between there must always be some risk of an accident. ... a child (or adult) could fall off the platform and be hurt. One hopes that will not happen. There is a risk of it but it is a risk which must be accepted if there is to be a flying fox at all - or a swing or a roundabout for that matter."
The learned judge, despite finding against her, assessed Mrs Toutounji's damages. On appeal she complains of his assessment, $15,000 ($8,000 pre-trial and $7,000 post-trial) for pain and suffering.
The lady was 41 at the time of judgment, 26 February this year. The learned judge has accurately and at some length, described the injuries, their consequences and the appellant's present condition. I need not repeat all he said. Suffice it to say that it took two years or more for her condition to stabilize. During that time she had quite a bad back and had a lot of trouble sleeping.
Here is part of what the learned judge said about her present condition:-
" Mr Martin assessed her as having 5% loss of the full and efficient use of her cervical spine and 10% loss of the full and efficient use of her thoracic spine.
... Mr Cornish, like Mr Martin, said that the plaintiff must take care of her back because of the abnormality resulting from her fall. He said that it was important that she continue with her exercises and that in general terms, she must be conscious of the abnormal change in her back and act accordingly. He accepted that exercise was not only good for her, but that it would help control discomfort at the site of the facture. He said that theoretically there was a potential for premature degeneration at the joints adjacent to T11 and T12 but that did not mean there would necessarily be symptoms because of those changes. Mr Martin thought that there was a moderate likelihood of degeneration in the disc between T11 and T12 but that this was unlikely to cause any increase in her symptoms, although he thought that her present symptoms may be accounted for by some form of degeneration. Overall, it is reasonable to find that there is a chance that because of the injuries to her thoracic spine, she may develop some symptoms of discomfort from degeneration but it cannot be put higher than that.
Although there were slight differences in their approach, both Mr Martin and Mr Cornish thought that provided she was careful of her posture and was able to move about from time to time, there was no reason why she could not undertake secretarial or clerical work. As far as waitressing duties were concerned, there may be some limitations in relation to the heavier aspects of it. Neither of them thought that she would be suited to work that required excessive or repetitive bending and lifting, or being involved with heavy weights. For example, as Mr Martin put it, she would not be suited to work as a factory process worker. There is no indication that she will require any further active treatment.
... It is reasonable to say that until mid-1994, she could not have been expected to work at all. Since about the beginning of 1996, her condition has been stable. There are many jobs open to her, although some with difficulty, but the permanent residual problems including the chance of symptomatic degeneration, have reduced her capacity to sell her labour on the open market. To that extent there is a loss of earning capacity for which she is entitled to be compensated. In my opinion, it is reasonable to assess that ongoing loss as being in the order of 10% of what her overall capacity would have been, were it not for the accident.
During the 18 months between mid-1994 and the end of 1995, there was a gradual transition from being unable to work to stabilising at her present level. In percentage terms therefore, during that time she went from being 100% to 10% incapacitated. The improvements were probably more marked in the first six months than they were in the last six months, although even then, there appear to have been fluctuations in her rehabilitation with occasional regression. Precision cannot be pretended and I think it reasonable to compensate her by striking an average over the whole period of 18 months of 40% loss of her pre-accident earning capacity."
I must say that $15,000 does seem to be too low - appropriate perhaps if we were assessing injuries from a road traffic accident but this assessment is at Common Law. I suggest that a more appropriate assessment would have been $30,000 split equally between past and future.
As it is, I suggest that the appeal be dismissed.
OLSSON J. I agree, in substance, with the conclusions of Millhouse J.

DEBELLE J. I agree that this appeal should be dismissed. I agree with the substance of the reasons of Millhouse J.

[1998] SASC 6954

27 November 1998