Toutounji v Waldorf School & Girl Guides Assoc No. DCCIV-96-1467 Judgment No. D3765
[1998] SADC 3765
•26 February 1998
TOUTOUNJI
v
WALDORF SCHOOL FOR RUDOLF STEINER EDUCATION INC. and
THE GIRL GUIDES ASSOCIATION S.A. INC.
CIVIL
CHIEF JUDGE WORTHINGTON
The plaintiff, Margaret Mona Toutounji, brings this action for damages against the first defendant, Waldorf School for Rudolf Steiner Education Inc. (Waldorf) and the second defendant, The Girl Guides Association (SA) Inc. (the Guides) because of injuries she sustained on 25 November 1993 when she fell from a flying fox on land owned and occupied by the Guides, known as the Douglas Scrub Girl Guides Centre, at McLaren Flat. One of the plaintiff’s sons, Ali was in Class 2 at Waldorf. His class had an overnight camp at Douglas Scrub on 25/26 November 1993 and she was one of a number of parents who volunteered to help look after the children. The action is framed in negligence and breach of contract against Waldorf and in negligence against the Guides.
The plaintiff is aged 41 years. She matriculated from Adelaide Girls’ High School in 1974, completed a secretarial course at Pride Business College and worked as a secretary in a firm of chartered accountants for a few months before she and her future husband decided to go into business together as greengrocers. Her parents were in that line of business and she was familiar with it, having helped them over the years.
She married in January 1977 and she and her husband opened a fruit and vegetable shop on Devereaux Road, Linden Park. As one would expect, running a shop like that involves long hours and I accept that they both worked hard, with the plaintiff also keeping the books. They sold the business shortly after their first child, Ahmed, was born on 16 October 1978. She has two other sons, Ali, born 3 July 1985, and Ramsay, born 28 March 1988.
After selling the Linden Park business, there was a break of about 12 months and they then became partners with the plaintiff’s brother-in-law in a fruit and vegetable shop on Fullarton Road, Highgate. There were personality problems and after about a year, that partnership dissolved. In 1980/1981, her husband worked at Moomba for about 6 months. Apart from helping at her mother’s shop, the plaintiff undertook a real estate agent’s course and was employed for a few months as a land salesperson. She did not like it and she and her husband decided to start another fruit and vegetable business on North East Road, Collinswood in 1983. Again she helped run the shop and also kept the books for the business. Ali was born in 1985. She said that the demands of that type of business were such that it is not possible to take a holiday. In late 1987, the plaintiff was pregnant with Ramsay and they felt they needed a break, so they sold the shop.
A short time later, they bought into another fruit and vegetable business on Fullarton Road, Highgate. They decided to sell organic fruit and vegetables as that appeared to be popular. However, it was not successful and her husband obtained another job, managing a fruit and vegetable shop at Reynella. She supplemented the family income by making salads and dips which she sold through the shop. However, it appears that the business could not survive and eventually they closed it down.
The plaintiff and her husband separated in 1991. She lived with the three boys at Hahndorf for a while before buying a house at Mount Barker. Her income consisted of some maintenance from her husband and a sole parent pension. She said that she found this a struggle and that she wanted to get herself off the pension and be more independent. She obtained a part time job as a waitress at Giovanni’s Pizza Restaurant at Mount Barker. After getting some experience, she was taken on as a casual at $10 per hour, commencing on 4 November 1993. She worked as required by the proprietor, mainly at lunch time on weekdays and sometimes on Saturday nights. Before her accident, she only worked for about 3 weeks, earning $275 gross and so, no pattern of work was established.
The grades at Waldorf are a little different to most other schools and a student in Class 2 at Waldorf is at the equivalent level of what is commonly Year 3. Ali, then aged 8, had not been on a camp before and was a bit apprehensive. In a weekly newsletter of 4 November 1993, the school asked for parents to volunteer to assist. The excursion was described as staying “in modern dormitory style accommodation and [having] bush walks and cooperative games activities”. Parents were asked to return forms giving permission for their child to take part. They were also asked to complete medical forms and to send $25 for accommodation and food. The class teacher, Mr Michael Simmons, expressed the hope that a minimum of 5 parents would help.
The plaintiff notified the school that she would help. Further newsletters on 11 November and 18 November kept parents up to date with developments and also informed them that accompanying adults would need to contribute $10 each towards the cost of accommodation and food. On 13 November, Mr Simmons went to Douglas Scrub and inspected the facilities to satisfy himself that it was appropriate for his class.
On the morning of 25 November, a group consisting of about five parents and thirty children assembled at school for the excursion. Some of the children travelled in cars and others went with supplies on a small school bus. The plaintiff took Ali, two other children and Mrs Anne Waters, another parent. They arrived at Douglas Scrub late in the morning and the group gathered on a lawn near dormitories to eat their lunch. After their gear was stowed in the dormitories, Mr Simmons asked that some parents help prepare the evening meal and that others help to look after the children on what was called an adventure trail. The plaintiff volunteered to help on the latter. Mr Simmons told the children to put on some sun screen, which they did; some with assistance from adults. The caretaker of the Centre, Mr Watkinson addressed the group explaining the general layout and how to look after the environment, and instructing children on what they should do if they got lost.
The Douglas Scrub Centre is an 82 acre conference and camping centre, geared mainly for outdoor education. About half of it is heritage scrub. There are two houses and a number of sites where tents can be erected. Apart from the adventure trail, it has nature trails, a dam for boating and various other facilities. It is available for hire and according to the evidence of Mr Watkinson, who has been manager and caretaker since October 1992, it is used by quite disparate groups. These include the Guides, schools, business organisations, Royal Australian Air Force, Country Fire Service and so on. One of the most popular activities is the adventure trail. This is a track through the bush with 14 stations providing for various activities, such as walking across a log, crossing a chain bridge, crossing a swinging log, pyramid towers to climb, a swing across the creek and the flying fox. According to Mr Watkinson, the flying fox is very popular and if there are children in the group, it is nearly always used.
Groups can vary in size from 2 to 700 and the average stay is about 2 ½ days. Many groups file an activity sheet specifying the facilities they propose to use and I accept Mr Watkinson’s evidence that before groups come in, he checks the facilities that are to be used. That involves such things as shaking the timbers to see if any bolts need tightening, inspecting for any signs of wear or deterioration and, as far as the flying fox is concerned, riding across on it. Apart from checking before groups arrive, Mr Watkinson said that he would normally check both the perimeter fence and the adventure trail about once each fortnight.
Apart from the plaintiff’s accident, Mr Watkinson said that he had heard of only one other injury associated with the flying fox. It was reported to him in July 1993 that a man had fallen from the flying fox and broken his leg. He did not see that incident nor did he attend the scene. As it was reported to him, the man was one of a group doing a leadership and team building exercise and it seems that the man was skylarking, swinging about on the flying fox, with the result that he fell off and fractured some part of his lower right leg.
There was no evidence about the specific dimensions of the flying fox but in general terms, it can be described as follows. A creek runs through the property. Two tripod log frames, one on either side of the creek bed, are connected to each other at the top by a wooden beam. A steel channel is attached to the bottom of the beam and inside the channel, a trolley jack travels from one side to the other. Underneath the trolley jack is a triangular handle which supports those using the flying fox. The base of the triangle is a metal bar and the sides are heavy duty chain. The tripods are some distance back from the banks of the creek and on each side, the land slopes generally downwards from the tripods towards the banks.
The flying fox is designed to carry people in one direction only. When the handle is at rest on the launching side, it sits proud of the tripod by about 1-2 feet. A rope connects the trolley jack via some pulleys to a counter weight behind the tripod on the launching side. After the handle has reached the landing side, the counter weight is sufficient to draw it slowly back to the launching side, ready for use again.
There is a piece of timber set into the ground on the launching side between the tripod and the bank of the creek, approximately below the position of the handle when it is at rest. It appears from the evidence that an adult of average height could easily reach the handle bar while standing on or near that piece of timber. On the other side of the creek, there is a wooden landing platform attached to the front of the tripod. There is a rubber tyre fixed to the front of the tripod and the leading edge of the landing has a rounded rubber flap.
The banks of the creek have been shored up with wooden supports and directly beneath the line of travel of the handle, soft fall has been draped over the edge of the bank on both sides. That soft fall consists of a number of bags of sand covered with black shade cloth. As one looks from the take-off side towards the landing, there is a plank across the creek bed a few feet to the left of the flying fox, which can be used as a crossing. On the day in question, the creek bed was dry and at its highest point, the handle bar is 8-10 feet above the creek bed. The overall length of the ride is about 20 feet. There is a sign on the tripod on the launching side facing generally in the direction of people approaching the flying fox along the trail from earlier activities. It reads “CAUTION. DO NOT PUSH OFF FRAME”.
After the incident involving the man in July 1993, the committee administering the Douglas Scrub Centre instructed Mr Watkinson to make some changes. At that time, the embankment timbers were held in place by star droppers which have a sharp top. He removed the star droppers and replaced them with vertical wooden posts with chamfered edges. He erected the sign on the tripod on the launch side and laid the soft fall.
Evidence about the events of 25 November was given by the teacher in charge of the group, Mr Michael Simmons, and four parents: the plaintiff, Mr John Buckham, Mrs Anne Waters and Ms Avalon Larense. There are differences in their accounts but that is not surprising. It was some four years ago. Moreover, it is to be expected that there will be some differences particularly bearing in mind that until the plaintiff’s fall, there was no reason for any of them to be especially conscious of detail. It is not unusual for people who have observed an event to remember it differently and, for some to have their recollections coloured by hindsight and other factors. That is an everyday thing that a court must take into account.
On the adventure trail, the children were divided into five groups for supervision by the four parents and Mr Simmons. There was some congestion at the flying fox because all the children wanted a turn. Although Mr Simmons did not use the flying fox on 25 November, he had tried it during his visit on 13 November. Apart from a little resistance when he first took off, which he attributed to the counterweight, he could not fault it and it went across freely. In particular, he did not notice any wobbling, stalling or shuddering of the handle during the course of the ride. His was the first group of six children to reach the flying fox. Some of them could not reach the bar from the ground so he lifted them up. While he was doing this, other groups began to arrive behind him, including the plaintiff. He walked through the creek bed to the other side where his group of children was waiting.
As far as Mr Simmons can remember, another four or five children crossed before he took his group on, further down the trail. At some stage, he said, the plaintiff asked him if the flying fox was designed for adults and he replied that he had been across on it. In all he saw some 10 or 11 children cross. He did not notice anything unusual about the flying fox apart from slight resistance as it started, until the weight of the child overcame the effect of the counterweight. Mr Simmons said that he had no cause to be concerned about the flying fox or the way that it was used. The school has a flying fox in its playground and at that time, it was a popular piece of equipment. He said the children were quite used to that one.
Mrs Waters confirmed that the flying fox was very popular with the children and that there was a bit of a bottle-neck. She did not use the flying fox either. She crossed either by using the plank or walking through the creek bed. She thought there were enough parents to supervise the children still to cross, so she went on ahead with some children in the same direction as Mr Simmons. Neither Mr Simmons nor Mrs Waters saw the plaintiff’s accident.
The balance of evidence indicates that the plaintiff was in the vicinity of the flying fox when most of the 30 children used it. Although she does not now recall details, she understood at the time that there was another way of crossing the creek apart from walking through it, but she decided to use the flying fox. She had never used one before. She said that she has a fear of heights and felt hesitant. She did not notice the sign on the tripod. Her recollection of the short conversation with Mr Simmons was not asking whether the flying fox was designed for adults, but whether he thought it was safe enough for adults and his reply that it was. The exact exchange is not important. The effect is similar. She said that she also asked Mr Buckham, who was nearby, what he thought and he reassured her that she could do it. The plaintiff is 5 feet 3 inches. She said she was standing on the ground somewhere in front of the tripod, gripped the handle bar tightly and took off. She has a clear memory of the handle bar and that it was smooth metal but no memory of it being slippery. Apart from taking off, she has no memory of her ride at all. Her next memory is of being in the creek bed with her feet up against the retaining wall on the landing side, her back mainly in the creek bed and her head and shoulders up against the retaining wall on the launching side; shaped like a banana. She thinks she blacked out but in any event, she became aware of excruciating pain in her back.
Mr Buckham was on the launching side and supervised a number of children on the flying fox. He was standing to the side a short distance away and after 2 or 3 children had gone across, he noticed that some of their hands seemed to be sliding around on the bar. When the handle bar came back again, he inspected it and found that it was greasy. It appeared to have sun cream on it from the children’s hands. He wiped it with a tee shirt. After that, he remained near the side of the tripod wiping the bar from time to time after children had used it, to stop it becoming slippery.
Mr Buckham said that some of the children launched themselves from the piece of timber on the ground and others used the first cross beam on the tripod, a couple of feet off the ground. He did not see the sign warning against launching from the tripod itself. He said that he noticed that when some of the children were crossing, the handle bar seemed to “just slightly stall or just slow down” after it had travelled about a metre “and then take off again” (T386). He described it later as a “judder” and he first noticed it after 4 or 5 children had crossed.
Mr Buckham remained in his position near the tripod on the launching side when the plaintiff used it. I accept that he wiped the bar before she took hold of it. He was not certain where her feet were when she took hold of the handle bar but he thought they may have been on the cross bar on the tripod. He said that her arms were in front of her body and that as she took off, her knees were bent so that she was basically in about a “half squat” posture (T389). As he described it, the handle moved forward and her body started to swing behind it and when the handle was about one metre out, it stalled. He was asked to describe what happened then and he said (T390):
“The momentum of [the plaintiff’s] lower part of her body caused her to swing around to the point where her hips and thighs and legs were basically in front of her arms ... . She actually swung to the point where she had moved almost, almost horizontal with the ground which - parallel with the ground, which was sloping.”
He said he saw her fingers uncurl and still going forward, she fell with her back partly flexed forward and her knees bent at about 90o. He said that her heels hit the top of the retaining wall on the landing side and her body fell backwards into the creek with the back of her head jammed against the retaining wall on the launching side, pushing her chin down onto her chest.
After the plaintiff had been taken away by ambulance, Mr Buckham used the flying fox to try it out for himself. He thought he may have used it twice. As far as he can recall he launched himself from the cross bar on the tripod but, he said, because he had seen this slight stall or “judder” he braced himself, holding his forearms and biceps close together. He said that after going about a metre, he experienced the stall and at that time, he felt his legs tending to go forward.
At first, Ms Larense was near the launching area but she walked across to the landing because she noticed that some of the smaller children could do with help getting off the flying fox. She observed that with a couple of the children, the flying fox momentarily slowed down about 1.5 metres out. She became aware that the plaintiff was going to use the flying fox and decided that she would take a photograph. She stood on the wooden landing and began to adjust the viewfinder so that the camera would focus on the plaintiff when she was about half way across. Looking partly over the top of the camera and partly through the viewfinder, she watched the plaintiff begin her ride. She was not sure whether the plaintiff’s feet were on the ground or the cross bar on the tripod when she took off but she saw that she was moving smoothly; there was no sign of any stalling or juddering. She said that when the plaintiff was about half way over, she fell feet first, ie her body was vertical, and as she reached the creek, she fell onto her back with her head towards the launching side.
Mr Watkinson said that he has never had any complaints about the flying fox during the time he has been caretaker. About 2 1/2 years ago (probably after the plaintiff’s accident) he replaced the rope between the trolley jack and the counterweight because it was showing signs of fraying. At some stage, possibly about a year after the plaintiff’s accident, he noticed that the flying fox was a bit slower than it had been. He found that the trolley jack was wearing, so he replaced it. Earlier this year, he thought he could improve the handle bar by replacing it with one of smaller diameter to make it easier for children to use. He made a different handle and covered it with rubber but found that this was not satisfactory, because the rubber tended to twist. He decided to replace it with the original handle but before doing so, he filed some indentations in it which he thought might be an improvement for grip. However, in retrospect, he does not think this has made any difference at all. Because the handle comes to rest some distance out from the tripod, he said that someone who is standing close to the tripod would have to reach forward to take hold of the handle. He also said that because of the shape of the tripod, adults who launch from the cross bar will be in a crouched position.
It was submitted by Mr McCarthy, for the plaintiff, that I should find that her fall was the result of a defect in the trolley jack which caused it to partly stall or shudder, thereby causing the plaintiff’s weight to be thrown forwards because of her momentum, with a resulting loss of grip which in turn, was aggravated by the handle bar being slippery. The evidence does not support such a finding. Mr Watkinson impressed me as being responsible in the discharge of his duties and I accept that he regularly checked the equipment and in particular, the operation of the flying fox. When he noticed that attention was needed he took action. Examples of this are his replacing the frayed rope to the counterweight and changing the trolley jack when the old one was found to be getting slower. His attitude is also demonstrated by his experimentation with the new handle to see whether he could improve it. That he was unsuccessful, is not to the point.
If there was a defect in the mechanism that caused idiosyncratic behaviour of the trolley jack some 1 - 1.5 metres into the ride, the strong probabilities are that it would not have been confined to the day of the plaintiff’s accident and that Mr Watkinson would have noticed it in the course of his inspections. I accept that he did not. The evidence suggests that the stalling did not occur with everyone who rode on the flying fox that day. It may be that it was only those who launched from the cross bar such that a short distance out from the start, it coincided with the point where their weight would have been transferred from a downward/forward direction to a mainly forward movement. That could account for some interference with the smooth travel of the trolley jack, e.g. as happened with Mr Buckham. However, it is noteworthy that no children who launched themselves from the cross bar were caused difficulty by stalling.
It is possible that the plaintiff launched herself from the cross bar on the tripod. That would be consistent with Mr Buckham’s description of her posture as a “half squat ” position although that seems to be contrary to her own memory of where she started. Ms Larense was unable to help with that but she did not notice any stalling or jarring at all. Given that the plaintiff remembers taking hold of the bar at about eye level rather than above her head and given the detailed description by Mr Buckham about her posture as she started the ride, the likelihood is that she left from the cross bar. There may have been a subsequent transfer of weight such that there was a momentary interference with the running of the trolley jack, but the evidence on this is unclear. Although I accept that the plaintiff did not see it, there was a clearly visible sign warning against taking off from the frame of the tripod. If therefore, there was any causal link between pushing off from the cross bar and a momentary stalling a metre or so out, there was an adequate warning by the Guides which if obeyed, would have obviated that risk. However, of greater significance, there is no evidence to support a conclusion that any jarring or stalling of the trolley jack was due to a defect in the mechanism of the flying fox.
There is no evidence to support the submission that the handle was slippery when the plaintiff used it and that this contributed to her fall. In fact the evidence is against it. I accept that Mr Buckham wiped the handle bar from time to time while the children were using it and in particular, that he wiped it immediately before the plaintiff took hold of it. Although the plaintiff’s recollection of some of the events that day was hazy, she has a clear memory of the handle and denied any suggestion that it was slippery.
The plaintiff fell from the flying fox but no reason can be ascribed. It may be that her fear of heights caused her to panic; it may be that her grip was defective and did not support her weight; there may be other reasons. Mr Buckham gave what amounted to an almost frame by frame analysis of her fall, including what he considered to be the reasons for what was happening to her. I am not satisfied that his minutely detailed analysis is simply memory of what he observed, rather than his quite understandable search for a reason for what happened. This is borne out to some extent by his re-enactment of the plaintiff’s ride, possibly twice. Clearly, he has thought about what happened and why, quite a lot since that time. I am not critical of Mr Buckham for doing that but because I have reservations about how much of that detail is truly a memory of what occurred as distinct from being the product of thinking about why it may have happened, it would be unsafe to use those details as facts from which I can draw inferences either about the mechanism or the degree of slipperiness of the handle. In summary therefore, it has not been established that there was anything in the construction or operation of the flying fox itself which caused or contributed to the plaintiff’s fall.
In light of these findings, the plaintiff’s complaint against both defendants is that it was reasonably foreseeable that someone such as herself could fall from the flying fox and that each of them failed to take adequate steps to protect her from the risk of serious injury in the creek bed by not providing more soft fall. She also complains that the Guides failed to erect adequate warning signs and that Mr Simmonds should have refused to allow the apparatus to be used.
The Guides are sued as the owner/occupier of the property and by virtue of s.17C of the Wrongs Act 1936, liability is to be determined according to the law of negligence and therefore, the principles enunciated by the High Court in Australian Safeway Stores v Zaluzna (1986-1987) 162 CLR 479.
Waldorf is sued in both tort and contract. The action for breach of contract can be dealt with shortly. The plaintiff was a volunteer who offered to help look after the children without any form of recompense and in fact was requested to contribute towards her own upkeep at the camp. There was no evidence as to whether she did that. Nothing was put forward to support a finding of any intention to create a legal relationship between the first defendant and the plaintiff. There is no evidence at all about the terms of any alleged agreement and no basis upon which an agreement could be inferred from the conduct of either party. There is therefore, no merit in the claim based in contract and the potential liability of Waldorf is also to be considered according to the law relating to negligence.
In Australian Safeway Stores, the majority, at 488, approved the statement of Deane J. in Hackshaw v Shaw (1984) 155 CLR 614 at 662-663:
“... 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.”
In the present case, the plaintiff was a lawful entrant on the land of the second defendant and it was reasonably foreseeable that she was a member of the class of people who would be likely to use the flying fox. That suffices to give rise to a duty on the part of the second defendant to take reasonable care to avoid a foreseeable risk of injury to the plaintiff.
With regard to the first defendant, it was a school excursion and the plaintiff was one of a group of parents who were assisting. Mr Simmons was in overall charge of the group. While Mr Simmons had a non-delegable duty to supervise and take reasonable care of the children in his charge (Kondis v State Transport Authority (1984) 58 ALJR 531), there is no basis for asserting that the first defendant was under a duty to supervise the activities of someone such as the plaintiff. However, in my opinion, those circumstances mean that there was a sufficient degree of proximity in the relationship between the plaintiff and the first defendant to impose upon the first defendant a duty to take reasonable care in its use of the flying fox so as not to expose the plaintiff to foreseeable risk of injury (Wyong Shire Council v Shirt (1979-1980) 146 CLR 40).
Has either defendant been in breach of its duty? The principles to be applied are set out by Mason J. in Wyong Shire Council at 47-48:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. 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 ... [T]he existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
What is reasonable must be determined according to the facts of each case but some guide to the sorts of issues that are apposite when considering reasonableness in the present case, can be obtained from the judgment of Barwick CJ in Maloney v Commissioner for Railways (1977-1978) 18 ALR 147. That was an action by a passenger on the defendant’s train who was thrown from an open carriage door when the train lurched as it went around a bend. His Honour directed his remarks at the duty on the defendant to take reasonable care for the safety of passengers and said at 148:
“It is easy to overlook the all important emphasis upon the word ‘reasonable’ in the statement of the duty. Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances. The matter must be judged in prospect and not in retrospect. The likelihood of the incapacitating occurrence, the likely extent of the injuries which the occurrence may cause, the nature and extent of the burden of providing a safeguard against the occurrence and the practicability of the specific safeguard which would do so are all indispensable considerations in determining what ought reasonably to be done. Of all these elements, evidence is essential except to the extent that they or some of them are within the common knowledge of the ordinary man. The fertile but unqualified imagination of counsel or judge can never be a substitute for such evidence.”
The circumstances of the plaintiff’s fall must be seen in the light of what is known about the terrain, the nature of the adventure trail and the height at which she was above the ground. The evidence makes it clear that the adventure trail is meant to be something that will attract the interest of children and be a challenge for them without being too difficult. Mr Simmons formed the opinion during his inspection on 13 November that it was suitable for the children and specifically, he thought the flying fox was suitable. None of the adult supervising witnesses who were called, took any stops to restrain 8 year old children in their use of the flying fox. Of course, those observations cannot determine the ultimate issues but they serve to give an indication of the degree of difficulty and danger perceived by responsible people.
At times, the creek has water flowing but there was no evidence about how deep it would be either at its maximum or on average. At the time of the accident it was dry and as I have said, the handle of the flying fox was about 8-10 ft above the creek bed at its highest. The plaintiff was 5ft 3ins and immediately before she came away from the handle, her arms were extended above her head. There is no direct evidence about it but common sense suggests that the distance from shoulder to fingertip would be somewhere between 1ft 6ins and 2ft and that outstretched finger tips would therefore be about 1ft - 1ft 6ins above the top of her head. Allowing for her grip on the bar, it would be reasonable to say that her feet were about 6ft below the bar when she came adrift and that therefore the distance between them and the base of the creek was somewhere between 2ft and 4ft. The evidence is not precise but it suggests that either side of the creek, someone such as the plaintiff would probably need to keep her legs bent to avoid dragging her feet on the ground on the launching side or hitting them against the boards of the landing. The maximum height would be over the narrow creek bed itself. In all therefore, her feet would not have been more than about 3ft or so above the ground during the course of the ride unless of course, she chose to bring her feet up or her body was not vertical, but the difference would not be significant.
It was submitted by the plaintiff that in addition to the soft fall provided on top of the timber retaining walls, the Guides should have put something similar in the creek bed itself or if that was not practical, some sort of cover (e.g. timber) over the top of the creek making a covered culvert with soft fall on top of that. In relation to Waldorf, it was submitted that Mr Simmons should have put some form of cushioning, such as gym mats, in the creek bed, bearing in mind what he knew about the terrain from his earlier visit. Alternatively, it was submitted, he should have refused to allow the flying fox to be used. The last point can be disposed of immediately. Whatever duty Mr Simmons had to look after the children, he had no control over whether an adult could use the flying fox and no other basis has been established upon which it could be inferred that he had some duty to advise the plaintiff about whether or not she should ride on the flying fox.
The submissions about soft fall or cushioning involve consideration of what was reasonable in the circumstances. It was reasonably foreseeable that anyone, child or adult, using the flying fox might fall, just as it is reasonably foreseeable that someone could fall from a swing, a log, or a ladder on the property. Such things are commonly found in recreation parks, school playgrounds and, as far as swings are concerned, in suburban back yards. A fall from the flying fox would have the potential to cause some sort of injury.
The evidence about the incident involving the man in July 1993 was hearsay but even if it be allowed that the injury in his case was as serious as a fracture to his lower leg, the circumstances of his fall appear to have been such that it was not simply a fall in the course of ordinary use of the flying fox. The story given to Mr Watkinson was of a man purposely swinging about on the handle and showing off. That sort of behaviour has the potential to cause all manner of injury especially to a foot, ankle, tibia, fibula, knee etc., and is of no real assistance here. The value of that incident is that it directed the attention of the Centre’s controlling committee to what was there and led to the improvements I have described. It was reasonable to undertake those improvements because obvious dangers such as the sharp tops of star droppers and the potential for a back to be broken or for some other form of serious puncture injury to be sustained, if someone fell onto the unprotected top of the retaining wall, were real.
I do not accept the submission that the second defendant was remiss in not going further and protecting someone from falling onto the ground in the creek bed. It is a matter of what is reasonable. If the community wants to have equipment that provides a challenge as well as fun, it is reasonable to say that with it, goes some risk. Obviously, gross risks are not acceptable but it would be intolerable if those providing that type of equipment were obliged to eliminate all but minuscule risks. It will be a question of degree in the circumstances of each case as to where to draw the line that separates reasonable from unreasonable. The dimensions of this equipment, the setting and purpose of its use, the fact that very large numbers of people, including children, use it without mishap (some 30 very young children used it on the day of the accident) militate against requiring the Guides, by way of a reasonable response to the risk I have mentioned, to provide soft fall in the bed of the creek. For the same reasons, it would not be reasonable to expect the school to provide some sort of temporary padding while the flying fox was being used by the group associated with Class 2. In my opinion, to say otherwise, would be to require perfection.
Although of less significance in light of what I have just said, the plaintiff did not discharge the burden of showing the effectiveness and practicability of the alternative safeguards that it was submitted should have been provided by the Guides. The only evidence about the proposal of putting soft fall in the creek, arose during the evidence of Mr Watkinson and he said it was not practical. He spoke about the improvements he made with the sandbags and shade cloth on the banks but said that he did not put any soft fall in the creek bed because with the rains, it would be likely to act as a dam and cause flooding. He said that the creek often flows over its bridges and if it was dammed, the banks would be flooded and the flying fox could not be used at all. No evidence was led to show that the installation of soft fall in the creek bed was either practicable or likely to be effective.
No evidence was led about the practicality of building some form of cover over the creek. Nor was it put to Mr Watkinson for comment. There was no evidence about the depth of the creek bed but it is known that the clearance between the bottom of the creek bed and the flying fox handle is only 8-10ft. However, at the least, it can be said that a timber covering over the creek at a sufficient height to be clear of running water with sandbags on top of it, would significantly reduce the clearance and may well present the danger of snaring feet. It cannot be said that the safeguards which it is submitted should have been adopted, are so much a matter of common sense that they excuse the plaintiff from the obligation referred to by Barwick CJ in Maloney, of providing the necessary evidence. One would not ordinarily expect to see cushioning on the ground underneath the track of a flying fox.
Finally, the plaintiff submitted that the second defendant should have provided some more signs. The first would be at the beginning of the adventure trail, explaining that there are rides that are dangerous or at least, adventurous, with a general briefing about the types of rides so that people can make a decision about whether to use them. It was submitted that there should also be a sign near the flying fox, instructing, perhaps by diagrams, how to use it. These submissions are not persuasive. No one gave evidence about all the types of apparatus on the adventure trail, but those that were described do not seem to be complicated and the average person would be quite capable of working out whether they were prepared to use them. To the extent that young children might use them, as relevant here, there was adequate supervision. As to the method of using the flying fox, even children could work that out. None of them came to grief. In my opinion it is pointless to suggest either of these signs.
For these reasons, I find that neither defendant was in breach of its duty of care to the plaintiff and her action must fail. Accordingly, there will be judgment for the defendants. However, in the event that on an appeal, I may be found to have erred in dismissing her action, there is no reason why I should not fix the quantum of the damages that would have been awarded if she had succeeded. I therefore turn to that assessment.
ASSESSMENT
The plaintiff fell awkwardly on her back. Her feet were up on the landing side, most of her trunk was in the bottom of the creek bed and her head and shoulders were up against the timber wall on the launching side, such that her chin was pushed down hard on to her chest. It is not clear whether she completely lost consciousness or whether it was a partial loss. The evidence shows however, that initially she was at least stunned and not fully aware of her surroundings. The probabilities are that she became more alert when Mr Buckham tried to ease the position of her head and unwittingly caused sharp pain in her back. I accept the plaintiff’s description of the pain as being excruciating. She remained basically where she had fallen for about half an hour until the ambulance arrived. She was then put into a cocoon to protect her spine, taken out on a stretcher and evacuated to the Noarlunga Medical Centre.
X-rays revealed a minor crush fracture of the T11 and T12 vertebrae. Later that day, she was transferred to the orthopaedic unit at Flinders Medical Centre (FMC) where a CT scan showed no abnormality in the cervical spine but a crush fracture, mainly of T12. She was treated conservatively, at first being immobilised with pain relief from morphine and some form of sedative to assist with sleeping. She was instructed by a physiotherapist about spinal management and exercises to assist with gradual mobilisation, including such fundamentals as how to roll over in bed, sit up, etc. I can well understand that especially in these early days, she was particularly concerned about the extent of her injury because of the extreme pain and the lack of mobility. I accept also that she found it difficult and painful to regain her mobility.
As her self-reliance improved, she was discharged to her home. For the first two or three weeks, her children stayed with her sister or her estranged husband. Her mother moved in to look after her and her sister helped in the house. In addition, a roster of Class 2 parents organised food to be prepared for the evening meal and to be available for any other assistance, e.g. transport, odd jobs, etc., After her children returned to the home, I accept that her eldest son, Ahmed, assisted with many of the household chores that she would normally have done e.g. washing dishes, hanging out washing, vacuuming etc. Meals continued to be provided at night for some time by the parents who were on the roster.
In the early period at home, she was confined mainly to bed, it being extremely painful for her to be in the sitting position. Even when travelling in a car for medical consultations, it was necessary for her to lie on the back seat. Her pain was relieved to some extent by Panedeine Forte and she used Serapax to assist with sleeping. There are no records which show how many prescriptions of Serapax were filled but I accept the plaintiff’s evidence that because of what had happened to her and her continuing pain, she became dependent on Serapax to the extent that, if she did not take them, she would find it difficult to sleep but if she used them to sleep, she felt groggy the next day. At some point during the ensuing 12 months after the accident, she became worried about this dependency and gave up Serapax and occasionally used a milder sleeping drug, Normison. It is understandable that, once that crutch was taken away, she would have had a lot of difficulty sleeping until she overcame that dependency. In due course, she was able to get assistance from Normison from time to time but without being as reliant. It is not possible for me to fix a precise period during which the plaintiff was dependent on Serapax but having regard to the whole of the evidence, it was probably somewhere between 6 and 12 months.
Gradually, she became more mobile and she attended physiotherapy, as recommended by the orthopaedic surgeon in charge of her management at FMC, Mr David Martin. That mainly involved hydrotherapy and it appears that she went weekly to a physiotherapist at Mount Barker until early February. She said that she discontinued it because it was not helping, apart from giving her some temporary relief for a few hours after the treatment itself. Nonetheless however, she continued with the exercises she had been shown, to strengthen her back. She also obtained considerable temporary symptomatic relief from reflexology administered by her brother. This is a form of massage which is focused on the patient’s feet.
Generally during the first 6 months after the accident, she found it difficult to sit for any length of time, she had to be careful in what she did and as needed, she took Panadeine Forte. Apart from Ahmed’s assistance around the house, all her sons helped with carrying shopping. For some time she was limited in the garden. She has always had someone to cut the lawns but since the accident, she has avoided pulling out weeds. She does the watering, pruning etc., although during that initial 6 months, she was more limited in what she could do.
The pain during that first 6 months was in the area of her thoracic fractures and in her neck, although understandably, there was more widespread discomfort in the early stages. The compression fractures had slightly flattened the bodies of T11 and T12 but there was no compromise of the spinal canal. An X-ray taken in early 1994 demonstrated that there was some ligamentous damage at the C4/C5 level which Mr Martin considered was consistent with a partial disruption of the C4/C5 inter-spinous ligaments. She was reviewed in the out-patients’ department at FMC on 14 December 1993, 13 January, 24 February and 24 March 1994.
The plaintiff called Mr Martin, Mr Brian Cornish, orthopaedic surgeon, and her general practitioner, Dr Smith. It is appropriate at this stage to refer briefly to the evidence given by Dr Smith. Apart from giving oral evidence in court, he wrote two reports: 24 October 1995 and 10 March 1997. In the first report, Dr Smith summarised in some detail, the results of his consultations with the plaintiff, for whom he had been a treating doctor for about 30 years, between 10 December 1993 and 13 October 1995 when he reviewed her for the purpose of preparing that report. With some minor exception, it became apparent in cross-examination that Dr Smith made no notes whatsoever of his consultations, her complaints or his findings on examination. When asked for the basis of his summary of her history in that report, he said that he could remember it. It was germane to that report in October 1995 that he had seen her “at approximately two monthly intervals from September 1994” during which time her “symptoms from the accident have progressively diminished”. The dates of the consultations were established by reference to his records where at least the dates appeared. However, there were no entries at all between October 1994 and June 1995. The only explanation he could offer as to why he had referred to two monthly consultations was that a card must be missing. No attempt was made to look for it.
The first consultation after the accident was on 10 December 1993 and he conceded that originally, there was no note of it other than the date, which had been written by a receptionist. An entry in pencil identifying it as being after the flying fox incident, had been written by him on the morning of the day he gave evidence, 6 November 1997, almost 4 years after the consultation. When pressed about why he had not made notes of such a significant matter knowing that she had suffered major trauma and had been in hospital, he said that there was nothing other than what he would have expected from this sort of fall.
With regard to matters contained in the second report of 10 March 1997, the only consultation at which there had been any specific reference to the flying fox accident was on 16 January 1997 when the plaintiff had written down some questions on two pieces of paper and he used these and some notes he made on them of his own thoughts as a guide in writing his report at the request of her solicitors. There were no other notes of his examination on 16 January 1997. The report was prepared on 10 March 1997.
Regrettably, I cannot rely on Dr Smith’s evidence as an accurate history of her symptoms. His reports and his evidence in court are based mainly on his unaided memory over a long period and on assumptions of what he would expect from this sort of injury. I cannot be satisfied that those assumptions about which he has given evidence, accord with what the plaintiff was in fact suffering. These deficiencies are serious and make his opinions and prognosis questionable, to the extent that I cannot safely take them into account as being soundly based. His evidence is therefore of very limited assistance. Insofar as he expressed an opinion about problems in her hips, I note that the only clear complaint in her evidence about her hips was that about 6 months after the accident, she noticed a clicking sensation in her hips. Neither of the other doctors saw any link between the accident and a hip problem. I cannot accept Dr Smith’s opinion that there is a hip problem related to the accident.
In January 1994, the plaintiff attempted a computer course at Mount Barker but said that she found the pain in her back, especially with sitting for long periods, to be very bad. In all, she thinks that she tried to do too much too soon. She passed the basic course but then stopped. Given the nature of her injuries, I have no difficulty accepting that she probably did try to do too much too soon and she cannot be criticised for not continuing with that effort. During 1994 she needed cash, so she sold the house and since then, has rented a house. She used some of the proceeds on a holiday to Lebanon a couple of years ago.
There was gradual improvement and on a fair reading of her evidence, her condition has been fairly stable over the last 12-18 months, i.e. from about the end of 1995 or perhaps a little later. She still uses Panadeine Forte for pain but avoids it if possible. She has occasional need to resort to Normison for assistance with sleep but this is infrequent. She exercises regularly, particularly by walking and medical evidence supports her in saying that if she does not do so, her back gets stiff.
She does most household chores although she finds that some things take longer and she avoids vacuuming because it affects her back. She avoids pulling weeds in the garden for the same reason. She has pain in her neck but not very often. The exception to that is that some five months before trial, there was a most unusual episode of extreme pain in her neck and she could not move her head. It lasted for about a week. None of the medical evidence suggests that she can expect a repetition of that sort of incident. The pain in her thoracic spine is intermittent. She finds it helpful to avoid wearing high heels except when absolutely necessary. If she has pain in her thoracic spine, she will lie down to relieve it or if it is not too bad, she will go for a walk and that eases it.
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. The plaintiff said in evidence that some time after the accident, just when is not clear, she developed pain in the area of her right shoulder and that there is still a constant dull ache in her upper right shoulder as well as in her right arm which feels heavy. Dr Martin said that he did not believe that the problems with her right shoulder are related to the accident. He could not see any connection with the accident or with her cervical and thoracic injuries. Mr Cornish said that it is not uncommon for there to be referred pain from neck pathology but he could not see any connection between the shoulder problems and the T11-T12 injury. He had no record of her complaining of shoulder symptoms but when it was drawn to his attention, he said that although right shoulder pain would not surprise him because it was a fairly traumatic incident which would have heightened awareness in all parts of the body, on the information before him, he could neither exclude nor include it.
It is for the plaintiff to establish on the balance of probabilities that there is a causal link between the event and the alleged consequence. This is not a case where it would be valid to reason that in the absence of some explanation which would cause it to be excluded, the shoulder symptoms should be regarded as being likely to be associated with the accident. There is only equivocal support for a link in the opinion of Dr Cornish and strong rejection of it in the opinion of Mr Martin. In the circumstances, I cannot find that the complaint of right shoulder problems is related to the accident.
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 fracture. 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.
Just over a year ago, the plaintiff began a friendship with a man, and they intend to start living in a defacto relationship once they have secured a suitable house. The plaintiff’s evidence is that he intends to begin a business selling dips such as hommous, that she intends to train him to show him how to make the dips and that she herself may help in the business by attending to the books and helping with deliveries. She said that this business was not being set up for her but she acknowledged that she may well be involved in it in the way I have described. I think that she may also assist in making the dips as well, given her previous experience and her skill. There is certainly no medical reason why she could not do that although she may experience some discomfort from time to time.
The plaintiff said that she has a greater interest in becoming involved in healing. She has just finished a course in reflexology and she is thinking of becoming a practitioner herself. She could see no reason why she could not undertake this sort of work which mainly involves sitting at the foot of a massage table and massaging a client’s feet. She thought that she would be physically capable of working as a sales person in real estate and as far as secretarial or clerical duties are concerned, she thought that she would be able to do that sort of work, provided she could update her skills and was able to move about from time to time. In my opinion her assessment of her capacity for work is reasonable and because of matters already set out, she is supported by the medical evidence.
I am satisfied that the plaintiff has shown a loss of earning capacity but this is not a case in which the assessment of that loss can be precise. 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 improvement was not uniform and on a fair reading of the evidence 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.
At the time of the accident, she had just re-entered the work force on a casual basis and earned about $90 per week gross over a very short time, namely three weeks. I accept that she was genuine in her desire to take up work and to become more independent. She had some reason to. The maintenance payments from her ex-husband were not always reliable and she was finding things fairly tight in any event. In addition, with the children growing up there will be less demands from them for her attention and more freedom to exercise her choice to be employed. She is intelligent and presents well. I think it likely that she would have improved her hours within a comparatively short time if the work had been available. In my opinion, it is reasonable to regard her as having lost the capacity to earn an average of $100 net per week from the date of the accident until 30 June 1994. That is a period of about 31 weeks, giving a total loss of $3,100.
For the reasons I have given, I consider that she would probably have further increased her hours during the next 18 months from 1 July 1994 to 31 December 1995, a period of about 78 weeks. I therefore take an average value of the earning capacity that she could otherwise have exercised as being $130 net per week of which she has lost 40%. The total value of that capacity is $10,140 and an overall loss of 40% is $4,056.
Since 1 January 1996, she has had and will continue to have an ongoing loss of 10% of her earning capacity. I have already referred to the types of work she is capable of doing but there is not enough evidence to find that she would have exercised her earning capacity on a full time basis. I must therefore be cautious in assessing the value of the capacity she would have exercised but for the fall. In this case, it is appropriate on the evidence available, to commence with the value of that capacity at $200 net per week, of which she has lost an ongoing average of 10% namely $20 until age 65 (Murray v Dawson (1996) 184 LSJS 213). By consent, I refer to the tables in Luntz: Assessment of Damages (3rd Ed.) For a woman aged 42 (date of birth: 16 November 1955) the 3% multiplier to age 65 for $1 per week, is 842. The capitalised value of $20 per week loss is $16,840. For the period between 1 January 1996 and end February 1998, a period of approximately 112 weeks, an ongoing loss of $20 per week would amount to $2,240.
The addition of the figures for pre-judgment net economic loss, before any adjustment, would be:
Accident until mid-1994: $ 3,100
Mid-1994 until end 1995 $ 4,056
Start 1996 until judgment $ 2,240
Total $ 9,396
The plaintiff said that she has earned some money since the accident. She was frank in saying that she had not declared this income but the evidence shows that in all probability it was only, as she put it, pocket money, and there is no indication on the evidence before me, that it would have been sufficient to require her to lodge a tax return, it being acknowledged that she has not filed any tax returns in recent years. This is not a case where there is evidence of earnings of the type that suggests tax evasion or fraud, such that the court should draw the evidence to the attention of the executive branch of government (Georginis v Kastrati (1988) 49 SASR 339). Some adjustment must be made in favour of the defendants because of those earnings. I therefore round off pre-judgment economic loss at $8,000.
With regard to the future, there must be some allowance for contingencies, both favourable and unfavourable. Depending on the type of work the plaintiff may choose, her capacity may be better than 90%. On the other hand, the value of the lost capacity in some types of work may be greater than in others. Given that I have already exercised caution in fixing the average value of ongoing weekly earning capacity, the chances are that favourable contingencies will outweigh the unfavourable and there should therefore be a modest uplift in the calculated figure of $16,840. I fix $20,000 for loss of future earning capacity.
An appropriate figure for non-economic loss, both past and future, is $15,000 of which, I would have awarded $8,000 for the detriments suffered prior to trial.
The voluntary services rendered by friends, her mother and her children, particularly her eldest son, are not capable of precise calculation. A modest allowance is called for and I fix a figure of $2,000 at current money value for services to date. As to the future, I accept that there are some areas of her household chores that she must avoid but they are not great. I would allow a figure of $1,000 for the future. The total for voluntary services therefore would be $3,000.
Special damages (rounded off) amount to $4,867 of which $98 has been paid and which should bear interest since early 1994.
The appropriate rate of interest on non-economic loss is 4% and for the period in question, 6% for economic loss. Non-economic loss has been sustained gradually over the period and I therefore allow interest on $4,000 at 4% for 4.25 years = $720. As far as past economic loss is concerned, the detriment was greater in the early part of the period and of the figure of $8,000, I allow interest on $5,000 at 6% for 4.25 years = $1,275. The special damages of $98 should also bear interest at 6% but for a period rounded off at 4 years = $24. The figure for voluntary services is fixed at current value and does not bear interest. The addition of these figures makes a total of $2,019 for interest.
In summary therefore, I assess the quantum of damages as follows:
Non-Economic loss $15,000
Past Economic loss $ 8,000
Future loss of earning capacity $20,000
Voluntary Services $ 3,000
Special Damages $ 4,867
Interest $ 2,019
Total $52,886
However for the reasons I have given, the plaintiff’s claim is dismissed.
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