Tremeer v City of Stirling - [2004] WADC 56

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TREMEER -v- CITY OF STIRLING [2004] WADC 56

CORAM: KENNEDY CJDC

HEARD: 3-22 NOVEMBER 2003

DELIVERED : 1 APRIL 2004

FILE NO/S: CIV 3402 of 1993

BETWEEN: GAVIN JOHN TREMEER
Plaintiff
AND
CITY OF STIRLING
Defendant
GLENWOOD SYSTEMS PTY LTD
Third Party

Catchwords:

Negligence - Occupier's liability - Fall from track ride on to hard surface - Surface inadequate - Defendant knew that

Legislation:

Occupiers Liability Act 1985

Result:

Judgment for the plaintiff against the defendant
The defendant's claim against the third party is dismissed

Representation:

Counsel:

Plaintiff:     Mr K J Bradford
Defendant:     Mr J Gilmour QC (with Mr D M McKenna)
Third Party                   :     Mr M J Buss QC (with Mr G I Macnish)

Solicitors:

Plaintiff:     Bradford & Co
Defendant:     Jarman McKenna
Third Party                   :     Cocks Macnish

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

Commissioner of Railways v Ruprecht (1979) 142 CLR
McGhee v National Coal Board [1972] 3 All ER 1008
The State of Western Australia v Watson [1990] WAR 248

Case(s) also cited:

Agar v Hyde (2000) 201 CLR 552
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Chappel v Hart 156 ALR 517
Chicco v The Corporation of the City of Woodville (1990) Aust Tort Reports 81-028
Cook v Cook (1986) 162 CLR 376
Davis (by his next friend Davis) v Council of City of Wagga Wagga [2002] NSWSC 911
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
General Jones Pty Ltd v Burnie Port Authority (1994) 179 CLR 520
Gover v South Australia & Perriam (1985) 39 SASR 543
Henwood v Municipal Tramways Trust (South Australia) (1938) 60 CLR 438
Hoyts Pty Ltd v Burns [2003] HCA 61
Jefferies v Fisher (1985) WAR 250
Jones v Commissioner of Main Roads [2002] WASCA 307
Joslyn v Berryman [2003] HCA 34
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
March v EM & H Stramare Pty Ltd (1991) 171 CLR 506
McPherson v Whitfield (1996) 1 QDR 474
Nagal v Rottnest Island Authority 112 ALR 393
Perre v Apand (1999) 198 CLR 180
Prast v Town of Cottesloe [2000] WASCA 274
Ranieri v Ranieri (1973) 7 SASR 418
Reeves v Commissioner of Police of the Metropolis [2002] 1 AC 360
Rogers v Whittaker 109 ALR 625
Roggenkamp v Bennett (1950) 80 CLR 292
Romeo v The Conservation Commission of the Northern Territory 151 ALR 263
Rosenburg v Percival 178 ALR 577
Rundle v State Rail Authority (2002) Aust Torts Reports 81-678
Seltsam Pty Limited v McGuiness; James Hardie & Copy Pty Ltd v McGuiness [2000] NSWCA 29
Shorey v PT Limited [2003] HCA 27
South Tweed Heads Rugby League Football Club v Cole (2002) 55 NSWLR 113
State Government Insurance Commission v Hitchcock, unreported; SCt of WA; Library No 970089; 11 March 1997
Sullivan v Moody (2001) 75 ALJR 1570
Tame v State of New South Wales (2002) Aust Torts Reports 81-672
The Commissioner for Railways New South Wales v Cardy (1960) 104 CLR 274
Tomlinson v Congleton Borough Council [2003] 3 All ER 1122
University of Wollongong v Mitchell [2003] NSWCA 94
Westralian Caterers Pty Ltd v Eastmet Limited (1992) 8 WAR 139
Wyong Shire Council v Shirt (1980) 146 CLR 40

KENNEDY CJDC: The plaintiff was grievously injured when he fell from a track ride on 22 September 1989 in a park occupied by the defendant on equipment supplied by the third party at the request of the defendant. The plaintiff was then 23 years of age, having been born on 23 April 1966. He is now 37.

Observations about the plaintiff

The plaintiff is the oldest of five brothers. In opening, plaintiff's counsel informed me that the plaintiff was dyspraxic but, in evidence, the plaintiff agreed with third party counsel that he was dyslectic. Later, I was assured that it was dyspraxia. It was very obvious during the plaintiff's evidence that he had serious communication difficulties, so much so that I commented about it to defence and third party counsel during cross‑examination. The matter was never really properly explained, but some explanation came when his mother gave evidence.
Mrs Phyllis Tremeer said that as a small child, the plaintiff did not talk for the first few years, but they did not realise that there was anything wrong with him because he had taught himself to lip read so that he could understand them even though he did not speak to them. It transpired that he had been born deaf. When they eventually discovered that there was something wrong and took him to a medical practitioner, one of his ears was drained and he got some hearing, but he has no hearing in the other ear. By the time this happened, the plaintiff was 6 years old. He then went to the deaf school for 12 months, then to a remedial school, and then into a remedial class and he remained in remedial classes until he completed school. Mrs Tremeer said she was told that the plaintiff had an IQ that was in fact above average, but that he had some mental block associated with reading and words.
When he eventually left school and went to night school to study welding, she had to get permission to go to the exams with him. She would read the questions to him and he dictated the answers to her. To get a driver's licence arrangements had to be made for him to do an oral test.
The plaintiff is a very gentle and polite man, but it is just about impossible for him to give a good account of himself verbally, particularly in a situation of stress. This must be taken into account not only in assessing his evidence, but also in assessing what he said or is alleged to have said to other people and, as for the orthopaedic surgeon Mr Batalin saying that the plaintiff did not know the "mechanics of the accident", the plaintiff would have been incapable of answering a question from Mr Batalin about the "mechanics" of the accident. Furthermore, I have very grave doubts that the various accounts of the accident found in hospital notes from the night emanated from the plaintiff or are capable of the meaning that the defence and third party wished to give to them.
Other than these observations, the only thing I know about the plaintiff is that he appears to come from a very solid and reliable family and he himself has a work record that could be envied by young men of his age, particularly in unskilled work, given that he stayed in the same heavy job for a period of about seven years.

Was the plaintiff intoxicated?

The defendant and the third party alleged that the plaintiff was intoxicated at the time of the accident, and the plaintiff and the three people who were with him on the night deny it. The evidence of the plaintiff and his witnesses was that he had had about three cans of beer on the night, at least one of which was light.
The defence evidence depends entirely on what is alleged to be the plaintiff's osmolality reading on the night of his admission to hospital. Despite the amount of attention the plaintiff received on that night, there is no record by anyone anywhere that any intoxication in the plaintiff has been noted. Only one doctor is prepared to comment in the defence's support as to clinical signs and I will refer to that later. Mr Kerr, the head of the spinal unit, expressed surprise that it was recorded nowhere and that, given the level of osmolality, no further test was done. Dr Graydon, a Royal Perth Hospital specialist in emergency medicine, also said the reading should have been recorded in the notes.
Exhibit 8 is said to be the plaintiff's blood and plasma reading from the biochemical department of Royal Perth Hospital over a period of five days. It can be seen that the plasma test on the night of 22 September 1989 gives an osmolality reading of 342, but the expected range in the normal population is 275 to 295.
Exhibit 8 is addressed to "Ward: S11" and "Dr Hardcastle". "Ward S11" is at Shenton Park and Dr Hardcastle was the treating orthopaedic specialist on the night of the plaintiff's admission to Royal Perth Hospital and subsequently. The evidence is that the biochemistry results go to wherever the plaintiff is. Dr Wish‑Wilson gave evidence that he ordered these tests on the night of 22 September 1989, but has no recollection of ever seeing the results. One must assume that, at some stage, there was a separate piece of paper with only the results of 22 September 1989 on it, addressed to some doctor and sent to some ward that is unknown to us. If this document ever existed, it no longer exists. According to the evidence of Mr Paul Sheehan, who is the principal medical scientist at Royal Perth Hospital, in about 1989, it was the practice to keep documents for two years and then they were destroyed. He has searched in the records, but there are no documents for the period of 1989.
Osmolality is the osmotic concentration of a fluid expressed as the number of osmols of solute per kilogram of solution. Normally, the blood constituents of sodium, chloride, glucose and urea contribute most to the plasma osmolality. What is referred to as the osmolar gap is a measure of the osmolality that cannot be accounted for by these constituents. A large osmolar gap means that there is other foreign material in the blood. It is then a matter of hypothesising as to what that foreign material is and, here, the hypothesis is alcohol.
Plainly, the test is not a blood alcohol test. It is not specific to alcohol.
Dr Vasakaran works in the department of clinical pathology and biochemistry at Royal Perth Hospital. He calculated the plaintiff's osmolar gap and, assuming then that the entire gap related to alcohol, arrived at a blood alcohol reading of 0.20 per cent, thus:
"Using the calculation suggested in the literature as 'most accurate' by the authors in a relevant publication (Ref 1), the osmolality is calculated as follows for Mr Tremeer.
1.89 x sodium + 1.38 x potassium + 1.03 x urea + 1.08 x glucose + 7.45 = 283.
(Glucose assumed to be 5.0 mmol/L).
The measured osmolality = 342 mosm/kg.
The gap is 342 - 283 = 59.
Assuming that the presence of ethanol alone explains this gap, and using the equation suggested in ref.2, this gives an estimated concentration of 59 x 0.83 = 49 mmol/L ethanol.
Using the molecular weight of ethanol (46) and the correction factor for converting from plasma to whole blood of 0.9.
49 x 0.00414
= 0.20 g/100 ml
= 0.20%"
It should be noted that the formula he uses as being suggested by some of the literature as most accurate is not the formula he used some months earlier, which resulted in a blood alcohol of 0.18 per cent.
According to Exhibit 8, all of the readings for the blood constituents, except for glucose, were taken on the night, but an assumption was made about the glucose and the reading is for the time when the blood sample was taken, which is also in dispute. It is not for the time of the occurrence, although attempts were made during the course of the trial to calculate that.
During the course of Dr Vasakaran's evidence, I asked him to calculate using different glucose levels on the basis that, for forensic purposes, levels should be chosen that tend to favour the person against whom the evidence is to be used. He then did two calculations, the first using "11" which, he said, was the upper limit that he would expect in someone who had had a meal more than two hours previously. The plaintiff, in fact, had shared a pizza at some time shortly before the event. He further did it with a glucose of "14", which is the highest level that he would expect in a healthy, non‑diabetic young man in a situation of extreme stress or trauma. For "14", the calculation of blood alcohol would be 0.17 and for "11", it would be 0.18. From that would then have to be deducted a percentage to allow for the fact that the blood sample was taken some time after the event.
The plaintiff further disputes the blood continuity, disputes the glucose level chosen and denies that all other causes of raised osmolality have been eliminated. He further points to the fact that in the one study where blood alcohol and osmolality have been measured in the same person, in 7 per cent of cases, raised osmolality did not correlate with the blood alcohol content: see "Alcohol Intoxication and Serum Osmolality", Champion et al, Lancett, June 1975, 1,402 ‑ 1,404. The plaintiff would also be justified in complaining that no sample of his blood was given to him for independent checks to be made. He was simply informed some years after the event that he was severely intoxicated on the night.
This test has been widely used in hospitals to check for the ingestion of alcohol. In the 1980's, it was quicker and cheaper than a blood alcohol test. Presumably, if it were wrong, the worst that could happen is that the treating doctor would err on the side of caution. It is not generally used for forensic purposes and I do not believe that any attempt even would be made to use it in a criminal trial.
As was said by Dr Robert Graydon, a specialist in emergency medicine and medical administration who works at Royal Perth Hospital:
"... remembering that we didn't use this particular test in a medico‑legal sense, we used it purely in a quantification of a medical management model.
...
... we used it for different reasons from which a court would use this particular test." (T1137)
Again, Dr R S Goodheart said in answer to the question of whether the tests are alway 100 per cent accurate:
"No; no. I mean, obviously with a high volume of tests in places like Royal Perth, we would want them to be but occasionally there can be errors." (T464)
Dr Daly also agreed that errors occurred, as did Dr Wish‑Wilson.

Labelling and continuity

Dr Wish‑Wilson who was the junior registrar on the night that the plaintiff was admitted said that different blood tests required different sorts of tubes with different agents in them and the tubes then had to be labelled. There was a system for taking these labelled tubes to the biochemistry department but he could not remember what that system was. He could not recollect where the collection point was, whose job it was to take them and things of that nature but somebody got them to the lab.
It was necessary to fill out a form which had to go with the blood specimen. He assumed that the form would go into the same bag as the blood specimen.
Mr Jeffrey Williams who was at the time an enrolled nurse assigned to care for the plaintiff said each patient on admission was given a unit medical record number ("UMRN") which was the patient's unique identifier. In 1989, the computerised records were very limited. The clerical staff would admit the patient and create a head sheet with the personal particulars and they would also provide about 20 adhesive labels for those dealing with the patient to attach to the top of notes.
So far as the samples to be sent to the laboratory were concerned, these were labelled by the doctor with the patient's details and the date and time of collection and then sent off to the laboratory for analysis. The labelling was done in handwriting on labels already stuck on the tube. It was his recollection that back in 1989, it was necessary to handwrite on to those labels the patient's name, the UMRN, the date and time of collection.
His recollection was that so far as the resuscitation area was concerned, they would notify an orderly by intercom and the orderly would come to the department and be physically handed the specimen containers in a plastic bag with the request form and these were then taken over personally to the biochemistry department.
Mr Paul Sheehan, the principal medical scientist at Royal Perth Hospital, said that his recollection was that at that time, blood samples were predominantly transmitted by vacuum system. There was a station in the emergency department. The sample and request form would be put into a plastic bag then into a canister and then into the vacuum system station. The address of the biochemistry department would be dialled and the canister would be automatically transferred to the biochemistry department.
When the items arrived in the biochemistry department, the scientist on duty would check that the labels on the tubes and the names on the request form were identical. Unlike Mr Williams, he thought that the computerised system was working in 1989. Once the results were done, he believed that they would be telephoned to the resuscitation department.

Mistakes

On Exhibit 8 on the right hand side of the page, there are two sets of initials and they indicate that that has been checked but that checking is limited to making sure that over a period of time, the results are consistent with each other. That has been done in this case but if there is simply a mistake in the osmolality and that was reflected in the record, that may never be detected.
When the osmolality test is being done, there are parts of the machine that come into contact with the blood and unless the machine is adequately flushed after each turn, there is a risk of cross‑contamination, however, Mr Sheehan thought that mistakes were rare. With the osmometer testing, the scientist writes the results manually in a work book and then puts them into the computer so that that is a manual process.
Mr Sheehan was unable to discover who it was who had done the sample on this particular night but there was a handover between shifts from approximately 2345 to 0030, so there would have been two shift workers present during that time. It goes almost without saying that the results we have cannot be reproduced.
Mr Sheehan confirmed that an osmolality test could be done in about 10 minutes but at that time, it took two hours to get a result with a blood alcohol test because it was necessary to start the gas chromatogram and then manually set up standards, quality control and patient material, then manually read off the chromatogram, interpret and calculate the results. Furthermore, it needed specialist staff so that not all people who were on shift and working at midnight could do an alcohol test.
In this heading I refer again to the evidence of Dr Goodheart and Dr Daly about mistakes being made.

Clinical picture

I have used this heading to refer to my observations of the plaintiff and the evidence of the anaesthetist, Dr Brown.
The plaintiff and his witnesses all said that he had had about three cans of beer. There was some variation as to that but not sufficient to lead to a blood alcohol reading of the level that is being talked about here. Furthermore, the plaintiff impressed me as an honest witness but, no doubt, has a motive for saying that he was not drunk on this particular night. What I do know about the plaintiff is that he was an extremely steady worker. He had been in the same job since he was 16, his brother who was with him on the night has not only been in the same job since he was a teenager, he remains in the same job and they were with two young women, one of whom never drinks and the other rarely. It was put to one of the young women that they might have spent some of their time going to pubs and she said that that was not their practice. So far as the activities near the river were concerned, the plaintiff and his brother frequently went fishing and prawning and they would walk over to the river to look at the city lights, which is what they did on this evening. There was nothing in the plaintiff's presentation or background, or the presentation or background of his family and friends, that would lead me to the view that he was anything other than a reasonably responsible young man, high spirited perhaps, but otherwise responsible.
There are no records anywhere of the plaintiff being intoxicated and Mr Raymond Crowe, who was the orthopaedic registrar on the night, said in his report of 7 October 2003:
"I have no recollection whether the patient did or did not smell of alcohol and I have no recollection indeed of talking to the patient about this matter, and as you will understand the patient being in a very traumatised state would not have been in any fit situation to carry out a conversation."

In addition, as I have already recorded, the plaintiff has very considerable communication difficulties.
Mr Crowe also said that he had no recollection of having any discussion at all with the anaesthetist, Dr Geraint Brown, and was even unable to remember if Dr Brown was male or female.
The defence put great weight on the evidence of Dr Brown who was at the time a registrar at Royal Perth Hospital. Dr Brown was not asked to remember this incident until 12 years after the event. Exhibit 39 is the anaesthetic record completed by him which has very little information in it and has recorded nothing in relation to alcohol even though there is place for that to be recorded.
Dr Brown said that he had a memory of this matter because he has used his dilemma in this case in instructing students over the years on several occasions. While I do not doubt that Dr Brown has used this case for that purpose and that Dr Brown believes that he remembers this case, I have real concerns that in fact this has grown in Dr Brown's memory over that period of time.
Mr Hardcastle said that the procedure for putting a halo in place is a local anaesthetic with sedation. He did not indicate that this was in any way unusual or that there was a choice to be made. Dr Brown on the other hand, said that he had a real dilemma because he had to choose between a general anaesthetic and a local anaesthetic, knowing that the plaintiff had consumed alcohol. At the same time, he also said in evidence that the local anaesthetic had already been injected by Mr Hardcastle before Dr Brown attended and Dr Brown simply administered sedation. And it is for that reason that he does not refer to the anaesthetic at all in his anaesthetic record.
Had Dr Brown been told that the plaintiff had been drinking, that would not have been inconsistent with the plaintiff's own evidence and Dr Brown says in his report (Exhibit 38) that he did not recollect any conversation between himself and the surgeons about the osmolality reading.
Dr Brown said that the plaintiff was agitated in a way that he thought was consistent with the presence of alcohol in sufficient quantities to affect his behaviour.
He had a recollection of the plaintiff saying, "Go away I don't want this just let me get up and go." There was no concession that that may be consistent with the plaintiff's trauma at the situation in which he found himself.
Furthermore, when Dr Brown was shown the peri‑operative anaesthetic record, he conceded that he had recorded the plaintiff as "emotionally calm" but endeavoured to explain that by saying the plaintiff was not continually agitated and finally that the plaintiff was emotionally calm after he gave him the sedative.
In all the circumstances, I am not prepared to find that Dr Brown has a reliable memory that the plaintiff's behaviour was affected by alcohol on this particular night. It may well be that he was informed that the plaintiff had said that he had been drinking because, of course, the plaintiff had said that but I cannot take this matter any further than that.
For all of the difficulties that I have outlined, I am not prepared to give any weight at all to this evidence. Those difficulties include hopelessly inadequate continuity, almost total failure of records and no information as to who did the test or how it was done. To that, I add a general sense that it would be unfair to the plaintiff to use this evidence against him.
As to other causes for a raised osmolality reading, it is not necessary for me to go into those. Associate Professor Joyce and Dr Daly have both given evidence for the defence which seems to eliminate any other cause although it does not allow for the statistics referred to in the article by Champion. Further, Dr Joyce's evidence was that if a person had an osmolality reading of above 20 by a cause other than alcohol, he would not expect that person to survive. In those circumstances, it seems extraordinary that no further testing was done when the plaintiff's osmolality reading was apparently so much higher.
There really was no evidence that contradicted the evidence of Associate Professor Joyce and Dr Daly, although if it was necessary for me to go further into this matter, I would have been concerned because I really was more comfortable with Dr Goodheart's doubts than with Associate Professor Joyce's certainties about these matters.

How did the accident happen?

Attached to these reasons is a photograph from Exhibit 23 which shows the track ride from which the plaintiff fell, although the handle being grasped by the model is nine inches longer than it was at the time of the plaintiff's accident. The model is six foot one inch, as is the plaintiff. I have attached that photograph to make it clear that, while the integrated play equipment seems to be for children, this section certainly gives the impression that it would be suitable for adults and it would certainly attract young, high‑spirited adults.
There are a number of photographs of the integrated equipment, notably Exhibit 4. The equipment consists of a number of play events attached to each other, which allow a user to engage in a number of different activities. There is a slide at either end, hook climbers, a suspension bridge, a log roll and step decks. From what I am able to observe, it is highly unlikely that an adult would use the slides or the hook climbers, nor does the suspension bridge look very solid. The integrated piece of equipment is brightly coloured and plainly designed to attract children.
The track ride itself is two parallel steel beams 2500 and 2380 millimetres high respectively. From the latter hangs a chain and to that is attached a triangle handle. There are no directions on the use of the track ride but no doubt the theory is that users will launch themselves from one platform holding the triangular handle and then swing along to the platform at the other end. Naturally this would require users to raise their feet off the ground to be able to swing across and probably the higher they raise their feet the faster they can swing across.
On the night of the accident, the plaintiff, his brother, Stuart, a young woman who eventually became his sister‑in‑law, Margaret Tremeer, and another young woman, Cathryn Pudney (formerly Osborne), went to the riverside through the park to watch the city lights. On the way back, they saw this equipment, which had only recently been installed in the park. They went to the equipment to investigate it. Stuart Tremeer walked along the track ride holding the handle, but did not use the handle to lever himself off the ground because he has back problems and decided it would aggravate those. He walked off with Cathryn Pudney. They went to a slide. There is, what I would regard as the usual size slide, in the background in Exhibit 4. There was some doubt as to whether that was the slide that they went to but, in any event, it was similar to that and both Stuart Tremeer and Cathryn Pudney had a slide on that slide. Margaret Tremeer watched the plaintiff on the track ride and it was then that the accident occurred. Only two people have any direct knowledge of the accident, the plaintiff and Margaret Tremeer who saw most of it.
The accident happened at about 9 pm so it was dark. There are lights in the park but their position was never pinpointed to me. There was also some light coming across the river from the city. The paramedic, Mr Gray, said that they stopped the ambulance 20 metres from where the plaintiff was and he could see where the plaintiff was and could also do a gross examination but would have needed a torch to read a document. Of course, the plaintiff and his friends had been out in this light for some time so their eyes would have adjusted as far as that was possible. I do not believe that the state of the light had anything to do with this accident.
After they had been at the river for some time, the plaintiff said that the four of them went to this equipment. He did not think the track ride was only for children because it was too big for a child to use. Indeed, he would not know how a young child could have used it, remembering that at the time that he used it, the handle was nine inches higher than subsequently. Even a child of 12 years or 13 years, unless that child was very tall, would not be able to use the equipment. He agreed that other parts of this integrated equipment would have been too small for him, but he used the part that an adult could use. He had never seen equipment of this type before.
In his opinion it depends on the size of the equipment whether it is suitable for adults and it looked to him to be a size suitable for an adult.
He saw Stuart grab the handle and walk along with the equipment and then walk off to the slides and it was after that that he decided that he would have a go on the track ride. He took hold of the handle and launched himself from the platform at one end. He actually went down the track ride once and returned and was on his third trip on the track ride when the accident happened.
When he was on the track ride, he grabbed hold of the triangle handle with two hands made into a fist with the palms toward his face. The handle was too small for his hands and he had his hands overlapping.
He pushed off from the platform, pulled his legs up so that his knees were near his chest and his legs from his knees to his feet were out more or less straight and he did this so that he could get a good ride across.
As he was going across the third time, his hands slipped, he did a somersault backwards and his head hit the ground and he ended up landing on his stomach. When his hands jerked and he lost his grip, it was only then that he ended up upside down. With his hands slipping, he flipped backwards and fell on his head.
As he hit the ground, he blacked out. He had great pain in his neck and he could not move at all. He was very shocked and did not think he was going to make it to the hospital.
Margaret Tremeer did not use any of the equipment on this night. Immediately before the accident, she was about two or three metres away from the plaintiff and could see him clearly. She did not see him do anything silly on the equipment.
She had initially seen him approach the track ride, take hold of the handle and pull it to one end. He grabbed the handle with the palms facing his face and he pulled his legs up with his knees on his chest in a ball. She saw him go across to the other end and he did that again in the same way. On the third occasion, she saw him take off, then she turned to talk to Cathryn, she heard a thud and looked back when his feet and legs hit the ground but the upper part of his body had already hit the ground.
She said that he gripped the handle of the track ride with his inner arm facing toward his body in a chin up position and had his chin at approximately the level of the triangle handle. He swung his lower body, being his legs, up toward his body in order that he could proceed to progress down the length of the track ride. His knees were toward his chest and his legs were out in front of him. He was in a ball position but the lower part of his legs were out, that is, his knees were toward his chest and his legs were out in front of him. She had seen him do this manoeuvre on two occasions and it looked to her to be the same each time. It was at that point that Cathryn spoke to her.
When he landed, he ended up with sand in his mouth and she had to dig into the sand to get it out of his mouth so that he could speak. The sand was not soft.
The defence expressed some concern that since the plaintiff had said, in cross‑examination, that he felt a great jerk and his hand slipped, that this was some allegation of mechanical failure in the track ride. I did not understand the plaintiff to be suggesting that, any jerk came from the fact that his hands slipped and I certainly make no finding that there was anything mechanically wrong with the track ride, nor, I repeat, did I understand the plaintiff to be suggesting that.
It is my finding that the accident happened in the way in which the plaintiff and Margaret Tremeer have described. The plaintiff had pulled himself up onto the handle. Because the chain was very short, he was able to pull himself up very high. Because he had a lot more strength than a child would have, he was able to do that so that he was in a ball position, but his legs were out. Plainly he was moving and may have been rocking, as his hand slipped he somersaulted and landed directly onto his head. He was not crouched upside down with his legs above his head either pointing toward or around the central bar of the track ride, nor was his head pointing to the ground immediately before the accident. He had pulled himself up, what might be regarded as too high, because he had the strength to do that and because the handle and chain were simply too small for him so that when he pulled himself up eventually his hands slipped and he flipped over.
I do not consider that the evidence of the biomechanical engineer, Mr Scull, is inconsistent with the way in which I find that the accident happened. It is quite true that Mr Scull said that if the plaintiff's hands slipped off the handle while he was in an upright position, his body would have fallen as he rotated and rotation through 180 degrees in that period of time is simply not possible. It is not the case that his body was in a completely upright position. It simply was not upside down. He was not hanging from the track ride or on top of the track ride and his legs were not higher than his head.
In support of the proposition that the plaintiff was hanging upside down, the defence have also relied on statements in the various hospital notes. The plaintiff denies that he was capable of giving an account of himself after the accident and I accept that. It is also the case that the people who were taking the information were not concerned with a detailed account of the accident.
The first person who gave evidence of what he had been told was the paramedic, Mr Gray. Exhibit 5 is the patient's record completed by him and, under the heading of "History", he has written:
"PT fell a 3m from swing landing head first. PT loc approx 5 min (5/60). PT c/o pain in cervical spine at C5 (shoulder level). Diminished sensation progressively down back. Total loss of sensation mid thoracic spine. Sensation more prominent on left side. Abdominal resps."
Mr Gray was first asked to remember this matter over 10 years after it happened and, therefore, all that he says must be viewed in that light.
Mr Gray can only remember one other person being present but, in fact, there were three. He could not be certain where he got his information from but it must have been provided to him because he has written it down.
When he attended, the plaintiff was extended basically in a full‑length position. His legs may have been slightly bent but not in, for example, a foetal position and he was predominantly laid out face down on his abdomen and chest. His face was turned to one side.
Mr Gray's recollection is that he asked a question as to what happened and the reply he received was something like "I fell" and he thinks that he then said, "What, from up there?" Mr Gray said that he also relied on conversation with the other person who was present. One of the things he wanted to do was to identify that there had been a fall and that he had not tripped or been bashed or something of that nature. He then looked up and asked "From up there?" and the answer was "Yes" and he saw the bar traversing the area and he assumed that it meant from there. When he looked up, he did not see the triangular handle. He made the estimate of three metres himself.
I am unable to see that there is anything in that that contradicts the evidence of the plaintiff or Margaret Tremeer. The plaintiff did fall head first. It was from the track ride and it was Mr Gray's estimate that it was three metres.
When the plaintiff was taken to hospital, there is a hand over from the ambulance driver to the triage nurse. The next notes are her notes, Exhibit 42 in which the "Presenting complaint" is almost identical to that recorded by Mr Gray.
On Exhibit 42, the first line of the "Presenting complaint" says, "Fell 3 metres from monkey bar swing landed on head. ..."
In Exhibit 34, Mr Crowe, the orthopaedic specialist, has recorded:
"...
Fell from a flying fox in a playground.
Reportedly from a height of 7 feet or more directly onto head ..."
In Exhibit 35, Dr Wish‑Wilson has recorded:
"23 year old male this evening playing with flying fox - fell approximately 3 metres and landed on head."
It is more likely that these people have compared notes than that each one of them has sat down and taken a detailed history from the plaintiff or from Margaret Tremeer on this night. In any event, there is nothing is this material that the plaintiff disagrees with. The plaintiff has never said that he was in an upright position and then suddenly fell on his head. He has always said that his knees were pulled up but with his head higher than his body and when his hands slipped, he somersaulted over and landed on his head. It is likely that as he kept using the track ride he pulled himself up further so he was finely balanced and could have fallen either way.
Mr Hardcastle has also said:
"...
(He) was on a flying fox at Maylands, crouched upside down when for some reason he fell. He is uncertain of the reason for this as are any observers."
If the plaintiff was hanging by his feet, he would not have described himself as "crouched" but he was not upside down.
The defence also called Dr Dunjay who was then a registrar in attendance at Royal Perth Hospital. He was there when the plaintiff came in. He saw the plaintiff at reception and it was agreed that the registrar who would look after the plaintiff for the night was Dr Joseph and not Dr Dunjay.
Dr Dunjay says he has a recollection of asking the plaintiff how this happened and the plaintiff's response was that the plaintiff was hanging upside down from some children's playground equipment and he slipped and fell and landed on his head. This is not what I am told was said to Mr Gray.
Dr Dunjay was asked to recall these events of 14 years ago three or four months before the trial and has no notes at all and made no entries in the case notes.
Subsequently, in his evidence, he said that his understanding was that his knees hooked over something, perhaps supporting himself with his hands and his grip slipped and he fell. Dr Dunjay said that because he cannot actually recall the absolute specifics, he would be prepared to concede that it may have been the impression that he got.
I do not accept that Dr Dunjay's impression is correct.
None of the medical experts can really understand how this accident happened. With very great respect to them, that is because they have not spent enough time listening to the plaintiff and Mrs Margaret Tremeer. In reality, it is highly unlikely that this accident happened in any way other than the way in which the plaintiff and Margaret Tremeer, putting their evidence together, say that it happened.
The facts that are indisputable are that the plaintiff was found under the track ride. Furthermore, the plaintiff's injury was directly to the top of his head and that can be established by the x‑rays. If the plaintiff had fallen from the top of the track ride, it is unlikely that he would have ended up underneath the track ride. If this did not happen in some unexpected way, the plaintiff, I would expect, would have taken steps to protect himself. It is quite obvious that the plaintiff took no steps at all to protect himself. The injury in the circumstances is consistent with the fact that in the moment before his hand slipped he was crouched in a cradle‑like position moving forward, his hands slipped, he suddenly flipped into a somersault and hit his head before he had time to do anything about it and before he even realised what was happening.

So far as the medical people are concerned and their information about the facts, I accept that that was not the biggest issue to them. While, as the paramedic said, they would have some concern about the mechanics, what they are concerned about is whether a person has tripped or been bashed or something of that nature. They are not then thinking ahead toward legal action. The plaintiff was seriously injured. There was a photograph of him with a doctor and nurse in the newspaper. The plaintiff is particularly inarticulate. The medical people do not understand how the accident happened. If then it becomes a talking point in the morning tearoom, then a good deal of surmising, as in any office, may take place and after 14 years, it is impossible to say what is fact and what is surmising.
I am well satisfied that the accident happened in the way in which the plaintiff and Margaret Tremeer said.
At one stage there appeared to be some attempt, without any foundation at all, to blame the plaintiff's brother and to suggest that somehow the plaintiff's brother had pushed the plaintiff. It was never explained to me how that would have caused the plaintiff to fall on his head. This theory apparently came from the fact that after the accident the plaintiff's mother was very angry and asked them what they were all doing apparently in quite angry tones. I get nothing from this except that anger is part of the grieving process and it would be astounding if a mother did not grieve at having such a disastrous accident happen to one of her children.

Was the defendant negligent?

It should be noted that the plaintiff does not sue the third party. The plaintiff sues only the defendant. The defendant in turn seeks contribution or indemnity from the third party if the defendant is negligent.
The particulars of negligence provided in the statement of claim are as follows:
"The Defendant was negligent in that it:
(i)failed to provide any or any sufficient warning by sign or otherwise of the danger of using the flying fox;
(ii)failed to provide any supervision or instruction in order to ensure the safe use of the flying fox;
(iii)failed to inspect the flying fox sufficiently or at all in order to ensure that it was fit for use by members of the public;
(iv)failed to ensure that the hand grip on the flying fox was of sufficient size to safely accommodate two (2) adult hands;
(v)failed to endure that the hand grip on the flying fox was slip resistant;
(vi)in making the flying fox available to use by members of the public, caused the plaintiff to believe that it was safe for him to use it;
(vii)failed to ensure that the surface below the flying fox was soft and shock absorbent;
(viii)permitted the flying fox to be used by the Plaintiff when it knew or ought to have known that it was unsafe to do so;
(ix)failed to ensure that the hand grip of the flying fox could not swivel.
(x)by reason of the matters hereinbefore pleaded, contravened Australian Standard 255-1982 for supervised adventure playgrounds, Australian Standard 1924.2-1981 and Australian Standard 2155-1982."
In the pleadings the plaintiff refers to this piece of equipment as a flying fox while the defendant refers to it as a track ride. This was seen by the parties, not necessarily by me, as important to the issue of deciding whether certain Australian standards applied to it. Slowly during the hearing it came to be referred as a track ride but nothing turns on that. As will be seen from these reasons nothing in the end turns on this distinction.
As to particular (i), it seems to me that it is necessary for the plaintiff to establish that there was a danger in using the track ride of which the defendant was or should have been aware before it could be said to be negligent not to provide a warning and accordingly it will be necessary for me to deal with the other particulars and then return to particular (i).
As to particular (ii), the defendant was not negligent in failing to provide any supervision or instruction in order to ensure the safe use of the flying fox. The plaintiff used the flying fox at 9.00 o'clock at night. Furthermore it would not be economically feasible for any shire council to provide instructions in a park for the use of play equipment by adults or children. It was never intended that anything complicated be done on any of this equipment that would require instructions.
As to particular (iii), the flying fox was put in place only a few days before the accident and the defendant had spent a good deal of time prior to that in seeking out the equipment and ordering it from a reputable supplier. After it was put in place it was inspected by someone from the defendant's office and it appeared to accord with what had been ordered.
The next two particulars are an allegation of a failure to ensure that the hand grip on the flying fox was of sufficient size to safely accommodate two adult hands and a failure to ensure that the hand grip on the flying fox was slip resistant. With those two particulars of negligence I will also include particular (ix), the failure to ensure that the hand grip of the flying fox could not swivel.
In dealing with all of these matters I should comment that the defence appeared to be suggesting that there was something extraordinary about an adult using a piece of equipment that is generally considered to be a child's thing to play on. There is nothing extraordinary about that. Even on this night two of the others in the group had a slide. It is quite common, particularly for young adults, to use pieces of equipment in a park that are put there for children but are obviously, or apparently, strong enough to take the weight of an adult. That fact would be well within the knowledge of the occupiers of the park, although whether it would be within the knowledge of the suppliers of the equipment is a different matter.
In September 1992 Mr Andrew van der Meer, a consulting engineer, practising in Perth, inspected the equipment on behalf of the plaintiff. He concluded that the hand grip was technically unsafe because the covering of the grip was highly weathered plastic warn smooth by people's hands and he considered that the coefficient of friction between the grip and the person's hand could have been easily increased to make it safer. He would consider that a person's hand on the grip would not be safe as it would be by applying a better grip. At the same time Mr van der Meer conceded that he had not seen the grip until three years after the accident.
So far as the surface of the handle is concerned, in Exhibit 5.2 tendered by consent, Mr Ronald Price said the surface used on the hand grip, plasticised PVC, had comparable values for coefficient of friction to two other materials which could have been used, namely wood and steel. Further, in the dry state there was little possibility of a hand slipping on the hand grip.
In those circumstances it is not possible for me to make a finding that at the time of the accident the grip was unsafe and in providing that grip the defendant breached its duty of care.
As to the size of the hand grip there is evidence from both Dr Stephen Chew, a chartered professional engineer and a member of the Ergonomic Society of Australia, who originally reported to the defendant but was called by the plaintiff, and Mr van der Meer.
Dr Chew said that the handle hanging from the chain is triangular shape. It is 150 millimetres at the base and 110 millimetres at both sides. The base of the handle is approximately 1765 millimetres above the ground, or it was at the time he saw it. (It is important to remember that it had been lengthened by nine inches). Dr Chew went on to say that with reference to anthropometric estimates published for the average British population, he inferred that the width of the handle could accommodate the hands of children up to 12 years of age if it is meant to accommodate both hands on the handle side by side. If the hands are meant to overlap when grasping the handle then adults' hands can be accommodated. So far as the height of the handle is concerned, at the time of the plaintiff's accident it is consistent with the handle being in easy reach of a male person aged 14 years or older or by a female person over the age of 18 years. He said that he refers to the anthropometric estimates on a regular basis as a consulting ergonomist.
Mr van der Meer said that when he tried to use the handle he could not get both of his hands through the grip to properly support or suspend himself. He had to open up his hands inside and he found it very difficult to support his own weight on that grip. He is 80 kilograms and 1.72 metres tall. He actually tried to use the equipment himself. He grabbed the triangle device, put his feet on the platform at one end and attempted to propel himself forward by pushing with his arms forward on the handle device, at the same time pushing away with his feet. He observed that he had difficulty in supporting his body because of the confinement of the handle and the slippery surface.
In cross-examination it was put to him that the hand grip should be suitable for the use of children but Mr van der Meer did not agree and said the hand grip should be suitable for whoever can use the device. The fact that it was a children's playground does not preclude a use by adults and while he himself does not play on this equipment, he does have a grandson and on occasion has had to climb on to a device to retrieve the grandson when he gets too high and has played on equipment to demonstrate it to his grandson.
He had drawn to his attention Australian Standard 2555 at 7.3.1 which says:
"Ensure that the height of the hand grip above the take-off point is not greater than 137 centimetres (the height of a 50^th percentile 10 year old boy)."
Mr van der Meer said that if the device is there without warning signs and it is strong enough to be used by an adult then in his opinion the device should cater for the adult using it. He repeated that he had tried out the swing and the track ride and had almost fallen off because of the slippery handle.
So far as the swivel is concerned, Dr Chew said the way in which the handle is fixed to the chain it can rotate about its vertical axis by about one and a half turns or 540 degrees so that means that it can turn right round and it can turn half way again. Dr Chew was of the opinion that swivel capability in the chain and handle would not render the equipment unsafe so far as normal usage of it was concerned. Nor was he of the opinion that had the chain been nine inches shorter that would have affected the risk of injury associated with falling off the track ride, although he did express the view about the age of a person who might use the track ride and there he was dealing with the reach of the handle.
Of course the plaintiff did not suggest in his evidence that the handle rotated. He simply said that his hand slipped from the handle.
It may well be if the three things are put together, that is to say that the handle was too small to be perfectly suitable for an adult, the chain was very short and the handle could swivel, and added to that that the plaintiff pulled himself up fairly high, that may explain why this accident happened, that is why the plaintiff went into a somersault. It does not follow that simply because we can provide explanations from the equipment as to why the accident happened that the defendant was negligent.
Nevertheless it is the case that a reasonable occupier in the position of the defendant should anticipate certain things about play equipment which is left unattended in a public park. The most obvious of which are that no user can be relied upon to use the equipment in the way in which the designer may have intended, particularly when the designer has put no directions on the equipment and this is certainly the case with children. Indeed I have no evidence of the way in which the designer intended the equipment to be used. Furthermore, many young adults will have a try on equipment that looks strong enough to hold them. The fact that some unknown person somewhere decided that the equipment is only for a certain age group is unknown to them. The equipment is there. They have an invitation to use it.
Simply because the combination of the fact that the handle was not the perfect size for an adult, it appears that the chain was too short (although I hasten to say that that is not a particular of negligence) and that the handle could swivel which may, together with the plaintiff's actions, explained why the accident happened and also taking into account that the defendant should anticipate certain things about the users of the equipment does not mean that I find that in this way the defendant was negligent.
With the exception of the chain being nine inches too short, the equipment was a sound properly built piece of equipment. It would not be possible for an occupier to ensure against accidents or anticipate each individual way in which a user would use the equipment which may lead to an accident. To require a council to do that would place such a burden on councils that they would no longer provide play equipment in parks.
It does not follow from this that I am finding that there was anything negligent in what the plaintiff did but no defendant could be expected to anticipate this combination of events. Nothing in these reasons should be taken to indicate that any council could be expected to anticipate individually the many thousands of ways in which users will use the equipment. What they can, and must anticipate, is that that will happen, that is to say the equipment will be used by a variety of people and it will be used in a variety of ways, not simply in the way that a few people sitting in an office anticipate and it is their duty to take all reasonable steps to protect the users including, if necessary, protecting them from their own foolishness. That is not an outrageous proposition. It is no different from the duty we apply to road users every day.
Moving on then to item (vii), that is an allegation that the defence failed to ensure that the surface below the flying fox was soft and shock absorbent.
It was clearly the duty of the defendant to ensure that the surface below the play equipment was soft and shock absorbent and in that the defendant failed and was negligent. Then the matter to be determined is whether or not that caused the plaintiff's injury.
The reason that I find that it was their duty is that there is an enormous amount of material which indicates that this particular defendant was well aware of the number of injuries that occur from falls from play equipment and well aware of its duty to provide a soft and shock absorbent surface under the equipment.
This finding mainly comes from the evidence of Mr Steven Few who until 28 July 1989 was a technical officer in the design section of the Parks Department. Exhibit 9 is a book of documents in relation to the playground tendered through Mr Few. He left the employ of the City of Stirling before the play equipment was actually put in place.
Document number 3 in Exhibit 9 is the project specification for the design, supply and installation of a model playground facility at Bardon Park. Under the heading "Extent of Work" it says inter alia:
"All work shall be carried out in accordance with the Standard Specifications for Playground Equipment and all relevant Australian standards."
Mr Few said that in fact Australian standards were the minimum standards required and the defendant's standards were in some cases higher than that.
After Mr Few had prepared the various documents he took them to Mr R A Godwin, the Manager of Parks and Reserves, to be signed and Mr Godwin did in fact sign them. The defence accept that that was the case and it was not necessary for Mr Godwin to be called to give evidence.
Mr Few's evidence was that there should have been and there was to be a sandpit under the track ride as part of playground development but that was not to be done by the third party, it was to be done by the defendant. There was also a direction in relation to any sandpit that was to be constructed by a contractor which provides as follows:
"Where sandpits are to be constructed, the contractor is to allow for the filling using clean sand to 0.3 metres in depth, as supplied adjacent to the sandpit by the City of Stirling."
This was for junior play equipment to be used by smaller children. There was a policy that for playgrounds there should be soft surfaces and the defendant had an in-house policy to do that itself.
At p 39 of Exhibit 9 is a document in relation to the Royal Australian Institute of Parks and Recreations of which Mr Few had been a State Councillor. In that capacity he was developing a seminar on the future of playgrounds and indeed the seminar took place on 21 August 1987.
At p 79 there is a paper given by one Len Evans, Safety Co-Ordinator for the Education Department of Western Australia who says:
"Generally, 7 out of every 10 injuries ... WERE CAUSED BY FALLS – the most common playground accident.
The type of surface on the playground was a major factor affecting the number and severity of injuries associated with falls. Hard surfacing material such as concrete, asphalt and even soil when compacted do not provide injury protection from accidental fall impacts and are therefore unsuitable for use under playground equipment.
More resilient, impact absorbing surface material, such as white sand, wood chips, pea gravel or shredded rubber tyres for example, appear to provide greater protection to a child in the event of a fall.
While protective or impact absorptive surfaces such as these may not have reduced the number of injuries from falls, these materials may have reduced the severity of the injuries, and appear to provide greater protection to a child in the event of a fall. However, these materials do require continuous maintenance to retain their optimum impact absorption effectiveness."
At p 88 of Exhibit 9 there is a memo of 11 March 1988 from Mr Few to the Manager, Parks and Reserves/Parks Maintenance Co-Ordinator about playground surfacing. In preparing that memo he had regard to the papers that are found at pp 93-116 of Exhibit 9. Subsequently Mr Few took out quotes from the annexures to draw to the attention of the meeting at the City of Stirling and it can be seen from the memo that he has attached these articles to the memo.
The articles make it clear that the surface under the equipment can lead to very serious injury, including permanent brain damage or death and that a series of simulated falls from a height of three metres showed that grass and bare soil gave poor results.
At p 119 of Exhibit 9 are the minutes of the Community Services Committee of 13 September 1988, that is to say 12 months before this accident. Mr Few did not attend that meeting but he did convey his views by memos and item number 11 relates to playground development policy. There is a recommendation, subject to confirmation by Council, at p 123 of Exhibit 9.
"The City of Stirling has no policy in relation to the placing of protective surfaces under playground equipment although it recognises the need for such surfaces under its Model Playgrounds. Under all Model Playgrounds the City has placed boxed in white sand of a considerable depth but with local playgrounds there is only the natural surface of grass. From this the City is currently demonstrating an inconsistency with its approach to safety issues relating to falling surfaces throughout its playgrounds. This is further illustrated by neighbouring Councils taking the approach of sand pitting all playgrounds.
Discussions with the City of Perth have found that their policy requires all playgrounds to have boxed in sandpits approximately 300 mm deep placed under all equipment at a cost on average of $2,000 per box or $12.00 per square metre.
Discussions with Kott Gunning have also indicated that the City is currently in a liable position by demonstrating inconsistencies between its Model and Local Playgrounds."

It should also be noted that in Exhibit 13 which is the third party's catalogue, on any spare page at the right-hand corner of that page the third party has printed the words "We recommend use of resilient material to provide a safety surface under and around all play equipment."
It is clearly incumbent upon the defendant to provide soft surfaces under the equipment and to fail to do so is negligent. The fact that the City of Perth provided loose sand to 300 mm deep does not necessarily mean that that is sufficient. It is for the occupier providing new equipment to take all reasonable steps to ensure that there is sufficient soft surfacing under play equipment.
The submission of the defence is that the only evidence the plaintiff put forward in relation to the surface was an examination of it three years after the accident, that is to say, the inspection by Mr van der Meer and the tests done by Soil and Rock Engineering. It is said that Mr van der Meer's evidence that the surface as inspected by him in 1992 looked the same as that depicted in Exhibit 1 is not satisfactory evidence. The evidence of the ambulance officer, Paul Gray, and of Margaret Tremeer is not sufficient to attach any relevance to the inspection of the surface by Mr van der Meer in 1992, nor the examination of the soil under the track ride and the surface under the junior playground equipment at that time.
I am quite unable to agree with that submission.
Exhibit 1 is three photographs of the track ride and the surface under the track ride. These photographs were produced by the defence and Exhibit 1.2 has a date on it of 25 September 1989, that is three days after the accident. It can be seen that under the track ride is grass and yellow sand, that is bare soil. There is no loose sand at all. There is no boxed out area containing a foot or more of loose sand. Exhibit 1 was shown to the plaintiff's expert, Mr van der Meer, and he said that that is how the ground looked when he saw it.
Margaret Tremeer's evidence is that when she went to the plaintiff immediately he had landed he had sand in his mouth and she got the sand out of his mouth so that he could speak. She had to dig into the sand and it was not soft sand.
Mr Gray, the ambulance officer, said that his memory is that the ground surface was uneven. The plaintiff was lying mostly, but not necessarily exclusively, in a depression that had a sandy bottom to it and there was grass on either side. He said that he remembered the surface underneath the plaintiff being sand but it was reasonably firm. He was trying to get his hand underneath the plaintiff to examine him and had a degree of difficulty doing that but there was some sand there.
Mr John McMullen is a technical officer with the City of Stirling and has been since September 1979. Prior to that he was a Horticulturalist with the City of Perth. At the time this equipment was put in he was responsible for the construction and supervision of various park and playground facilities and equipment in the City of Stirling.
He was involved at the time of construction and did what he called "a quick observation" because the equipment looked like it had been built according to the plans.
The footings were concrete. Sand was there initially for that purpose and the rest of the area was grass. So far as the surface is concerned, it was grass mainly and they disturbed it when they dug the footings in because there were about 20 or 30 uprights. The cement would have been mixed in the corner of the car park. They do not use a lot of yellow sand but he had seen what was obviously Exhibit 1 where there is yellow sand lying around but that was put there after the equipment was installed. He agreed it was similar to builder's sand and that it can compact when it is wet. He further agreed that it was quite possible that a depression formed under the track ride in the two months since it was installed in the middle of July because in most playground equipment a depression forms under it.
Exhibit 18 is a report from Mr van der Meer. In that report he says:
"We have engaged the services of Soil and Rock Engineering Pty Ltd, a firm of consulting geo-technical engineers, to assist us with the investigation of the ground in the vicinity of the playground equipment. Their report, which is attached, essentially finds that the ground under the flying fox on which your client was injured was very hard and dense. The ground under other equipment in the playground was much softer as a different material was placed under the other equipment."
Mr van der Meer then goes on to refer to various Australian standards that talk about the ground below equipment being shock absorbent. There was a dispute during the course of the trial as to whether that particular standard applied to this equipment. It seems to me that in the circumstances of this case it makes no difference. It is quite clear from the evidence of Mr Few and the documents in Exhibit 9 that the defendant was well aware of the necessity for substantial shock absorbing material under this equipment and they simply did not do it.
Later in his report Mr van der Meer says:
"We note that the report from the geo-technical consultants stated that the ground under the flying fox was indeed very much harder than the ground under the other equipment at this site.
We propose to carry out some form of mathematical analysis to demonstrate that a person falling on the hard ground is subject to a more concentrated, and a higher intensity force than a person is landing on soft ground. In laymen's terms when you land on soft ground the ground has a longer time to bring you to rest and therefore a smaller peak force is required to do this. When you land on harder ground the peak force is much greater and more concentrated on your body, and therefore when landing on hard ground you are more likely to cause localise problems in your body, eg. broken bones, etc."
Subsequently, taking into account information that he had received from Soil and Rock Engineering Pty Ltd comparing the sand under the track ride with the looser sand in other parts of the park, he said he believed that an object being brought to rest by the firm sand would experience a force approximately 2.44 times greater than that experienced by the object coming to rest in the loose sand.
I should say at this point that I do not necessarily find that the loose sand in other parts of the park is an adequate standard. It is simply an evidentiary matter how much firmer the sand is under the track ride even than under other equipment in this park.
In evidence Mr van der Meer said that had the soft ground which was used for comparison been something like beach sand the difference would have been more in the order of four or five. The rate of deceleration is very important and a body will decelerate faster in hard sand than soft sand.
Dr Stephen Chew was called by the plaintiff but during cross-examination large sections of his otherwise untendered report were read to him with obvious approval by defence counsel, he having originally reported to the defence.
Dr Chew conceded that he was not qualified to say whether the presence of loose sand under the track ride would have prevented the plaintiff from suffering quadriplegia because that was outside his area of expertise. However in his report he did say:
"Under such circumstances and notwithstanding the fact that the abovementioned actions can be considered as a misuse of the track glide, the presence of soft sand instead of grass grown beneath the track glide on balance of probabilities can absorb a significant part of the energy associated with the falling user thereby having a better chance of reducing the severity of injuries associated with the fall."
Mr Gilmore in cross-examination suggested that this was simply applying commonsense. Dr Chew did not agree with that. He agreed he was not a medical person but said on the other hand his view was formed on the basis that with soft sand the person falling on to it would have more of the energy of the person falling being absorbed in the sand thereby reducing the magnitude of the impact force on the person. He said that while it may be called commonsense what it means is the less force you have the less impact there is on the person.
It was then suggested to him, no doubt with the future evidence of Mr Scull in mind, that science could surprise him and Dr Chew said:
"What I'm trying to say is it's not just because it's commonsense. I said it because there's scientific basis to it and the basis being that an object falling onto soft sand will have more of the energy absorbed and therefore the force, the impact forces will be smaller in comparison to falling on harder ground."
The late Mr Ellis Griffiths in his report of 19 January 1999 deferred to Mr Scull but went on to say:
"I have, in my previous report to you of 15 October 1992, made certain comments about impaction upon the head and cervical spine by a fall from the erect position with the trunk and head striking the ground. A rigid hard surface impacted by the head would be likely to cause more trauma than that of a softer material.
However in the case of diving, which is a very common injury encountered during our summer season, it is not uncommon for a swimmer to be dumped head first into a sandbar and certainly not all of these injuries result in major neurological trauma as in this young man's case.
However a certain number of young men do become propelled head first into a soft sandbar and still develop neurological deficit. I cannot think that the rigidity of the surface encountered is all important in the development of such a major disability."
The fact is that it is not possible ever to be able to say what the sand that a surfer has fallen on to is like. It may be hard and it may be a swirling soft surface so there is no way really of making a comparison with people in the surf because the effects of nature are such that the ground surface must vary each time.
Incidentally it is notable that in his report of 15 October 1992 Mr Griffiths compared the plaintiff's injuries to the injuries of someone who has had a diving accident. People who have had diving accidents do not as a rule simply fall onto their head. They propel themselves into the ground which would be more consistent with the way in which the plaintiff says this accident happened than the way in which the defence say this accident happened.
In his report of 30 May 1995 Mr Philip Hardcastle said:
"With respect to the question you have specifically asked concerning whether or not if he had landed on compactable beach like sand as opposed to the sand he actually fell on, whether the injuries would have been as severe as those he sustained. In my opinion the answer would be that someone falling from this particular height landing on soft sand is much less likely to have sustained the severe injuries that he sustained landing on hard sand. I have seen a number of burst compression injuries of the cervical spine in the 10 years I have been working at the Spinal Injuries Unit and although I concur with Mr Griffiths' comments there have certainly been a number that have escaped complete neurological damage by virtue of going into soft sand or soft turf, such as football injuries. Although one doesn't have any documented medical papers, one could tabulate quite a significant reduction in force applied to the spine when the head hits a soft surface with a degree of so-called 'give' as opposed to a firm non-givable surface. Safety helmets with respect to riding horses or bikes have a certain amount of give in them so that if the particular person hits the ground the cushioning effect reduces the possibility of more severe injury and in my opinion this is a similar situation."
By the time he reported on 20 October 1997 Mr Hardcastle had seen the report from Mr Scull and deferred to it and he said:
"In this report my opinion has been that there is a significant reduction in force applied to the spine when the head hits a soft surface as opposed to a non-givable surface and this is borne out in the ETRS results (Nusholtz) but that said from the information from this latter report the forces involved in Mr Tremeer's case descending from a similar height and velocity similar to what the situation with Mr Tremeer are quite significant and certainly well above what was necessary to cause fracture of the vertebra."
Two reports from ETRS were tendered without the necessity for evidence being called. Scientific tests were done by them in relation to the difference between falling on grass and falling on sand. It is important to keep in mind that the test on the sand was that the sand was dry, not compacted in any way, and was screed flat before each test. The test used for grass was on a couch variety and a new location was used for each test to discount any compaction of the soil after each test. ETRS postulated that a soft surface will lead to a greater impression depth and that this increases the total distance travelled during deceleration and this in turn is expected to decrease the magnitude of decelerating forces.
As a result of the tests that they did they estimated that the moment at the occipital condyles ranged from 345.9 Nm to 1482 Nm. These values exceed the injury threshold of 189.8 Nm by a factor ranging from 1.82 to 7.81.
Further tests showed that:
"A reduction in the estimated moment; injury threshold moment ratio of 0.38 may be achieved by a replacement of the grass surface by a sand surface. This could suggest that a reduction in injury severity may also be possible but it must be noted that for impact with either surface, the estimated moment is well above the injury threshold. The variation in injury severity depends on how proportional it is to the moment due to the impact. The survey of the research literature conducted as part of this report highlighted the lack of correlation between the two parameters. This makes any prediction of the change of injury severity somewhat speculative in this case.
It can also be seen ... that all other factors being equal, a fall onto a grass surface produces a moment which is, on average, 20 per cent greater than for sand. ... This also suggests that a change from grass to a sand surface may reduce injury severity.
...
Since there is a substantial variation in individual biological characteristics, it is not possible in this report to predict quantitatively how much reduction in injury severity (if any) will occur. It is suggested that consultation with an orthopaedic surgeon or similar in conjunction with the above results may assist in clarification of this point."
Finally ETRS concluded:
"With such a large margin over the injury threshold, it is our opinion that in practice, the substitution of sand for grass under the ride would not have substantially reduced the injury to Mr Tremeer's neck."
It can be seen that what ETRS has done is compared grass with flat sand. No tests have been done on a foot or more of loose beach sand and certainly not a foot or more of loose beach sand in a depression.
Mr Scull is head of the Department of Medical Engineering and Physics at Royal Perth Hospital and has been involved in research particularly relating to spinal cord and the particular studies that he was involved in were looking at the response of the cord tissue itself to very high speed trauma.
When Mr Scull had a look at ETRS figures, according to his report of 2 May 1997, with the additions he made he pointed out that:
"The deceleration of the body into sand is 56 per cent of that into grass with this correction, compared to 49 per cent derived from the ETRS experimental figures [and therefore] it adds further weight to the conservative nature of the estimates provided in the ETRS reports which compare the two situations."
Mr Scull in his report goes on to say:
"Because of the temporal relationship between tissue trauma and the generation of forces during the course of impact referred to in the literature it is difficult to be categoric that sand would perform significantly better than grass so as to prevent spinal injury in an incident such as that involving Mr Tremeer. Detailed knowledge of the penetration – time characteristics of sand and grass, under conditions (eg impacted geometry and impact energy) similar to the incident would be required to make such an evaluation. If a sand base were to be considered to provide sufficient shock attenuation to prevent injury, it is obvious that the presence of sand alone is not going to guarantee such a result. It is suggested that factors such as the quality and composition of the sand, its compaction and its moisture content could all act to significantly change the shock absorbing capacity of a sand base."
Later on he says:
"Because of the complex dynamics involved, I cannot exclude the possibility that Mr Tremeer would have been spared the severe injuries incurred by the impact on a grass surface had he sustained a similar fall onto sand. One cannot exclude the possibility that a different fall under similar conditions on to sand could have produced a different complex of injuries with a worse prognosis.
It is my opinion however that, because of the severe nature of the impact and the predisposition of the cervical spine to trauma under such an impact it is highly unlikely that an identical impact on sand would not have cause a significant injury. In the event that the shock attenuation offered by sand, as evidenced by the reduction in peak deceleration at impact when compared with that for the grass surface, was sufficient to ameliorate the primary injury attributed to the burst fracture of the body of C5, it is still probable that the secondary injuries associated with axial compression – flexion loading of the spine and lateral bending – rotation would have caused injuries sufficient to compromise the spinal cord (eg injuries such as fracture dislocation, vertebral subluxation and ligamentous tears, etc) resulting in quadriplegia."
Attached to the back of Mr Scull's report is a figure crouched upside down in the way in which Mr Scull thought that the plaintiff was but I have found that he was not.
It is certainly the case that the factual basis on which he relied is different from that which I have found but I am not sure that makes any difference to his ultimate conclusion save that the plaintiff fell further than he has estimated.
During the course of his evidence-in-chief, Mr Scull had put to him the last two paragraphs in his report I have quoted above and was asked what he was actually saying and he said:
"What I'm saying is that you cannot exclude either end of the range of possibilities associated with a complex impact like this. However I think if you look at the growing body of evidence as to what is the tolerance of the cervical spine to an impact of this kind the sorts of decelerations that have been measured from the work by ETRS and others are significantly greater than the levels of tolerance that are currently being referred to in the literature and the expert literature in this area and I believe this would give a high probability regardless of which surface you fell into under these circumstances of significant injury." (T1049)
In cross-examination the following exchange took place:
"And I think that you have also mentioned in your report that the moment of impact of the head and the position of the body at the time is critical? --- It is critical in that it probably predisposes the way in which the trauma is going to occur to the spine, yes.
What I'm saying to you is that let's assume his body was turning, let's assume that for one minute, and it made impact with the ground a moment earlier or a moment later. One would expect a totally different complex of injuries? --- It's a speculative scenario but one would expect, as there is with any defined impact, a range of possibilities. One would obviously expect a range of different outcomes." (T1051)

A little later the following exchange took place:
"What I'm saying to you is if that – you have to just accept if her Honour finds that that's the way the accident occurred, what I'm suggesting to you; if his body was going through a turn and if you look at your diagram, if it happened a moment earlier he would have hit his back and if it had happened a moment later, he is busy turning into that position, he would have probably hit his face, the front of his body, do you understand what I'm getting at? --- Yes.
Is that fair to say if we are looking at your diagram? --- Yes, I think that's a possibility but I have no way of saying whether it's right or wrong.
I'm just getting away from the head? --- Yes.
A moment earlier, if he fell like that, would have hit him below the head, on the back or ---? --- Yes. That's plausible.
That's true? --- Yes.
And then the next thing I want to put to you is that we have evidence in this case that below this equipment was a depression alright and he fell towards the middle on his head. Now if the depression that I'm telling you was filled with soft sand, then his body would have struck the surface earlier? --- Yes.
So it's likely that he would hit his head, he would have hit himself below the neck area a moment earlier? --- Well, yes, going along with the scenario being presented, yes, there's a possibility of that too." (T1053)
It can be seen from all of this evidence that there is even with sand which is screed flat taking ETRS figures together with the comments made by Mr Scull the deceleration of the body into sand is 56 per cent of that into grass. Accordingly if there was a foot or more of loose beach sand the reductions would have even been greater. I have not been given what they would be but sufficient probably to prevent this injury.
This is not even a situation where the defendant did something but did not do enough, this is a situation where the defendant did nothing when it well knew that there was a substantial risk of injury from falls and had had warnings from its own legal advisers.
It is my finding that the defendant was negligent in failing to provide sufficient sand. I make the point that one would expect the higher the piece of equipment is, the deeper the sand would be and therefore if it is to be a foot of sand under junior equipment, I would expect under senior equipment to be substantially more than that.
In all the circumstances I am satisfied on the probabilities that the breach of duty caused the plaintiff's injuries and it certainly materially contributed to the plaintiff's injuries: see The State of Western Australia v Watson [1990] WAR 248 and McGhee v National Coal Board [1972] 3 All ER 1008.
For the sake of completeness I should deal with the remaining particulars of negligence being (i), (vi), (viii) and (x).
So far as subpar (i) is concerned, as it has transpired from these reasons there was nothing about which the defendant was required to warn the plaintiff. Certainly the defendant would not be required to warn the plaintiff as to the surface under the flying fox because that would be to warn the plaintiff of the defendant's negligence. Given that there was so much argument about warning signs I would say that I do not find it convincing to suggest that warning signs should not be given because we live in a multicultural society and they would have to be given in a number of languages. International symbols can be used. It would have been a simple matter had they wished to do so or needed to do so for the Council to put a stick child in a green circle with a tick on it and a stick adult in a red circle with a red line through it. Furthermore I have never known councils to allow multiculturalism to stand in the way of forbidding or charging for parking. I presume an inability to speak English would not be considered a defence to the imposition of a fine for the breach of some sign in English.
Furthermore I do not agree that generally speaking people do not obey signs. I think that most Australians do obey signs. I certainly believe that this plaintiff would have obeyed a sign and I accept his evidence that he would not want to break the equipment. It seems to me that the plaintiff and his family are a particularly law abiding group of people. Furthermore lawyers and judges tend to have a fairly jaundice view of the rule obeying proclivities of the average citizen. That is informed by our own narrow compass in that generally we deal with people who fail to obey rules. The reality is that the vast majority of Australians do obey rules and signs but we see only those who do not or who do not have the benefit of such signs or warnings.
As to subpar (vi), I agree with the proposition that in making the flying fox available to use by members of the public the plaintiff was caused to believe it was safe for him to use. Of course it was safe for him to use except for the surface underneath it.
As to subpar (viii), the only way in which it could be said that the defendant knew that it was unsafe was again in relation to the surface under the flying fox.

Contributory negligence

The onus of proving contributory negligence is upon the defendant and the test is whether the plaintiff failed to take reasonable care for his own safety and that depends upon the circumstances of the case. In Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 570 Mason J noted the difference between negligence and contributory negligence:
"Contributory negligence differs from negligence. There is no duty of care owed to another person (Nance v. British Columbia Electric Railway Co. Ltd. [1951] AC 601 at 611]; and contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk."
His Honour added that the standard was that of a prudent and reasonable man.
It is my finding that the defendant has not made out the plea of contributory negligence in this matter. To endeavour to establish contributory negligence the defendant says that the equipment was for children and that the plaintiff did not use it in the way in which the plaintiff should have used the equipment.
There was nothing about this piece of equipment that would indicate to the plaintiff that it was only for children. The equipment was in a park to which the public had access, there was an invitation to use it. If the defendant wished to convey to the plaintiff that it was not for adult use, the defendant should have said so in some way or another. The defendant's difficulty in relation to the way in which the plaintiff used the equipment is that the defendant does not have any evidence that there is a particular way in which this equipment should be used. At least in relation to the age of people using the equipment it appears that the manufacturers intended it to be used by older children and that the defendant had that in mind although they conveyed that to no one. With the method of use all I have in evidence is a number of adults telling me how they think the piece of equipment should have been used.
Furthermore earlier in these reasons I have rejected the defendant's explanation for the way in which this accident happened.

Volenti non fit injuria

The risk the plaintiff is said to have agreed to run was the risk of being injured from a fall whilst suspended upside down on the track ride with his head some distance above the ground surface. Alternatively the risk of a fall while climbing on top of the track ride. Furthermore it is alleged that the plaintiff was intoxicated at the time.
I have already found that there is no evidence that the plaintiff was intoxicated at the time and furthermore that the accident did not happen in the way in which the defendant has said. The injury occurred because of the surface under the track ride and there was nothing in the plaintiff's behaviour that could be said to indicate that he voluntarily accepted the risk of injury in the circumstances of this particular case.

The third party

It follows from these reasons that the defendant's action against the third party must be dismissed. The third party did nothing negligent. On the pleadings there was nothing wrong with this piece of equipment. The injury was caused or materially contributed to by the surface underneath the track ride which was never the third party's responsibility.