Victorian WorkCover Authority v Tarnagulla Recreation Parks Committee of Management Incorporated & Anor
[2015] VCC 826
•26 June 2015
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO Common law DIVISION | Revised Not Restricted Suitable for Publication |
general list
Case No. CI-13-06496
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| TARNAGULLA RECREATION PARKS COMMITTEE OF MANAGEMENT INCORPORATED | First Defendant |
| and | |
| LODDON SHIRE COUNCIL | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 12, 13 and 14 May 2015 | |
DATE OF JUDGMENT: | 26 June 2015 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Tarnagulla Recreation Parks Committee of Management Incorporated & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 826 | |
REASONS FOR JUDGMENT
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Subject: NEGLIGENCE
Catchwords: Person in course of employment rode his mountain bike into fence and was injured – contribution proceedings brought by Victorian WorkCover Authority against the first and second defendants pursuant to s138 of the Accident Compensation Act 1985 – Court to decide factor X in respect of each defendant – land occupied by first defendant – land owned and controlled by the second defendant – Court held riding bike into fence in manner that person did was not foreseeable and far-fetched or fanciful – Court held that negligence of first and second defendant not proved
Legislation Cited: Wrongs Act 1958, Part X, s48; Accident Compensation Act 1985, s138; Local Government Act 1989
Judgment: Judgment for the first and second defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Kumar | Russell Kennedy |
| For the First Defendant | Mr D McWilliams | Thomson Geer |
| For the Second Defendant | Mr W C Grainger | Minter Ellison |
HIS HONOUR:
Time and place
1 It happened on 10 November 2011. It was a beautiful time of year and there were lots of wildflowers out[1] in the Tarnagulla district.
[1]Transcript (“T”) 126
2 Tarnagulla is a hamlet situated in the middle of the region known as “The Golden Triangle” in Central Victoria. The Tarnagulla population is approximately 150. Tarnagulla is an historic goldmining town and it features trails through and around neighbouring countryside.
3 In a south-westerly direction on the outskirts of the township is situated the Tarnagulla Recreation Reserve. There is a post and wire fence that separates the Recreation Reserve from the Tarnagulla Reservoir (“the Reservoir”). The original post and wire fence was in position in 1884.[2] The fence was most recently rebuilt in 1994, some seventeen years prior to the events that are the subject of this proceeding.[3]
[2]Exhibit D1D
[3]T185
4 The fence is parallel with, and at the foot of, the embankment to the Reservoir.
5 Mr Sean Quayle, in the course of his employment with Community Vibe Pty Ltd, rode his mountain bike into the fence and was injured.
6 The fence was constructed by the Committee members of the Tarnagulla Recreation Parks Committee of Management Incorporated.
7 The materials for the fence were provided by the Bet Bet Shire Council, which was the municipal body in charge of the Reservoir in 1994.[4] The second defendant, Loddon Shire Council, has taken over the responsibilities of the Bet Bet Shire Council as the owner and occupier of the Reservoir.
[4]T188
8 The fence has served the purpose of three functions:
(a) it delineates the boundary between the Council owned Reservoir and the Tarnagulla Recreation Reserve (Crown land);
(b) it fenced the original town water supply in the Reservoir to keep people and animals out of the water supply;[5] and
(c) it was to deter people from climbing up the bank of the Reservoir, and slow down little children from accessing the Reservoir from the Recreation Reserve area.[6]
[5]T191
[6]T191
9 Mr John Sutton had been a member of the Tarnagulla Recreation Reserve Committee of Management since the 1980s.[7] He was the person in charge of the rebuilding project for the fence in 1994.[8] He stated the fence was of steel post construction (star pickets). The fence had two plain wires at the top and “Cyclone 7, 36, 24”.[9] This description of the Cyclone wire was that it was seven lines of wire which was 36 inches high and had 24-inch spacings. The Cyclone fence had a barbed wire added to the top of it to “stiffen” the fence.[10] The overall height of the fence was 4 feet.[11]
[7]T177
[8]T187
[9]T190
[10]T194
[11]T194
10 On the first day of the trial, the parties and the Court attended a view at the Tarnagulla Recreation Reserve. We walked around the Reservoir track and along the top of the Reservoir embankment, which is above the fence separating the two properties. We then assembled in the carpark area of the Recreation Reserve and observed the area of the fence that Mr Quayle rode into on his mountain bike and was injured.
11 All parties, and the Court, had the group of photographs that would become exhibit D1C in the trial and which were taken by Mr Quayle six days after his accident.
12 The scene of the accident is a bush setting with a conventional Cyclone fence with steel posts across the foot of the Reservoir embankment. The embankment has an area on it which has been scoured by some foot traffic and erosion from water et cetera. In evidence, this area was referred to as a track or a path. A more accurate description is that it is a break in the vegetation on the Reservoir embankment. It is clear that humans and wildlife may have used this area to go from the Reservoir to the Recreation Reserve and vice versa. It is also clear that there is a dividing fence between the two areas.
13 The fence at the time of the view had been strained up to its original position. The photographs in exhibit D1C, as just noted, were taken by Mr Quayle on 16 November 2011, six days after his accident on 10 November 2011. The photographs show the condition of the fence after Mr Quayle crashed through or over the fence and had been retrieved from the Reservoir side by ambulance paramedics who were potentially dealing with a patient with spinal injuries. The photographs show the Cyclone wire squashed down with the top two plain strands of wire down to the same level as the Cyclone wire. As you face the embankment, there is a steel post one to two metres to the left of the “track” or gutter.[12] This steel post is one of the posts making up the line of the fence between the two areas.
[12]T227
The proceeding
14 The plaintiff, the Victorian WorkCover Authority, brings this proceeding against the first and second defendant pursuant to s138 of the Accident Compensation Act 1985 (“the Act”). The “formula” is set out in s138(3) as follows:
“(3)The amount which a third party is required to pay as indemnity under subsection (1) is the lesser of—
(a)the amount of compensation paid or payable under this Act in respect of the injury …; and
(b)the amount calculated, were it not for the provisions of this Act, …, in accordance with the formula—
where—
X is the extent, expressed as a percentage, whereby the third party’s act, default or negligence caused or contributed to the injury …;
Ais the amount of damages (disregarding the extent, if any, whereby any other person’s act, default or negligence caused or contributed to the injury …) for pecuniary loss and non pecuniary loss which the third party is or would have been liable to pay in respect of the injury …;
Bis the amount recovered or recoverable by the Authority, the self-insurer or the employer under section 137 from the Transport Accident Commission (otherwise than under a settlement);
Cis the amount paid by the third party in respect of the injury … to the worker … under any settlement of, or judgment in, an action by the worker or dependants of the worker against the third party.”
15 The parties have agreed the following in respect of the component parts of the formula:
A = $300,000
B = Nil
C = $37,500.
16 The only issue to be decided by the Court in this proceeding is Factor X in respect of each defendant.
People and parties
(a) The Plaintiff
17 The plaintiff is the Victorian WorkCover Authority. The plaintiff brings this proceeding pursuant to s138 of the Accident Compensation Act 1985.
(b) The injured worker, Sean Quayle
18 Sean Quayle was an employee of Community Vibe Pty Ltd. Mr Quayle was a qualified forester but was working as an assessor of trails and points of interest along the trails in the Tarnagulla region. It was in the course of performing his work in this capacity that he rode his mountain bike into the fence between the Reservoir and the Recreation Reserve.
(c) Community Vibe Pty Ltd – the employer
19 Community Vibe Pty Ltd employed Sean Quayle. Mr Quayle’s former wife was the director of Community Vibe Pty Ltd. Mr Quayle was a shareholder of Community Vibe Pty Ltd.
20 Community Vibe Pty Ltd had entered into an agreement with the Loddon Shire Council to conduct a survey and assessment of trails and points of interest along the trails in and around the Tarnagulla township. The agreement was reached after telephone and direct conversations between Mr Quayle and Mr Timothy Jenkyn, acting in his capacity as Manager of Community Planning for the Loddon Shire Council. Prior to 10 November 2011, Mr Quayle and Mr Jenkyn had driven over some of the trails which went around the Reservoir. The telephone conversations were followed by an avalanche of emails with attachments from Mr Jenkyn to Mr Quayle from June 2011 to immediately before 10 November 2011.[13]
(d)The First Defendant – Tarnagulla Recreation Reserve Committee of Management Incorporated
[13]Exhibit PB – exhibit PP; exhibit PR
21 The first defendant is an Incorporated Association which was declared a Corporation on 1 May 1991. It was the managing Committee for the public park on Crown land known as Tarnagulla Recreation Reserve. At the time relevant for this proceeding, Ms Wendy Sutton was the secretary/treasurer of the first defendant. Mr John Sutton was a Committee member. Mr and Mrs Sutton are married and both gave evidence in this proceeding.
22 There was no evidence of any contractual relationship between the first defendant and Community Vibe Pty Ltd. I accept the evidence of Mr and Mrs Sutton that the first defendant had no knowledge or advice from any person that Mr Quayle would be conducting his survey and assessment on the Tarnagulla Recreation Reserve on 10 November 2011, or on any other day.
(e) The Second Defendant – Loddon Shire Council
23 The second defendant is a Shire Council under the Local Government Act 1989 and capable of being sued in its own name. The second defendant is the owner of the Reservoir. The second defendant is the successor in title to the Shire of Bet Bet which previously owned, occupied and controlled the Reservoir. The second defendant, through Mr Jenkyn, had contracted with Community Vibe Pty Ltd to conduct a survey and assessment of the trails and points of interest in the Tarnagulla area.
The events
24 In the morning of 10 November 2011, Mr Quayle started his work at approximately 9.00am to 9.30am at the town centre of Tarnagulla.[14] Mr Quayle then rode out by bicycle to Newbridge on a trail he was assessing and on the way back to Tarnagulla, he diverted to the cemetery trail and then to the township.[15] In his evidence, Mr Quayle stated that whilst referring to exhibit PP (entitled ‘Tarnagulla Trails’), he took the “white” trail to Newbridge and on the way back, diverted to the “yellow” trail at the cemetery and then proceeded to travel the “green” trail around the Recreation Reserve and Reservoir at Tarnagulla.[16] Mr Quayle had stopped for lunch in Tarnagulla before resuming his assessment of the “green” trail.
[14]T49
[15]T50
[16]T51
25 Mr Quayle is the only witness to the accident which occurred when he rode his bicycle into the fence between the Reservoir and the Recreation Reserve.
26 Mr Quayle stated that he commenced riding around the Reservoir trail in a clockwise direction.[17] Whilst looking at exhibit PT, he gave the following evidence:
Q:“Mr Quayle, can you explain what that document is?‑‑‑
A:This is the actual GPS track file that I took on the day. The - this red line goes along the reservoir wall where I - the main trail that you can see in the previous map circumnavigated the recreation reserve and the reservoir and as I was riding along here I noticed this trail heading off to the right and so I thought I needed to have a look at what it was and where it went to determine whether there was a point of interest or whether it might be incorporated into the overall trail. And so I rode along that trail and I came out along - onto the reservoir wall, rode along the reservoir wall to the end here and then came down into the recreation reserve itself. So I suppose at that point I’d achieved what I wanted to, it was to determine where that trail went, and then I saw this other trail heading straight up the dam wall, the reservoir wall, which was the shortest way back to where I had started and so I decided to ride up the dam wall and back to where I had left the original trail.”[18]
[17]T52
[18]T52, L8-26
27 Mr Quayle’s evidence was that he was considering incorporating the informal trail along the top of the Reservoir wall into the trail.[19] I asked him to clarify what that part of the proposed trail would be used for. The following evidence was given by Mr Quayle:
[19]T53
HIS HONOUR:
Q:“You wouldn’t have considered that was a trail for children to be riding bikes along, would it?‑‑‑
A:Not the one up the dam wall, but along the dam wall, yes.
Q:The children would ride along the dam wall?‑‑‑
A:Well, perhaps in company with their adults and depending on the age of the children, yes. It’s a well formed trail; informal, but it’s a reasonable trail to ride.
A:You’re concerned about the danger of the reservoir itself?---
A: Yes.”[20]
[20]T53, L21-29
28 It is clear from this answer that Mr Quayle had his own reservations about riding bikes up the dam wall. Mr Quayle later stated:
Q:“We sort of touched on it at the outset, but why did you take that right turn, which we can see in your GPS data, and head essentially up the embankment, what caused you to do that?‑‑‑
A:Sorry, once I was down in the recreation reserve?
Q:That’s right?‑‑‑
A:And I’d already been on the dam wall? Primarily because it was the shortest route back to where I had started and I wanted to pick up the trail where I - where I’d left it. To me it was a clear trail. Not an easy trail, but I’m quite a competent mountain biker and to me it was no issue to ride up there.”[21]
[21]T55, L3-12
29 Mr Quayle’s evidence of how the “trail” or track up the Reservoir wall appeared to him was as follows:
Q:“When you say trail then can you describe what it was or how it appeared to you?‑‑‑
A:Well, it’s an area, a lineal area of cleared earth with shrubs and trees on either side, which to me indicates a trail. It was clearly informal, I think it was almost certainly formed by the locals as being the path that they chose to walk, but it was a trail.”[22]
[22]T55, L13-18
30 Mr Quayle clarified this evidence to say it was not a typical trail.
31 A summary of the approach to the Reservoir wall track taken by Mr Quayle is that he was unaware of the track until he was down on the Recreation Reserve near the grandstand building. He has seen the track and turned right to ascend the Reservoir wall. His estimate of the height of the Reservoir wall was 5 metres.[23]
[23]T56, L16-17
32 Mr Quayle considered himself a competent mountain bike rider. He got up and out of the saddle of his bike to gain enough speed to get up the Reservoir embankment. He estimated his speed on approach to the embankment at 15 to 20 kilometres per hour.[24] Mr Quayle was looking at the top of the embankment as he approached it. He stated this was a standard riding technique for mountain bike riders. He did not see, and was unaware of, the fence that was across his path. Initially, on impact with the fence, he thought he had been shot. After hitting the fence, he landed on the Reservoir side of the fence.[25]
[24]T58, L4-5
[25]T58-59
33 As a result of the accident, Mr Quayle hyperextended his neck and had a spinal injury. Initially, he was unable to move his legs or torso and had limited movement of his arms. He was assisted by the caretaker at the Recreation Reserve, Mr Dennis Ryan. An ambulance came and Mr Quayle was taken to Bendigo Hospital and then the Austin Hospital. He has made a full recovery after a period of rehabilitation treatment.
34 The caretaker, Mr Ryan, has passed away between the date of the accident and the hearing of this case.[26]
[26]T181
35 Mr Quayle returned to the scene of his accident on 16 November 2011 and took photographs which are exhibit D1C in this proceeding.
36 In cross-examination, Mr Quayle was questioned about his observation of fences on this day. He said:
Q:“Well all the parties including His Honour went out and had a view yesterday and there certainly appeared to be a fence on the north side of the reservoir. Your evidence is you don’t recall having seen that, is that correct?‑‑‑
A:Sorry, I just need to be clear about where you mean. So on the trail right around the outside of the reservoir ‑ ‑ ‑
Q:Yes?‑‑‑
A:You’re saying there’s a fence that comes across the bush track?
Q:It doesn’t come across the bush track but it's adjacent to the track on the north side of the reservoir. Can you recall seeing that?‑‑‑
A:No, I don’t recall seeing that.
Q:But certainly the presence of fences such as that in areas like that it’s not an uncommon occurrence, is it, that you do see fences from time to time in places where you would think why on earth is there a fence there?‑‑‑
A:Yes, certainly not across the trail.
Q:But you would agree with what I put to you, don’t you, Mr Quayle, that from time to time whilst you’re going through the bush you will encounter a fence where you would be surprised to see one?‑‑‑
A:No, I don’t agree because generally you might see a fence and you’ll think, well, you might think why is it that there, but generally there’s a reason for it, it might be - you know, a demarcation of a property boundary or whatever. There’s generally a reason for it.
Q:You would agree though, wouldn’t you, that you do encounter fences from time to time in various states of repair?‑‑‑
A:Yes.”[27]
[27]T71, L2-29
37 Mr Quayle agreed that he never saw the fence whilst riding along the Reservoir wall.[28] Mr Quayle conceded that he assumed that where he tried to ascend the Reservoir wall was a track.[29] Mr Quayle never saw the fence at any time prior to colliding with it.[30] Mr Quayle conceded that he had told the medical staff that on the day of the accident, he was travelling at 25 kilometres per hour. He agreed his evidence of a speed of 15 to 20 kilometres per hour was just an estimate.[31]
[28]T81
[29]T87
[30]T107
[31]T112
38 Mr John Sutton gave evidence for the first defendant in this proceeding. I accept that Mr Sutton constructed the replacement fence in 1994. I accept his evidence that the fence was approximately 4 feet in height. I accept his evidence that, from time to time, people from the Recreation Reserve would try and use the path up the Reservoir wall by climbing through the fence. I accept that neither Mr Sutton nor any members of the first defendant Committee of Management had any knowledge of Community Vibes’ engagement by the second defendant to assess any trails on the Recreation Reserve on or before the day of Mr Quayle’s accident.[32]
[32]T222
39 Mrs Wendy Sutton gave evidence for the first defendant. Mrs Sutton was the treasurer/secretary for the first defendant at the relevant time. Mrs Sutton stated that there were no bike tracks on the Reservoir wall.[33] Mrs Sutton stated that she was informed of Mr Quayle’s accident on the day after it happened.[34] Mrs Sutton stated:
[33]T221-222
[34]T222
Q:“What did the caretaker say to you?‑‑‑
A:He told me that the person had had – he didn’t know his name – but a person had had an accident up at the reserve and went over the fence when he was trying to ride up the bank of the res.
Q:What was your response to that?‑‑‑
A:‘What dickhead would want to do that?’ – and that was my exact words.”[35]
[35]T222, L8-13
40 Mrs Sutton said she inspected the fence after Mr Quayle’s accident and thought it had been squashed down about a quarter compared to its prior condition.[36] She agreed the photographs in exhibit D1C were how the fence appeared when she inspected it the day after Mr Quayle’s accident.[37] Mrs Sutton said she had looked at the fence in the area of the accident six months prior to Mr Quayle’s incident.[38] Mrs Sutton said that at the time of her seeing the fence six months before the accident, the wires at the top were right but the Cyclone was sagging.[39]
[36]T223
[37]T224
[38]T231
[39]T232
41 I conclude from Mrs Sutton’s evidence that the steel post and wire fence was at its original height of approximately 4 feet prior to Mr Quayle’s collision with it. The top plain strands of wire were in place. The Cyclone fencing part of the fence had been pushed down a bit from its original position and may have needed some repair. The fence would have been obvious to any person who looked.
The view
42 The Court, together with the legal representatives of all parties, attended the scene of the collision at the Tarnagulla Recreation Reserve on the first day of the hearing, 11 May 2015. All concerned had copies of the photographs that are exhibit D1C in the proceeding.
43 At the view, the height of the Reservoir embankment was estimated by all parties to be approximately 7 to 8 metres high. It was clear at the view that the steel post (in the fence line) is only 1 to 2 metres left of the line of the path that Mr Quayle attempted to ride up. In the three-dimensional situation of a view, the fence was more obvious than it may have seemed to be shown in the photographs in exhibit D1C.
44 Further, “the path” as it is shown in the photographs is a very rough track and could not be mistaken for a trail or designated area for people to walk, let alone ride bicycles.
45 The observations made by myself at the view have not overborne the evidence I have heard from Mr Quayle and Mr and Mrs Sutton, but have allowed a further understanding of that evidence in the context of the setting where the events took place.
46 Mr Jenkyn gave evidence on behalf of the second defendant. In respect of the critical issues in determining this case, Mr Jenkyn had little to contribute.
47 It is clear from Mr Jenkyn’s evidence that he engaged Community Vibe Pty Ltd, through discussion and email with Mr Quayle, to assess the trails in the Tarnagulla district. The engagement between Community Vibe Pty Ltd and the second defendant lacked precision. Mr Jenkyn was not present at the scene either before or after Mr Quayle’s accident. Mr Jenkyn was able to confirm the formal arrangements between the first and second defendants concerning the construction of the fence. He described the path or track as a footpad.
Factor X
The First Defendant
48 The first defendant is the occupier of the land that the injured worker was traversing when he rode his bicycle into the boundary fence with the land owned and controlled by the second defendant.
49 The starting point in determining the liability of the first defendant is what was its duty of care to Mr Quayle? Part X of the Wrongs Act 1958 is the applicable legislation. Section 48 of the Wrongs Act sets out the general principles applicable in determining the issue of liability.
50 I find that the risk of Mr Quayle, or a person riding a bicycle into the fence in the manner Mr Quayle did, was not foreseeable.
51 The fence is a boundary fence to the property controlled by the first defendant. The fence or fence line has been in the same position without incident for over a century.[40] There was very limited bicycle traffic or use within the Recreation Reserve. Further, the risk of a person on a bicycle attempting to ascend the Reservoir embankment from the Recreation Reserve is far-fetched and fanciful. The fence is a present and obvious obstruction to any person moving on a bicycle or on foot from the Recreation Reserve to the Reservoir embankment.
[40]T192-193
52 I find that the fence had a social utility of reducing the chance of young children escaping the Recreation Reserve and accessing the danger present in the Reservoir. I accept Mrs Sutton’s evidence on this issue.
53 In the event that Mr Quayle was taking reasonable care for his own safety, he would have seen the fence either on his ride along the Reservoir embankment or, more particularly, when he decided to take a shortcut and ascend the Reservoir embankment. The plaintiff’s case was based on the fact that the fence was hard to see or somehow disguised by the background foliage. It was suggested to Mrs Sutton that a sign should have been on the fence. There was no evidence called in this case to establish what type of fence or signs or warnings should have been in place along the fence line.
54 I find that Mr Quayle, a trained observer and assessor of trails and hazards, has not looked along the path or direction he was going to travel. Mr Quayle was distracted by the challenge to get his mountain bike to the top of the Reservoir embankment. In his attempt to do so, he failed to see the steel post or any of the wire that made up the fence. The only reasonable explanation for his failure to see the fence is he did not look where he was actually riding his bicycle.
55 Based on these findings and my previous observations in these Reasons, I am not satisfied that the plaintiff has proved the first defendant was negligent on the balance of probabilities.
The Second Defendant
56 The second defendant had entered into a contractual relationship with the injured worker’s employer to provide assessments of trails in the Tarnagulla district. Part of those assessments included the trails in and around the Tarnagulla Recreation Reserve and Reservoir.
57 The contractual relationship between the second defendant and Community Vibe Pty Ltd does not expand the duty of the second defendant as an occupier. Mr Kumar submitted that the second defendant should have known the scope of the works would include Mr Quayle riding along the reservoir wall as an alternative route or trial. I do not accept that it follows the second defendant could have anticipated that Mr Quayle would take a short cut and attempt to ride up the reservoir wall from the Recreation Reserve side of the diving fence. The trail that was known to Mr Quayle and Mr Jenkyn of the second defendant continued through the Recreation Reserve to the Reservoir trail that Mr Quayle had already ridden along.
58 The second defendant was also the occupier of land that shared the boundary fence with the first defendant. The second defendant supplied the materials to the first defendant to rebuild the fence in 1994.
59 The same factors that apply to the first defendant on the issue of foreseeability of the risk apply to the second defendant. I find that the risk of a bicycle rider attempting to ascend the Reservoir wall from the direction of the Recreation Reserve when the fence is so obvious is far-fetched and fanciful.
60 I am not satisfied the plaintiff has proven negligence on the part of the second defendant.
Conclusion
61 The claim against the first defendant is dismissed.
62 The claim against the second defendant is dismissed.
63 I will hear the parties on costs.
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