Cafest v Tombleson [2003] NSWCA 210 | Case summary

Friday, 1 August 2003 CAFEST HOLDINGS PTY LIMITED T/AS SKATEPLUS v JULIANNE TOMBLESON Judgment 1 MEAGHER JA: This is an appeal by a defendant, the present appellant, against a verdict and judgment of Robison DCJ given in favour of a plaintiff, the present respondent, in the sum of nearly $350,000. 2 The plaintiff had fallen over and broken her right wrist severely when trying to skate in the appellant's roller-skating rink. On 13 March 1999 she had taken her daughter there for a birthday party and decided to "have a go". She was an active sportsman, and had previous experience of ice-skating; however, she had no previous experience of roller-skating. 3 She went to the counter and bought a ticket from a young man behind the counter. She said to him "I have never skated before, what's the best type of skate to use and do I need to know anything else?" He replied "The in-line skates are probably the easiest." She then asked the further question "Is there anything else I need to know?", to which he answered: "No, you'll be fine." 4 Having put on the skates, the respondent made one circuit of the main rink and stayed close to a wooden railing which surrounded the rink because she was unsure and pretty wobbly. The main rink had a concrete floor. There were a number of other skaters on the rink at the time. When the respondent was halfway around the rink the second time, her feet went from under her, and as she put her right arm back to break her fall, she broke her right wrist. 5 It was common ground that there was a large sign near the entrance to the main rink which his Honour found could be easily seen by persons going past which stated:- "ALL CARE NO RESPONSIBILITY THE ACTIVITIES PROVIDED IN THIS COMPLEX HAVE A CERTAIN AMOUNT OF RISK ATTACHED. BY ENTERING THIS CENTRE PATRONS AND THEIR GUARDIANS ACCEPT THAT THERE IS A DEGREE OF RISK AND RELEASE THE CENTRE FROM ANY RESPONSIBILITY OR LEGAL LIABILITY ASSOCIATED WITH PARTICIPATION IN AN ACTIVITY OR THE ACTIONS OF OTHER PATRONS PRESENT OR PARTICIPATING IN AN ACTIVITY" 6 It was also common ground that there were "pink" signs positioned in the premises which were in the following terms:- "Protective Gear for Hire Wrist Guards, Knee Guards, Elbow Guards Children and Adult Sizes Children - $1.00 per item Adults - $2.00 per item" 7 She said in evidence that she never saw any of the signs, although it is clear they were all visible. She said that she was not aware of the availability of any wrist guards, that she did not take notice whether other people were wearing them, and she would have worn them had her attention been drawn to them. She was believed. 8 His Honour also heard evidence from a Miss Weber on behalf of the defendant. She was the rink manager on that day. She was a woman of considerable experience. She said that wrist bands were on hire, and were handed over if required. They were kept under the front counter. Insofar as his Honour, on at least two occasions, suggested that they were being wrongfully concealed, it must be said that there is no evidence to justify such a suggestion. 9 There was a beginner's rink which the plaintiff could have used if she wanted to, but for reasons which seemed good to her, she did not want to. 10 Miss Weber also said that the wearing of a wrist guard, whilst it often prevented (or lessened the gravity of) a wrist injury, sometimes had the opposite effect, and aggravated it. 11 His Honour was impressed by Miss Weber's evidence and found that she was a witness of truth. 12 On the other hand, a sports doctor, a Dr Kuah, gave evidence in which he said that wrist injuries are inherent in in-line skating (which is the apparently fashionable term to describe what the plaintiff was doing); that this is so because of the way in which skaters fall; that the risk was greater among beginners than among more seasoned skaters; and the serious effects of a wrist injury could be diminished by wearing a wrist guard. Like the plaintiff and Miss Weber, he was believed. 13 His Honour's reasons for finding for the plaintiff are, I think, best encapsulated by the following passage: "The defendant, by contract and indeed by virtue of its general duty of care, assumed the responsibility, the clear and direct, unequivocal responsibility of ensuring that appropriate protection was firstly made known to skaters, particularly beginner skaters, and secondly, to ensure that such protective equipment was indeed supplied, not withdrawn from under a counter, and not by mere reliance upon the existence of a sign, which said nothing about the inherent risk of the injury, which clearly faced the plaintiff, and injury that she was not aware of at that time." 14 This rather scrambled passage really is no substitute for a considered legal analysis of the facts in question. It contains a false assertion about the concealment of the wrist guards. It elevates the simple statement "You'll be fine" from its proper context as a rather breezy salutation into a solemn commitment that no harm could conceivably befall the plaintiff if she failed to wear wrist guards. 15 But there is more to complain about than that. His Honour's statement also conflates notions of duty and notions of breach, it allows no scope for a consideration of the scope of the defendant's admitted duty of care, and it dispenses with all mention of reasonableness (which, after all, is the touchstone of the tort of negligence). 16 The facts are simple enough: the plaintiff must have known, as much as the defendant knew, that falls occur to skaters, that if one falls one often injures one's wrist (sometimes seriously, sometimes not) in making an attempt to break the fall. A reasonable person in her position must have known that wrist guards were available. No one told her not to wear them. It is an open question whether they would have made any difference if she did wear them. 17 But, more importantly, the relevant question is whether the defendant, with its state of knowledge, acted as a reasonably prudent person should have; this is the question which his Honour should have considered according to the High Court in Agar v Hyde (2000) 201 CLR 552 and Woods v Multisport Holdings Limited (2002) 76 ALJR 483; and it is a question to which his Honour obdurately refused to address himself. 18 The defendant, by its notices, told all its patrons that there were risks involved in the activities it promoted, provided protective clothing which was available on request to deal with those risks, had a beginner's rink, and employed staff especially trained to help skaters in difficulty. On the whole, I do not see why it should have done more. In this regard, the analysis of McHugh J in Tame v New South Wales (2002) 76 ALJR 1348 at 1364-5 is important: once one determines that a risk of injury exists, one must not slide into a consideration of preventability without asking the important question: 'Was the defendant's failure to eliminate the risk demonstrative of a want of reasonable care for the plaintiff?' In the present case, in my view, it was not. 19 In my view, the plaintiff's case, whether based in tort or contract, should have failed. Our orders should be:- i. Appeal allowed; ii. Judgment and verdict below set aside; iii. In lieu thereof, verdict for the defendant (appellant); iv. Order the respondent to pay the appellant's costs of the trial and of the appeal but to have a certificate under the Suitors' Fund Act 1951. 20 SHELLER JA: I agree with Meagher JA. 21 IPP JA: I agree with Meagher JA.

Cafest v Tombleson

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