Gharibian v Propix Pty Ltd, trading as Jamberoo Recreational Park

JUDGMENT OF: Mason P at 1; Ipp JA at 7; Tobias JA at 81

DECISION: (a) Appeal upheld; (b) judgment of Balla DCJ set aside; (c) verdict and judgment in favour of the appellant on the issue of liability; (d) proceedings remitted to the District Court for the determination of the appellant's damages; (e) the respondent to pay the appellant's costs of the trial and the appeal; and (f) the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

CATCHWORDS: TRADE PRACTICES - warranties in relation to the supply of services (Trade Practices Act 1974 (Cth), s 74) - materials supplied in connection with the supply of such services - whether there existed a contract between the appellant and the respondent whereby the respondent undertook to supply recreational services to the appellant - the supply of materials (a toboggan run and a toboggan) in connection with such recreational services - whether such materials were reasonably fit for the purpose for which they were supplied, namely, to undertake the toboggan run safely when operated by any member of the general public - TORTS - negligence - duty of care - breach - whether the respondent, the operator of the toboggan run, breached its duty of care to the appellant - the issue of breach turns only on factual questions

Civil Liability Act 2002 (NSW) Suitors' Fund Act 1951 (NSW) Trade Practices Act 1974 (Cth) ss 52 LEGISLATION CITED: 53(a) 53(c) 68 68B 74

Ashington Piggeries Limited v Christopher Limited [1972] AC 441 R & B Brokers Limited v United Dominions Trust Limited [1988] 1 WLR 321 CASES CITED: Rushes Pty Ltd v Thomas (Unreported New South Wales Court of Appeal 9 May 1990) Slater v Finning Limited [1997] AC 473

PARTIES: Simin Gharibian - Appellant Propix Pty Ltd, trading as Jamberoo Recreational Park - Respondent

COUNSEL: CS Leahy SC - Appellant MC Gilbert - Respondent

SOLICITORS: Ron Kramer Associates - Appellant Sparke Helmore Lawyers - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40367/06

MASON P IPP JA TOBIAS JA

Friday 22 June 2007 Simin Gharibian v Propix Pty Ltd, trading as Jamberoo Recreational Park Judgment 1 MASON P: I have had the benefit of reading the judgments of my colleagues. 2 I agree with Ipp JA, adding the following remarks as to the point of disagreement. 3 The question of negligence is evenly balanced in my mind, but I remain unpersuaded that the trial judge erred in acquitting the respondent of breach of any tortious or contractual duty of care. 4 The respondent knew that the toboggan run should be closed if there was a sufficient likelihood of the track getting wet during a ride. What is at issue is whether its employees were so slow in their reaction to the warning signs as to merit a finding of negligence in all the circumstances. The appellant's husband was stopped from riding, not as a result of anything that befell the appellant who was then in mid-slide, but because the operator's employees realised that it had by then begun to rain. The question whether they should have acted seconds earlier depends very much upon how "imminent" the rain was. I would not hold that the trial judged erred in herself being unpersuaded of negligence. 5 Tobias JA effectively finds negligence on the basis that the respondent did not meet its own standards of best practice as regards detecting and responding to the imminence of rain. These are clearly relevant, but not controlling. Neither is the fact that rain was a greater than usual risk on the day in question. The fact that the respondent's practices included instructions to riders as to what they should do if rain started during their short ride suggests that the demarcation between rain being possible and rain being imminent was not easy to draw, either categorically or in practice. Questions of judgment were involved. It is impossible to know with any certainty how close it was to raining and how apparent that closeness was at the all important time when the appellant set off on her descent. 6 As to the matter of track design, the issue needs to be addressed in the context of the respondent's work practices and the warnings given to riders about handling rain. No serious accidents had previously occurred. The respondent was entitled to place considerable reliance upon the expertise and continuing involvement of the manufacturer. Once again, I think that the judge was entitled to view the appellant's case (presented through her expert, Dr Olsen) as a counsel of perfection overlaid with hindsight. Her Honour's conclusion that negligence was not established was one with which I agree. 7 IPP JA:

The appellant's appeal against the dismissal of her damages claim 8 This appeal concerns the appellant's claim against the respondent for damages for personal injuries suffered by her. She was injured when tobogganing down a stainless steel toboggan run at the Jamberoo Recreational Park in Kiama, New South Wales. The respondent was the occupier of the Park, which was under its care, control and management. 9 As the toboggan was travelling downhill, and gathering speed as it went, it began to rain. The appellant attempted to slow the toboggan down by applying the brakes. The brakes did not work and the toboggan crashed into a large airbag at the end of the pathway. The crash caused the appellant to fall out of the toboggan and she was seriously injured. 10 The appellant claimed in negligence, and on a series of other, alternative, grounds based on breach of contract and contraventions of ss 52, 53(a), 53 (c) and 74 of the Trade Practices Act 1974 (Cth). 11 Balla DCJ dismissed the appellant's claims and the appellant appeals against this decision. 12 In my opinion, the trial judge erred in dismissing the claim based on s 74 of the Trade Practices Act and the appeal should succeed on this ground. I would not uphold the appellant's other arguments. I shall, first, explain why I consider that the appeal in respect of the s 74 cause of action should succeed and shall, then, briefly, explain why I am not persuaded by the other arguments advanced on her behalf.

The toboggans and the toboggan run 13 The toboggan run was one of a number of facilities in the respondent's recreational park. The run was divided into two stainless steel tracks, described as the green track and the blue track. The tracks commenced at the top of a hill and continued downwards to a base area in a series of bends and straight sections. The green track had more bends and fewer straight sections than the blue track. The incline along the blue track ranged from seven to thirteen degrees; it is not clear whether the incline on the green track was different. The green track provided a slower travelling speed than the blue track, but it seems that on both tracks a speed of at least 35 kilometres per hour could be reached. A centrifugal brake system was automatically activated when toboggans reached that speed, which appears to be the maximum speed at which they were allowed to travel. The evidence did not reveal the length of the run, but it appears to have been in the region of some 200 metres. The ride endured for approximately four minutes. 14 The toboggans ran on a combination of four hard plastic slides that moved along the steel tracks. Their overall length was one metre and the seat width was 400 millimetres. They had a two-section moulded plastic base. Riders sat on the rear section and placed their feet on the front section. The toboggans had four brake pads, two in the front and two in the rear. 15 A brake lever was placed in the centre of the toboggans. The lever had the word "stop" on it with an arrow pointing towards the body of the rider. On the base of the toboggans there was another "stop" sign with an arrow pointing towards the rider. These signs indicated that, to slow the toboggan down, or to stop it, the brake lever had to be pulled towards the body of the driver. 16 The toboggan run was in the open air and had no covering. If a toboggan was travelling at speed, and the steel tracks became wet, its brakes were not capable of stopping it. Depending on the speed of the toboggan and the wetness of the tracks, the toboggan would "aquaplane" along the tracks. The brakes, then, had no traction. 17 This problem was recognised by the respondent, which sought to cope with it by having a system in place to prevent the run from being used during rain. The difficulty was that, as the events of the day on which the appellant was injured demonstrated, the system was not foolproof. That is simply because, in unusual circumstances, rain could occur suddenly and without warning. 18 Persons intending to ride a toboggan would enter the run at a loading area at a base station at the bottom of the hill. They would, then, be taken by a chairlift to a station at the top of the ride. 19 At the base station there were several instructional and warning signs, including a pictorial depiction of how the brake on the toboggan should be applied and released. The pictorial description showed that moving the lever forwards caused the toboggan to move freely and pulling it backwards caused the brakes to be applied. 20 The trial judge found: "The ride had been fully operational from 1988. It opened seven days a week during school holidays. Outside school holidays it opened on weekends. When it was open there would usually be 1,000 to 2,000 visitors. The ride was one of the most popular attractions at the park. It had been closed because of rain on many previous occasions. There had been no other incident in which a person had been injured due to a failure of the brakes as experienced by the [appellant]."

The events on the day of the accident 21 At about 10.30 or 11.00 am on the day of the accident, the appellant went to the recreational park with her husband and two children. The appellant's husband, Mr Gharibian, purchased, for about $100.00, the tickets for the appellant, himself and the two children. These tickets entitled them to enter the park and participate in any of the activities provided by the respondent. 22 Signs, at the cashier's window at the front gate of the Park, were in the following words: "If rain should occur only the toboggan track will close. When rain stops the tracks will be dried. No refunds will be given." 23 In the afternoon, the Gharibian family decided to go on the toboggan run. Signs, prominently displayed at the toboggan run base station, included the words: "The ride will be closed when wet. Please stop your ride if it starts to rain while you are descending and walk to the bottom of the hill." The appellant testified that she saw a sign "which had said not to use the ride if it was raining".

24 Mr Jordan, an employee of the respondent, was working at the base station when the appellant took the chairlift to the top of the hill. One of his tasks was to give a verbal warning to customers before they used the ride. He announced to persons queuing to use the chairlift: "If you are coming down the hill on your toboggan and you see or feel any rain on yourself or on the track you have approximately 10 seconds to stop your toboggan, place it on the side of the track and walk down the hill. If you don't get off you will not be able to stop and you may cause serious injury to yourself or others on the activity." 25 The appellant testified that, when she joined the queue for the chairlift at the base station, she heard a person with a microphone (who must have been Mr Jordan) explain how to use a toboggan and how to stop it. She accepted that the person said that, if it was raining, she had to stop and get off the track. Her husband repeated that advice to her before she started the ride. 26 When the family arrived at the top station, they became separated. Armen Gharibian, one of the two children, was the first to get into a toboggan, and did so on his own. The appellant followed, apparently in the next chair lift. Mr Gharibian was left on the top of the hill. 27 The judge found that when Armen got into his toboggan, "the day was cloudy and there was a possibility of rain." At that time it was not raining and the appellant, then, did not think that it would rain. She testified that, had she thought that it would rain, she would not have gone on the toboggan run. That was because she had seen a sign warning against using a toboggan "if it was raining". 28 The rain started as Armen's toboggan was moving down the track. In accordance with the instructions he had been given, he pulled the brake lever towards his body to stop the toboggan. It slowed down "a bit". As the track became wetter, however, the brakes "didn't work" and the toboggan continued its downward course. Eventually, Armen's toboggan collided with the back of the toboggan in front of him, in which a woman and her child were sitting. He got off the toboggan and removed it from the tracks. He then heard his mother, the appellant, screaming his name. He saw her coming down the tracks in her toboggan and proceed to collide with the airbag at the termination of the run. 29 Mr Gharibian, who was at the top of the hill, did not get onto a toboggan because, after the rain started, the respondent's employees closed the toboggan run. 30 The appellant testified that, when she commenced the run, her toboggan moved slowly but as the run became steeper, her speed increased. The rain, then, started. She described the rain as a sudden, very heavy shower. She said the rain "all of a sudden came down" without any warning. 31 According to the appellant, "immediately" after it started raining she pulled the brake lever to her chest with both hands. The toboggan did not stop but kept going "faster and faster". She kept pulling the lever, but to no avail. She felt "like water was taking [her] with the toboggan". This occurred until she struck the airbag and was thrown out of the toboggan. 32 The judge found that the rain started when the appellant was halfway down the run and "was enough to cause the brakes to fail".

The blue and green tracks 33 There was a sign at the entrance to the station at the top of the hill concerning the blue and green tracks. It indicated that the blue track was a fast track for experienced riders and the green track was a slower track. The appellant did not notice the sign and did not realise that one was a fast track for experienced riders while the other was not. 34 The appellant simply went on to the track that was the most convenient for her in the position in which she found herself when she got off the chairlift. No person told her that there was a difference between the two tracks and that she should go on one rather than the other. The judge made no finding as to whether the appellant used the blue or the green track. 35 Although the appellant was vague as to which track she used, her son's evidence was that she went on the blue track. There was no evidence to the contrary. 36 Nothing turns on the fact that the appellant went on the blue track (if she did). The question whether she should have gone on the green track rather than the blue track was not an issue at the trial.

The s 74 claim 37 Section 74(1) of the Trade Practices Act provides: "(1) In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that … any materials supplied in connexion with those services will be reasonably fit for the purpose for which they are supplied." 38 The judge in referring to the appellant's argument based on s 74 by said: "On the basis of my findings I am satisfied that the services were reasonably fit for the purpose for which they were supplied." 39 It is not apparent, however, what "findings" were the "basis" of her Honour's satisfaction. Counsel for the respondent submitted that the words quoted are to be understood as meaning that her Honour simply made a value judgment, in the light of all her factual findings, that the recreational services the respondent supplied were reasonably fit for their purpose. 40 This is certainly one reading and, if correct, reminds one of Meagher JA's description of a judge's reasons as "laconic to the point of being runic": Rushes Pty Ltd v Thomas (Unreported, New South Wales Court of Appeal, 9 May 1990). 41 A finding that "the services were reasonably fit for the purpose for which they were supplied" is not a finding that is required by s 74 to be made. The relevant finding under s 74 concerns whether materials, supplied in connection with the supply of services, were reasonably fit for their purpose. The two findings differ conceptually. The judge did not address the correct issue. 42 In considering the s 74 cause of action, the first question to be determined is whether there was a contract between the appellant and the respondent whereby the respondent (a corporation) undertook to supply services to the appellant (a consumer). The second is whether materials were supplied in connection with those services. The third is whether those materials were reasonably fit for the purpose for which they were supplied. 43 The applicant's statement of claim alleged that a contract existed between the appellant and the respondent, that it was an implied term of that contract that the recreational services to be provided by the respondent were to be provided with due care and skill, and that "goods supplied for the provision of those services were reasonably fit for the purpose for which they were to be used." 44 The judge found that, although Mr Gharibian bought the tickets that enabled his family, including the appellant, to enter the park to use the respondent's facilities, the appellant paid to use the facilities. There is no notice of contention that challenges this finding and it was not disputed in argument. 45 The respondent's defence did not expressly deny the existence of a contract between it and the appellant. On the contrary, it assumed that such a contract was entered into. Paragraph seven of the defence alleges that there was: "… imported into the contract entered into between the Plaintiff and the Defendant a term that the Plaintiff engaged in any recreational activity upon the Defendant's premises at her own risk." 46 Indeed, the respondent does not appear, at trial, to have disputed that the appellant entered into a contract with it whereby it undertook to provide recreational services to her. The judge, implicitly, accepted that such a contract was established. The respondent does not challenge this finding. 47 It, therefore, must be accepted that the appellant established the contract for the supply of services that she alleged. The services in question were the recreational activities provided by the respondent at its recreational park. It is not in dispute that the respondent supplied materials to the appellant in connection with those services; included amongst those materials were the structure of the toboggan run, as a whole, and the toboggan that she rode. 48 It follows that, by s 74(1), the respondent impliedly warranted that any materials supplied by it in connection with those services would be reasonably fit for the purpose for which they were supplied. 49 The purpose for which the toboggan and the toboggan run were supplied was to enable the respondent's customers, including the appellant, to undertake the toboggan run safely. 50 While the respondent expected that the run would operate in dry weather, it is apparent from the signs, and the oral warning given by the respondent's employees to persons using the toboggan run, that the respondent knew that, sometimes, it would not be possible to close the run before rain made the tracks wet. Hence, the oral warning given by Mr Jordan that if a user of a toboggan felt any rain or saw any rain on the track he or she would "have approximately 10 seconds" to stop the toboggan and walk down the hill. 51 Whether there was, indeed, a ten second period in which a rider could stop the toboggan, if it began raining and the track became wet, was not established. It is clear, however, that a rider would have only a matter of seconds (and, probably, not more than ten) within which to stop the toboggan if it rained. If it began to rain with any force, in a matter of seconds the brakes would not work. 52 Counsel for the respondent submitted that, despite the problems with the brakes in wet weather, the structure of the run and the toboggans were reasonably fit for the purpose for which they were supplied. He pointed to the fact that the run had operated since 1988 and this was the first accident that had occurred by reason of the track becoming wet. He also submitted that it was reasonable to expect persons riding the toboggans to react quickly enough - should it rain unexpectedly - to apply the brakes and stop the toboggan. 53 I do not regard the absence of any other accident as being relevant to the fitness of the toboggans and the track. I have referred to the fact that the respondent had put in place a series of safety procedures in an attempt to prevent harm coming to users of the toboggan track should it rain. These procedures were:

(a) the display on four computer screens, in the respondent's office, of the web site of the Bureau of Meteorology; (b) the monitoring by the respondent's staff of those screens on the understanding that, if the screens indicated that "there was rain around", the duty manager would be notified and the toboggan track would be closed; (c) the policy that, if staff in the office saw rain in the distance approaching, the ride would be closed; (d) the instructions given to staff to look out for rain (the person operating the station at the top of the hill could see weather some distance from the park); (e) the instructions at the regular morning briefing whereby staff were told to monitor the weather and, if they noticed any rain or the chance of rain, stop the ride; (f) the instructions given to staff to warn users of the track that, if at any point when travelling down the run they felt rain, they were to stop their toboggan and get off the track; (g) the specific instructions given at the base station by Mr Jordan to those persons about to use the run that, if at any time they felt or saw rain, they should stop the toboggan immediately by pulling the brake towards themselves; and (h) the signs that indicated that the track would be closed if it rained. 54 These measures appeared to have worked effectively prior to the appellant's injury. They say nothing, however, about the fitness of the structure of the run and the toboggans for the purpose for which they were supplied. They were, indeed, measures taken in an attempt to protect users because the toboggans were not fit for their purpose when rain caused the tracks to become wet. 55 The respondent made the toboggan run and the toboggans available (that is, "supplied" the run and the toboggans within the meaning of s 74) to the general public; that is, to a wide range of persons, young and old, having vastly different intellectual, temperamental and physical capacities. The persons included those without any experience in tobogganing, lacking in capacity to react quickly, unaccustomed to exercise mechanical control over physical objects, and susceptible to panic in potentially dangerous conditions (for example, should the track become wet in consequence of a sudden shower of rain). 56 To be reasonably fit for the purpose for which they were supplied (and to comply with the implied warranty contained in s 74), the structure of the run and the toboggans had to be reasonably safe when operated by any person (including persons falling into the category described in the last paragraph) who had entered into a contract with the respondent for the use thereof. They were not. 57 In my opinion, recreational equipment, intended for general use by the public, should not depend for its safeness on the ability of members of the public to react, as soon as they detect rain, by operating a brake within a few seconds. As I have mentioned, regard must be had to the fact that a number of potential users may be inexperienced, react slowly, and panic. It is not without relevance that counsel for the respondent sought to explain the accident because "the appellant was inexperienced and may well have panicked". 58 At trial, the respondent argued that the implied warranty under s 74 was excluded by reason of the signs that the respondent had erected in various places in the park. We were told that the respondent sought to rely on ss 68 and 68B of the Trade Practices Act in this regard and on various provisions of the Civil Liability Act 2002 (NSW). Apparently, these issues were the subject of considerable debate. Nevertheless, her Honour did not refer to any of them (presumably because she considered that the toboggan and the track were fit for the purpose for which they were supplied). 59 In the course of argument on appeal, the Court made reference to ss 68 and 68B of the Trade Practices Act and certain provisions of the Civil Liability Act that, potentially, might be applicable. This led to counsel for the respondent, after the luncheon adjournment, raising the possibility of filing a notice of contention whereby these matters would be relied upon. Senior counsel for the appellant had, at that stage, completed his argument. The court indicated, prima facie, that, were leave to be given to the respondent at that particular stage to file a notice of contention raising these issues, the likelihood was that an adjournment would have to be granted to allow the appellant to deal with it. After a short adjournment, counsel for the respondent indicated that he would not apply for leave to file a notice of contention. 60 Thus, in regard to the appellant's s 74 cause of action, the only issue raised in defence to her claim is that the track and the toboggan were fit for the purpose for which they were supplied. For the reasons I have given, I am of the opinion that they were not. 61 There appears to be a further difficulty that emerges in light of the reasons given by the judge for rejecting three pleaded particulars of breach. Her Honour's response to those particulars was to re-state earlier findings she made that the respondent acted with due care and skill. But the relevant warranty relied upon was that the goods supplied for the provision of the recreational services were reasonably fit for the purpose for which they were to be used. 62 While the implied warranty that the goods are reasonably fit is "inherently a relative concept, it is well established that the liability … is strict in the sense that the [supplier's] liability does not depend on whether [it] exercised reasonable care" (to adopt Lord Steyn in Slater v Finning Limited [1997] AC 473 at 486). See generally Ashington Piggeries Limited v Christopher Limited [1972] AC 441. 63 As I have mentioned, the tracks were exposed to the elements. In consequence, the sudden rainstorm caused the tracks to become wet and this, in turn, caused the brakes of the toboggan to fail. The fact that the respondent acted with due care and skill, and was not negligent in failing to spot the imminence of rain, was irrelevant to the occurrence of these matters. 64 In R & B Brokers Limited v United Dominions Trust Limited [1988] 1 WLR 321, the English Court of Appeal had to consider whether an implied statutory warranty that a car was reasonably fit for the purpose for which it was bought had been breached. It was common ground, as Dillon LJ observed (at 327), that the purpose in question was "ordinary use upon the roads in England - in English weather". Very wet weather resulted in the car being damaged. The Court held that the implied warranty was breached; the car was not reasonably fit for the purpose for which it had been purchased. The same thing can be said about the toboggan provided to the appellant. It was not suggested that the downpour that struck was "un-Australian".

Claims in negligence and contract 65 The appellant argued that the respondent was negligent in the following respects:

(a) the respondent should have realised earlier that it might rain and should have closed the track before the appellant began her ride; and (b) the respondent should have altered the design of the track which was defective: a more suitable design would have been to incorporate an extended level track towards the end of the ride, and there should have been a coating or surface on the end part of the track to increase the friction so as to enable the toboggan to stop gradually. 66 The appellant's own evidence and that of her husband was that the rain came down suddenly without any warning. The judge accepted that this occurred and there has been nothing shown, in accordance with the well-established authorities dealing with the basis on which appellate tribunals may interfere with factual findings based on credibility, that would allow this court to come to a different conclusion. 67 It was also argued on the appellant's behalf that it was possible that the rain commenced at the bottom of the hill and then moved upwards. It was said, on the basis that this had, indeed, occurred, that the respondent's staff at the bottom of the hill, immediately, should have notified the person operating the station at the top of the hill of the rain. It was said that, had this been done in the exercise of due care, the run would have been closed before the appellant began her ride. It was suggested that an inference that the rain commenced at the bottom of the hill could more easily be drawn because the respondent did not call, as a witness, its employee who, at the time, was working at the bottom of the hill. 68 There was no evidence, however, that the pattern of rainfall was as suggested by the appellant, and there was no reason why the employee concerned should have been called. In my opinion, nothing flows from the failure to call this person. The evidence simply does not support the appellant's submissions in this respect. 69 The proposition that extra sections should have been added onto the track was based on reports given by Dr Olsen, an expert called on behalf of the appellant. 70 While Dr Olsen's views were expressed unequivocally in his written reports, his evidence under cross-examination was different. The following passage is significant: "Q: You would agree, wouldn't you, that an operator of this type of equipment shouldn't tinker with a manufacturers' product without advice and consultation from the manufacturer. A: I think you asked me this before I came into Court and I agreed with that proposition to an extent and the extent that I would agree with that is that I don't believe that an operator of a ride should structurally modify the ride by, for example, adding extra segments to it or structurally change angles and things like that. But I wouldn't go so far as to say that the owner or the operator of the ride couldn't apply coatings or surface treatment to sections of the ride if it was necessary to reduce the friction to slow the toboggan." 71 Dr Olsen's acknowledgement that he did not believe that "an operator of a ride should structurally modify the ride by, for example, adding extra segments to it" is sufficient, on its own, to dispose of the argument to the contrary (based on his written reports). 72 The manufacturer of the run was a reputable entity that had considerable expertise in the area. The manufacturer carried out safety tests on the tracks from time-to-time and maintained them. The manufacturer, at no time, suggested that any of the modifications, contended for by Dr Olsen, should be made. 73 The trial judge pointed out that Dr Olsen had agreed that a design change might have consequences and he had not carried out any research into what potential complications could arise from the changes he suggested. Dr Olsen also accepted that making the track more slip-resistant might result in users falling off their toboggans. 74 For these reasons, Balla DCJ was not persuaded that the appellant had established that the design changes suggested by Dr Olsen were a reasonable response to the risk. For my part, I am not persuaded that her Honour erred in this finding. 75 Senior counsel for the appellant accepted, rightly, that there was no difference in substance between the appellant's claim in negligence and her claim in contract. Once the negligence claim fails, so does the claim in contract.

The other Trade Practices Act claims 76 The basic problem with the claims based on ss 52 and 53 of the Trade Practices Act concerns the identification and proof of the relevant misleading or deceptive conduct under s 52 and the representation under s 53. 77 The only conduct pleaded by the appellant that, in the circumstances of the case, is capable of giving rise to a claim under s 52 is that referred to in paragraph 7(iii) of the statement of claim. This alleges that the respondent informed the appellant that when "it begun [sic] to rain she would be able to stop the sled". There was no evidence that the respondent made an express representation to the appellant to this effect. Senior counsel for the appellant did not draw our attention to evidence that established an implied representation in these terms and, in my view, there was no such evidence. 78 The representation alleged on which the claim under s 53(a) was based was that the respondent represented that "the service was of a safe standard". No express representation to this effect was made. Again, senior counsel for the appellant did not draw our attention to evidence that established an implied representation in these terms and, in my view, there was no such evidence. Further, the signs scattered around the park were inconsistent with such a representation. 79 The representation on which the s 53(c) claim was based was that "the toboggan run had performance characteristics it did not have, namely that the said toboggan run was safe". In my opinion, the evidence did not support the making of the representation alleged. 80 Accordingly, I propose the following orders:

(a) the appeal is upheld; (b) the judgment of Balla DCJ is set aside; (c) there be a verdict and judgment in favour of the appellant on the issue of liability; (d) the proceedings be remitted to the District Court for the determination of the appellant's damages; (e) the respondent pay the appellant's costs of the trial and the appeal; and (f) the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. 81 TOBIAS JA: In this matter I have had the benefit of reading in draft the judgment of Ipp JA. I agree with the orders proposed by his Honour and with his reasons except with respect to his finding that there had been no negligence on the respondent's part. In my view there was a breach by the respondent of its duty of care to the appellant in each of the respects referred to by Ipp JA at [65] of his judgment. 82 The appellant's claim in negligence raised two questions. The first was whether the mere chance or possibility of rain (as distinct from its imminence) was such that the risks associated with riding the toboggan if there was a sudden downpour (as occurred) reasonably required the respondent to close the ride before that chance or possibility became a reality. The second, which was only of relevance if the first question was answered in the negative, was whether the risks associated with riding the toboggan in the rain, including the risk of the brakes failing due to their ineffectiveness in wet weather, reasonably required the respondent to lengthen the run out track or to use some material other than stainless steel to slow and stop the toboggan at the end of the ride. I would answer each of these questions in the affirmative. 83 The primary judge articulated the first question in the following terms: "Taking into account my findings as to the steps which were taken and the suddenness of the rain, I am of the view that the only additional step which could have been taken is to have closed the ride because the day was cloudy and there was a possibility of rain. In all of the circumstances I am not persuaded that the [appellant] has shown that this was a reasonable response to the risk." 84 Like Ipp JA (at [66]), I accept that the primary judge found on the appellant's own evidence and that of her husband, that the rain came down suddenly and without any warning. I would also, like Ipp JA (at [68]), agree that the appellant's argument that it was possible that the rain had commenced at the bottom of the hill and then moved upwards, should be rejected. But in my view that is not the end of the matter. 85 The primary judge expressly found that: (a) in the hours leading up to the appellant's injury the sky was overcast and that on one or two occasions there had been a light sprinkle of rain; (b) it started to rain as the appellant was half way down the ride and that the rain was enough to cause the brakes of her toboggan to fail; (c) the respondent understood that the ride should not be used during rain as the brakes could be rendered either less effective or ineffective; (d) the website of the Bureau of Meteorology, displayed on the four computer screens in the respondent's administration office and monitored by Ms Bianca Eddy, showed yellow coloured rain clouds which meant light rain; however, it appears that it was the practice of the respondent that unless the monitor showed a blue colour which meant that there was rain around, the ride would not be closed. In other words, the fact that the monitors showed that there was light rain was insufficient to justify the closure of the ride; (e) if the staff in the office or at the top of the chairlift where the ride commenced saw rain clouds in the distance that appeared to be approaching but had not yet arrived, the respondent's policy was to direct that the ride be closed before the rain in fact arrived; (f) on the morning of the day of the accident, Mr Dax Eddy specifically instructed the staff that they were to monitor the weather in conjunction with administration and that if they noticed any rain or the chance of rain they were to stop the ride. 86 As I have indicated, her Honour acknowledged that the issue was whether the ride should have been closed because the day was cloudy and there was the possibility, that is, the chance, of rain. Mr Eddy had acknowledged that the ride should be closed if there was such a chance, having instructed his staff accordingly on the morning of the accident. In his evidence he acknowledged that clouds in the sky suggested to him the possibility of rain. The following exchange then took place: "Q. Mr Eddy, you gave that direction to staff at about 9.00, 9.30 that morning because you thought there was a risk of rain that day, didn't you? A. The possibility. Q. The possibility of rain occurring? A. Yes. Q. It's not a warning that you give every day of the week, is it? A. No. Q. You give it when you form the view that there might be rain? A. No, when there's clouds in the sky. Q. Which might lead to rain? A. Yes, possibility. Q. That's the warning you gave or the direction you gave at about 9.00 or 9.30 that day? Is that correct? A. Yes." 87 Mr Jordan, who at the time was employed by the respondent as an outdoor ride attendant at the bottom station of the toboggan run, when asked whether there was any doubt in his mind that there was rain around on the day of the accident, agreed that there was a possibility of rain because it was overcast. In chief he also acknowledged that on the day of the accident "we knew there was a probability maybe of occurrence of rain". 88 In my opinion, the evidence of Messrs Eddy and Jordan, coupled with the fact that the monitors showed yellow rain clouds which signified light rain and the fact, well known to the respondent, that if there was a sudden downpour, as apparently occurred, there was a significant risk that the toboggan brakes would fail when a rider was, as in the appellant's case, half-way down the run, mandated as the only reasonable response to that risk the stopping of the ride until the possibility of rain had passed.

89 It is true, as Ipp JA observes at [66], that the rain came down suddenly without any warning. But as a matter of common sense rain does not fall out of a blue sky. For rain to have occurred at all there must have been a rain cloud over the area where the toboggan run was located. Furthermore, it is common knowledge that rain clouds can be unpredictable and can result in a sudden downpour. The latter is not an unexpected or unusual phenomenon on the east coast of New South Wales. The risk of such an occurrence on the day of the accident was clearly foreseeable and was in fact foreseen by the respondent.

90 In the foregoing circumstances, in my opinion her Honour erred in finding that the reasonable response of the respondent was to do nothing, that is, to not close the run. Rather, that was an unreasonable response and the respondent was in breach of its duty of care to the appellant in failing to close the run when there was the possibility of rain and notwithstanding that it may not have appeared imminent.

91 As to the design of the toboggan run, Dr Olsen was not challenged with respect to his opinion that an inherently safe design would be one which did not rely on a mechanical device to stop the toboggan literally in its tracks when it was travelling at speeds of up to 35kph. I acknowledge the passage in his evidence relied upon by Ipp JA at [70]. However, immediately after giving that evidence the following further exchange took place:

"Q. You wouldn't ordinarily expect the operator to then of their own volition start making changes to that structure, would you?

A. Yes, I think that in this case it was known by the operators of the ride that rain would make it - could make it difficult to stop the toboggan and I based that opinion on the fact that they put in place an administrative control to say that if it rained the patrons should stop the ride and get off. To me that indicates that they knew that a wet track may propose a hazard for use. Now, the hierarchy of controls starts with exclusion, you remove - if there's a hazardous area you either remove it by engineering or you put in place some other protector devices such as instructions, but in the hierarchy instructions you are at the bottom, they're the least effective. You can also use a brake and they did and the brake being a mechanical device - can't always, it doesn't always work as well as intended, for example, when the track was wet. So what I'm saying is that it would have been reasonable for the operator of the ride to have taken up, if necessary, the matter with the manufacturer. If they were visiting regularly, inspecting the ride then they should have said to them we're concerned about the fact that it's slippery when it's wet and we have to stop the ride if it starts to rain. We don't want to have to stop the ride. We'd rather you tell us how we can modify the track so that it doesn't become dangers (sic).

Q. But, doctor, that, with respect, seems to omit one fundamental fact is that Jamberoo is not the only place in the world where rains falls, is it?

Q. So that the manufacturer of this equipment would be taken to know that it is the recipient of rain from time to time?

Q. And that means the manufacturer would be taken to know the consequences associated with that rain?

Q. In your experience in this area, you would expect the manufacturer to know those things, wouldn't you?

Q. And given that, you would surely regard it as reasonable for the end receiver of this material from the experienced expert manufacturer to rely upon that which they're given.

Q. Absent, other accidents which may lead to a need to take remedial action.

A. No, I can't, I can't, I can't agree with you on that." (Emphasis added)

92 It may well be, as Ipp JA notes at [72], that the manufacturer of the toboggan run was a reputable organisation with considerable expertise and that at no time had it suggested any of the modifications recommended by Dr Olsen. Nevertheless, as Dr Olsen makes clear, the respondent should have taken the matter up with the manufacturer in the manner referred to in that part of his evidence which I emphasised in the preceding paragraph. There is no reason to believe, and no reason was put to Dr Olsen in cross-examination, that the manufacturer would not have been responsive to his recommendations. No expert with Dr Olsen's engineering qualifications was called by the respondent to refute their wisdom.

93 As to making the end of the track more slip resistant, being the alternative design solution suggested by Dr Olsen, it is true that he acknowledged that if one was changing the speed of the surface of the track, that could interfere with the swerve track of the toboggan and may cause it to be thrown off the track. However, that was not the solution he was suggesting. Importantly, he gave the following evidence:

"A. ...but if you make a design change there can be untoward effects of that change, so you can't always just sort of say I think I'll just put some cover on the track down the bottom and that'll fix the problem. I don't think that's the right way to go about it. However, if you have got some resources, say good - maybe even if a good mechanic or a good mechanical fitter, it would still be possible to do some simple tests of actually using the toboggan with a couple of experienced operators down near the bottom of the track and experimenting with some resurfacing, as people do in shopping centres. I mean, resurfacing and making floors safer over what they originally can still be done. You don't need to reconstruct it.

Q. Doctor, even injury occurred later when you interfered with the surface in this way, you'd be criticised for changing that which the manufacturer had provided to you, wouldn't you?

A. Well, there is the risk of that and obviously you need to make a good decision about what you do. It wouldn't help if you made the change and as you say it become so slip resistant that people fall off the toboggans but clearly that wouldn't be a satisfactory solution." (sic)

94 It is true, as Ipp JA observes at [73], that Dr Olsen agreed that he had not carried out any research as to what tests the manufacturers had carried out or into what potential complications could arise from "tinkering with them as hardware". However, he did give the following evidence:

"Q. And again you don't know what negative consequences there might be in making the changes that you've spoken of?

A. Well, I do as an engineer. It is possible to say that you can actually vary the coefficient of friction by the use of various surfacing. So you can - you can vary it and it's possible to conduct some fairly simple tests just by using the toboggan to see what the outcome is. And if you're not doing it - I'm not suggesting --

Witness: I'm not suggesting it be done to the entire track, only at the bottom, so it wouldn't be a very difficult thing to do.

Campbell: Q. you didn't conduct any of these tests, did you doctor?

Q. Either in laboratory circumstances at home or when you were at the park?

A. Well, I've done - I mean, I've measured slip resistant surfaces for the last 25 years, so that I know, I know that it's possible to vary slipperiness of a surface at will, you only have to choose how non-slippery you want to make it and decide what you're going to put down.

Q. I mean a good example is a dance floor, doctor. If you've got a dance floor that is of one particular degree of friction and you suddenly change part of that dance floor to be of a different degree of friction that's the classic recipe for someone to come to an injury, isn't it?

Q. And can I suggest to you that the same logical principle applies if you start changing the frictions of differing parts along a tract such as that in this case with unrestrained people in toboggans?

A. No, I think in my opinion it would be that it is possible to do that safely but you would need to run some experiments on the actual track.

Q. Again, you would accept that the appropriateness of the length of the level track at the end is ordinarily a matter which the consumer can properly rely upon advice from the manufacturer about.

A. I don't know how to answer that. If the manufacturer makes a final stretch that's too short how can I rely on that? I mean, it's too short if you hit the buffer then it's too sure."(sic)

95 In my respectful opinion, the basis upon which the primary judge rejected Dr Olsen's evidence with respect to the design of the end section of the toboggan run failed to take account of the evidence which I have recorded above. That evidence, which was essentially unchallenged in terms of its propriety was first, that although one would not provide an extension to the end of the toboggan run without consulting the manufacturer, given the respondent's knowledge and recognition of the problem of a toboggan's brakes failing in wet weather there was no plausible reason which would tell against extending the end of the run in the manner suggested. Second, Dr Olsen was only suggesting a more resistant section of track at the end of the run (and not on any curves) which would have to be properly and carefully applied. Further, he acknowledged the necessity to run some experiments on the actual track for the purpose of ensuring that an appropriate co-efficient of slipperiness was adopted which would not result, as did the system in place at the time of the appellant's accident, in the toboggan suddenly stopping so that the rider was thrown onto the ground as occurred when the appellant hit the airbag at the end of the track.

96 For the foregoing reasons I am of the opinion that the respondent was in breach of its duty of care to the appellant in the respects referred to. I would therefore support the orders proposed by Ipp JA upon the basis that not only did the appellant establish her cause of action under s 74 of the Trade Practices Act but she also established that the respondent was in breach of its duty of care to her.

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