Greater Taree City Council v Craig Michael Peck

COUNSEL : Mr R Sheldon (Appellant) Ms S Norton SC, Mr D Wilson (Respondent) SOLICITORS : Phillips Fox (Appellant) Stacks, Taree (Respondent) CATCHWORDS : Torts - Negligence - Duty of Care - Alleged breach of duty of care - Skateboard rider suffers injury at skateboard facility - Allegation of negligent construction of mound on which accident happened - Causation - Onus of proof Agar v Hyde (2000) 201 CLR 552 Buttita v Strathfield Municipal Council [2001] NSWCA 365 Luxton v Vines (1952) 85 CLR 352 CASES CITED: Richard Evans & Co Ltd v Astley [1911] AC 674 Squillacioti v Roads and Traffic Authority of New South Wales [2002] NSWCA 133 Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 Wyong Shire Council v Shirt (1980) 146 CLR 40 DECISION : Appeal allowed, judgment below set aside, verdict in favour of appellant entered, respondent ordered to pay appellant's costs of the appeal and in the court below. Cross-appeal dismissed; cross appellant ordered to pay cross respondent's costs of cross-appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41079/01 DC 61/00 (Taree)

MEAGHER JA GILES JA EINSTEIN J

Judgment 1 MEAGHER JA: I agree with Giles JA. 2 GILES JA: The detailed reasons of Einstein J which I have had the advantage of reading in draft, enable me to state my opinion briefly. 3 The plaintiff's case was that he fell when his skateboard unexpectedly stopped as he landed, and that the skateboard stopped because the configuration of the mound was such that there was insufficient clearance between the mound and the skateboard. There was interference when the bottom of the skateboard between the wheels scraped on the mound. The competing hypothesis was that the plaintiff's execution of the jump had been imperfect, and that he landed unbalanced and with the skateboard wrongly turned so that it stopped upon the back wheels skidding sideways. 4 There was no direct evidence that the configuration of the mound was such that there could have been the interference. The mound was unchanged when Mr Burn inspected it. The plaintiff had sold the skateboard, but another skateboard of similar dimensions could have been obtained. Taking the skateboard to the mound, positioning it where the plaintiff said he fell, and demonstrating interference (if it was there to be demonstrated) would have been easy. That the plaintiff fell because of interference would not necessarily have followed, but the conclusion that he did would have been assisted. However, that was not done. 5 The plaintiff's case was supported to a point by his evidence to the effect that he was skilled at his "character trick". But this was the first time the plaintiff had attempted the jump on that side of the mound, and he readily acknowledged that the jump was going to be more difficult than his previous endeavours and that sometimes his timing would be off and the jump would not work: the plaintiff had in skateboarding elsewhere had the skateboard stop, due he thought to "the decline of the slope and maybe the rough cement", and on this occasion the skateboard made the same screeching noise as where the wheels are sliding sideways on cement. The plaintiff's case was also supported to a point by the evidence of Mr Anderson and Mr Nash to the effect that the plaintiff was doing his normal character trick and that they had encountered stopping when using the mound. The support from the former was little, given the matters just noted. The support from the latter was little when the jumps made by Mr Anderson and Mr Nash had been at other places on the mound and the cause or causes of the stopping were not able to be attributed to interference. 6 The plaintiff's case faced the significant difficulty that he fell backwards when his momentum upon the skateboard unexpectedly stopping would have been expected to propel him forward, as had occurred in the stoppages of which Mr Anderson and Mr Nash gave evidence. Counsel for the plaintiff suggested that the skidding sideways of the back wheels of the skateboard when the interference otherwise made it stop caused the plaintiff to fall backwards rather than forwards. That does not seem likely. 7 Even accepting the evidence of the plaintiff, Mr Anderson and Mr Nash, as the trial judge did, in my opinion it was not shown that a fall because of interference rather than because of error in the execution of the jump was more than conjecture. The plaintiff did not discharge his burden of proof. 8 I agree with the orders proposed by Einstein J. 9 EINSTEIN J: There is before the court an appeal from a judgment of Taylor DCJ in proceedings brought by the respondent following a skateboard accident which occurred on 10 June 1998 at a skateboard park situated in the Johnny Martin Oval, Macquarie Street in the City of Taree. The appellant was the body responsible for the construction, repair and maintenance of the skate park. 10 The proceedings were for damages for negligence. The trial judge held that the appellant had been shown to owe a duty of care to the appellant, which had been breached. The holding was that conduct of the appellant in relation to the construction of the mound on which the accident had happened, had materially contributed to the respondent suffering the injuries occasioned by the accident. 11 The respondent, who was 16 years of age at the time, sustained a displaced fracture of his right ankle which was the subject of first a closed and then an open reduction. 12 No question arose on the appeal in respect of quantum.

The Skateboard facility 13 The development of the skateboard facility had been proposed in April 1997 as a staged construction. Stage 1 was "the construction of base slab and one major challenge". Stage 1 was completed in March 1998 by which time it included the main concrete slab, viewing mound and temporary jumps. 14 The skate park was substantially changed after the accident and prior to the hearing. 15 A major difficulty confronting the trial judge arose because there was no material available from the appellant setting out the details of the design. The plan which was tendered was not the design as it was built. 16 Exhibit B comprised three photographs of the skate park, two of which photographs depicted the 'challenge' or mound on which the accident had occurred. Two further photographs showing the individual mounds were appended to the report of Mr Burn, an engineer who gave evidence on behalf of the respondent. 17 In the result the trial judge was hampered in terms of the evidence to which he could pay regard going to the precise design plan which was not produced otherwise than in terms of preliminary plans. Mr Burn had inspected the site on August 18 1998 having been advised by the respondent that there had been no changes and that the surface conditions were then the same as at the time of the accident.

Difficulties encountered in terms of the expert evidence adduced 18 Mr Burn was clearly hampered in terms of being asked to express expert opinions for the reason that he had not been given the actual design curve. His evidence was that he had asked for this in order that he might know what the actual shape of the hump was. In terms of his ability to give evidence he was limited to being able to say, as he did, that without the design plan, the plaintiff's description of the accident was consistent with the risk which he had described in his reports. His evidence was that there was no information on the construction of the mound. 19 The position before the trial judge was that whilst Mr Burn had made two reports which went into evidence and gave oral evidence, his evidence was at least to a certain extent and up to a certain point in time, that is to say up to the commencement of the hearing, evidence which clearly had severe shortcomings because of the nature of his inadequate briefing in terms of instructions. He gave evidence that he was informed at his original meeting with the respondent that the skateboard had stalled but was not informed at that meeting, nor before he attended Court, that the respondent had attempted a jump immediately before the accident, nor had he been informed that the respondent, in executing the move, had twisted in mid air. 20 The position with respect to the appellant in terms of expert evidence was that the appellant sought to tender a report by Mr Scerri, a research engineer and concrete specialist of 8 June 2001. The report, as his Honour found, had obvious difficulties, the most significant of which were: · that Mr Scerri had not measured the curvature at the point where the accident occurred. · that the report assumed that the subject mound had been constructed with concave ramp approaches whereas the approaches had been convex. · that there were certain incorrect measurements recorded in the report 21 A further difficulty with the report was that the evaluation of the subject mound was said to be based on a series of sketches showing the original design geometry of the skate park provided in what was described as the brief, "figure 2". However there was no figure 2 forming any part of the report. 22 At the time when this report was tendered the respondent's counsel objected to the whole of the report upon the basis that it appeared that report had dealt with an entirely different skate park. The appellant's counsel had not required Mr Scerri to attend for cross-examination upon the basis that as the report made no sense forensic way it did not seem necessary to require the witness for cross-examination. The trial judge made clear that he proposed to allow the report to be admitted into evidence making plain that he proposed to "then on the basis of the evidence that the parties have put before me to try and make what sense I can as a lay a person and evaluate the attack made by [the appellant] on the report and see whether or not that accords with the common sense of the juror."

The lay evidence adduced 23 Essentially the trial judge accepted the evidence of the plaintiff and of his two friends, Rick Anderson and Abe Nash, who had witnessed the accident, in terms of what they had each seen and remembered. . As will appear the type of liability issue which is raised requires an understanding of a number of technical concepts.

The Mound 24 The evidence before the court was that this was an earthen mound: · upon which a concrete topping had been placed; · which sloped to the right akin to the edge of a rounded hill.

The Accident 25 The respondent was an experienced skateboarder who used to skateboard everyday. On the day in question he was riding a brand-new, very expensive skateboard. As he had become more experienced in skateboarding he had sought greater challenges. 26 He had developed what the trial judge described as his "character trick". Essentially this involved attempting to execute a jump whilst turning the skateboard and his body in mid air. In seeking to execute the character trick on the occasion in question what he was about involved the following: · Approaching the mound to the front corner and travelling up the front of the mound; · Executing a jump in which both ends of the skateboard would leave the ground; · A turning movement in mid- air where part of the turn would involve his not having contact with the board · His feet making contact with the board in mid-air; · His then landing on the mound whilst in contact with board. 27 The respondent accepted in evidence that while he had attempted the jump previously, the jump he was attempting on the day of the accident was different from that which he had previously attempted. This evidence was corroborated by Mr Nash whom otherwise than on the day of the accident had never seen the respondent execute a jump across the joint of two slopes. The reference to the joint of two slopes was that the position from which the jump would commence was where one surface met another. This particular manoeuvre involved him straddling the ridge constituting the transition between two surfaces of the mound as he caused the board to leave the ground. The manoeuvre involved jumping the board as he approached the ridge, turning it in mid-air and landing on the other side of the ridge. He was trying to introduce a jump across the ridge and turning it at the same time and gave evidence that he wanted to do this in a different spot to see whether he could do it or not. He had expected the jump to be more difficult. This was the first time that he had tried this particular trick of going across the contour of the mound.

An outline of the significant parameters/concepts/technical matters

Curvature 28 The evidence accepted by the trial judge was that the curvature of the path which is used by skateboard may be understood in terms of being part of a cylinder where one has a series of straight lines in one direction but one has a curved surface at right angles to that series of straight lines. Mr Burn gave evidence that in general where skaters attempted various manoeuvres they have only a single degree of curvature or step with which to content. For example, a kerb up which a skater may jump would have a straight line interference with the skate path. Likewise in the more common skate park, the standard U shaped frame which allows a skateboarder to gain sufficient speed to attempt manoeuvres would be regarded as a single degree of curvature. 29 Mr Burn's evidence was that the subject skate park had two degrees of curvature. A sphere is the classical description of two degrees of curvature where the radius in both directions is the same. Mr Burn described the particular challenge which he had inspected in August 1998 as having what may be described as "freeform". His opinion was that there was a degree of unpredictability about a freeform structure having two degrees of curvature. His evidence as to this was put in the following terms: "If the skateboarder on the approach side happens to move to say six or eight inches to one side or the other from the path he's using, he will end up with an entirely different angular response when he lands on the other side or when he touches the ground again. There's no guarantee a person would go up the approach side of a hump in exactly the same way in the same direction as he did on a previous trip, so I think there's quite a degree of unpredictability about it." 30 In his opinion this was to be compared to a structure with one degree of curvature where the board rider only had to concentrate on one direction of movement as he would be aware that the natural movement was his level.

Clearance/Interference 31 Mr Burn's evidence was that there was a certain 'clearance' ("road clearance") between the front and rear wheels of all skateboards which required to be maintained. Hence any sharp vertical transitions or shapes such as would permit a local vertical curve to create a hump in excess of that clearance would occasion difficulties. 32 Mr Burn gave evidence that it was also possible to regard the concept of clearance as relevant in relation to the clearance between the rear wheels and the back of the skateboard. One could have for example a motor vehicle endeavouring to drive across a sharp gutter crossing which may catch the rear bumper bar. On his evidence the same problem would arise in terms of a skateboard rider where insufficient clearance was to be found between the rear wheels and the back of the board. 33 Mr Burn also used the term "interference angle" which was a term capable of being used to describe clearances but accepted in cross-examination that in terms of his internal dictionary, he had "treated the 'road clearance' as the one between the wheels and ['interference angle'] [as] the rear part of it". So much appears from his diagram [Figure 5 - Report of 21 August 1998] - although the 'interference angle' was also regarded as the clearance of "the leading edge of the board". 34 The evidence before the court was that each skateboard was different. Skateboards would presumably have some (albeit arguably minor) variances in terms of differing interference angles. Central Issues and use of terminology 35 The case concerned as a central matter, the precise shapes as well as relevant angles and apparent contours [or 'curvatures'] of the mound in question. These were not and had not been measured and there were no plans of the construction to assist. The mound was apparently made up of a number of faces, each at different angles. Differing terminology is to be found in the evidence to describe the places at which the faces of different angles met one another. The cross examiner appears to have from time to time used the word "transition" to describe the places at which the faces so met, as for example where the cross examiner elicited from Mr Nash that the respondents jump used the place where the two sides of the mound met as the take-off point. The trial judge however appears to have used the word 'transitions' to simply refer to the slopes of the relevant surfaces. 36 The precise layout of the mound was relevant because, unlike what was said to be a 'standard' jump where the rider is dealing with only one contour [or curvature], here the rider was endeavouring to jump from one face to another of differing contours, where the transitions [using that word to describe the places at which the faces met] were said to make the landing problematic as inhibiting the natural movement of the skateboard along a level surface. Of course to describe the accident which occurred in terms of any inhibition of the natural movement of the skateboard along a level surface is immediately incorrect because, to the extent to which one may use the word 'transition' to describe the places where the faces met, the respondent was endeavouring to jump the transition and not to move his skateboard over the surface of the transition. In other words one may often find a skateboard rider travelling up a mound and using the surface over which the skateboard is travelling to propel the board up and over a rise and down the other side. Whilst that will often also involve the board leaving the surface and whilst it may be a matter of degree, this manoeuvre certainly does not necessarily involve a concerted and integral part of the exercise as being to commence a jump by kicking down the back of the board and to then separate from the board in an activity involving turning the board in mid air and then rejoining the board whilst still in mid air.

The Trial Judges holdings 37 The trial judge found for the respondent on a number of aspects concerning the manner in which the mound had been designed and constructed which were held to have materially contributed to the respondent suffering his injury. The findings were: · That the construction of the mound could not be justified by geometric design and hence was unusual in that whereas generally skateboard challenges have one curvature, the subject mound presented two curvatures thus presenting physical mechanical difficulties to a rider; · That the mound was poorly constructed because it was bumpy; · That the mound was hazardous as the 'transitions' which should have been smooth had lumps in them. 38 Taken into account with the trial judges findings as to what had been involved in the accident, these findings concerning the mode of construction led to the holding of breach of duty and causative damage. 39 The critical issues concerned what precisely had happened in terms of the subject jump and why it had happened. The finding on liability turned upon the holding that the condition of the surface of the mound was causative of the injury. 40 In order to understand the issues which arose it is necessary to go into a little more detail. 41 The trial judge accepted the respondent's evidence to the following effect: · The respondent was what is known as a "goofy footer", meaning that his left foot was positioned at the rear of the skateboard and his front foot positioned at the front of the skateboard. · As the respondent had reached a position three-quarters up the rise he used his left foot at the back kick area to kick the front up-this is achieved by putting his left foot down at the rear of the skateboard. · The respondent's feet having separated from the skateboard, then on descent reconnected with the skateboard directly above the wheels. · The skateboard as it landed on top of the right-hand side slope stalled completely (that is to say simply stopped) and then slid to the right. It made a screeching noise as where a board goes sideways on cement. [The precise words used by the respondent in giving evidence in chief were: "I was continuing in air but when I ended up landing the board sort of stopped, started sliding, drifting, I don't know how to explain it, sort of, it stalled then slid, then stalled completely."] · The respondent fell onto his back. 42 The trial judge's holding was expressed in the following terms:

"As one approached the front of the jump [the appellant] said that it sloped to the right. He started up by one foot on the back, on the back kick area. He said that he is goofy footed which means that he has his left foot at the rear of the board. He was three-quarters the way up the rise. The board left the ground, his feet separated and then caught the board directly above the wheels and he continued on the board, stalled on hitting the mound and slid to the right. The board made a screeching noise which is the same sound as he hears when a board goes sideways on cement. He went backwards and so far as he can recollect the back of the board pointed to the bottom of the jump." 43 The trial judge held that the reason for the board stalling upon coming into contact with the ground was because there was "insufficient clearance". 44 The evidence of Mr Nash had also been to the effect that the board upon returning to the ground had stopped and that the respondent had fallen backwards. The trial judge accepted this evidence as reliable. 45 Likewise the evidence of Mr Anderson had been that he saw the jump and that the appellant had landed with an instant stop and had fallen backwards. His evidence was that the plaintiff had just been doing his usual trick when the board unexpectedly and suddenly stopped. This evidence was also accepted as reliable.

The Appeal 46 The appeal concerns an attempt to carefully dissemble the trial judges reasons in order to establish that the Judgment is vitiated for the reason that there were so many variables that it was not possible to conclude on the balance of probabilities, that the surface of the mound was causative of the respondent's injury. In this regard the appellant relies upon the proposition that depending upon the particular facts matters and circumstances of any particular case, the drawing of inferences may become no more than mere speculation. The submission is that this is a case in which the drawing of the subject inference became mere speculation when there were a number of inferences equally open on the evidence by way of possible explanations of the accident. The inferences which could be properly drawn from the manner of landing of the skateboard 47 An important consideration concerns what inferences could properly be drawn from the skateboard stopping or 'stalling' as it landed 48 What the eyewitnesses observed in terms of the skateboard stalling upon landing was consistent with the skateboard landing in such a way that it had no momentum and hence stalled. 49 Mr Burn accepted in cross-examination that if, when the skateboard landed, it was travelling too slowly to overcome the force exerted by the slope of the mound, the skateboard would stop, that is to say would stall. This of course would have nothing whatever to do with any interference caused by the surface of the mound. It simply reflects a law of physics.

50 In relation to the rear wheel having slid somewhat, this was a likely unintentional consequence and could clearly have been the product of a miscalculation relating to a number of component movements within the jump. The evidence was that skidding 'out' the back wheels of a skateboard was sometimes a deliberate action intended to cause it to come to a stop. There is nothing to show how the slide could be said to be due to the interference angle or the lack of clearance. In any event these are matters which are peculiar to each board and cannot be approached on the basis of uniformity in relation to each board that might be ridden on the mound. There were so many variables in the jump that it was simply impossible to conclude that the slide was in any way related to the condition of the surface of the mound. Indeed more likely, it was the thing likely to happen in the face of a miscalculation by the respondent. The inferences which could be properly drawn from the evidence that the respondent had fallen backwards 51 There is then again of special importance, the evidence accepted by the trial judge that the respondent had fallen backwards. 52 The appellant submits that there is no plausible explanation as to how the respondent could have fallen backwards if the cause of the skateboard not moving had been contact by it with the surface of the mound by reason of an inadequate angle of interference or by reason of a lack of clearance. Upon the assumption that the respondent had cleared the hump of the mound at the time when the board hit the surface of the mound it seems to me that there is likely clear substance in this appellant's submission. This was certainly the evidence given by the respondent and the eyewitnesses. See for example Mr Nash, who's evidence was that the respondent had clearly started on one side of the mound and following the jump had finished on the other down slope/ side. 53 However, as it seems to me, it is far from mere conjecture to conclude that some aspect of the twisting manoeuvre and in particular the manner in which the respondent landed on the board might very well explain the backwards fall which followed. If for example the respondent at the moment of the landing had put his weight onto the back edge of the board, it would seem that the backwards fall may be explicable. Considerations of the sensitivity of ones balance while twisted in mid-air would suggest a number of possibilities in terms of miscalculations in the twisting manoeuvre or in terms of the landing or in terms of other parameters were involved. 54 In my view there is substance in the appellant's submission that the evidence permitted the drawing of a number of inferences of, at least, equal possibility, in explaining the accident namely: · A miscalculation in the twisting manoeuvre; · A miscalculation in the reconnection of the plaintiff's feet with the board · A miscalculation with respect to the height of the jump; · A mistiming of the landing; · Landing so as to accidentally cause of the rear wheels to slide; · Losing balance during the sliding of the rear wheels. 55 The respondent himself gave evidence that no matter how much practice he had had, sometimes his timing would be slightly off and his trick would not work out. Timing the jump was all-important. 56 Mr Nash did not in the course of his evidence or cross-examination deal with the question as to whether or not he had observed any form of miscalculation of any type in the appellants subject jump. The closest he came to dealing with the general question was when he gave the following evidence:

"Q. Did you see him lose contact between his feet and the board? "A. No, maybe.

"Q. Did you see him twist? "A. No" 57 Mr Nash's relevant evidence went no further than: "Craig was going to do his normal trick that he always (sic) done. He just stopped". 58 In the result miscalculation by the respondent in terms of timing or otherwise remained entirely open. 59 What then was the evidence adduced before the trial judge and/or explicitly referred to as part of the trial judge's reasons, to support a holding attributing bumpiness of the mound or other obstacle to the necessary clearance as having been causative of the board stalling and/or of the backwards fall? 60 The answer to this question appears to repose in the evidence given by Mr Nash and possibly by Mr Anderson.

61 In this respect the evidence given by Mr Nash was relevantly as follows: · That before the day of the accident he had had a similar incident which he described in the following terms:

"Well I approached the same part as [the appellant] did to start with but I went over onto the school side of it and when I landed on the down slope my wheel landed in a bit of a ditch on it and it through me forwards nearly onto the grass… [The Board] stopped, it kind of flung backwards nearly." · That he had had incidents on the jump where he had nearly had his ankle roll:

"As going over the corner, how it goes around at 45 I've gone over the corner and my board's got wedged on it and it rolled across" · That:

"the transitions on the Taree Park, how they will join together, is really lumpy, nothing was straight or symmetrical like it was supposed to be." 62 The Trial Judge in dealing with the evidence given by Mr Nash, accepted him as an impressive witness and continued:

"[Mr Nash's] complaint about the mound was that nothing was straight or symmetrical as they should be. The transitions should be smooth and this one had lumps in it and he said that when he moved from one transition to another at the Taree Park, he had skidded. As I say he had very good evidence and on his evidence alone one would be satisfied that this was a hazardous mound and the top of injury that occurred to the plaintiff was foreseeable because of the risk of the dangers with the mound." 63 Mr Anderson gave evidence that on another occasion he had had an experience in which is board had instantly stopped. This was at the time when he was not jumping across the same transition as the respondent had jumped across at the time of the respondent's accident. He was actually jumping at basically the opposite side of the jump. This was an occasion when he was trying to jump and when he "went to hit the jump to get air off it, [his] board instantly stopped to a dead stop and [he] kept going forward." His board had stopped at the front of the jump namely the start of the jump. 64 The trial judge simply recorded this evidence without explicitly indicating the extent to which, if at all, he was relying upon this evidence to draw the ultimate inference in terms of the finding that the mound had been poorly constructed.

Dealing with the appeal 65 It is necessary to bear in mind the nature of the type of alleged negligence with which the court was required to deal. This was plainly an inherently dangerous sport. The recent decision of the High Court of Australia in Woods v Multi Sport Holdings Pty Ltd (2002) 76 ALJR 483 deals with the principles. The particular facts matters and circumstances which obtain in relation to the particular sport concerned are of the essence in examining the content of any posited duty of care. Clearly enough it is possible for a finding of negligence to be made as for example, where the entity in control of the environment in which a sport is played is shown to have been negligent in not ensuring that an unacceptable and foreseeable risk in respect of which obvious and reasonable steps could and should have been taken to avoid such risk, were not taken. Was this however such a case? 66 In my view the trial miscarried. The convenient course is to deal with each of the bases for the finding of negligence. Before turning to those bases it is appropriate to make the point in terms of the obvious difficulties in a finding that the respondent executed the manoeuvre perfectly and without any mistake. One need go no further in this regard than to recall the following section of the cross-examination of Mr Anderson in explaining the respondents character trick:

"Q. .. Before you leave the ground you know you're going to want to make a turn, is that right? "A. Yeah.

"Q. And so just before you leave the ground you undertake a manoeuvre which causes you to change direction in mid air, is that right? "A. Yes.

"Q. And by virtue of doing that when you land the board is travelling in a different direction to the direction it was travelling in when you took off, is that right ? "A. That is right but not to the extent where the board's fully turned… You've got to sort of follow the transition to keep moving because if you don't turn that's when you're going to instantly just hurt yourself.

"Q. That's when you're going to stop isn't it? "A. Not really because you're just going to land or wrong-wheel and fall off.

"Q. Now the twisting motion of the board means that when it lands, unless you get the timing perfectly right, there is some sideways movement in the board isn't there? "A. Yes, yes, there is.

"Q. Which could cause - "A. Sometimes, yes.

"Q. Which could cause the wheels to slide sideways couldn't it? "A. It depends on how much you've turned the board.

"Q. Okay, but if you've turned the board enough, or not enough, whichever it is, if you mistime your landing you could send the wheels sideways couldn't you? "A. You could, yes.

"Q. And is it your experience that sending the wheels sideways is one way of slowing down a skateboard or stopping it? "A. Yes.

"Q. So that if the board landed slightly sideways and the wheels went sideways on the ground that could stop the board couldn't it? "A. That could stop the board, yes" 67 This is cogent testimony, if testimony be needed, to the effect that the manoeuvre sought to be executed may very well, for innumerable reasons, have not been perfectly executed. The respondent was embarking upon a novel form of jump for him which carried with it an additional degree of difficulty. Since, on the evidence, the execution of jumps even within the area of experience of a skateboard rider carried with it a known risk of error, it was as a matter of commonsense in terms of probabilities, likely that an attempt to jump in a novel and new circumstance carried with it an even greater risk of injury. 68 I turn to deal them with the trial judge's findings.

Geometric Design 69 The sport involves unusual challenges and the mere fact that the subject mound presented two curvatures hence presenting physical mechanical difficulties to a skateboard rider does not transform this into an a fortiori case of negligence in terms of a breach of duty. Far more would be needed in terms of persuasive evidence. Each skateboard would present different angles of interference and have different clearances. For some skateboards the alleged deficiencies in the mound would constitute no difficulty at all. For others they would constitute an insurmountable difficulty. Even a reasonably constructed mound, (assuming the subject mound not to have been a reasonably constructed mound) could have presented a difficulty to skateboards of a particular configuration, particularly as they were approaching the mound from the flat surface surrounding it. If they had a very shallow interference angle it might be impossible for them to be ridden up the mound. As the appellants submitted, all this does is to show that no universal statement could be made as regards the suitability of the mound for skateboarding, since each skateboard was unique.prevented And even if the subject curvatures were excessively difficult, this is not to say that this accident was caused by those difficulties. Mr Burn for example accepted that the analysis of the cause of the accident was particularly complicated by the fact that the respondent was attempting to jump the skateboard as well as to turn the skateboard and his body in mid air.

Mound being 'bumpy' 70 There was as it seems to me only a scintilla of evidence that the mound had been 'bumpy'. I refer here to the evidence given by Mr Nash, possibly added to by that of Mr Anderson. Taken alone and without regard to the other evidence before the court, this evidence was far from sufficiently cogent to satisfy onus which lay upon the respondent to prove on the balance of probabilities that the accident had occurred because the mound was bumpy. As the appellant contended, the trial judge may only be regarded as having engaged in pure speculation bearing in mind the number of inferences which were equally open on the evidence by way of possible explanations of the accident. Those inferences have already been set out. 71 As Lord Robson observed in Richard Evans & Co Ltd v Astley [1911] AC 674 at 687: ".. [The] Court must look at all the circumstances to see if they give rise to a reasonable and definite inference on the matter in question. If they give rise to conflicting inferences of equal degrees of probability, so that the choice between them is mere matter of conjecture , then the applicant has failed to prove her case." [Emphasis added] 72 In Luxton v Vines [1952] 85 CLR 352, Dixon, Fullagar and Kitto JJ, having referred with approval to the above passage from Richard Evans, added at 358 the following: "But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusions sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise". [cf Squillacioti v RTA [2002] NSWCA 133 per Handley JA at [32]] 73 In my view it is plain that it was not reasonable for the trial judge to find a balance of probabilities in favour of the inference either that the mound was not properly constructed because it was bumpy or that the bumpiness of the mound was causative of the subject accident.

Transitions not being smooth and having lumps in them 74 This holding appears to have been squarely based upon the evidence given by Mr Nash. That evidence which has already been set out is far from sufficiently cogent to satisfy onus which lay upon the respondent to prove on the balance of probabilities that the accident had occurred because of the transitions/surfaces being insufficiently smooth. There was no evidence to suggest that at the precise location where the respondent was injured, there had been prior experience of a skateboard stopping, being unable to clear a bump or irregularity or having its interference angle encroached upon. Here again bearing in mind the number of inferences equally open on the evidence by way of possible explanations for this accident, the trial judge may only be regarded as having engaged in pure speculation. It was unreasonable for the trial judge to find a balance of probabilities in favour of the inference either that the mound was hazardous by reason of the transitions having had lumps in them or that the lumps in the transitions were causative of the subject accident.

The existence of duties of care in relation to inherently dangerous sports 75 Agar (2000) 201 CLR 552 "demonstrates [that] participation in sport involves an appreciation of the risks of that participation" [Buttita v Strathfield Municipal Council, (unreported, 8 October 2001, NSWCA, BC 200106180) per Giles JA at paragraph 11, with whose judgment Spigelman CJ and Fitzgerald AJA agreed] 76 As Gleeson CJ pointed out, ideas of what is an unnecessary risk in playing a sport vary widely. 77 Where a duty of care is pleaded "the risky nature of a sporting activity in which an adult participant has chosen to engage may be of factual importance in a decision as to whether such a case has been established": Woods per Gleeson CJ at [37]. 78 In such a circumstance, the ultimate question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 per Mason J. 79 The recent consideration in Agar and in Woods of the parameters involved in finding a duty of care in relation to an inherently dangerous sport simply point up the obvious difficulties involved in such cases and the extent of the examination of the relevant facts, matters and circumstances which requires to be carried out by way of the relevant judgmental assessment of a posited duty of care and as to whether and if so how and why that duty of care is shown to have been breached and with what causative effect. The trial judge as it seems to me fell well short off conducting such an examination in this case. The inferences which he drew were no more than mere speculation and clearly did not justify the verdict entered. 80 In the result the trial judge's primary findings of fact in terms of the manoeuvre which had been attempted and in terms of the way in which the respondent had fallen and in terms of the skateboard stalling are all seen to have been entirely open on the evidence and justified by the evidence. However the ultimate finding and inference drawn in terms of the cause of the fall was not justified on the evidence and was vitiated because the facts gave rise to conflicting inferences of equal degrees of probability so that the choice between them became a mere matter of conjecture. 81 The appeal should be allowed, the judgment below should be set aside, a verdict in favour of the appellant should be entered and the respondent should be ordered to pay the appellant's costs of the appeal and in the court below.

82 The cross-appeal does not arise for determination and should be dismissed. The cross appellant should be ordered to pay the cross respondent's costs of the cross-appeal.

I certify that this and the preceding 23 pages are a true copy of the reasons for judgment of the Hon Justice C Einstein and the Court

3 October 2002 Associate

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