Greater Taree City Council v Craig Michael Peck

Greater Taree City Council v Craig Michael Peck - [2002] NSWCA 331 - NSWCA 2002 case summary — Zoe

[7]

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.

[9]

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."

[12]

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.

[15]

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.

[16]

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:

[19]

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:

[41]

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.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (44 paragraphs)

Parties

Cases Cited (6)

Cited By (2)