Kingswood Golf Club Ltd v Smith & Anor [2005] VSCA 224

Court of Appeal (Vic)|2005-09-16|Before: MAXWELL, P., CALLAWAY and ASHLEY, JJ.A.

Personal injuries - Negligence - Occupier's liability - Depression in grass pathway on golf course - Golfer driving motorized cart accelerating out of depression and colliding with plaintiff - Whether golf club in breach of duty of care - Whether breach causative of plaintiff's injuries - Apportionment between golf club and driver of motorized cart - Driver proposing that she and golf club should jointly accept plaintiff's offer of compromise - Proposal rejected - Plaintiff awarded indemnity costs - Whether consequential order against golf club in favour of driver within judge's discretion - Appeal dismissed.

5 Mrs Smith (whom I shall call "the plaintiff"), Mrs Sutton and Mrs Wharton were playing golf together on Tuesday 12th February 2002 at the Kingswood Golf Course. Mrs Sutton suffered from a medical condition which required her to drive a motorised cart when she played golf. Four such carts were available at the course for players with an appropriate medical certificate. En route between the second hole and the third tee the golf cart being driven by Mrs Sutton knocked the plaintiff to the ground from behind. She suffered serious injuries. The damages ultimately awarded by the County Court, in the sum of $292,216.90, are not in dispute. Both the appellant, Kingswood Golf Club Ltd., and Mrs Sutton, who is the second respondent, were held liable. Their responsibility, pursuant to Part IV of the Wrongs Act 1958, was found to be 60% and 40% respectively. The two main issues raised by the appeal are whether the appellant should have been found liable to Mrs Smith at all and, if so, whether its share of responsibility should be reduced and that of Mrs Sutton correspondingly increased. The plaintiff has accordingly played no part in

the appeal, albeit that she was named as the first respondent. There is also an issue regarding costs.

Summary of relevant evidence

6 The plaintiff, Mrs Sutton and Mrs Wharton had to pass the third men's tee in order to reach the third ladies' tee. It was possible to pass either to the left or to the right, but the left route was shorter and commonly taken. It involved walking, or in Mrs Sutton's case driving, between the raised men's tee and bushes to the golfers' left. The plaintiff was walking in the front of the group on her own, followed by Mrs Sutton and Mrs Wharton. When the plaintiff was somewhere near the front of the men's tee area she was struck from behind by the cart driven by Mrs Sutton. She claimed that she was struck without warning, although Mrs Sutton said in evidence that she thought she called out to her. The judge found there was at least time for a warning.

7 Mrs Sutton said that she was driving the cart slightly to the rear and left of the plaintiff at about the same pace as the plaintiff was walking. She said that, as she drove the cart in the vicinity of the men's third tee, the front left wheel went into a hole in the ground. (It was common ground that that was a depression containing two solenoid boxes.) She said that that caused the cart to move sharply towards the bushes to the left and that, in response, she pulled hard on the right side of the steering wheel and put her foot on the accelerator to get out of the hole. She said that the cart then moved to the right towards the plaintiff. She was unable to recall whether she applied the brakes before she struck the plaintiff. She thought that, after being struck, the plaintiff was about three metres from the hole covers.

8 The plaintiff agreed in cross-examination that the Kingswood course compared well with other courses she had played on and that it was usual for there to be sprinklers, taps, covers and the like recessed below the level of the grass, although she said that she would not expect to come across a concealed hole in the grass which might be around six inches deep. She also agreed that, in her experience, it was common to walk from greens to tees not on paved paths. As to the possible routes to the ladies' third tee from the second green, she said that there was an open area on the other side of the men's third tee, which could have been used by Mrs Sutton, but she agreed that the route taken was shorter and more direct. Mrs Sutton claimed that the route to the right of the men's tee was about the same distance but could not be used as it interfered with golfers approaching the fifth green.

9 Mrs Sutton was unable to say how far behind the plaintiff she was driving the cart before the accident. She said that the plaintiff at no stage stopped walking whilst she was making her way to the third tee. She agreed that she did not see the depression, because of the length of the grass, and that she did not slow the cart on account of the length of the grass. She also agreed that there could be mounds, recessed taps, sprinklers and the like in the rough on golf courses.[1] The following passage clarifies her perception of what happened when the wheel went into the depression:

"When you say it turned to the left, are you able to give us any indication as to what sort of angle it turned to the left? Did it turn hard left or did it turn just a little bit off the straight or how did it turn?---It turned a lot.

Did it turn 90 degrees to the left?---Probably, yes.

Then you have had to effectively turn right and with a tight turning circle it's got turned in a 180-degree direction to go back. Is that correct?---Yes.

I take it after you have turned back to the right, you have again seen Mrs Smith in front of you. Is that correct?---Yes.

It is at that point that you called out to her?---Yes."

10 An engineer, Mark Dohrmann, having examined the scene of the accident on 5 March 2004, prepared a report which was tendered. Mr Dohrmann described the area where the accident occurred. The distance from the top of the men's tee to the rough was about 4.5 metres at an approximate gradient of 11 degrees. The flatter rough area contained two solenoid valve pits which each had a cover measuring 500 mm by 300 mm. The covers were within a depression with approximate dimensions of 800 mm by 700 mm. The depth of the depression varied between 50 mm and 80 mm. The sides of the depression were gently sloped. Mr Dohrmann measured the distance from a point near the front left corner of the men's third tee to the hole covers to be nine metres.

11 He also conducted tests in the golf cart that the plaintiff had used. The cart had a maximum speed of 4.7 metres per second. Average walking speed was approximately 2.3 metres per second. His tests, consisting of driving the cart into the depression four times, showed that the cart did not deviate from its course when the left wheel was driven into the depression, regardless of the speed of the cart. He said in cross-examination that he would not deny that Mrs Sutton's account, that when the wheel hit the hole it caused the cart to swerve, might be accurate, but he could not replicate it. He opined, in his report and in evidence in chief, that, at any speed the cart was capable of, it could be stopped within a distance of less than 2 metres. He also said that there was sufficient space for Mrs Sutton to drive the cart safely alongside her companions at walking pace between the second green and the third tee and that it was reasonable for the area to be shared between pedestrians and carts.

12 Mr Dohrmann did not consider that the depression, which had no sharp drops or edges, presented a hazard to drivers of carts. He said that it was not possible to see the depression until virtually being upon it.[2] In cross-examination, he said that, if there were physical features at the approach to the depression which were sufficient in size and position to affect the way the wheel behaved, it would be possible for the wheel to swerve to the left but such features were not present when he conducted his tests. He also said that reaction time should be taken into consideration when considering the overall distance that it would take to stop the cart. He agreed that it could take up to seven metres to stop the cart, without negligence on the part of the driver, if reaction time were taken into account.

13 Charles Stonehouse, an accident investigator, attended the course on 23rd May 2003 with Mrs Sutton and her husband. Mr Stonehouse took three photographs of the cart with its front left wheel in the depression. He measured the depth of the depression to be, at one side, 110 mm and estimated it, at the deeper side, to be 150 mm. Photographs taken by Mr Stonehouse of pit covers, on a fairway, which were obvious and flush with the ground were also tendered.

Judge's findings of fact

14 The judge reviewed the evidence and made a number of findings of fact. Those findings included the following:

• Although the route taken by the plaintiff and her companions was a narrow one, it was the route usually taken by golfers using the course and it was not unreasonable for them to do so.

• The appellant would have known, or ought to have known, that that route was customarily used in the manner described by the plaintiff and Mrs Sutton in their evidence.

• Mrs Sutton was driving at walking pace and did not accelerate the cart until after the wheel entered the depression. She did so in order to extract the wheel from it.

• Although it was disputed at the trial, the wheel of the cart did enter the depression. The acceleration used to extract the wheel directed the cart rapidly towards the bushes to the left.

• There was no warning notice and the hole containing the solenoid boxes was a depression that was concealed by grass and not obvious.

• The depression "could have been made obvious" by clipping the grass around it, as displayed by a photograph showing well-clipped grass surrounding a different solenoid box elsewhere on the golf course.

• There were conflicts in the evidence, but the distance between the point at which the accident was likely to have occurred and the boxes was closer to nine metres than two or three.

• The stopping distance, from emergency to application of brake, for an older person would be seven metres. Mrs Sutton had sufficient time to apply the brakes and stop before hitting the plaintiff.

15 Her Honour summarised her findings of fact as follows:

"The findings of fact in this case are, in brief summary, that Mrs Sutton, equipped with a medical certificate, hired a golf cart from the golf club and drove it over a concealed, although commonly found hazard, and likely experienced a momentary disruption to the passage of her golf cart. In response, she accelerated to exit the depression, and immediately came very close to the bushes on the left, at a sharp angle. She then over-steered to her right and drove into the plaintiff. She had the opportunity to brake, but failed to do so. The depression was located in an informal narrow pathway, routinely used by golfers."

Her Honour's conclusions on liability

16 Turning to her conclusions as to liability, the judge recorded that counsel for the appellant submitted that Mrs Sutton's negligence lay in her failure to slow the cart, failure to brake and her apparent expectation that the ground was smooth and safe, without the need for her to anticipate or prepare for danger. She said that, although people are ordinarily expected to exercise care in looking where they are going, an occupier may not escape liability if it is aware of a defect or hazard and does not take reasonable steps to rectify it. Her Honour rejected a submission that Mrs Sutton's response had been in the "agony of the moment" as described in Leishman v. Thomas[3]. That case had involved a motor vehicle accident in which there was no opportunity for the defendant to apply the brakes. By contrast, in the present case, Mrs Sutton had time, after getting out of the hole, to apply the brakes and stop before hitting the plaintiff.

17 In addition to her observation that occupiers may not escape liability if they are aware of a defect or hazard but do not take reasonable steps to rectify it, the judge said:

"Given my findings of fact that the golf club knew of the concealed hazard and hired out golf carts for use on the course, it follows that, according to law, a duty of care is owed to both pedestrian and driving golfers ... A duty of care was therefore owed to Mrs Sutton, to render the depression reasonably visible to her and other drivers. The same duty of care is owed to the plaintiff. Her injury was caused by Mrs Sutton's failure to see the depression, and also by her failure to apply the brake after exiting the depression." (Emphasis added.)

18 In relation to apportionment, her Honour said only:

" ... liability should be apportioned between the defendants. The basis of apportionment is that it should be just, having regard to the extent of the defendant's responsibility for the damage. In the circumstances of this case, a broad consideration of what is just suggests that the first named defendant should be liable to the extent of 60% and the second named defendant to the extent of 40%."

Application to amend grounds

19 The appellant sought leave, at the hearing of the appeal, to add a ground reading:

"1A. That the learned trial judge erred in holding that the appellant owed to [the plaintiff] a duty the content of which was to render the depression reasonably visible to [Mrs Sutton]."

That is a reference to the words I italicized in the passage from the judge's reasons set out in [17] above. Although that passage is infelicitously expressed, I think the judge was doing no more than identifying the way in which the appellant's duty of care should have been discharged in the circumstances. Put simply, the duty was to take reasonable care and the breach was failure to render the depression reasonably visible to a person in Mrs Sutton's position. The Court reserved its decision on the application to amend but permitted the point to be fully argued. Although the ground is superficially attractive, it is a purely verbal point if my analysis is correct. I would therefore refuse leave to amend.

Liability

20 It was not contested on the appeal that the appellant did owe the plaintiff a duty of care. Although the case appears to have been run below partly on the basis of occupiers' liability and partly by reference to a general duty of care, the appellant's duty is apparent from Part IIA of the Wrongs Act 1958. It required the appellant to take such care as was reasonable in all the circumstances of the case to see that a person in the plaintiff's position would not be injured by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.[4]

21 Our task, in relation to liability and apportionment, is simplified by a concession Mr Brett made in answer to a question from the Bench. He agreed that the only proved breach of duty was that found by the judge, i.e. failure to render the depression reasonably visible, and that that amounted to a failure to clip the grass. We are therefore not required to consider whether the solenoid boxes should have been located elsewhere or whether the bushes to the left of the path should have been pruned back or whether some form of warning should have been given, either generally or to golfers to whom the appellant supplied the motorized carts.

22 The video referred to in footnote 1 above left me in some doubt as to whether there had been any breach of duty at all in failing to clip the grass. No one expects a bowling green surface on a path used to pass to the side of a golf tee. But the video was made 12 months later and the grass was longer at the time of the accident. Mr Dohrmann, two years later, said that it was not possible to see the depression until one was virtually upon it. The judge found that the depression was concealed by grass. It may be accepted that there was a risk that a person driving a motorized cart would not see the depression unless the grass were clipped much more closely than it was on 12th February 2002. The appellant knew, or ought to have known, that the route was used by golfers, including golfers driving motorized carts. I would not disturb her Honour's finding of fact that there was a breach of the duty of care owed by the appellant to the plaintiff.

23 A question remains, under the heading of liability, whether that breach was a cause of the plaintiff's injuries. There was no direct evidence that, if the grass had been clipped, Mrs Sutton would have avoided the depression. With some hesitation, I accept Mr Brett's submission that commonsense is enough to show that making the depression visible in that way would probably have averted the accident. The other issue that has troubled me is whether Mrs Sutton's overreaction was so great that her negligence was the only operative cause at the time of collision; but, given that it was an overreaction to a situation arising from the appellant's breach of duty, I think that it is relevant only to apportionment between the defendants.

Apportionment

24 The starting point is the passage from the judge's reasons set out at [18] above, but that does no more than state the test to be found in s.24 of the Wrongs Act in an abbreviated form and record her Honour's conclusion. The authorities required a comparison both of culpability, i.e. of the degree of departure from the standard of care of a reasonable person, and of the relative importance of the acts and omissions of the appellant and Mrs Sutton in causing the plaintiff&#821[5]s injuries.5 The judge did not refer to those requirements or relate them to her findings of fact, but this is not an appeal alleging inadequacy of reasons as an indepe[6]dent ground.6 We should not infer from her silence either that she was unaware of the comparison to be made or that she did not turn her mind to it. The significance of the absence of explicit reasons is simply that, as Starke, J. used to say, it entitles this Court to be more bold if the apportionment appears to be outside the range.

25 It has often been emphasized that the task of apportionment is similar to the exercise of a broad discretion. In Podrebersek v. Australian Iron & Steel Pty. Ltd.[7] Gibbs, C.J., Mason, Wilson, Brennan and Deane, JJ. said[8]:

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 C.L.R. 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; [1953] A.C. 663 at p 682; Smith v. McIntyre [1958] Tas.S.R. 36, at 42-49 and Broadhurst v. Millman [1976] VicRp 15; [1976] V.R. 208 at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."

"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v. Macgregor (Owners) [1943] A.C. 197, at p 201. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury: Zoukra v. Lowenstern [1958] VicRp 94; [1958] V.R. 594."

Similar considerations apply to an apportionment between defendants.[10] The question for us is whether the apportionment of 60% to the appellant and 40% to Mrs Sutton was outside the range of a quasi-discretionary judgment.

26 I am conscious not only of the constraints on appellate intervention but also of the difficulty of comparing different kinds of cause. This is not like a case where two motorists have been negligent. The negligence of the appellant, in failing to make the depression reasonably visible by clipping the grass, and the negligence of Mrs Sutton, in swinging hard to the right and accelerating instead of braking, are difficult to commeasure. That having been said, I have no doubt that Mrs Sutton's negligence, as regards both culpability and causation, was far greater than that of the appellant. It was, without intending any discourtesy to her, a panicky and inept overreaction.[11] It is to be judged objectively, not by reference to a special standard applicable to an older person. I would apportion contribution 25% against the appellant and 75% against Mrs Sutton.[12]

Costs

27 The trial began on 29th March 2004 and, on that day, the plaintiff served on the appellant and Mrs Sutton an offer of compromise in the sum of $280,000. Evidence and submissions concluded on 31st March 2004 and judgment was reserved. On 5th April 2004 Mrs Sutton's solicitors wrote to the appellant's solicitors proposing that the appellant and Mrs Sutton jointly accept the offer of compromise and proceed to judgment on the question of contribution only. Two days later the appellant's solicitors rejected that proposal, pointing out that it was open to Mrs Sutton to accept the offer of compromise herself and, if so advised, to pursue the contribution proceedings between the defendants.

28 The damages ultimately awarded exceeded $280,000[13] and the defendants were ordered to pay the plaintiff's costs to be taxed on an indemnity basis. Because the appellant had rejected Mrs Sutton's proposal that they jointly accept the offer of compromise, it was further ordered that the appellant indemnify her in respect of that portion of the plaintiff's indemnity costs which exceeds the plaintiff's costs taxed on a party/party basis. That is the issue regarding costs to which I referred at the beginning of this judgment.

29 The point is a short one and counsel sensibly relied on their respective outlines of submissions. Counsel for the appellant said that the judge had proceeded on the view that it was solely because the appellant did not agree to Mrs Sutton's proposal that the defendants jointly accept the offer of compromise that the plaintiff was awarded indemnity costs, but the offer of compromise was rejected by both defendants. Mrs Sutton could have accepted it on her own account and allowed the question of contribution to be determined by the judge. Counsel for Mrs Sutton submitted that her proposal had recognized, correctly, that both defendants were likely to be found liable and that the plaintiff was likely to achieve an award in excess of the offer of compromise. That assessment was right and the judge's order was justified.

30 I am not persuaded that any error is shown in the exercise of her Honour's discretion. The decision of a trial judge in relation to the costs of the trial is exceptionally difficult to overturn on appeal.[14] An order as to costs made by a judge of the Trial Division is not subject to appeal at all, except by leave of the Court of Appeal or leave of the judge.[15] There is, unfortunately, no similar restriction in s.74 of the County Court Act 1958.[16] As the law stands, the appellant is entitled to appeal as of right against her Honour's order but that part of the appeal should be dismissed.

1 Orders

31 For these reasons, I propose that leave to add the proposed ground 1A should be refused, but that the appeal should be allowed in part, substituting 75% and 25% for the 40% and 60% apportionment made below.

32 I have had the advantage of reading the reasons of Callaway, J.A. in draft. They set out very clearly the issues which were raised on the appeal.

Duty of Care. Formulation

33 I agree with Callaway J.A. that the trial judge did not misunderstand the duty of care which the appellant owed to the plaintiff. The matter sought to be raised by proposed ground 1A was founded on a passage in the reasons in which the judge, I think in excess of economy, ran together the duty and what had been required to discharge it. I would refuse leave to amend because on my analysis the proposed ground would surely fail.

Breach

34 I agree with Callaway, J.A. that breach of duty was established against the appellant. The trial judge found that the substantially concealed hole or depression in the ground into which the front near-side wheel of the golf cart driven by Mrs Sutton descended was situate in an area which was considerably traversed, as the appellant knew or ought to have known. The traffic which traversed the area included both pedestrians and golf carts. The judge was entitled to conclude that the depression in its substantially concealed form - evidently she accepted Mrs Sutton's evidence that the hole was covered over with "green grass and dead bits and pieces";[17] for she found that the depression "was concealed by grass and was not

obvious",[18] and she described it as a "concealed hazard"[19] - posed a danger to either category of traffic. The danger was not to be discounted, in my opinion, by evidence that bumps and depressions are found generally on golf courses. The bumps and depressions found, for example, in the light and heavy rough should not be equated with a substantially concealed depression present on a well-used route from green to tee - regardless that an errant shot might result in a ball coming to rest in the vicinity.

35 It may be said, I think, that the danger posed by the hazard - that is, in terms of reasonably foreseeable risk of harm - was more extensive in the case of carts than it was in the case of pedestrians. That was particularly so because of its size and shape, which enabled a wheel to fit entirely within it. It was foreseeable that a pedestrian who stepped into the depression might suffer injury. But if a wheel of a cart entered the depression, there was a distinct prospect of injury either to the driver, any pedestrian in the near vicinity, or both. The circumstances in which the plaintiff came to be injured are simply one illustration of what was within the range of foreseeability unassisted by hindsight. Mrs Sutton gave evidence that she pushed hard on the "right side" of the steering wheel

"because I was going over to the left into the bushes."

"because the wheel was down in the hole in the ground."[20]

36 She was referring to bushes which were close by on the left, the track in that vicinity swinging to the right.

37 The learned judge found that:

• the front near-side wheel of the cart entered the depression;

• Mrs Sutton accelerated the cart to exit the depression;

• the cart immediately approached the bushes on the left, travelling at a sharp angle;

• Mrs Sutton then oversteered to the right, so avoiding the bushes but striking the plaintiff.

That was the detail. It illustrated something which is obvious on a moment's reflection: that a driver confronted by a sudden and unexpected movement of his or her cart might well not respond in a measured or objectively sound way.

38 Given the danger posed both to pedestrians and drivers of which the Club should reasonably have known, I consider that it was well open to the judge to conclude, as she did, that the Club breached its duty of care to the plaintiff by failing to take action to reveal the depression and thus remove the risk of injury. Her Honour might well have found a more extensive breach of duty. But that is beside the point.

39 That breach is the clearer because with little time and little expenditure the particular hazard posed by concealment of the depression could readily have been eliminated. Nothing out of the ordinary was required. It is of the essence of ordinary course maintenance that greens, tees and regularly used pathways, and areas proximitate thereto, are regularly mown and clipped. Photographs which went into evidence show that, generally speaking, this course was no different to the norm. The depression pertinent to this matter was not far from one tee[21] and was on a route regularly traversed by golfers moving from a green to another tee.[22]

Causation

40 The appellant's initial submission concerning causation was that the trial judge had overlooked the need to make a finding that

"had the depression been reasonably visible to [a person] using reasonable care, it would have been avoided by Mrs Sutton and thus the accident would have been avoided."[23]

But that was not the only aspect of causation raised for the Club. Counsel also submitted that the judge had not addressed the question whether the plaintiff had established a connection between the immediate consequence of the Club's negligence - that is, the front near-side wheel of the cart entering the depression - and the cart striking and injuring the plaintiff. According to counsel's argument, there was a break in the chain of causation. It was constituted by Mrs Sutton behaving, in effect, in an irrational fashion in response to the wheel of the cart entering the depression. There had been ample time and distance to stop. Instead, Mrs Sutton had accelerated and oversteered to the right.

41 In terms, her Honour did not address what I have called the initial submission as to causation. But she concluded that Mrs Sutton had been driving the cart at a modest speed and in a careful manner when its front near-side wheel entered a depression which was concealed by grass and which was not obvious.[24] It followed, her Honour held, that a cause of the plaintiff's injuries was Mrs Sutton's non-negligent failure to see the concealed hazard.

42 I take her Honour's conclusions to involve an implicit finding that Mrs Sutton, driving at a modest speed and with no other want of care, probably would not have driven into the depression had it been reasonably visible to her.

43 I turn to the second aspect of the Club's causation submission. The findings of the learned judge were to the following effect:

• Mrs Sutton was confronted by a sudden and unexpected movement of her cart.

• Her response was to accelerate and then to steer away from the bushes on her left as her cart approached them.

• The point of collision was closer to 9 metres than 2 to 3 metres from the depression.

• The cart had been travelling at walking speed before entering the depression.[25]

• Mrs Sutton could have stopped her cart before hitting the plaintiff had she applied the brakes when the emergency arose.

• The stopping distance, allowing for reaction time, "would be 7 metres."[26]

44 Let me accept, for the moment, the judge's finding that, had Mrs Sutton applied its brakes, she could have stopped the cart before it struck the plaintiff. The Club's second causation argument proposed that the chain of causation was broken when, faced with a sudden and unexpected movement of the cart, Mrs Sutton then accelerated and oversteered instead of calmly braking.

45 It may be said, with the luxury of hindsight, that Mrs Sutton could have made a different and better choice as to what to do. It should be accepted that, as one thing led to another, she became confused. But the whole transaction, set in motion by the Club's breach of duty, could only have occupied a few seconds. I do not consider in fact or law that the chain of causation was broken.

46 This should be added: The learned judge found that Mrs Sutton's negligence lay in

"her failure to apply the brake after exiting the depression."[27]

That is, her Honour did not find that Mrs Sutton was negligent in accelerating to exit the depression.

47 Next, her Honour at one point described "the emergency" as the situation which was created when the cart, Mrs Sutton having accelerated it, headed towards the bushes on the left.[28]

48 Now the judge found that the distance from the depression to the point of collision was closer to 9 metres than 2 to 3 metres. That was really the foundation for her Honour's finding that Mrs Sutton had time to bring the cart to a stop "from the rising of the emergency"[29] But if the emergency arose somewhat later than when the wheel entered the depression, the distance "from the rising of the emergency" to the point of collision may well have been less than the distance from the depression to point of collision, and inadequate for the cart to be brought to a stop.

49 Whether or not that be so, the less the distance and the shorter the period of time between the immediate consequences of the Club's breach of duty and the collision, the weaker becomes the Club's already weak second causation argument.

Contribution

50 The learned judge did not mention in her reasons the two comparisons which must be made in determining contribution between tortfeasors. But for the reason explained by Callaway, J.A. it should not be concluded that her Honour was unaware of the proper approach, or that she did not turn her mind to it.

51 The question, then, is whether the Club has demonstrated some fault in what was a question of proportion, balance, emphasis, and the weighing of different considerations - to paraphrase a well-known passage in Podrebersek v. Australian Iron and Steel Pty. Ltd.[30] According to the appellant's submission, the apportionment was plainly faulty. It must have been resolved substantially against - not in favour of - Mrs Sutton.

52 What fell for comparison here, as Callaway, J.A. has pointed out, was not conduct of the same kind. That circumstance, I think, makes the comparison more difficult. Be that as it may, I am of opinion, all things considered, that the apportionment arrived at by the trial judge was well within the available range.

53 As to culpability, the judge found that the Club's breach of duty lay in its creating a hazard in a well-trafficked area. The breach did not lie in siting the solenoid boxes in that area, or in their covers being set below ground level. It lay in failing to render the depression visible, so eliminating the particular hazard.

54 The action required of the Club for it to discharge its duty of care was simplicity itself. It could have been undertaken, within limits, at times of the Club's choosing, and with virtually no expenditure of time or money. Despite its simplicity, on the other hand, the required action was of importance. It was important having regard to the fact that it could confidently be expected that persons of differing ages, physical agility, visual acuity, co-ordination and the like, would be traversing the general area of the hazard.

55 I turn to the breach of duty found by the judge in respect of Mrs Sutton. It addressed a very short period of time - that is, Mrs Sutton's conduct in the few seconds after her cart moved in a sudden and unexpected fashion by reason of its front near-side wheel entering the hazard created by the Club. It is to be remembered that the judge attached no legal blame to Mrs Sutton's action in first accelerating the cart when its wheel entered the depression. Indeed, only as a matter of inference, if at all, could it be said that her Honour found that Mrs Sutton's oversteering to the right was negligent. Critically, as I read the judge's reasons, Mrs Sutton's negligence lay in her not bringing her cart to a stop before it collided with the plaintiff. Accepting - though see my earlier observations - that Mrs Sutton could have brought her vehicle to a stop in the period between "the rising of the emergency" and the collision, to my mind her culpability nonetheless ought be accounted much less than that of the Club.

56 I turn to causation. It would be easy to focus upon the immediacy of Mrs Sutton's failure to apply the brakes of the cart as a cause of the collision, and to relegate to a position of relative causal unimportance the role of the Club in not exposing the depression. But it was the Club which knew or should have known of the hazard, and it was the Club which had the expertise and equipment to eliminate the same. It had the opportunity to do so without the straitjacket of closely confined time constraints. It took no action. In my opinion, the hazard thus created should be described as the root cause of the plaintiff sustaining injury. Accepting Mrs Sutton's want of reasonable response to the situation which developed when her cart encountered the hazard, I do not accept that it causally predominated in the plaintiff suffering injury. I should add that even if I had been persuaded to a contrary view, I would still be of opinion that the judge's conclusion as to apportionment was within the available range. For, as I said a moment ago, I consider that the Club's culpability was much greater than was that of Mrs Sutton.

Costs

57 I agree with the conclusion expressed by Callaway, J.A.

Orders

58 I would refuse leave to add the proposed ground 1A. I would dismiss the appeal.

[1] The following day Mrs Sutton returned with her husband to the course to try and find what had caused the cart to swerve. She identified two hole covers set into the ground at the point where she believed the cart swerved. A couple of days later her husband took photographs of them. A video of the area was made 12 months later and tendered as part of the plaintiff's case.

[2] In his report Mr Dohrmann said that that was probably the case. In cross-examination he said that, in March 2004, he himself had not seen the hole as he approached it.

[3] (1957) 75 W.N.(N.S.W.) 173. See also Nominal Defendant v. Rowland-Smith [2003] NSWCA 65.

[4] See s.14B(3).

[5] Podrebersek v. Australian Iron & Steel Pty. Ltd. [1985] HCA 34; (1985) 59 A.L.J.R. 492 at 494.

[6] See Sun Alliance Insurance Ltd. v. Massoud [1989] VicRp 2; [1989] V.R. 8 at 18 per Gray, J. and Australian Char Pty. Ltd. v. Wood [2001] NSWCA 437 at [19] per Heydon, J.A.

[7] [1985] HCA 34; (1985) 59 A.L.J.R. 492.

[8] At 494.

[9] At 493-494.

[10] See, for example, Esso Australia Ltd. v. Victorian WorkCover Authority [2000] VSCA 74; (2000) 1 V.R. 246 and Moore v. Scolaro's Concrete Constructions Pty. Ltd. [2004] VSCA 152.

[11] I do not think that Mrs Sutton's failure to brake in time, so that her cart struck the plaintiff, can be separated from the speed and manner at and in which she accelerated out of the depression.

[12] If I am right, the judge must have erred either in principle or in her Honour's assessment of the facts. Her apportionment and mine are not within the broad range within which reasonable minds may differ. At least one of them must be wrong. It may be that the judge was influenced by the reaction time for an older person, which would constitute specific error.

[13] See [5] above.

[14] Compare Etna v. Arif [1999] VSCA 99; [1999] 2 V.R. 353 at 376 [60]- [68] per Batt, J.A.

[15] Supreme Court Act 1986, s.17A(1)(b).

[16] Murdaca v. Maisano [2004] VSCA 123 at [37] per Nettle, J.A. That is not the only anomalous difference between appeals from the Trial Division and appeals from the County Court. See, for example, Connell-McDowell v. Bleechmore [1999] VSCA 68; [1999] 2 V.R. 395 at 397 [12] and 398 [15].

[17] T 108;

[18] Primary Reasons at [56].

[19] Primary Reasons at [65].

[20] T.106.

[21] The men's third.

[22] The ladies' third.

[23] Submissions for appellant, para 4.

[24] Primary Reasons [56].

[25] This was said by the Club's expert witness, Mr Dohrmann, to be approximately 2.3 metres per second.

[26] Primary Reasons at [59].

[27] Primary Reasons at [65]. My emphasis. See also at [60] and [67]. Although, perhaps, compare [55].

[28] Primary Reasons at [55].

[29] Primary reasons at [59].

[30] [1985] HCA 34; (1985) 59 A.L.J.R. 492 at 493-494.

At a glance

Court

Decision date

Before

Source

Judgment (40 paragraphs)

Parties