Lynch v Shooters Saloon Bar P/L [2006] QCA 63

Court of Appeal (Qld)|2006-03-10|Before: de Jersey CJ, Williams JA and McMurdo JSeparate, reasons for judgment of each member of the Court, each concurring as to the, order made

[1] de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Williams JA and McMurdo J. I agree that the appeal should be dismissed with costs, for those reasons.

[2] WILLIAMS JA: I agree with all that is said by McMurdo J in his reasons for judgment, but wish to add some observations of my own.

[3] It is often reasonable and appropriate for an occupier to erect some form of barrier to regulate ingress and egress of patrons to the premises or to some facility in the premises. Bollards and detachable ropes are regularly used in such situations. One is regularly confronted by the type of system used by the respondent here, or a similar system, when accessing ticketing booths, airport departure facilities and other situations where crowd control is desirable.

[4] The system adopted here by the respondent was such that the height of the rope barrier could be varied depending upon the distance between the bollards. In the instant case the height of the relevant rope was from just above knee height at the lowest point to about hip height where it was attached to the bollards.

[5] The rope was intended to be a barrier and the appellant fully appreciated that it was meant to be a barrier. But there will always be people, like the appellant, who decide to cross such a barrier. Depending upon the height of the rope such a person would either step over it or bend under it. Either procedure involved a risk element which was known to the transgressor. In attempting to step over the rope one could readily trip and fall. In bending under the rope there was a risk of falling, or, because one's view of other patrons was obscured, of being bumped into by someone using the path on the other side of the barrier. Either stepping over the rope or bending under it involved a risk of injury which was obvious.

[6] In such cases the transgressor creates the risk of injury; it is not a risk created by the occupier who puts the barrier in place.

[7] I agree with all that has been said by McMurdo J. The appeal should be dismissed with costs.

[8] McMURDO J: On the night of 25 January 2001 the appellant fell near the entrance to the respondent's nightclub and dislocated a knee. The trial judge assessed his damages at $132,529.72 but was not persuaded that the respondent had been negligent and dismissed the claim. The principal question is whether that conclusion was correct. If it was not, contributory negligence would have to be considered. There is no issue as to the assessment of damages.

[9] The front door of the respondent's club was linked to the street by a walkway, about three metres wide and apparently at least ten metres long, which was conceded to be a place occupied by the respondent. Often the club's patrons, such as the appellant, would have to queue there as they waited to be let through the front door. The walkway was also an exit from the club, so the respondent used barriers of ropes to separate those coming from those leaving. There were two parallel lines of rope each supported by a series of steel posts running the length of the walkway and dividing it into three lanes. The middle lane was for those leaving the club, the others were for those queuing to enter. The respondent had people stationed at the entrance to the walkway, maintaining order and vetting the entrants.

[10] As the appellant stood in the queue facing towards the nightclub, the dividing rope was on his left. It varied in height from about hip height next to the posts to about knee height. At some point he decided not to go into the nightclub but to make his way back to the street. He started to step over the rope into the (vacant) exit lane, rather than trying to make his way past those in the queue behind him. As he did this his right foot became caught by the rope and his knee was dislocated.

[11] He did not have to step over the rope. He could have readily disconnected it where it was attached to any post by a clip, or he could have asked one of the nearby staff to help him do that. Or he could have made his way back through the queue behind him, which the trial judge described as not being the most convenient option. It seems that he did not give much thought to these alternatives and simply believed that he could comfortably step over the rope. For a young, fit and sober man as he was, this was not particularly dangerous. The evidence was that many people had done exactly what he was attempting to do, and the extent of previous accidents in this way did not indicate a high likelihood of mishap. Still, there was a risk of injury from the chance that persons wanting to leave the queue would fall when trying to get over the rope: a risk which is conceded to have been reasonably foreseeable. It is agreed that the respondent owed a duty to take reasonable care in its management of this walkway to protect against a foreseeable risk of injury to people within it.

[12] The appellant's case is that there was a safer way for the respondent to divide up the walkway than by this rope. It was to use a barrier as commonly found for queues at airports, in which the barrier is a belt of a uniform height, which is about hip height. In the appellant's case, a witness was called to give opinion evidence to the effect that this was a safer alternative. That witness emphasised the ease with which such belts can be uncoupled so that someone can pass through. But in that respect there was no difference from the ropes which the respondent had put in place. Ultimately the possible advantage of the alternative was that few people were likely to attempt to step over it. Yet there was a disadvantage in that some people might attempt to go under it, an exercise which for some at least would also involve a risk. As the trial judge found, the alternative would have not removed the risk that someone would be injured trying to move from one side of the barrier to the other.

[13] The trial judge rightly observed that the expert's evidence did not contain a persuasive or detailed comparison of the risks associated with these two alternatives. He said that it was difficult to conclude that the suggested alternative "would have presented a significantly lower overall risk of injury".[1] He was unpersuaded that the alternative was of such a low overall risk as to require a reasonable person in the defendant's position to have used it.

[14] He accepted that the alternative system was no more expensive. And clearly it was an alternative which was widely used. But the appellant simply failed to prove that it was such a preferable option that any reasonable person must have used it. I see no error in that conclusion. The trial judge was not compelled to find negligence by the evidence of a witness whose opinion was that the alternative had some advantage over this barrier. He did not have to accept that evidence, and indeed it offered an opinion on a question which required no specialised knowledge. Some case could be made for each system against the other. But the defendant was not negligent for using this one. The question is not whether the appellant's accident might have been avoided with the use of the other system, because the respondent's duty of care required it to act reasonably to avoid the risk of injury to all persons using this area. A reasonable occupier might have thought that there was not more risk overall from a barrier of these ropes.

[15] The appellant's argument placed particular reliance upon Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 214 ALR 452. This judgment is not inconsistent with any principle expressed in Thompson: the question, which is one of fact, is what was reasonably required of the respondent in the circumstances of this case. It is unnecessary to detail the factual differences between that case and this one. But the most notable is the absence here of a finding, or the basis for a finding, that the suggested alternative system would have significantly reduced the risk, let alone removed it entirely as in Thompson.

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