The Australian Capital Territory v Kitt

LOWER COURT District Court JURISDICTION : LOWER COURT DC 86/02 FILE NUMBER(S) : LOWER COURT O'Reilly DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40198/04 DC 86/02

SHELLER JA GILES JA SANTOW JA

29 NOVEMBER 2004 THE AUSTRALIAN CAPITAL TERRITORY v Timothy Allen KITT Judgment 1 SHELLER JA: I have had the benefit of reading the judgments prepared by Giles JA and Santow JA. I agree with the orders proposed by Santow JA for the reasons given in their Honour's judgments. 2 GILES JA: The facts are set out in the reasons of Santow JA, which I have had the advantage of reading in draft. 3 The Territory was held liable as occupier. The judge's only statements of its breach of duty were, after reference to a pleaded allegation of "failing to warn by notices or other means", that "all that was needed was a simple sign" and "a simple precaution would have been to put up a sign". The pleaded allegation was in fact of failure to warn by notice or other means of the "presence and/or position" of the obstruction constituted by the pile of dirt and rubble. Other than inferentially from the allegation, the judge made no findings as to what the sign should have said and where it should have been placed. 4 On the facts of this case, the Territory could not have been held to have been in breach of duty without attention to what the sign should have said and where it should have been placed. I do not suggest that, with that attention, it should have been held to be in breach of duty: it is unnecessary to decide. For that reason alone, the judgment in favour of the respondent can not stand. 5 The only evidence from the respondent material to the absence of a sign was, in his evidence in chief, that he saw no sign when turning onto the dirt track from the Monaro Highway, and in cross-examination - "Q. You would agree with me, obviously, that prior to travelling on the track, on this occasion, you had no idea of what to expect ahead of you? … A. I didn't know that there'd be a mound of dirt in the middle of a road, no. Q. You had no idea about anything, did you, about what was ahead? A. No, there was no signage, no anything [sic] to tell me what was going on." 6 It was necessary for the respondent to satisfy the judge that, had there been a sign, he would have ridden in a different manner whereby he did not run into the pile of dirt and rubble, and for the judge to address that matter in his reasons. On the facts of this case, the respondent could hardly have obtained a favourable finding on causation without an understanding of what the sign should have said and where it should have been placed, then linked with some evidence directed to its effect on his riding. The judge did not address the matter at all. For that reason also, the judgment in favour of the respondent can not stand. 7 The respondent submitted in this Court that there should have been a sign shortly before the blind corner reading "Danger" or "Reduce Speed, Road Obstructed'. The respondent's evidence, when it was suggested in cross-examination that he had been travelling too fast, was that he would have been able to stop if he had been doing 10 to 15 kilometres an hour. The sight-lines, stopping distances and stopping or turning capacity were otherwise left unexplained. 8 The respondent was travelling at a fast pace on a rough and muddy track around a blind corner. He was not showing restraint in his riding, and I do not think that in the state the evidence was left it should be inferred that a sign of the kind suggested would have caused him so to moderate his riding that the accident would not have occurred. Even assuming such a sign, the respondent failed to establish causation. 9 A judgment so comprehensively flawed should attract leave to appeal, and the appeal should be allowed. I agree with the orders proposed by Santow JA. 10 SANTOW JA: INTRODUCTION The claimant for leave to appeal is The Australian Capital Territory ("the Territory"). It seeks leave to challenge the finding of the trial judge, O'Reilly DCJ, that the Territory was liable for the injury suffered by Mr Kitt, the opponent. Those injuries were sustained after he entered from the Monaro Highway and proceeded upon an off-road track occupied by the Territory on his motorcycle trail bike. The accident occurred just after he turned a blind corner and then collided with a pile of dirt and rubble some 30 metres away, of which the Territory as occupier was aware. 11 The challenge is essentially to the trial judge's conclusion that the claimant breached a duty of care to the respondent, in failing to erect a warning sign so as to bring about a breach of duty causing the opponent's injury.

SALIENT FACTS 12 The salient facts below are not in dispute. 13 Mr Kitt lived in Orange NSW and was visiting a friend in Canberra, taking with him a trail bike on a trailer. 14 When the incident occurred he and his friend where riding their motorcycle trail-bikes from his friend's house to the house of a third person. They were riding together. 15 They diverted from the dual carriageway of the Monaro Highway, which has a large median strip, crossing over an unbroken white line to do so, near the urban fringe of the southern part of Canberra. This was a semi-rural area, mostly fenced, with sheep and cattle. 16 As Mr Kitt was unfamiliar with the area where they diverted, he had agreed to follow his friend. When his friend diverged to the left onto a dirt track, Mr Kitt merely followed him. There were no warning signs or barriers facing them or on the track itself. 17 They then proceeded along the dirt track on the left intending to take a shortcut to Jerrabomberra Avenue. The track was not a designated road, but the Territory was aware that it was used as a shortcut for trail-bike riders. 18 Mr Kitt knew, or would have soon become aware, of the grossly unsatisfactory surface of the track, certainly once Mr Kitt's friend became bogged in some muddy water. That slowed his friend down, with the consequence that Mr Kitt overtook him before the blind corner. The rough state of the track is apparent from the photographs exhibited before the trial judge, and seen by this Court along with a short video. It was then in places "in a fairly muddy, slushy condition"; T, 24.23. 19 Mr Kitt kept going ("I was a bit more of an experienced rider than him") though he could see the track with mud on it. He continued on around a blind corner (at 40 to 50 km/h). He denied that he was going too fast for the conditions as he "felt safe"; T, 21.45. He was then confronted by a pile of dirt of considerable height, first noticing it when "roughly" "20 to 30 metres from it"; T, 21.50. According to Mr Kitt, the mound was the result of illegal dumping by third parties and dumping of road-base by the Territory (also referred to as "the Council" by its witness an employee Mr Mercieca). This dumping was a practice which had been going on for a number of years prior to the accident, to the knowledge of the Territory. 20 He tried to go around the pile but his bike hit it and he was propelled over the handlebars, so suffering injury to his wrists. His evidence was that he did brake and that his speed when he fell from his bike was reduced to "30 to 20 kilometres [per hour], maybe"; T, 22.20. 21 Mr Kitt had not seen any signs warning about the pile of dirt. However, he was not asked what he would have done if he had seen any such signs. He agreed in cross-examination that after he had fallen he saw signs on Jerrabomberra Avenue in the opposite direction advertising that the road was closed. Indeed it was closed, being the old Monaro Highway replaced some 15 years ago by the new one from whence they had diverted. 22 The trial judge found that the Territory was in breach of its duty by failing to warn "by notices or other means". He concluded that the cost of providing signage would have been minimal, and that "all that was needed here was a simple sign" and "a simple precaution would have been to put up a sign." 23 The uncontradicted evidence was that there had been no complaints or reports of injury of people using the track as a shortcut to Jerrabomberra Avenue.

First Instance Judgment 24 The first instance judgment is an ex tempore one expressed with informal brevity. It concludes that the plaintiff made out his case, but on the basis that there was to be a reduction to the verdict of 30%. This was by reason of Mr Kitt's contributory negligence consisting of "failing to keep any proper lookout" and "driving at a speed that was excessive"; Judgment at 2. The judge otherwise appears to have accepted the evidence of Mr Kitt; Judgment at 7. The judgment made clear that the Territory was not sued in its capacity as a highway authority but purely as occupier of the land, a matter not in dispute; Judgment at 3. It was common ground that the Territory also had the role of a council. 25 After referring to various cases, the trial judge concluded thus: "I suggest that a simple precaution would have been to put up a sign. Especially in the knowledge that the defendant had that the area was used by trail bike riders" (Judgment at 9). After deducting the 30% for contributory negligence, he awarded the sum of $52,766, hence the need for leave to appeal.

Draft Notice of Appeal 26 The grounds of the draft Notice of Appeal are as follows: Ground 1: The Judge erred as a matter of law in finding in favour of Mr Kitt. Ground 2: The Judge erred in law in finding that the Territory as occupier of the land where Mr Kitt suffered injury was in breach of its duty of care to him. Ground 3: The Judge erred in law in finding that the Territory had a duty to warn Mr Kitt by the erection of a sign. Ground 4: The Judge erred in law in failing to consider at all whether the alleged breach of duty caused Mr Kitt's injury.

DISPOSITION 27 I would grant leave to appeal and uphold the appeal for reasons which can be shortly stated. 28 There was simply no evidence that the respondent would have been deterred from the course he took leading to his accident by the erection of a sign. The onus lay on Mr Kitt as plaintiff to satisfy the trial judge, on the balance of probabilities, that if a sign suitably worded warning of the danger had been erected either at the commencement of the track or near the blind corner, Mr Kitt would have either (a) refrained from driving on the track at all, or (b) would have done so more slowly so as to avoid the accident that befell him when he turned the blind corner. 29 There was no precise evidence as to the distance of the mound from the blind corner beyond the evidence from Mr Kitt. His evidence was that he first noted the pile when "roughly "20 to 30 metres from [the mound]". This rough estimate was, moreover, made when travelling at 40 to 50 kilometres on a rough and muddy dirt track on his trail bike. The fact that he was approaching a blind corner should have alerted him to an obvious danger and caused him to slow down earlier. That danger was that there could be an obstruction of whatever kind in that semi-rural area, one which he would only be able to see after he turned the corner. 30 Recently the Court of Appeal in Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247 considered the principles applicable to signage in circumstances of obvious danger or risk. That danger was from diving into water in a creek of unknown and variable depth, which turned out to be too shallow. I shall give a summation of those principles as they were articulated by Tobias JA, with whom Mason P and Beazley JA agreed: (1) A danger is obvious where both the condition and the risk are, in the individual circumstances of the case, apparent to, and would be recognised by, a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment; [161]. (2) The risk was defined as that of striking a "transient dune" naturally occurring on the bed of a tidal creek of variable depth, where the water was of unknown depth; [200]. (3) In those circumstances, this was an obvious danger; [201], [211]. (4) In the application of the Shirt calculus the fact that a danger is obvious is merely one factor to be considered when determining the scope of the owed duty. However, in a given circumstance, the presence of an obvious danger may be determinative especially where the only breach alleged is a failure to warn; [72]-[73], [168], [195]. (5) The circumstances were such that the knowledge of the relevant danger on the part of the occupier-defendants, whether actual or assumed, was neutralised by the obviousness of the risk of injury attaching to diving into water of variable and unknown depth, given that such risk was apparent to the plaintiffs. In these circumstances the scope of the occupier-defendants' duty did not involve a duty to warn or prohibit diving; [206], (6) In the circumstances the failure to warn, or to take any other steps, did not constitute a breach of any duty of care owed to the plaintiff. The plaintiff failed to take proper care for his own safety in the face of a risk that was obvious in the circumstances; [202], [209], [215]. 31 These principles can be directly translated into the obvious danger to a trail-bike rider of approaching a blind corner at considerable speed, in no way moderated by the wet and muddy conditions that stopped his companion. It should have been obvious that there was a risk of encountering some obstruction around that corner, and of being unable to stop safely in time, even if the nature of that obstruction could not be reasonably foreseen. That is very different from the circumstances encountered by a parent whose child wandered off in a picnic area and fell down a cliff, where the risk of concealed cliff edges was not obvious, and there were no warning signs; Ah Tong v Wingecarribee Council [2003] NSWCA 381. There was held to have been no carelessness on the part of the parent in relation to that concealed danger, lacking warning of any kind. There was also direct evidence (overlooked by the trial judge but emphasised by Giles JA and Ipp JA on appeal) of what the parent would have done had there been such warning signs placed in the picnic area alerting users to the existence of cliff-faces nearby. The father would never have exposed his young child to any risk at all, even just a bush walk. The Court of Appeal upheld an appeal by the parents, concluding that the evidence "did not justify a finding that there was an obvious risk that dangerous cliffs or quarries might be relatively near the picnic area on the track along which [the plaintiff] and his children walked"; Ipp JA at [63]. Here there was simply no such evidence to ground an analogous conclusion. 32 Nor is this a case where there could be any justification for eliding the requirement to establish causation. The plaintiff retains the onus of establishing on the balance of probabilities that the injury would not have occurred had an appropriate warning sign been erected. It was never satisfied. 33 Recent UK authority has in particular and exceptional contexts taken a different approach, excusing proof of causation. The basis for doing so has been where exceptional circumstances render this necessary to "accord with one of the most basic aspirations of the law, namely to right wrongs" (Lord Steyn in Chester v Afshar (2004) 3 WLR 927 at 936 [25]. But Australian Courts, exemplified by Mason P in TC v The State of New South Wales & Ors [2001] NSWCA 380 at [58] have not taken that aspirational approach. 34 But in any event, the exceptional contexts which have so far led courts in the United Kingdom to go further in eliminating or lowering the causation hurdle, are far from the circumstances here. Thus in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, the context was of an employee who suffered mesothelioma which must have been incurred in the course of employment at one of three employers. But it was not possible to determine from which employer the fatal ingestion of asbestos fibre occurred, though cumulative exposure increased risk and each employer was careless. The House of Lords concluded that denial of a remedy against any employer would be unjust. 35 More recently in Chester v Afshar (supra), the House of Lords concluded by majority that in the case of a failure to warn of a surgical risk albeit of slight magnitude, it was not necessary for the plaintiff to establish that, warned of the risk, he or she on balance of probabilities would not have undertaken the operation. Various reasons grounded in policy were cited. These included the danger of unfair discrimination against an honest plaintiff who could not say with sufficient certainty whether or not he or she would have undertaken the operation had the warning been given of the particular risk involved. 36 The circumstances here are not in any way comparable. The issue is simply whether a warning notice would have deterred the plaintiff from undertaking an obvious risk in travelling around a blind corner at the speed he did. That the risk was obvious obviated any real likelihood that a warning sign would have had any effect, a conclusion more easily reached in the absence of any evidence to the contrary from the plaintiff. Moreover, there was simply no evidence of what kind of sign would have been appropriate or where. One cannot even begin to answer the unavoidable question, what would the plaintiff have done had warning been given, without such evidence. 37 Since preparing these reasons I have had the advantage of reading the judgment of Giles JA and agree with his observations.

OVERALL CONCLUSION AND ORDERS 38 I would conclude leave to appeal should be granted and the appeal allowed with costs. I propose orders as follows: (1) Grant leave to appeal and direct the filing of the notice of appeal within seven days. (2) Set aside the judgment and order for costs in favour of the plaintiff given and ordered on 25 February 2004, and in lieu thereof judgment for the defendant and order that the plaintiff pay the defendant's costs. (3) The opponent/respondent to pay the costs of the leave application and the appeal. **********

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