Australian Racing Drivers Club Ltd v Metcalf [1961] HCA 80; (1961) 106 CLR 177 (6 December 1961)

HIGH COURT OF AUSTRALIA

AUSTRALIAN RACING DRIVERS CLUB LTD. v. METCALF [1961] HCA 80; (1961) 106 CLR 177

New trial

High Court of Australia
Dixon C.J.(1), McTiernan(2), Kitto(3), Taylor(4) and Owen(5) JJ.

CATCHWORDS

New trial - Contract - Motor car race meeting - Spectator paying charge for admission - Injured by racing car during race - Evidence - Whether premises on &which spectator injured occupied by defendant - Contractual duty of defendant to spectator.

HEARING

Sydney, 1961, November 15-17; December 6. 6:12:1961
APPEAL from the Supreme Court of New South Wales.

DECISION

December 6.
The following written judgments were delivered:-
DIXON C.J. In my opinion this appeal should be dismissed. I have had the them. (at p180)

McTIERNAN J. I have had the advantage of reading the judgment of Owen J. and agree substantially with his Honour's reasoning and concur in his conclusion. (at p180)

KITTO J. I also agree in the judgment of Owen J. and have nothing to add. (at p180)

TAYLOR J. I have had the advantage of reading the reasons prepared by Owen J. in this matter. I agree with what he has said and am therefore of the opinion that the appeal should be dismissed. (at p180)

OWEN J. This is an appeal from an order of the Full Court of the Supreme Court of New South Wales dismissing an appeal by the appellant Club against a verdict found for the plaintiff for 7,600 pounds in an action to recover damages for personal injuries brought by him against the appellant and two other defendants. (at p181)

2. It appears that near Bathurst there is a section of a public scenic road known as the Panorama Circuit, about four miles in length, upon which for many years past motor car races have been held at Easter time and other holiday periods. The meetings are held under the management and control of various motor car racing clubs and on the occasion with which this case is concerned the meeting was being conducted by the appellant. It appears also that when a meeting is being held the road circuit is temporarily closed to the public by the local council under s. 249 (v) of the Local Government Act, 1919 (N.S.W.) as amended and control of it handed over to the particular motor racing club which is conducting the meeting. The entrance to the circuit from Bathurst is by way of a road which enters the circuit at its north-east corner. This road of access is known as the Escape Road and when a meeting is being held a barrier is erected across it, some distance back from the circuit, where persons who wish to view the races pay an admission charge of 6s. and are then allowed to pass through the barrier. Along the northern end of the circuit the road runs from east to west and in this portion of the road the races begin and finish. On the northern side of this finishing straight there is what was described as a "control tower" erected upon a public reserve, the boundaries of which were not defined by the evidence, and on which there are refreshment booths. On this reserve those who come to see the racing can park their cars and, if they wish to do so, can stand there to watch the races. The races are run in an anti-clockwise direction and on the eastern side of the circuit the road runs from south to north before it makes a left-handed right-angled turn into the finishing straight. This stretch of road on the eastern side of the circuit turning at its northern end into the straight is known as the Con Rod Straight. It is about one mile in length and runs downhill at its northern end for some hundreds of yards. Along the eastern side of the Con Rod Straight there is a fence which apparently divides the road from what was described as "farming land" bordering it. To the east of that fence there is a strip of land sometimes referred to in the evidence as a "laneway" bounded on its eastern side by a line of posts. When a race meeting is being held wire is run through holes in those posts thus providing a fence along the eastern boundary of the strip but there was no evidence to show who threaded the wire through the posts on this particular occasion, although there was some evidence that it was not done by or on behalf of the appellant. There was ample evidence that when races are being run this strip of land between the two lines of fencing is a popular point from which to watch the competing cars going down the Con Rod Straight and turning into the finishing straight and this was at all times known to the officials of the appellant. On the day in question the plaintiff, a boy then aged sixteen, who had paid his admittance charge, proceeded with a party of friends along the Escape Road to the reserve where the control tower stood and there watched a race being run. They later walked from the reserve into the strip on the eastern side of the Con Rod Straight and, after they had had a picnic lunch in a nearby paddock, returned to the strip and stood there close to the western fence of the strip to watch the races. In the course of one of the races a competing car coming down the Con Rod Straight at a very high speed got out of control, ran off the road to its right through the fence into the strip where the plaintiff was standing and struck and injured him and a number of other onlookers. The plaintiff declared against the appellant in two counts but during the hearing the second count was abandoned and the case went to the jury on the first count. In that count the plaintiff alleged that the appellant was at all material times the "occupier of and had the possession care control and management of certain premises and of a certain motor car racing track"; that in consideration of a certain sum of money paid by the plaintiff to the appellant it had admitted him to the "said premises and motor track" enable him to watch the races; and that it was a term of the contract that the "said premises and the motor track" were as safe for the purpose of enabling him to watch the races as reasonable care and skill could make them. The declaration went on to allege a breach of this contractual term and damage resulting therefrom. At the hearing the case took a somewhat curious course. Until a late stage of the evidence it seems to have been assumed by counsel for the plaintiff and counsel for the appellant that the strip of land on which the plaintiff was standing when the car ran off the road was part of the premises occupied by or under the care control and management of the appellant and was an area to which the plaintiff, as a paying spectator, was invited to go. Counsel for the appellant was endeavouring to make a case that the accident which had occurred was, for various reasons, not of a kind which might reasonably have been foreseen and that there had therefore been no breach of any contractual duty owed to the plaintiff. Counsel for the plaintiff on the other hand was seeking to show that a happening of this kind was reasonably foreseeable and that a safeguard in the form of a safety fence along the eastern side of Con Rod Straight should therefore have been provided. As part of the case thus sought to be made on behalf of the plaintiff, evidence was led that the strip was, to the knowledge of the appellant's officials, a popular vantage point for spectators and that it was usual for many of those who had paid for admission to view the races to go there for that purpose. At a late stage of the evidence, however, a witness called on behalf of the appellant gave some evidence suggesting that a fence existed across the northern end of the strip over which persons going to the strip from the control tower area or from the entrance in the Escape Road would first have to climb. There then arose, apparently for the first time, a doubt whether the strip was part of the premises occupied by the appellant or under its care control and management to which the plaintiff's contract of admission entitled him to go. This issue was left to the jury by the learned trial judge and was found in favour of the plaintiff. (at p183)

3. The first question raised before us was whether the Full Court was right in deciding that there was evidence sufficient to support that finding. It cannot be denied that the evidence directed to this issue, whether on behalf of the plaintiff or of the appellant, was meagre but the conclusion to which I have come is that it was sufficient to justify the jury in deciding as it did. There was evidence that on the occasion of this race meeting, as at earlier meetings, substantial numbers of persons who had paid for admission at the barrier on the Escape Road used the strip as a vantage point to view the races and that this was at all times known to the appellant which took no steps to prevent its use for this purpose. Indeed one official of the Club said that he frequently used the strip himself to see the races. There was evidence also that it was the duty of the appellant's "spectator control officials" of whom there were many to keep people off the road while a race was in progress and that these officials who patrolled the road for this purpose took no steps to prevent onlookers from using the strip bounding the Con Rod Straight or to warn them that they had no right to go there. One witness, who had frequently attended race meetings at the strip and had on earlier occasions attended as an official of another racing club holding races there, said that until what he called the "lane", that is to say the strip, was made onlookers used to walk up and down the Con Rod Straight which had to be cleared and kept clear before and during the running of a race. Finally the evidence of the plaintiff and other witnesses called in his case seems to me to have justified an inference that the northern end of the strip was open and unfenced so that those who had paid for their admission at the barrier on the Escape Road could walk unimpeded into the strip through its northern end. On all this material I am of opinion that the jury could reasonably conclude that the strip was part of the premises to which the plaintiff's contract of admission entitled him to go. (at p184)

4. It was next submitted that there was no evidence of a breach of the contractual duty alleged in the declaration. Counsel sought to support this submission by an argument that there was no evidence upon which it could have been found that the risk of a racing car getting out of control and leaving the track on the eastern side of the Con Rod Straight was one which might reasonably have been foreseen and that, in these circumstances, it could not be said that the appellant had committed a breach of the duty owed by it to the plaintiff by failing to provide a safety fence along the eastern side of the road. In support of this contention counsel pointed to the fact that according to the evidence no car had, at past race meetings, left the eastern side of Con Rod Straight in the vicinity of the strip, although there was evidence that on two former occasions cars had left the Con Rod Straight on its western side. In my opinion the submission fails. To begin with I would have thought that the common experience of mankind is that a car travelling at a very high speed, as these racing cars did, may and frequently does get out of control if, for example, a tyre should burst or the steering gear develop a defect. But, apart from that, evidence was given by a witness with a wide experience in motor car racing that when the brakes are applied to a racing car travelling downhill at a fast pace control of the car "becomes unstable because of the weight transfer from rear wheels to front". Referring to the downhill stretch of Con Rod Straight where the accident happened, he expressed the opinion that "it would be difficult to hold a car at high speed down there under heavy braking". And it is clear, from the evidence, that heavy braking would be necessary at this part of the circuit to enable the driver to negotiate the right-angled turn into the finishing straight. (at p184)

5. I should perhaps add that no arguments were addressed to us that, under his contract of admission, the plaintiff had agreed to accept the risk of injury from an accident of the kind that occurred. The reason for this was, perhaps, that the plaintiff was a boy who had never before attended car racing contests. (at p185)

6. In my opinion the appellant fails on both the submissions upon which its counsel relied and the appeal therefore should be dismissed with costs. (at p185)

ORDER

Appeal dismissed with costs.