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Supreme Court of New South Wales |
Last Updated: 14 March 2011
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Case Title:
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Medium Neutral Citation:
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Hearing Date(s):
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Decision Date:
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Jurisdiction:
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Decision:
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Catchwords:
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NEGLIGENCE - plaintiffs injured as a result of
falls from bikes at a purpose built skate park constructed and controlled by the
defendant
- surface of bare concrete painted to facilitate removal of graffiti -
surface more slippery when painted than in original condition
- whether
defendant in breach of duty to take care for the safety of users of the skate
park - Civil Liability Act 2002 - whether risk obvious - whether riding bikes at
skate park a dangerous recreational activity - whether defendant liable in
negligence
as result of materialisation of an obvious risk of a dangerous
recreational activity - whether defendant owed a duty of care for
recreational
activity where risk warning given - whether accidents caused by reason of the
added slipperiness of the surface when
painted - whether plaintiffs established
that accidents would not have occurred if surface had not been painted - where
plaintiffs
injured as result of the materialisation of an obvious risk of a
dangerous recreational activity - verdict for the defendant
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Legislation Cited:
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Cases Cited:
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Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd
v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Belna Pty Limited v Irwin [2009] NSWCA 46 C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 Edwards v Consolidated Broken Hill Pty Ltd [2005] NSWSC 301 Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 Falvo v Australian Oztag Sports Association [2006] NSWCA 17; (2006) Aust Torts Reports 81-831 Great Lakes Shire Council v Dederer; Roads & Traffic Authority of NSW v Dederer [2006] NSWCA 101; [2006] NSWCA 101; (2006) Aust Torts Reports 81-860 Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Torts Reports 81-952 Lormine Pty Ltd v Xuereb [2006] NSWCA 200 Mobbs v Kain [2009] NSWCA 301 Roads & Traffic Authority v Dederer [2007] HCA 42; (2007) 234 CLR 330 Greater Taree City Council v Peck [2002] NSWCA 331 Shellharbour City Council v Rigby [2006] NSWCA 308 at [300]; [2006] NSWCA 308; (2006) Aust Torts Reports 81-864 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 |
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Parties:
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Representation
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- Solicitors:
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File number(s):
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Publication Restriction:
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1 HIS HONOUR : In early 2003 the Albury City Council took possession of a completed skateboard facility known as the West Albury skate park on land under its control near Pemberton Street, West Albury. It was constructed of concrete with a wet steel trowelled finish. It remained like that and was used apparently without incident by local young people for some years. Sometime prior to 25 April 2006, and probably in March of that year, the Council painted concrete surfaces of the skate park with blue paint in order to facilitate the removal of graffiti that was constantly being applied to it. Shortly thereafter, on 25 April 2006, Jade Vremen was severely injured at the skate park when he fell from his BMX bike whilst attempting a jump. On 13 August 2006 Joshua Morris was also injured when he fell from his BMX bike in the course of riding down the centre ramp. Each plaintiff alleges that his fall was caused by the slippery and dangerous condition of the skate park that resulted from the application of the paint.
The West Albury Skate Park
2 There is no Australian standard that applies to the design or construction of skate parks. The Skate Facility Guide published by Sport and Recreation Victoria provides some guidance with respect to these matters. The West Albury Skate Park complied with the express terms of the guide.
3 The skate park is made up of opposing or facing smooth concrete ramps called roll-ins and steeper concave sections called drop-ins at each end of the park, separated by an area of smooth flat concrete in between. The uniformly sloping roll-ins are located in the centre and run down towards the flat area in the middle of the skate park at an incline of approximately 45 degrees. They are flanked at both ends of the park by the steeper concave drop-ins. In the centre of the concrete area between the opposing roll-ins and drop-ins is a raised section of concrete known as the "fun box". It has a flat area on top with an angled sloping side on the east and a vertical side on the west. The northern and southern approaches to the fun box on the narrower western side are each concave, whereas they are uniformly sloping on the wider eastern side. A central concrete spine approximately 40cm wide and 40cm high, with steel edges anticipating use by skateboarders, roughly bisects the fun box. Users of the park can skate or ride at speed towards either side of the fun box, thereby enabling them to jump at varying heights from either a sloping or concave takeoff point at one end and to land at the other. The speed or momentum needed for these jumps is generated or assisted by gravity in the rider's descent using the roll-ins or the drop-ins.
4 No complaint is made that the skate park is constructed badly or that it had fallen into a state disrepair that contributed to the plaintiffs' falls. Photographs of the skate park were tendered in evidence and the Court also attended a view. Although somewhat tired looking now and obviously well used, the facility appears to be in the same structural condition as when it was built. The addition of blue paint to the concrete surfaces would seem to be the only difference from the park's original state and is the only permanent physical characteristic of the park that is alleged by the plaintiffs to have been inculpated in their accidents.
The painting of the skate park
5 The Council also conducts a skate park in Albury. In April 2001 Mr Tony Godeassi, the Technical Manager of Wagon Paints (Australia) Pty Ltd, wrote to Ms Kathy Austey at the Council concerning the Albury Skate Park. He thanked her for her enquiry about the slip resistance of the coating applied there. He advised that he had had slip resistance tests performed on this type of coating, which he described as two-pack polyurethane. The tests were conducted according to Australian Standards and concluded that the samples tested complied with the requirements of a nominated section of the standard "under dry condition". He went on to say, "I will take this opportunity to point out that skate park users will experience falls regardless of the application of coatings and would be well advised to wear suitable protective gear at all times".
6 In a letter dated 26 January 2006, Mr Andrew Locke wrote to the Council submitting what he described as a "Proposal for [an] Anti-Graffiti Program for the Thurgoona and West Albury Skate Bowls". The letter advised that his "proposal [was] being submitted after discussion with Mr Shane Bates to resolve the problem of offensive and unsightly graffiti at both skate parks". His letter went on as follows:
"My proposal is for me to paint the surfaces of both skate parks using a 2 pack polyurethane paint system designed to allow for easier removal of graffiti. I've used this type of paint on the Albury Skate Park and found it to be quite effective. I'd envisaged using the same light blue as the Albury Skate Park. Once the painting is completed, my services will deliver a regular weekly inspection and maintenance program with reported incidents of offensive graffiti removed within 24 hours.
I will provide periodic respraying of worn areas and will maintain the paintworks appeal, discouraging graffiti attacks. I have been contracted to the A.C.C. for the maintenance of the Albury Skate bowl for several years and have seen the decline in graffiti attacks due to this program".
7 Mr Locke provided a quote of $2,237.88 for the work to paint both skate parks and $150 per park per month for the ongoing graffiti removal service. The Council subsequently contracted with Mr Bates on 17 March 2006 for the twelve-month period from March 2006. The agreement between Mr Bates and the Council effectively described the works to be performed as undertaking graffiti removal from Albury, West Albury and Thurgoona Skate Parks "as outlined in correspondence dated 26 January 2006". Mr Bates rendered his account for the painting of the West Albury and Thurgoona Skate Parks on 24 March 2006 in the precise amount of his quote. The Council's own accounting records post the payment for this work against the description "Respraying of Thurgoona and West Alb Skatebowls". Mr Bates also rendered invoices for graffiti removal and maintenance to the Council from time to time during 2006 at the agreed rate of $150 per month.
8 There is no dispute that the Council painted the West Albury Skate Park with a polyurethane two-pack paint. I find that it did so on or about 24 March 2006 having contracted with Mr Bates for that purpose.
Signage
9 A sign was erected at the skate park and was there when the accidents occurred. It is still there. A photograph of the sign became an exhibit in the proceedings. It is made up of words and pictograms. Two of the pictograms relate to bottles and littering and are presently irrelevant. The other two appear to advise that there are steep slopes and that skateboarders should wear protective clothing. The sign contains the following words:
" WEST ALBURY
SKATE PARK
This facility is available for skateboarders and rollerbladers.
Please cooperate with and be considerate of all users.
Conditions of safe use:
Protective clothing, including helmet, knee and elbow pads and wrist guards must be worn at ALL TIMES .
Skate at your own risk
Only skate in the designated areas of the facility
Always skate carefully and within your skill level
The facility should be used in daylight hours only
This is a drug and alcohol free facility
Please place all rubbish in bins provided
Children under 12 years of age are to be supervised by an adult at all times whilst using the facility.
For further information or reporting of faults contact AlburyCity 6023 8111 or after hours 1300 133 391
IN THE EVENT OF AN EMERGENCY PLEASE RING -
Fire Brigade, Ambulance, or Police - Dial 000
Address of facility:
Pemberton St. West Albury "
10 I find that the sign described above was in position at the West Albury Skate Park from the opening of the park in March 2003 until the plaintiffs' accidents in 2006 and that it is the same sign that is still there now.
11 Another sign has been in place at the skate park from time to time. It reads "NO BIKES" and contains a pictogram to the same effect. Evidence was given about whether or not that sign had been damaged or removed and replaced and about when these things might have occurred in relation to the plaintiffs' accidents. In the events as they have unfolded, even though Mr Vreman and Mr Morris were riding bikes when injured, the significance of this sign has entirely retreated. The first reason for that is that bikes would appear at all times to the knowledge of the Council to have been used at the skate park without complaint or other action. The Council has in practical terms either waived the prohibition or acquiesced in the use of bikes at the park. The Council did not submit that the accidents in this case occurred in the face of a then current prohibition on the use of bikes at the West Albury Skate Park. The only relevance of this sign was whether or not it could have operated as a risk warning.
12 The second reason, however, is that the Council conceded that the evidence supported a finding that this sign was not present at the skate park on the day of Mr Vreman's fall. I agree. Moreover, the evidence does not establish that this sign was present when Mr Morris was injured. The only evidence touching this, apart from the agreement that the sign was in place on 28 May 2006, when the photographic exhibit that depicts it was taken, is Mr Morris's unchallenged evidence as follows:
"Q. (Witness shown Exhibit 2) Do you recall seeing that sign at the West Albury skate park before your fall there?A. No."
13 The evidence does not otherwise permit me to find that the sign was present when Mr Morris had his fall.
Factual background
14 Unless otherwise indicated I find the facts to be in accordance with the following evidence given by Mr Vreman and Mr Morris and the witnesses called in their cases.
Mr Vreman's accident
15 Mr Vreman was born in 1990 and is now 20 years of age. He was 15 years of age when he was injured and in Year 10 at Albury High School. He regularly rode his BMX bike to school about two and a half kilometres from his home on fine days. He had been riding a BMX bike since Year 6. He had previously ridden around the BMX track at Wodonga and considered himself to be quite competent. Mr Vreman recalled the skate park being built and riding on it within a matter of days of it being opened. He regularly rode his bike there. He also used to ride there on his skateboard and his scooter. On school days he would often go to the skate park straight after school, sometimes every day. At weekends and school holidays Mr Vreman would often spend the best part of the day down at the park. He said that it was a place where a lot of young people from West Albury congregated. There would often be many bike and skateboard riders there.
16 Mr Vreman's routine was as follows. He would usually, although not always, ride around the park in an anti-clockwise direction. He would usually start at the western side and ride his bike down the drop-in at the north-western corner. When he got to the flat bottom of the park he would pedal, probably only one rotation, and then proceed up the north-facing ramp on the western side of the fun box. As he got to the ramp he would lift the bike up so that he jumped over the flat central section of the fun box and landed on the downhill ramp on the southern side. He would then proceed towards and up the drop-in on the south-western side. It was necessary for him to judge his speed carefully so that he could both get to the top of the drop-in and turn left, or east, without colliding with the metal railing that runs along the southern boundary of the park. He would then ride along the raised southern section adjacent to the railing in an easterly direction and then swing down the drop-in at the south-eastern corner and repeat the process in a northerly direction. He did not normally do a jump over the fun box on the eastern side when travelling back in a northerly direction.
17 Mr Vreman said that after the surfaces had been painted the only difference that he noticed was that, if he had to use his feet to push himself to the top when riding over the fun box and proceeding up one of the drop-ins, he could not get as good a purchase on the concrete surface as he could before it was painted. He said that his feet seemed to slip a bit, which made it difficult to judge his approach. This was particularly so going up the drop-in at the southern end of the park. He also noticed that when riding his skateboard he could feel the wheels slipping as he rode over the painted surface. This did not happen on the unpainted concrete.
18 On 25 April 2006 Mr Vreman went to the skate park at about 10.00am or 10.30am. He recalled that the day was a bit cloudy but was becoming sunny. The concrete surface of the skate park was dry but there was a bit of dew on it, particularly on the south-western side, which did not get much morning sun.
19 Mr Vreman said that on this day he performed four or five circuits of the park in the manner earlier described. He then commenced another circuit. He said that he rode along the concrete apron in a westerly direction at the northern end. He turned left and proceeded down the drop-in in the north-western corner. At the bottom of the drop-in he pedalled once and went up the concave north-facing ramp on the western side of the fun box. As he got to the top of the ramp he lifted the bike up to jump straight ahead in a southerly direction. His bike passed over the flat middle section of the fun box and his front wheel came down pointing directly ahead on the downward ramp in the south-western corner of the fun box. As his front wheel came down on the painted concrete surface it slipped to the right and Mr Vreman went over the handlebars landing on the concrete base of the park between the fun box and the south-western drop-in.
20 The injuries sustained in that fall, including a dislocation of the C4 and C5 vertebrae, have permanently rendered Mr Vreman a tetraplegic.
Mr Morris's accident
21 Mr Morris was born in 1989 and is currently 21 years of age. On 13 August 2006 he was 17 years of age. He attended West Albury Primary School and Albury High School. He left school at the end of Year 9 in 2005. He commenced riding a BMX bike when he was about five. He occasionally rode to school but rode every day. At the time of his accident he had a BMX GT bike with which he was very familiar.
22 Mr Morris used to ride at the skate park nearly every day. He was friendly with Mr Vreman. Mr Morris had never previously hurt himself and had never fallen off his bike at the skate park before it was painted. He was not living in Albury when it was painted but returned to find that it had been. He was not aware of the circumstances of Mr Vreman's accident before his own and is still not aware of precisely how it happened.
23 The day of his own accident was the first day that he had ridden his bike at the skate park after it had been painted. Before it was painted he said it was fine to ride on. Other than Mr Vreman's accident he could not specifically recall any other accidents apart from hearing that another boy may have broken his arm. On the day of his accident he remembers doing a roll-in at the northern end of the park. As he approached he placed his front wheel so that it was facing straight down the ramp. His handlebars were aligned at what appears to be a right angle to the direction of travel. He was also facing straight down the ramp and not at an angle. It had been his intention to proceed down the roll-in then go up the fun box ramp on the eastern side. He said that the eastern side was not as steep as the western side. However, as soon as he put his front wheel down on the roll-in and rode forward, it slipped to the left and he fell forward to the right. He landed on the concrete at the bottom of the roll-in and struck his head hard.
24 Mr Morris said that before the skate park had been painted it was just plain concrete and was a reasonable surface. It was not slippery and was okay to ride on. He had had no problems with his tyres slipping before it was painted. He had never observed any other boys slipping on the unpainted surface in any way at all.
Cross-examination
25 These previous accounts of what happened to Mr Vreman and Mr Morris have been taken from their evidentiary statements. They were both later cross-examined. In the case of Mr Vreman, this occurred by special arrangement at a room at the Albury Base Hospital where Mr Vreman's bed was specially located for that purpose. He also subsequently gave some short evidence via a telephone link from his home. This is referred to later in these reasons. Mr Morris was cross-examined at Court on the first day of the hearing. The following accounts are taken from the cross-examination of each man.
Mr Vreman
26 Mr Vreman gave further evidence that he had ridden BMX bikes on all kinds of different surfaces. He had learnt to do jumps and tricks on his bike both at skate park facilities and elsewhere. He had often gone with his friends looking for places where they could do jumps and tricks and from time to time they would have falls. He agreed he knew that , depending on what surface he was riding on, he would have more or less chance of being hurt if he fell. If he was doing tricks on concrete and he fell, there was a better chance of being hurt than if he was on grass. Mr Vreman agreed that the risk of falling was something that he had been aware of from when he started riding a bike when he was five years old.
27 Mr Vreman gave this evidence about the particular circumstances of the activity he was attempting when he was injured:
"Q. And the particular manoeuvre you were doing when you got hurt involved riding up the ramp on one side of the fun box, is that right?A. Yes.
Q. Jumping across the flat section?A. Yes.
Q. And landing again?A. Yes.
Q. And if you didn't get that right, the landing, you knew that there was a good deal of risk of having a fall, didn't you?A. Yes.
Q. It was obvious to you that if you didn't do it properly, you could get hurt?A. Yes, depending on where you land.
Q. And how you land?A. Yes."
28 Mr Vreman agreed that the challenge of doing jumps on his bike was to do it correctly and not get hurt. It was that challenge that made riding a BMX bike appealing to him. The West Albury skate park became his favourite place to ride. It was closest to his home and he became very familiar with it. He recognised the sign that was there, that he had read and which he agreed he had understood. He also agreed that he understood that whoever had put the sign up was telling him that skate boarding could be risky, and that skateboarders had to be careful and skate within their limitations. Mr Vreman said, "You were guaranteed to stack, if you tried to do something you couldn't do". He went on to give the following evidence:
"Q. Mr Vreman, by the time you were 15 years old, as a result of your experience riding BMX bikes, you knew that the safest surface to ride on would be flat grass, is that right?A. Yes.
Q. And you knew that any sloping surface was a riskier place to ride a BMX bike than a flat surface?A. Yes.
Q. You also knew that a smooth surface was a more risky place to ride a bike than a rough surface with better grip, didn't you?A. Yes.
Q. You knew that wet surfaces were more slippery than dry surfaces usually, didn't you?A. Yes.
Q. So that if you rode on any sort of wet surface, it would be riskier than if you were riding on the same surface when it was dry?A. Yes. Depending on what tyres you have.
Q. But as a general proposition, wet surfaces are more slippery?A. Yes.
Q. That's a matter of commonsense. As you have told us in your statement, in paragraph 26, you noticed, after the West Albury skate park or parts of it, had been painted that the painted areas appeared to you to be more slippery than the other unpainted areas?A. Yes.
Q. And so you knew that it was riskier to be riding a BMX bike on the painted areas than the bare concrete?A. Yes."
29 He went on to agree that he had ridden at the West Albury skate park on many occasions after it was painted and before he had his fall. On the day in question he had also observed that the surface was wet from the dew. As a consequence Mr Vreman knew on that day that he was riding his bike partly on a wet painted surface and partly on a wet unpainted surface.
30 Mr Vreman agreed that if on the occasion of his fall he had landed with the back wheel on the flat section at the top of the fun box and the front wheel going down the down slope, that could have caused his bike to flip. He said at first that he was not sure if that had happened although he agreed that it was possible. He then gave this evidence:
"Q. What you have told us is that, as the bike landed, the wheel, even though it was pointing straight, slid to the right?A. Yes.
Q. What I am saying to you is that that could only have happened if the bike wasn't lined up square to the direction of travel at the time that it came down on to the surface?A. Yes.
Q. You would agree with that?A. Yes.
Q. So that, what I am suggesting to you is that you were not lined up square when you jumped and that caused you to land not square when you came down?A. I am not sure because I went straight and I landed straight, but the bike turned.
*****
Q. What I am suggesting to you is that the wheel could have only turned if it had not been straight when you landed or you had turned it as you landed?A. Yes."
31 Mr Vreman was re-examined in the following relevant terms:
"Q. Mr Vreman, you were asked questions about whether or not you agreed that the bike must not have been lined up square. Do you remember being asked those questions by this man (indicated Mr Sexton)?A. Yes.
Q. But you said you landed straight?A. Yes.
Q. That's your recollection?A. Yes.
Q. Was it as you had done it many times before?A. Yes.
Q. Having landed straight, what exactly happened with your front tyre?A. My front tyre slid to the right.
Q. Had that happened to you before?A. No."
32 Mr Vreman said that he did not regard what he was doing on the day as dangerous, nor did he think that there was a real risk that he would end up being severely injured by doing it. He said he regarded what he was doing on that day as something he regularly did .
33 It later became necessary to recall Mr Vreman when evidence given by Mr Mathew Walker on behalf of the Council produced a version of Mr Vreman's accident that arguably had not been put to him when he was being cross-examined. I permitted the questions to be elicited from Mr Walker, as it became apparent that Mr Vreman would be able to deal with that evidence later. The offending version given by Mr Walker was as follows:
"A. He went - dropped in, went over the fun box and didn't have enough velocity to make the down side of the fun box. He - front wheel bounced on the flat part of the fun box about half a foot from the start of the down ramp."
34 He continued a little later to give this evidence:
"Q. Mr Walker, when you saw the front wheel of Mr Vreman's bike land on the flat section, where was the rear wheel in relation to the surface of the skate park?A. In the air, a fair distance. It had rotated to anticipate going down the other side, as you do. You rotate down there. And he was, you know, 45 degrees or whatever angle he was on to go down the other side had he had the right velocity.
Q. And what did you then observe happen to Mr Vreman and his bike?A. The front wheel bounced on the flat part due to his rotation, and due to the momentum of his rotation he flung himself over the handlebars and into the concrete.
*****
Q. Where precisely were you located when you were watching Mr Vreman as you've just described?A. On the grass, west of the skate park, so I had a side-on view to the accident."
35 Mr Vreman subsequently dealt with this version when giving evidence by telephone hook-up to him at his home. That evidence was as follows:
"Q. I want to put to you that your front wheel on the bike did not land on the downward ramp but on the flat surface on the top of the fun box. Do you understand what I am saying to you?A. Yes, I understand. No, I didn't.
Q. I want to put to you that the wheel came down on that flat top surface about half a foot before the start of the downward ramp?A. No.
Q. The next thing I want to put to you, and this is a composite, Mr Vreman: That the wheel landed on the flat surface of the top of the fun box and that caused you to be thrown forward. Do you understand what I am putting to you?A. Yeah. No, I landed on the ramp.
Q. Your front wheel did not slip to the right on the downward ramp on the fun box?A. Could you just say that again, sorry?
Q. You have said in your evidentiary statement, "As my front wheel came down on the painted concrete surface, it slipped to the right". Do you recall saying that?A. Yes.
Q. What I am putting to you is that your front wheel did not slip to the right on the painted concrete surface of the downward ramp?A. No.
Q. You are denying what I am putting to you?A. Yes - I am not sure."
36 For the reasons referred to in considering Mr Walker's evidence below, I do not accept the version of Mr Vreman's accident given by him to the extent that it is in conflict with Mr Vreman's own version of his accident.
Mr Morris
37 Mr Morris agreed that he had ridden on dirt tracks and slippery surfaces, which was " part of the fun of being on a BMX bike". He agreed that the reason he rode BMX bikes was to do jumps and other tricks. He had heard of Mr Vreman's fall before he had his own. He agreed that he had heard it suggested that Mr Vreman's fall had been caused by slippery paint. He gave this evidence:
"Q. The first time with any trick you'd normally fall off. You don't know until you try?A. Yes.
Q. The first time is the riskiest, because the first time you try it you don't know if you can do it?A. Yes.
Q. And once you get comfortable with one trick, you try to do others?A. Yes.
Q. Human nature?A. Yes.
Q. And that's what all the boys you were doing it with - pushing the envelope? You know what I mean?A. Not really.
Q. They take more risks and more challenges, you understand?A. Yes.
Q. And as you get older you try harder--A. Yes.
Q. And you know if you're riding either a skateboard or a BMX bike on a concrete surface, if you make a mistake and have a fall you might hurt yourself?A. Yes.
Q. You might break a bone and get a concussion?A. Yes.
Q. You knew that, before you had this fall?A. Yes."
38 A little later he agreed with the following propositions:
"Q. You understand, as a matter of common sense, that riding a bike on a steep surface is riskier than riding it on a flat surface?A. Well, yes.
Q. And riding a bike on a smooth surface is riskier than riding a bike on a rough surface. You understand that?A. Exactly, yes.
Q. And riding a bike on a wet surface is riskier than riding a bike on a dry surface?A. Yep.
Q. They're all things that everybody knows as a matter of common sense, aren't they?A. Yes."
39 Mr Morris was shown the sign described earlier and agreed that he would have understood that whoever had put it up was telling those who were using the skate park that there were risks involved in using it. He said that it was common sense. He also agreed that if he had read the words "always skate safely and within your skill level" he would have understood that whoever put the sign there was telling people using the facility to be careful. That was because there were risks involved in the activities that were being carried out there by users of the park.
40 Finally Mr Morris was asked a series of questions concerning the manner in which his accident had happened. They were as follows:
"Q. Mr Morris, you've told us in your evidentiary statement that the front wheel on your bike slipped to the left and you fell forward and to the right.A. Sure.
Q. And that's what you tell us is your recollection of what occurred, is that right?A. Yep.
Q. In order for the wheel to slip to the left you must have been leaning to the right, mustn't you?A. Not really.
Q. Well, if a bike is perfectly upright the wheels won't slip to the left, will they? You know that from your experience of riding?A. Well, if the paint was slippery--
Q. Doesn't matter if it's slippery or not. If the bike was upright the wheel wouldn't slip?A. Well, the restraint wouldn't.
Q. No. Were you going at an angle across the roll?A. No, I was straight down it, straight over to the other side.
Q. See, I want to suggest to you that the fall could not have occurred unless either you were leaning to the right or the front wheel and the handlebars controlling it were turned towards the right.A. Not sure--
Q. You're not sure?A. I didn't get to make it down the bottom of the ramp, so - I was pretty dazed and--"
Other witnesses for the plaintiffs
Danny Shane Byatt
41 Mr Byatt had originally been involved in dealings between the Neighbourhood Centre and the Albury City Council in relation to the construction of the West Albury skate park. There was a West Albury skate park working party set up, of which he became a member. He was a keen skateboarder and also accredited as a skateboard coach. The skate park was originally finished in plain concrete and was "really quite nice to skate on". He described it in answer to the following question:
"Q. Was it entirely smooth? What was--A. No, it was like a rough sort of a surface. It wasn't a smooth concrete. It was half a - like half finish, like a rocky pebbly finish that would grip your wheels. It was really nice."
42 After the skate park was painted, he never went back. This was because he had made observations of the Albury skate park after it had been painted with what appeared to him to be the same blue paint. According to his observations, the paint made the park slipperier. He said that on the transitions he seemed to have less control when he "let a kick out the back of the board, letting it slide". He said:
"When you get halfway up the ramp you want to turn your board back the other way. That's called a transition. You're putting a lot of weight on the back wheels and when it's slippery your skateboard goes out from underneath you and your wheels slide.
*****
You couldn't turn as sharp or as quick. You had to turn a lot slower to stop your wheels sliding and losing control of your board basically."
43 Mr Byatt was cross-examined as follows:
"Q. You told us that you stopped using the West Albury skate park after you had been on it two or three times?A. Yes.
Q. Following the painting, is that right?A. Yes, that's correct.
Q. And that was because of this slippery feeling that you were experiencing when you were riding a skateboard on it, is that right?A. Yes.
Q. It was obvious to you, was it, that it was less secure, in terms of staying on the board, than it had been previously. Is that the correct?A. Yeah, the traction was totally different, yeah.
Q. It appeared to you personally to be risky?A. Yes.
Q. It appeared to you to be obviously risky, is that right?A. Yes.
Q. There wasn't any doubt in your mind about it?A. No."
44 Mr Byatt is 37 years old.
Brendan Leigh Macey
45 Mr Macey is now 21 years old. He was with Mr Morris at the skate park on the day that he had his fall. He was a competent BMX bike rider and used the skate park probably more than once each week. He said the surface of the park was perfect before it was painted for doing turns and transitions. After it was painted it became "very, very slippery". He said, "as soon as you turned, the wheels would want to slip out from underneath you". He had a few falls. His evidence about what he saw happen to Mr Morris was as follows:
"Q. On the day that Joshua was injured, did you go with him to the skate park or did you meet him down there?A. I met him.
Q. Did you ride on that day?A. Mmm.
Q. What did you notice about the surface?A. It was slippery.
Q. What did you see Joshua doing?A. Riding down in the middle ramp. There's two ramps, one in the middle. He was going down the middle one.
Q. Would you describe very slowly to his Honour what you saw?A. Josh went down the middle. As he was going down, the bike washed out from underneath, after he was going down.
HIS HONOUR
Q. What was the word you used?A. Washed out. Like, the bike went out from underneath him. We call it washing out.
ROBERTS
Q. Was that a sudden movement, slow movement or--A. It was just straight out.
Q. How far down the ramp had he got?A. About halfway down the ramp."
46 Mr Macey said that he was positioned up behind Mr Morris before he fell and could see everything that happened from where he was. He had ridden down the middle roll-in many times before the park was painted. He had never experienced a wash out himself at the skate park before it was painted, even " on occasions [when he had] ridden at a bit of an angle down that ramp" . He did not, however, experience a wash out on this day doing the same manoeuvre that Mr Morris was doing when he was injured.
Christopher James Doherty
47 Mr Doherty is 19 years of age. He lived near the skate park and used it regularly when he was younger. The original surface of the park was "grippy" and there was no slip. After it was painted it became slippery. He gave this evidence:
"Q. Did that have some effect on how you could do your manoeuvres on there?A. Yes, you couldn't do that at any angle. You had to do it straight and even then it was very hard to ride.
Q. Was that the case with your BMX bike?A. Yes.
Q. Was it also the case with your skateboard?A. Yes."
48 Mr Doherty was at the skate park and saw Mr Morris fall. He described this as follows:
"Q. What did you see?A. Well, he was going down in the middle roll-in and he put his front wheel over. The bike - he fell to his right and the bike just slipped. Just all of a sudden. He had no control over it.
Q. Now, you said he went over - he started to go down the little roll-in?A. The middle one, yes.
Q. The middle. Was that at the Pemberton Street end or the other end?A. Northern end.
Q. How far down had his front wheel got by the time that he fell?A. I'd say about halfway down."
Witnesses for the defendant
49 Apart from its expert, the Council called only one other witness.
Mathew David Walker
50 Mr Walker was at the West Albury skate park on the day that Mr Vreman was injured. He gave the version of what he saw to which earlier reference has been made: see [33] - [34] above. It is unnecessary to repeat that evidence. Mr Walker also gave evidence that he had an ability to tell or foresee when someone was going to have an accident. He described this curious ability in the course of the following evidence given in cross-examination:
"Q. And when did you develop this facility to be able to tell when people are going to be able to have an accident?A. During the four years I rode my pushbike around and watching people and stuff.
Q. I see. Was that in your mind as you say you could sit there and watch Mr Vreman coming down? You knew he was going to have an accident?A. Well, I didn't think it was going to be as bad as it was but I knew he wasn't going to be able to clear the box.
Q. So your opinion as you were sitting side on, he was not going to clear the box?A. That's right."
51 I reject Mr Walker's version of Mr Vreman's accident for two reasons. First, I was particularly troubled by Mr Walker's professed ability to foresee accidents. In fairness to him, Mr Walker did not suggest he had psychic or paranormal powers. His evidence was more to the effect that it was a skill that he had developed by watching (presumably) sporting events over the years. For example he said, "It's the same as my motor racing, I can tell when someone is going to run into a wall or have an accident due to the speed they are travelling". I doubt that he could have developed this ability "during the four years [that he] rode [his] pushbike around and watching people and stuff". Concerning Mr Vreman's accident in particular Mr Walker said, "I didn't think it was going to be as bad as it was but I knew he wasn't going to be able to clear the box". This is hindsight in my view. He also said that from watching motor racing, "I can tell when they brake and it's going to run off into the sand trap". This is also afflicted with hindsight. Mr Walker did not profess any engineering or similar qualification that assisted him in this regard. He denied that he had reconstructed what he believed was going to happen to Mr Vreman.
52 In my observation, Mr Walker was in fact reconstructing what he saw and offering it as a description of what happened in fact. I have no confidence at all that he had the ability to predict an accident in the way they he described, but the very notion that he thought that he had such an ability itself casts doubt upon the veracity of the version he gave. Being as polite about it as I can be, I thought that Mr Walker's evidence was incredible and that his resort to claiming some power or skill to predict that an accident was about to happen was fanciful at best and disconcerting at worst. I am unable to have any confidence in his version for this reason alone.
53 Secondly, I am asked to compare Mr Walker's version with Mr Vreman's version. The Council contends that Mr Vreman has a motive to give a version of his accident that assists his case whereas Mr Walker is a wholly independent and neutral observer. Mr Walker was not asked to recall the accident until a few months after the accident and then not again until "six months ago or earlier this year sometime". He said that he emailed a statement to someone but it did not become evidence before me. In the course of this evidence Mr Walker said he was not "much of a trick person" indicating that his interest in BMX bike riding was merely to ride with his mates who just happened to be at the park. He said that not being much of a trick person meant that "I'm just there to get from point A to point B and watch my friends who are more co-ordinated than me do tricks".
54 Mr Walker's evidence was brief. However, his interest in Mr Vreman's accident and his ability to recall it in detail is in my opinion likely to be less accurate that a version from a person who was a skilled BMX bike rider and who had performed the manoeuvre many times. Undoubtedly Mr Vreman has relived the incident constantly over the years since Anzac Day 2006. Mr Walker has had no occasion to do so and was not a skilled BMX bike rider with knowledge of how this particular trick was performed. He certainly knows that Mr Vreman came to grief but I am very wary about accepting his recollection of how that occurred. Mr Walker had had no experience, or certainly none that he spoke of, concerning the comparative qualities of the surface of the skate park before and after painting and lacked an intimacy with the details of the tricks that were performed, which I consider has informed Mr Vreman's version.
55 As a final matter I consider that Mr Vreman's evidence taken by telephone on this single issue was very clear. He was measured and definite in his responses. He denied the alternative version that was put to him. His answer "Yes - I am not sure" given in answer to the question "You are denying what I am putting to you?" was clearly an answer expressing confusion with the question and not one expressing doubt about his previous evidence. Commendably, and in my view quite properly, no submission was made on behalf of the Council to me to the contrary.
56 It is for these reasons that I accept that the accident happened in the way Mr Vreman described.
The evidence of the experts
57 Mr Colin Simpson and Dr John Cooke were qualified as experts in these proceedings. Their detailed evidence and opinions are referred to more fully later in these reasons. The principal focus of their investigations and reports was the difference, if any, in the slipperiness of the original concrete surface of the skate park compared to the slipperiness of the same surface when painted. In the case of Mr Vreman's accident, there is also evidence to suggest that the painted surface was made more slippery at the time of his fall by the presence of dew. In carrying out their investigations and expressing their conclusions, the experts have taken that added factor into account. There was ultimately agreement between the experts on the measurement of the slipperiness of the painted and unpainted surfaces of the skate park. Mr Simpson also measured the slipperiness of the painted surface of the Thurgoona skate park because it had been repainted quite recently and so was arguably a better indicator of the state of the West Albury skate park in 2006. Dr Cooke agreed that the findings of slip resistance in wet and dry and painted and unpainted conditions at West Albury and Thurgoona skate parks taken by Mr Simpson were in summary as follows:
|
WEST ALBURY
|
|
|
|
|
|
|
Painted surface
|
Dry
|
BPN
|
58
|
C of F
|
0.6
|
|
|
Wet
|
BPN
|
43
|
C of F
|
0.5
|
|
|
Dry
|
BPN
|
75
|
C of F
|
0.9
|
|
|
Wet
|
BPN
|
70
|
C of F
|
0.8
|
|
THURGOONA
|
|
|
|
|
|
|
Painted surface
|
Dry
|
BPN
|
50
|
C of F
|
0.5
|
|
|
Wet
|
BPN
|
21
|
C of F
|
0.2
|
58 Following a conclave, Mr Simpson and Dr Cooke produced answers to a series of questions posed for them by the parties. Those questions and answers are relevantly as follows:
"1. Is The Skate Facility Guide (the Guide) an appropriate guide to the construction of the subject skate facility? Answer: Yes.
2. Is the subject skate facility designed and constructed in accordance with the Guide? Answer: Yes.
3. Do AS/NZS 3661.1:1993 "Slip resistance of pedestrian surfaces Part 1: Requirements" and AS/NZS 4663:2004 "Slip resistance measurement of existing pedestrian surfaces" apply to the design of the skate facility surface? Answer: No.
4. Does the Guide specify an "extremely smooth" concrete surface as one of the recommended surfaces for a skate facility? Answer: Yes.
5. What is the predictable minimum dynamic coefficient of friction for an extremely smooth concrete surface? Answer: 0.25 for sealed masonry or wet steel trowelled concrete.
6. What is the dynamic coefficient of friction of the surface of the subject skate facility under wet conditions when:
(i) the concrete surface is unpainted: Answer: 0.67-0.81 (BPN 60-70);
(ii) the concrete surface is painted, but with the paint worn through use: Answer: 0.45 (not very worn) - 0.71 (very worn) (BPN 43-63); and
(iii) when the concrete surface is painted, but with the paint in new condition? Answer: Cooke: 0.6 (BPN 55) (measured at Pemberton Street skate facility); Simpson: 0.2 (BPN 21) (measured at Thurgoona skate facility).
7. Did the subject skate park facility have a surface in accordance with the recommendations in the Guide:
(i) at the time of the inspection/s by the experts: Answer: Cooke: Yes, because all of the recommended surfaces in the Guide are extremely smooth. Simpson: No, because it is not addressed in the Guide and;
(ii) at the time of the accidents in the Morris and Vreman matters? Answer: Cooke: Yes, because all of the recommended surfaces in the Guide are extremely smooth. Simpson: No, because it is not addressed in the Guide.
8. Would the subject skate facility surface have been "non slip" at the accident locations identified in the Morris and Vreman matters if the concrete had been bare? Answer: Not as defined in AS/NZS 3661.1:1993 above a slope of approximately 24%."
59 The experts effectively agreed that for the purpose of this case, what was important was to attempt to gauge the characteristics of a concrete surface that had recently been painted with a type of paint that had been applied at the West Albury skate park. Thurgoona skate park was the obvious candidate for this approach. The results referred to above make this clear. Degradation by use and ultraviolet reaction in the years since 2006 made the utility of tests conducted at West Albury marginal at best. The following passage of the concurrent evidence session makes this clear:
"HIS HONOUR: In terms of approximating the conditions that applied to the surface of the skate park following painting in 2006, would your view be that the surface you inspected there this year would be more, or less, likely to approximate the conditions that applied when the accidents occurred than the painted surface of Thurgoona that Mr Simpson examined?
WITNESS COOKE: Well, I have not seen the Thurgoona surface. Assuming that the concrete surface at both facilities is very close in texture, and assuming the coat thickness of the paint is similar to, the type of paint is similar, then Mr Simpson's reading may be more accurate than mine when determining the actual reading at the time."
60 Mr Simpson was asked to clarify a point of difference between him and Dr Cooke. He did so as follows:
"ROBERTS: In your answers to 7(i) and (ii), your answer to the question: "Did the subject skate park facility have a surface in accordance with the recommendations in the Guide at the time of your inspection?", you said, "No, because it is not addressed in the Guide"?
WITNESS SIMPSON: That's correct.
ROBERTS: What did you mean by that?
WITNESS SIMPSON: The Guide gives a number of recommendations and nowhere in it does it suggest that it should be painted. And the effects of the various surfaces under varying conditions, either indoors, outdoors, wet, dry, hot, cold, what the heat is, to an extent, are just not addressed. It takes into account the structural integrity of it, wear and maintenance and doesn't mention friction, for example, at all. And that's why I said it is not addressed. But the paint or friction are not addressed."
61 Mr Simpson also elaborated upon the relationship between the coefficient of friction and the incidence of slip:
"WITNESS SIMPSON: The coefficient of friction is a measure of the interaction between the tyre and the surface. It is literally the vertical load, times the coefficient of friction which gives you the force exerted either by the tyre on the road or the road on the tyre. They are the same, equal and opposite ... In a straight line there is very little requirement for friction, particularly with a wheeled object, because you are also dealing with rolling friction and gyroscopic forces and what have you. It is where there is a requirement to add a sideways force to turn or stabilise that there is a demand for friction or the machine tries to turn in one direction that requires a certain amount of friction of the wheel to carry out that task. If it is not available, you get a slip. If it is available, then whatever the command you have given occurs."
Comment
62 To a considerable extent I have not found the expert evidence in this case to be particularly helpful in determining the outcome. I hasten to say that this is not in any way a reflection of the experts themselves so much as the task with which they were confronted. There is no empirical or objective standard prescribed for the level of slipperiness of the surface of a concrete skate park facility such the one at West Albury. The only guide to which the experts referred makes no mention of the surface of such a facility in this context so that there is no code or range of values against which to judge or with which to compare the West Albury skate park. In other words, it is not possible in this case to say that the various findings concerning the coefficient of friction on wet and dry and painted and unpainted surfaces at West Albury and Thurgoona meet or fail to meet or to comply with some defined standard or range of tolerances.
63 There does not appear to be any dispute that painted concrete surfaces are more slippery than equivalent unpainted concrete surfaces and that wet surfaces of either type are correspondingly more slippery than equivalent dry surfaces. The range of values set forth in the table earlier in these reasons confirms this both in general terms and more importantly in the particular location of the accidents concerned or, in the case of the Thurgoona skate park values, those which the experts agree are best likely to reflect the condition of the West Albury skate park in 2006. The difficulty in making some form of principled use of these numbers, however, is that they are absolute values, other than to the extent that they can be compared between or among themselves, and provide no useful information in terms of assessing appropriate standards to apply to the surfaces of skate parks in general.
64 Added to this difficulty is the fact that the surfaces of skate parks are required to be smooth. Dr Cooke makes this point a number of times in his reports. He refers to the "very smooth steel trowelled concrete surfaces (of the type referred to in the Guide )". He draws attention to page 70 of the Guide under the heading "Critical Specifications" for pre-cast concrete components that includes the comment, "[i]t is critical that the surface is flat and is extremely smooth, otherwise the facility will not be used by skaters". Dr Cooke also notes that there is no suggested design figure for the dynamic coefficient of friction of a skate park surface in the Guide . Neither expert attempted to accommodate the relationship between a requirement that the surface be smooth on the one hand and the BMX riders' concerns, of which evidence was given before me, that the surface not be so slippery that transitions and other manoeuvres not be compromised, on the other hand. I observe that "smooth" and "slippery" may only sometimes be, and are not necessarily always, the same thing. The act of painting the surface of the West Albury skate park without more does not therefore amount to an automatic breach of duty.
65 Dr Cooke emphasised the absence of a suitable standard against which to judge the suitability of the surface of a skate park facility in one of his reports as follows:
"43. For the reasons given above, my opinion is that tests on the skate facility surfaces based on AS/NZS 3661.1:1993 and AS/NZS 4663:2004 do not provide any data of relevance to the analysis of the design of the surfaces. In particular, to be fit for purpose, there is a design requirement for extremely smooth finishes on the concrete surfaces, including surfaces with slopes close to vertical. Such surfaces cannot provide a surface that is comparable to the design of a suitable pedestrian surface in which surface roughness is necessary for an appropriate level of slip resistance."
66 In these circumstances I am only able to conclude, with the benefit of the experts' agreement on coefficient of friction values at West Albury and Thurgoona skate parks, that a flat wet painted steel trowelled concrete surface at West Albury in 2006 would have had a coefficient of friction of 0.2 and a flat dry painted steel trowelled concrete surface at West Albury in 2006 would have had a coefficient of friction of 0.64. These values are to be compared with the assumed equivalent values on unpainted surfaces at the same location of 0.81 and 0.88 respectively. The legal significance, if any, of these differences in determining the scope and content of any duty owed by the Council to Mr Vreman and Mr Morris, and the assessment of whether or not any such duty has been breached in the circumstances, appears to me to be extremely limited. This is referred to below in the context of my consideration both of the ways in which Mr Vreman and Mr Morris seek to make out their cases as well as the various defences and statutory provisions upon which the Council relies in response.
67 It will be necessary in due course to consider a number of provisions of the Civil Liability Act 2002 . In the circumstances it is convenient first to deal with ss 5K and 5L of the Act. They are in the following terms:
" 5K Definitions
In this Division:
"dangerous recreational activity" means a recreational activity that involves a significant risk of physical harm."obvious risk" has the same meaning as it has in Division 4.
"recreational activity" includes:
(a) any sport (whether or not the sport is an organised activity), and
(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.
5L No liability for harm suffered from obvious risks of dangerous recreational activities
(1) A person ("the defendant") is not liable in negligence for harm suffered by another person ("the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk."
68 Section 5F deals with what is meant by "obvious risk". It is as follows:
" 5F Meaning of "obvious risk"
(1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable."
69 The Council must establish that Mr Vreman and Mr Morris were engaged in a dangerous recreational activity and that the harm that they suffered was the materialisation of an obvious risk of that activity: see Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31] per Mason P :
"[31] The principles as to how an activity is to be characterised to determine if it is a "dangerous recreational activity" (ie a recreational activity that involves a significant risk of physical harm) are discussed in Falvo v Australia Oztag Sports Association [2006] NSWCA 17 and Fallas v Mourlas [2006] NSWCA 32. The defendant bears the burden of proof in establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in the particular context in which the plaintiff places himself or herself (see Fallas at [38]-[50], [92])..."
70 There is no dispute in this case that the activities in which Mr Vreman and Mr Morris were engaged were recreational activities. There is a dispute about whether they were dangerous recreational activities. There is also a dispute that Mr Vreman and Mr Morris suffered harm as the result of the materialisation of an obvious risk of a dangerous recreational activity in which they were engaged.
" Dangerous recreational activity "
71 The issue is whether riding a BMX bike at the West Albury skate park was a recreational activity that involved a significant risk of physical harm. "Harm" means harm of any kind, including personal injury or death and economic loss. There is no dispute that Mr Vreman and Mr Morris suffered harm.
72 In Falvo v Australian Oztag Sports Association [2006] NSWCA 17; (2006) Aust Torts Reports 81-831 Ipp JA discussed the expression "dangerous recreational activity" at [28] - [31] as follows:
"[28] In my view, the definition of "dangerous recreational activity" in s 5K has to be read as a whole. This requires due weight to be given to the word "dangerous". It also requires "significant" to be construed as bearing not only on "risk" but on the phrase "physical harm" as well. The expression "significant risk of physical harm" is coloured by the word "dangerous" and the phrase "significant risk" cannot properly be understood without regard being had to the nature and degree of harm that might be suffered, as well as to the likelihood of the risk materialising.
[29] The view that a risk is "significant" when it is dependant on the materiality of the consequences to the person harmed is consistent with the views expressed by the High Court in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 490.
[30] Thus, in my opinion, the expression should not be construed, for example, as capable of applying to an activity involving a significant risk of sustaining insignificant physical harm (such as, say, a sprained ankle or a minor scratch to the leg). It is difficult to see how a recreational activity could fairly be regarded as dangerous where there is no more than a significant risk of an insignificant injury.
[31] In substance, it seems to me, that the expression constitutes one concept with the risk and the harm mutually informing each other. On this basis the "risk of physical harm" may be "significant" if the risk is low but the potential harm is catastrophic. The "risk of physical harm" may also be "significant" if the likelihood of both the occurrence and the harm is more than trivial. On the other hand, the "risk of physical harm" may not be "significant" if, despite the potentially catastrophic nature of the harm the risk is very slight. It will be a matter of judgment in each individual case whether a particular recreational activity is "dangerous".
[32] Oztag, like touch rugby, is not what is normally understood as a contact sport. Oztag, in fact, is designed to reduce the extent of physical contact that might be experienced in ordinary touch rugby.
[33] A "dangerous recreational activity" cannot mean an activity involving everyday risks attendant on games such as Oztag which involve a degree of athleticism with no tackling and no risk of being struck by a hard ball. In my opinion, the trial judge erred in finding that Oztag was "a dangerous recreational activity"."
73 In Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 the facts were briefly as follows. The defendant accidentally shot the plaintiff in the leg while hunting kangaroos with two other men. At the time of the accident, they were all participating in an activity referred to as "spotlighting" or shooting kangaroos at night with the aid of a spotlight . The men got into a vehicle and drove into the bush in search of kangaroos at around 10.30pm. The defendant was driving the vehicle and the plaintiff sat in the front passenger seat. The plaintiff agreed to hold the spotlight and shine it out of the window of the vehicle while the other men shot. After about 5 to 10 minutes of driving, two of the men got out of the vehicle and began walking in front while the vehicle followed them. At some stage the vehicle stopped and the defendant climbed out of the vehicle with a handgun to join the other men. He returned to the vehicle still holding the handgun. The plaintiff asked him not to come into the vehicle with a loaded gun. The defendant gave repeated assurances that the gun was not loaded and that it was safe for him to enter the vehicle. Once the defendant was inside the vehicle, the plaintiff once again asked him not to bring the gun inside the vehicle and to point the gun outside. The defendant began "clocking [the gun] back and forward" in an effort to un-jam it, and as he was doing so he pointed the gun in the plaintiff's direction. There was then an accidental discharge of the gun resulting in the plaintiff being shot in the leg and suffering injury.
74 At trial, the plaintiff contended that the defendant was liable to him in negligence for the damages he had incurred. One of the grounds on which the defendant denied liability was that he was entitled to immunity under s 5L of the Civil Liability Act . The trial judge upheld the plaintiff's claim and found that the defendant had been negligent. Her Honour was not satisfied that the activity being undertaken at the time the plaintiff was shot was a "dangerous recreational activity" as defined by s 5K. Further, her Honour held that the plaintiff "did not suffer harm as a result of the materialisation of an obvious risk of a dangerous recreational activity". Accordingly, her Honour concluded that s 5L did not assist the defendant.
75 In the Court of Appeal, Ipp and Tobias JJA held that the activity in which the plaintiff was engaged was a "dangerous recreational activity" within the meaning of s 5K. Basten JA disagreed. It should also be noted in this context that Ipp and Basten JJA held that the risk that materialised did not constitute an "obvious risk" of the dangerous recreational activity as defined in s 5F. Tobias JA disagreed. In the result the defendant's appeal was dismissed .
76 Ipp JA came to the following conclusions. First, an objective test is required in determining whether, in terms of s 5K of the Act, a recreational activity is "dangerous". Secondly, the word "significant", in the expression "significant risk of physical harm", lays down a standard lying somewhere between a trivial risk and a risk likely to materialise. Thirdly, a significant risk that converts a recreational activity into a dangerous recreational activity may be an entirely different risk from the risk (which may be obvious or not) that materialises. Thus, s 5L may be held to apply where the significant risk (converting a recreational activity into a dangerous one) differs from the obvious risk that materialises. Fourthly, the question of whether a particular activity may be dangerous should be determined by reference to the particular activities engaged in by the plaintiff at the relevant time and to the actual circumstances giving rise to the harm. This could require segmenting the particular activities the plaintiff was engaged in. Fifthly, the activity in which the plaintiff was engaged was sitting in the vehicle, holding the spotlight for the shooters outside, so that at various times one or more of the shooters might leave or enter the vehicle with guns that might or might not be loaded. That limited activity is distinguishable and separate from the other activities, which fall under the general description of "shooting kangaroos by spotlight". Finally, in the particular circumstances of that case, there was a significant risk that one of the men, while leaving or entering the vehicle as the plaintiff was operating the spotlight, might handle a loaded gun in a negligent manner and cause someone in the vehicle to get shot. Therefore, the activity in which the plaintiff was engaged carried a significant risk of physical harm and was a "dangerous recreational activity" within the meaning of s 5K.
77 Tobias JA came to the following conclusions. First, in general terms, for a risk to qualify as significant, it must have a real chance of materialising. For a risk to have a real chance of materialising it must lie somewhere between a trivial risk and a risk likely to materialise, although it is probably closer to the second than the first. Secondly, in determining whether the relevant recreational activity involves a significant risk of physical harm, one must identify that activity at a relatively detailed level of abstraction by including not only the particular conduct actually engaged in by the respondent but also the circumstances which provide the context in which the conduct occurs. Finally, having regard to the circumstances of the case, particularly the inexperience of the participants and the excitement and possible bravado involved in the shooting, the subject activity was clearly capable of involving a significant risk of physical harm. Therefore, the subject activity was a "dangerous recreational activity" within the meaning of s 5K.
78 Basten JA agreed with Ipp JA that the burden of proof in establishing a defence under s 5L falls on the defendant. In the instant case, once the activity was identified as shooting kangaroos at night, and the relevant risk was identified as a wound caused by accidental discharge from a firearm, it was not possible to characterise a person who merely holds a spotlight as not involved in the activity because they are not involved in the actual shooting. It followed that the plaintiff was engaged in the recreational activity of shooting kangaroos at night. In considering whether a "risk of physical harm" is "significant" the seriousness of the harm must be considered. If the harm is potentially catastrophic, a very low level of risk may be treated as "significant". On the other hand, where the harm is not serious at all, the risk may not be considered significant until it reaches a much higher level. The phrase "significant risk" requires an objective test not dependent upon whether the plaintiff was aware of the risks involved in a particular activity.
79 His Honour postulated three possible ways of considering whether a risk is significant. First, assume that any risk will be significant because the results of it eventuating are likely to be catastrophic. Secondly, draw an inference from statistical evidence. Thirdly, examine the particular circumstances of the case. Adopting the first approach would not reflect the statutory test set out in s 5K. The parties did not run their case based on the other two approaches. Therefore, it had not been established that there was a significant risk of injury from the accidental discharge of a firearm whilst shooting kangaroos at night, in the circumstances in which the plaintiff was involved. In those circumstances, in his Honour's view, it had not been established that the subject activity was a "dangerous recreational activity".
80 Two years later, in Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Torts Reports 81-952, the Court of Appeal dealt with an appeal by the plaintiff who had been seriously injured in a diving accident. The facts were not significantly different from those in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 to which reference is made in the judgment. As in the present case, the critical issues that arose under the statutory provisions were first, whether the appellant's activities involved an "obvious risk" being a risk of harm that, in the circumstances, would have been obvious to a reasonable person in the plaintiff's position and secondly, whether the plaintiff's activity was a "dangerous recreational activity" as defined in s 5K, being one that involved a significant risk of physical harm.
81 At [52] - [55] Tobias JA said this:
"[52] The relevant standard lies somewhere between a trivial risk and one that is likely to occur. Importantly, 'significance' is to be informed by the elements of both risk and physical harm. The context in which the appellant found himself was that he was diving into water from the top of a bollard that was two to three metres above the surface of the water. True it is that he had observed other persons diving from the wharf but there was no evidence that he had observed them diving from the particular bollard from which he himself dived or in the direction that he dived.
[53] In the present case, it could not be said that the risk of physical harm was in the circumstances trivial; nor was it one which would inevitably eventuate although in my view there was a real chance of the risk materialising if, as was the case, the appellant was to misjudge the depth of the water. Furthermore, the nature of the physical harm that could be sustained if the risk materialised was acknowledged by the appellant to be extremely serious: in fact, catastrophic.
[54] The factors to which I have referred in [28] above and relied upon by the appellant do not lead to any different conclusion, leaving aside those factors which are, by their nature subjective, all of them point to the risk of the appellant sustaining physical harm by diving from an enhanced height into water of unknown depth as being significant. The chance of the risk of physical harm materialising was real.
[55] In my view the primary judge was correct to characterise the appellant's activity as a " dangerous recreational activity " within the meaning of s 5K of the CL Act. As his injuries were a result of the materialisation of what was an obvious risk of a dangerous recreational activity engaged in by him, it follows that by virtue of the provisions of s 5L(1) of the CL Act , the Council is not liable in negligence for the appellant's injuries. On this further ground, the appeal fails."
82 Although I was not referred to the passage specifically, the February 2001 Skate Facility Guide dealt with the question of the nature of skateboarding. At page 84 it contained this reference:
"In the 1990s the situation reversed and many States of the USA passed laws which classified skateboarding as a hazardous recreational activity, thus placing responsibility for injuries back onto the user and reducing concerns about insurance premiums or litigation. However, that approach has not been followed in Australia and the laws of occupier liability and negligence still apply to councils' conduct."
83 Since the enactment of the Civil Liability Act the position is quite obviously different.
84 Page 85 of the Skate Facility Guide says, "skating involves inherent risk of injury". The publication and the opinion are neither authoritative nor binding but the view expressed is not to my mind controversial or unreasonable. It arguably informs the nature of riding BMX bikes at skate parks.
85 In my opinion, the activity in which Mr Vreman and Mr Morris were engaged when they were injured was a dangerous recreational activity. It clearly involved a significant risk of physical harm. The nature and degree of the harm that might be suffered was significant, as was the likelihood of it occurring. I do not consider that the risk of physical harm was low, but even if it had been, the potential harm was catastrophic. I also consider that the risk of physical harm was significant because in this case the likelihood of both the occurrence and the harm was more than trivial.
86 Participants engaged in riding BMX bikes at the West Albury skate park necessarily commence almost every, if not in fact every, manoeuvre from the raised platforms positioned at the north and south ends of the park. The drop-ins are effectively vertical and the roll-ins are at approximately 45 degrees. The aim of these structures is to facilitate the instant or rapid attainment of speed on descent from the platforms that is then converted from forward momentum into anti-gravitational or vertical momentum in the form of jumps or other airborne tricks. Pedalling can be used to assist the attainment and retention of speed for these purposes. Ascending the drop-ins and roll-ins also requires considerable speed, and hence momentum, to be retained in order to return to a stationary position on top of the platform at the opposite end. The whole surface of the structure on and over which these manoeuvres are performed, including the platforms, is constructed of concrete in flat or angled or steeply curved configurations. Some angles are steel edged.
87 Upon the basis of my observations from a purely untrained and unskilled perspective, performance of these manoeuvres is not for the faint-hearted. The jumps that I was asked to observe by the parties when the skate park was visited involved a BMX bike rider performing each of the manoeuvres performed by Mr Vreman and Mr Morris. In the case of the former, the bike becomes airborne over the full length of the fun box and the landing occurs not on a flat but on a sloping or concave surface. The rider is then confronted with the virtually sheer face of the approaching drop-in and must be prepared for its ascent almost instantaneously. There appears to a lay observer to be a quite limited margin for error. In the case of Mr Morris's activity, rolling forward down the roll-in appeared to be somewhat more straightforward although the performance of any jump planned to follow this entry into the skate park would be largely similar to that following an entry from the drop-in.
88 The risk of physical harm resulting from this activity could not on any view be regarded as trivial. By reference to the particular activities engaged in by Mr Vreman and Mr Morris at the time and to these actual circumstances giving rise to the harm that they suffered, BMX bike riding at the West Albury skate park was objectively and prospectively a dangerous activity. Part of the activity may arguably not have been dangerous in isolation. For example, riding around the flat portion of the skate park circumnavigating the fun box without attempting tricks or jumps and without launching from the platforms by use of the drop-ins or roll-ins would not seem to be particularly dangerous at all. It would be the equivalent of recreational bike riding. Not all forms of cycling constitute dangerous recreational activity: see, for example, Edwards v Consolidated Broken Hill Pty Ltd [2005] NSWSC 301 at [24]:
"[24] The defendant submitted that it was not liable because the plaintiff was injured as a result of the materialization of an obvious risk of a dangerous recreational activity engaged in by him. The riding of a bicycle scarcely fits the concept of what I would understand the legislature to have intended to have comprehended by its expression "dangerous recreational activity". The risk in this case of falling from the bridge because the space for passage had been limited by the presence of rail cars is not a risk of bicycle riding as such, rather it is a risk created by the defendant's activity in allowing the storing rail cars in that position. Section 5L has no application to the present circumstances."
89 However, in the present case, once a rider has determined upon an activity commencing with an accelerated entry from the raised platform dropping to the flat concrete surface below, with the likely or anticipated need to negotiate a raised obstacle in the form of the fun box, and then perform a jump or other trick in the air, a risk of falling is created that is completely different to the same risk that arises from simply riding the bike on a flat surface. There was a risk in the former case that the jump or the trick would not go as planned and that the landing may lead to a fall. That risk had a real chance of materialising. Mr Vreman was an experienced rider and expressly acknowledged the existence of this very risk. Mr Morris also agreed, "if you make a mistake and have a fall you might hurt yourself".
90 In Greater Taree City Council v Peck [2002] NSWCA 331 at [65], Einstein J described skateboarding at a skateboard park as " plainly an inherently dangerous sport". In Shellharbour City Council v Rigby [2006] NSWCA 308 at [300]; [2006] NSWCA 308; (2006) Aust Torts Reports 81-864, Basten JA commented as follows with respect to an accident to a rider that occurred at a BMX bike riding track:
"[300] This was a constructed facility, not part of a natural environment. The fact that a recreational facility involved risks was a matter to be taken into account in making it available to the public without supervision: see [63] above, quoting Woods v Multi-Sport Holdings Pty Ltd at [37] (Gleeson CJ), referring to Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383 at 387. The ability to become airborne was undoubtedly part of the intended excitement of the feature, and the risk of an inexperienced airborne rider losing control of his or her bicycle was no doubt likely to be appreciated at some level by all riders, both experienced and inexperienced. However, the real concern related to inexperienced young riders who might lack the maturity and understanding to appreciate adequately the risks involved."
91 The Council in this case contended that the classification of the activities undertaken by Mr Vreman and Mr Morris as dangerous would be consistent with what was said in those cases in similar circumstances.
92 One of the submissions made on behalf of Mr Vreman and Mr Morris was that in statistical terms it could not be said that BMX bike riding at purpose built facilities was dangerous. It was suggested that material to be found at page 82 of the Skate Facility Guide under the heading "How dangerous is skating" showed that injury from BMX bikes accounted for 158 of the 136,000 presentations for accident related injuries to Victorian Hospitals over a three year period, and that this was statistically insignificant and consistent with little danger. That was promoted as at least prima facie support for the proposition that BMX bike riding is not a dangerous recreational activity, especially if it is carried out in a purpose built facility. The Council's response was that activities might be statistically "safe" but fundamentally dangerous. Although not cited as an example, one instance of this idea would seem to be recreational parachute jumping, which is not notoriously associated with unduly high rates of injury or death, but which could in my view only be described as a dangerous activity. Motorcar and motorbike racing would seem to fall into a similar category.
93 In my opinion it would be an exercise in sophistry to conclude that the activities in which Mr Vreman and Mr Morris were each separately engaged were not dangerous recreational activities, even if the incidence of injuries was not particularly high or the degree of seriousness of injuries that were caused were not always or often catastrophic.
" Materialisation of an obvious risk "
94 In Jaber at [27], Tobias JA said this:
"[27] It was common ground that the question of obvious risk involves the determination of whether the appellant's conduct involved a risk of harm which would have been obvious to a reasonable person in his position: Carey v Lake Macquarie City Council (2007) Aust Torts Reports 81-874; [2007] NSWCA 4 at [93]."
95 The risk in this case was one that included at least the following segments or elements: (i) falling from a BMX bike, (ii) while riding at the West Albury skate park, (iii) when a wheel that might not slip on an unpainted concrete surface might slip on a painted concrete surface (iv) in the course of landing from a jump or when descending during a roll-in, (v) leading to or causing injury. As appears earlier, Mr Vreman accepted that any sloping surface was a riskier place to ride a BMX bike than a flat surface, that a smooth surface was a more risky place to ride a bike than a rough surface with better grip, and that wet surfaces were generally and usually more slippery than dry surfaces. He had noticed that after parts of the West Albury skate park had been painted that the painted areas appeared to him to be more slippery than the other unpainted areas and he knew that it was riskier to be riding a BMX bike on the painted areas than the bare concrete. As also appears earlier, Mr Morris accepted that as a matter of common sense, riding a bike on a steep surface was riskier than riding it on a flat surface, riding a bike on a smooth surface was riskier than riding a bike on a rough surface and riding a bike on a wet surface was riskier than riding a bike on a dry surface. He agreed they were "all things that everybody knows as a matter of common sense".
96 Were these risks that were patent or a matter of common knowledge? Were they risks that would have been obvious to Mr Vreman and Mr Morris and risks that should have been obvious to anyone in their position of similar age and experience? Would the whole or any part of the segmented risk have been obvious to a reasonable person in the position of Mr Vreman or Mr Morris?
97 In Great Lakes Shire Council v Dederer; Roads & Traffic Authority of NSW v Dederer [2006] NSWCA 101; (2006) Aust Torts Reports 81-860 , Ipp JA said this:
"[149] In Fallas v Mourlas [2006] NSWCA 32; (2006) Aust Torts Reports 81-835 Tobias JA said at 68,362, [98]:
'It is clear from the definition of 'obvious risk' in s 5F that one is required to have regard to the particular circumstances in which the respondent suffered the relevant harm and determine whether the risk which resulted in his suffering that harm would have been obvious to a reasonable person in his position. In other words, as with the case of determining whether the activity in which the respondent was engaged as a 'dangerous recreational activity' as defined, all of the surrounding circumstances which occurred immediately prior to the respondent's suffering the relevant harm must also be identified for the purpose of determining whether the risk which materialised was 'obvious'.'
[150] In Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247; (2004) Aust Torts Reports 81-754 Tobias JA at 65,892, [161] defined the word "obvious" as meaning that:
'Both the condition and the risk are apparent to and would be recognised by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence and judgment.'
At 65,892, [162] Tobias JA noted that in this definition the word "condition" referred to the factual scenario facing the plaintiff.
[151] The risk that materialised in this case was that of serious spinal injury flowing from the act of diving off the bridge. Section 5F requires the question whether that risk was obvious to be answered by reference to a reasonable person in the position of Mr Dederer. In accordance with Fallas v Mourlas , regard must be had to the particular circumstances in which the harm was suffered.
[152] Whether the risk was obvious to a person in the position of Mr Dederer, has to be answered objectively, attributing to the notional reasonable 14 and a half year old person the knowledge of the area and conditions possessed by Mr Dederer at the time: Fallas v Mourlas ."
98 His Honour concluded at [172]:
"[172] ... Mr Dederer dived from a height of some nine metres into the estuary, and entered the water about 10 metres from a visible sandbar. In my opinion, even without the sign, it should have been obvious to a reasonable fourteen and a half-year old that such a dive was dangerous and could lead to catastrophic injuries."
99 Some authorities indicate that the risk should be characterised quite specifically. In C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [173] - [175], Bryson JA was at pains to emphasise the importance of obviousness in the statutory equation as follows:
"[173] Much depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated. Rejecting more highly generalised statements, such as that bad things sometimes happen in hotels or that people sometimes fall over when walking on floors, the risks which confronted Ms Hutton-Potts can be stated at several different degrees of intensity. In a room in a hotel where a cleaner is polishing the floor with a buffing machine there is a risk that a recently polished floor will be slippery, because it is polished. I do not think that it would be correct in fact to see this as the risk which matured. If it were to be said that that risk was obvious it would, in the application of the meaning of "obvious risk" to the facts, have to be said that a reasonable person in the position of Ms Hutton-Potts who entered the room would have seen that Mr Elder was in the room, and would have gone further and considered what he was doing, and would have gone further and noticed that he was buffing the floor with a buffing machine; and that it would have been obvious to the reasonable person who did those things that there was a risk of slipping on the floor because it was recently polished.
[174] However that would not be enough to show that Ms Hutton-Potts suffered harm from an obvious risk, because it was not the recent polishing of the floor which caused her injury. A higher degree of intensity is required in stating the risk. Her injury was caused by there being polishing material on the floor which was not visible, and had not been removed in the buffing process. The finding that the risk which caused her injury was an obvious risk involves attributing to the reasonable person in her position discernment, as an obvious matter, that there may (even with a low degree of probability) be polishing material on the floor which was not visible. This is the risk which matured and caused her injury. Involved in this is not only advertence to what Mr Elder was doing, but advertence to the risk that he was not doing it properly.
[175] When the risk is stated at this degree it is in my opinion quite unsustainable that it should be found as a fact that there was an obvious risk to which the provisions of Div.4 applied; obviously so."
100 The Council argued that if the risk being considered is characterised too specifically then the section would have little practical utility, except in failure to warn cases. It submitted, therefore, that a more general characterisation of the risk was consistent with the express purpose of the Act, being "to limit the recovery of damages in relation to negligence and it must be given effect in accordance with that purpose": per Basten JA in Fallas v Mourlas at [121].
101 In subjective terms the distinction is not significant in the case of Mr Vreman to whom the most specific level of risk was apparent. However, in objective terms, I can discern no material difference between Mr Vreman, taking into account such matters as his age, his observations, his experience and his knowledge of the prevailing local conditions, and a hypothetical reasonable person with similar characteristics in the same position. Putting the matter the other way, there was no special fact or characteristic peculiar or unique to Mr Vreman which armed him with an appreciation of the risk, or which made it obvious to him, which no other reasonable person in his position could be expected to possess. The position is similar in the case of Mr Morris.
102 In each case these obvious risks materialised. Each man suffered harm when he fell from his bike. I consider that a reasonable person in the position of each man would have known, as Mr Vreman and Mr Morris knew, that the slippery surface of the skate park increased a risk that he or she might fall and be injured. That was something that Mr Vreman gleaned from riding on the painted surface many times before. Mr Morris knew that Mr Vreman had allegedly fallen because his bike had slipped on the painted surface. This is not a case like Maloney v Hutton-Potts where the person suffering harm was confronted with a risk that could not have been anticipated or detected as a normal (or obvious) risk associated with a freshly polished floor. The fact that the floor had been polished was obvious but the unremoved residue of polish was not obvious to a reasonable person in that plaintiff's position. The reasonable person in the position of Mr Vreman must be taken to have ridden on the painted surface of the skate park many times and to have been able to form his or her own conclusions about its suitability for riding upon in those circumstances. Similarly, the reasonable person in the position of Mr Morris must be taken to have had knowledge that Mr Vreman had been injured because his bike wheel reputedly slipped on the painted surface and also to have been able to form his or her own conclusions about its suitability for riding upon in those circumstances. The risks would have been obvious to a reasonable person in the position of each man.
Conclusion
103 In these circumstances I find that the Council is not liable to Mr Vreman or Mr Morris in negligence for harm suffered by them because the harm was suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity in which they were each separately engaged.
Risk warning regarding recreational activity
104 Section 5M of the Act is in the following relevant terms:
" 5M No duty of care for recreational activity where risk warning
(1) A person ("the defendant") does not owe a duty of care to another person who engages in a recreational activity ("the plaintiff") to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.
(2) ...
(3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.
(4) A risk warning can be given orally or in writing (including by means of a sign or otherwise).
(5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk).
(6) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in.
(7) ...
(8) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person.
(9) ...
(10) The fact that a risk is the subject of a risk warning does not of itself mean:
(a) that the risk is not an obvious or inherent risk of an activity, or
(b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity.
(11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity."
105 For the reasons given earlier, only the larger sign, the wording of which is set out in detail above, needs to be considered.
106 The sign in question was a general warning sign in the sense that it warned generally about the need to wear protective clothing, including helmet, knee and elbow pads and wrist guards at all times and that users skated at their own risk. It drew attention to the need for users to skate carefully and not to exceed their skill level. It also advised that the facility should only be used in daylight and that children under 12 were to be supervised by an adult. The sign did not warn that the surface of the skate park may be, or become, slippery if wet, that it was likely to be more slippery on steeper slopes or that it was, or could be, more slippery on surfaces that were painted. It did not warn of anything at all specifically directed to bike riders, as opposed to skateboard riders, and did not warn that the wheels of bikes may slip or "wash out" in circumstances that either equated to, or that incorporated, the events that occurred in the plaintiffs' accidents. It did not mention that there was a risk of serious or catastrophic injury, as opposed by implication, to bruises or grazes or other minor injuries that could be prevented or lessened by protective gear and falling short of tetraplegia or brain damage.
107 In the circumstances at least the following questions need to be answered:
1. What was the risk associated with the recreational activity of riding bikes at the West Albury skate park?
2. Was the risk warning given by the Council specific to the particular risk encountered by the plaintiffs, or was it a general warning?
3. Did the Council give a warning in relation to the recreational activity of riding bikes at the West Albury skate park that was reasonably likely to result in people being warned of the risk before engaging in the recreational activity?
4. If the risk warning given by the Council was not specific to the particular risk encountered by the plaintiffs, but was a general warning, did it warn of risks that included the general nature of the particular risk concerned?
5. Did the Council owe a duty to the plaintiffs in the circumstances?
108 I shall deal with these in turn.
109 First, as earlier indicated, the risks associated with the recreational activity of riding bikes at the West Albury skate park included at least (i) falling from a BMX bike, (ii) while riding at the West Albury skate park, (iii) when a wheel that might not slip on an unpainted concrete surface might slip on a painted concrete surface (iv) in the course of landing from a jump or when descending during a roll-in, (v) leading to or causing injury. In this last respect, the injuries of which participants took a risk ranged from minor or insignificant to serious and even catastrophic.
110 Secondly, the risk warning given by the Council was not specific to the particular risk encountered by the plaintiffs, but was a general warning. Indeed, it did not in terms warn of any "risk" at all. A warning that users skated at their own risk clearly implies that a risk exists but is silent upon what it might be. Alternatively, coupled with the reference to protective clothing, the warning may be one that actually warns of risks but only those that can be obviated or sufficiently guarded against by conforming to the requirement to wear such equipment. Even if it be accepted that the nature of the activities engaged in at skate parks obviously include a risk of falling, the warning in this case did not extend to include the most serious consequences that may be caused by a fall. More particularly for present purposes, the warning did not include a reference to the risk of serious or catastrophic injury. Finally, the warning in this case said nothing about any risk or risks associated with the slipperiness of the surface of the skate park, the difference between a painted and an unpainted surface, the characteristics of gradients or steep surfaces and their relationship to the likelihood of slipping or falling or the effect upon any of these of the presence of moisture on the surface.
111 Thirdly, in my opinion the Council did not give a warning in relation to the recreational activity of riding bikes at the West Albury skate park that was reasonably likely to result in people being warned of the risk before engaging in the recreational activity. This is because the warning was general and not sufficiently specific to do so. The reasonable likelihood of the warning having such an effect must be judged at least by reference to the content of the warning. I consider that the warning was inadequate to convey the nature or extent of the risks associated with riding bikes at the skate park to which I have previously referred.
112 Fourthly, it follows from the preceding paragraph that in my opinion the warning, even in its general form, did not warn of risks that included the general nature of the particular risk concerned. A warning such as "riding bikes on slippery surfaces may result in falls causing serious injury" or some equivalent formulation cannot be teased out of any warning given by the Council's sign in fact. At best, the sign erected by the Council is a sign exorting people to take care and reminding them that whatever they do they do at their own risk. See, for example, Belna Pty Limited v Irwin [2009] NSWCA 46 at [16] - [17] to similar effect. It is clear from s 5M(5) of the Act that a risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk). However, in my opinion, the Council's sign does not give a general warning of risks that include the particular risks concerned because it does not warn of the general nature of the particular risks concerned. On one view, the sign does not warn of any risk at all. Moreover, even though a prohibition sign may operate as a warning sign (see, for example, Great Lakes Shire Council v Dederer at [168] - [170] and Roads and Traffic Authority v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [39] and [79]), the sign in this case did not prohibit anything. In particular, the sign made no reference to bikes at all and was on one view directed in terms only to skate boarders or in-line skaters.
113 As I have earlier indicated, the Council conceded that the evidence supported a finding that the bike prohibition sign was not present at the skate park when Mr Vreman had his accident and the evidence does not permit me otherwise to conclude that it was there when Mr Morris fell. However, even if the smaller sign that purported to prohibit bikes had any effect or relevance in this case, I do not consider that it operated as a risk warning. The Council had clearly acquiesced in the use of bikes at the skate park in the first place. However, more importantly the sign does not to my mind in a clear or obvious way warn of any explicit danger at all, nor even a danger that implicitly derives from a prohibition on the riding of bikes at the park. A sign banning swimming on a day of large surf or dangerous conditions at a beach, or a sign prohibiting diving from a bridge into an estuary may be in a different category. A sign banning fishing from the same bridge, or prohibiting dogs from running in or even entering a public park, or a sign prohibiting smoking on public transport are not in my view signs that are reasonably capable of being construed relevantly as risk warnings, as the other examples quite clearly can be. A sign banning or prohibiting the riding of bikes at the skate park in this case operated as a prohibition and no more. This is supported in my view as well by the fact that another sign purporting to address the dangers of using the skate park had also been erected by the Council and did not address bikes in terms at all.
114 Finally, in my opinion it follows, that for the purposes only of the operation of the immunity provided to a party that complies with the requirements of s 5M of the Act, the Council continued to owe a duty of care to Mr Vreman and Mr Morris.
Negligence - general law
115 Notwithstanding my opinion concerning the effect in this case upon the Council's liability as a result of the operation of ss 5K and 5L of the Act, it is necessary to deal with the questions of duty of care, breach of duty and causation.
Duty of care
116 Subject to any relevant Civil Liability Act provisions, the Council's duty in this case is to exercise reasonable care to make the skate park safe for users exercising reasonable care for their own safety: see, among others, Roads and Traffic Authority v Dederer.
Breach of duty
117 It was submitted on behalf of the Council that the following factors were relevant to this issue. Some of these have been discussed earlier. First, there is no Australian standard that applies to the design, construction or even maintenance of skate parks. Secondly, to the extent that it can be said to be relevant, the Victorian Skate Facility Guide , which gives detailed guidance regarding the design and construction of skate parks, specifies extremely smooth surfaces and does not proscribe painted surfaces. Thirdly, according to the Council's submission, the West Albury skate park complied with the express terms of the Skate Facility Guide . Fourthly, having regard to the steep gradients involved, painting the sloped or concave surfaces of the skate park, according to Dr Cooke, made only a trivial or inconsequential difference to the slip-resistance of such surfaces. Fifthly, to the extent that the painted surfaces were more slippery than bare concrete, such surfaces were more consistent with the Guide's recommendation that concrete surfaces at skate parks be "extremely smooth". Sixthly, the West Albury skate park was painted with a two-pack polyurethane that had non-slip properties and complied with Australian standards: see Mr Godeassi's April 2001 letter referred to earlier. Seventhly, the Council had painted the West Albury, Albury and Thurgoona skate parks several times but the evidence suggested that only three accidents, including those that involved Mr Vreman and Mr Morris, would appear to have occurred. This was said to be so despite what is suggested somewhat uncontroversially to have been the performance of thousands of manoeuvres over the years since the paint was applied. Eighthly, the painting of skate parks occurred outside the Council's jurisdiction, suggesting that it was a common or well accepted application in other locations. Ninthly, there was said to be a community benefit from the provision of skate parks or similar facilities as well as from the Council maintaining the general amenity by removing graffiti from public places. Finally, the Council submitted that it had limited resources with which to perform or to fulfil its statutory functions.
118 It will be recalled that the particulars of negligence upon which Mr Vreman and Mr Morris rely condense in effect to the following contentions. First, the Council should not have painted the surface of the skate park at all as a response to graffiti but should have removed it by sandblasting. If paint of any sort was to be applied it should have been non-slip and to like effect should have contained grit for that purpose. Alternatively, if paint that was slippery had been applied, it should thereafter have been treated to remove that propensity or to remove it completely. More generally, before any paint was applied, the Council should have taken expert engineering advice about doing so, and should not have applied the paint to what are described as inappropriate areas of the skate park. It is also alleged that the Council "failed to have any or any adequate regard to the purpose for which the park was being put by BMX riders" and "failed to have any regard to previous incidents or injuries caused because of slippery paint". Finally it is alleged that the application of paint by the Council interfered with the original design of the ramps, which had been bare concrete and hence non-slip.
119 It is somewhat tragically axiomatic that the examination of the suitability or otherwise of paint on the surface of the West Albury skate park only arises because Mr Vreman and Mr Morris were injured when riding their bikes upon it. I raise this in the context that the allegation that the surface was slippery, or too slippery, was not apparently a known fact about which comment had been passed or to which criticisms had been directed before the accidents occurred. Indeed, even Mr Byatt, the instructor who had been instrumental in establishing the skate park in the first place, chose never to go back to the park and skate there after it was painted because, according to his evidence, the paint made the surface slipperier. He even said that it was riskier to use it. Somewhat significantly, however, having regard to his age and status and previous involvement, it does not appear that he concerned himself to draw the problems as he saw them to the attention of the Council or to take any steps to warn young people who he knew used the skate park that it was now unsafe or dangerous. As a simple matter of preference, he stopped using it. His vocal criticisms of the painted surface are retrospectively propounded, as far as the evidence suggests, for the first time in the course of his involvement in these cases.
120 This highlights in my opinion the problem to which I have earlier adverted. What is the standard or measure by which the dissimilarities between the painted and unpainted surfaces at the skate park are to be adjudged as unsafe on the one hand and safe on the other? And how, if at all, is this determination to be made in this particular case other than impermissibly, through the prism of hindsight, using evidence such as that given by Mr Byatt? If a brick wall collapses and kills someone because the foundations were inadequate, the engineer's liability can be determined by reference to the specifications and the construction techniques when compared with what they should have been. What measure is there against which to assess the painted surface of the West Albury skate park? What measure exists with or against which to compare and contrast, say, the absence of grit in the paint, its coefficient of friction, or even engineering or other expert opinion to determine what specifications it should have met? At best in this last respect the evidence only suggests that painted and wet surfaces are more slippery that the equivalent unpainted or dry surfaces. They are different. But do the differences bespeak negligence or breach of duty?
121 In Mobbs v Kain [2009] NSWCA 301, a case involving the issue, among others, of whether or not a driver, whose vehicle collided with an infant pedestrian who emerged from behind a stationary bus, was negligent because he was driving at a speed that was too fast in the circumstances, McColl JA at [47] said this:
"[47] Apart from his general statements (at [67]) that "the relevant failure in the light of the perceived risk can be said to be a failure to drive at a speed less than the applicable limit" and (at [69]) that "[a]ll factors pointed towards the need to proceed at a speed that would have permitted the second defendant to stop if the plaintiff had emerged from behind the bus in the way that he did", his Honour did not identify any speed at which, in his view, the second appellant should have been driving."
122 In a cognate way in the present case it becomes necessary to identify a level of slipperiness that the Council caused or permitted to exist upon the painted concrete surfaces of the skate park that was so unsuitable, unsafe and dangerous that it amounted to a breach of the relevant duty to do so. It is known from the table that there were differences between painted and unpainted surfaces and between wet and dry conditions. It is also known that Mr Vreman and Mr Morris had their accidents when the coefficients of friction were arguably as low as or approaching the lower end of the values contained in the table. At what level does the fact that these values were lowered or allowed to remain low by the Council amount to a failure by the Council to conform to the duty imposed upon it to exercise reasonable care to make the skate park safe for users exercising reasonable care for their own safety? The fact that the accidents occurred at all does not by itself inevitably bespeak negligence and it would be circular to reason that it did.
123 I cannot be satisfied that the failures that the plaintiffs seek to attribute to the Council sound in negligence at all. Even though the Council has denied the particulars of negligence, it has only done so in the legal, and not the factual, sense. For example, there does not appear to be any contest that the Council did not consult expert engineering opinion before applying the paint. What would it have been told if it had? Nor is there any dispute that it applied the paint in fact or that the paint was not classified as "non-slip" and did not contain grit. The Australian/New Zealand Standard for slip resistance of pedestrian surfaces, to which the experts referred, offers no meaningful guide. Mr Simpson, an expert engineer retained by the plaintiffs, discussed the Skate Facility Guide in his reports and referred to it at pages 13 and 14 of his 19 October 2009 report in Mr Morris's matter in these terms:
"The design process for sporting fields and sporting facilities, generally, involves the research as to any Statutory Requirements laid down by the various controlling bodies of the relevant sports, as well as, the requirements of Local, State and Federal Governments were [ sic , 'where'] relevant. Therefore, in the design process for a skate park such as the West Albury Skate Park, the design process must follow the designs that are appropriate for the area and which can be found published by the various bodies having an interest in that sport or recreational activity.
In this instance, a review of State and Local Government Requirements for the design of a skate park reveals a number of sources involving research into design requirements which appears to have culminated in the publishment by the Sport and Recreation Department of the Victorian Government with its publication titled 'The Skate Facility Guide'.
This Guide was published by Sport and Recreation Victoria in February 2001. A copy of the Guide...is appended to this Report.
In the view of the writer, the guide is very comprehensive in its content and provides what appears to be a well thought out and readily understood procedure for the provision of a skate park by a Local Government, or other similar authority, for use by young adults, children and the like, such as the plaintiff.
For example, the contents page reveals the history of the sport and development of skating since the 1950s, the 'market', the materials required, the encouragement of potential participants, the location, planning and design of the facilities which incorporates a relevant Risk Analysis and Safety Review.
In addition, there is a requirement for those designing and providing the facility, to consult with potential users of the skate park and provides checklists to be used in the design and development and usage of skate parks.
From the writer's inspection and measurements of the facilities provided at West Albury Skate Park, as originally appearing to have been built by the defendant (or at the direction of the defendant), the skate park appears to comply with all of the design procedures as laid down in the Skate Facility Guide.
Indeed, the writer is instructed by the plaintiff that the abovementioned notation regarding prior consultation with local children and young adults took place and that the West Albury Skate Park was the result of that consultation and the design and risk analysis process that would appear to have taken place."
124 Having regard to these comments and to the length and detail of the publication it is not without significance in my opinion that no specifications are included concerning the application of paint to the surface of a skate park, or more particularly that no prohibition against the practice is included. No reference is made to paint at all, non-slip or otherwise, or to the need to paint with a product containing grit. The only pertinent reference in the publication to the surface would appear to that referred to by Dr Cooke, suggesting that it should be extremely smooth.
125 The burden of Mr Simpson's opinion in all of the circumstances of this case appears in his report at page 24 in the following terms:
"In the view of the writer, there must be a readily recognisable expectation that the surfaces will become wet from time to time and thus the painting of these surfaces has rendered them potentially dangerous during those times."
126 In my opinion, that statement does not inform the question of whether the Council breached its duty of care by painting the surface of the skate park. Mr Godeassi had advised the Council before application of the paint that the samples he had tested complied with the requirements of a standard that he identified "under dry condition[s]". He advised, however, "skate park users will experience falls regardless of the application of coatings". It seems to me that in order to establish that the Council has breached its duty of care to the plaintiffs it is necessary for them to establish that the Council actually knew or ought reasonably to have known that there was a well recognised or at least discoverable unacceptably greater risk of injury associated with the application of paint to the skate park surfaces that was measurably different to the equivalent or corresponding risk to users of the skate park performing the same activities on unpainted surfaces.
127 Painting is not prohibited by any authoritative publication. The only publication dealing with skate parks does not mention painting at all and does not warn against it by implication or inference. There is no source from which some person or body in the position of the Council could have gleaned any reliable information about the issue in specific or general terms. There are no statistics that existed of the comparable rates of injury between painted and unpainted skate park surfaces. There are no specified tolerances or standards with which a person or body such as the council ought to have complied. There is no evidence to suggest that the Council failed to meet some appropriate tolerance or standard. The plaintiffs have not established that the Council did something that it should not have done (painting the skate park surfaces), or that it failed to do something that it should have done (seeking expert advice before painting or removing the paint). The allegation that the Council breached its duty to the plaintiffs is supported by no more than the retrospective assertion that the plaintiffs' falls occurred on a painted, as opposed to an unpainted, surface.
128 I note again that Dr Cooke agreed with Mr Simpson concerning the coefficient of friction values in the table above. At paragraph 54 of his report Dr Cooke also said this:
"54 The thickly painted concrete surface is considerably more slip resistant than extremely smooth (unpainted) steel trowelled concrete under wet conditions. In my opinion, the painting of the concrete surface served to provide a smoother surface than that of the bare concrete and therefore a surface of the type recommended in the Guide ."
129 Whereas Dr Cooke's agreement with the values calculated by Mr Simpson that appear in the table means that Dr Cooke has effectively abandoned the opinion he expressed in the first sentence of that paragraph, the same cannot be said of the opinion expressed in the second sentence. It remains the evidence and I accept that the painting of the concrete surface served to provide a smoother surface than that of bare concrete and therefore a surface more closely resembling or approaching the "extremely smooth" surface recommended in the Guide .
130 I am not satisfied that the painting of the West Albury Skate Park by the Council constituted a breach of its duty to the plaintiffs.
131 Section 5B of the Act is as follows:
" 5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm."
132 Under both this section and the general law, no breach of duty arises unless a reasonable person in the circumstances would have taken precautions against the risk of harm. On one view a characterisation of the negligence alleged in this case was not a failure to take precautions. The relevant risk of harm in this case is said to be the risk that painting areas of the skate park would lead to accidents that would not have occurred if the surfaces had remained bare or unpainted concrete, or were painted with non-slip paint which made a relevant difference to the result in each case.
133 The Council contended in these cases that the probability that harm would occur if care were not taken was low. It submitted that the difference between the slip resistance of the painted and unpainted surfaces was "trivial" on a sloping surface, where the relevant events occurred, and that very few accidents would be avoided by retaining unpainted surfaces. The likely seriousness of the harm would in either case range from minor injury to catastrophic injury.
134 In my opinion the risk was not foreseeable in the sense that it is a risk of which the Council knew or ought to have known. I consider that whilst the risk of falls such as those suffered by Mr Vreman and Mr Morris was not insignificant, the additional or greater risk of falls associated only with the application of paint to the concrete surfaces was insignificant. I also consider that a reasonable person in the Council's position would not have taken any of the precautions particularised by the plaintiffs. Moreover I am not satisfied that the probability, that the harm that the plaintiffs suffered would occur if the Council failed to take the care that the plaintiffs contend it failed to take, was different to the probability that the same harm would occur even if the surfaces of the skate park had not been painted. There is no discernible difference in my view either between the seriousness of the harm that was caused and the seriousness of any harm that might otherwise have occurred if the surfaces had remained unpainted.
Causation
135 Against the contingency that I am wrong about the Council's breach of duty, it becomes prudent to consider the question of causation. This topic can conveniently be considered upon the simple basis that painting the skate park at all is to be treated as a breach of duty.
136 So much of s 5D of the Act as follows therefore becomes relevant:
" 5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ( "factual causation"), ...".
137 Mr Vreman and Mr Morris must establish on the balance of probabilities that if the skate park had not been painted, or some related formulation of the same allegations to a like effect, that the outcome in each case would have been different. For present purposes that distils to a contention that in those circumstances the accidents would not have occurred. It is not in the circumstances of this case, having regard to the quality of the hypothetical breach that I am considering, sufficient for the plaintiffs to prove that a painted surface materially increased the risk of falling because the painted surface was to some assumed or accepted degree, however slight, more slippery than an unpainted surface. I do not consider that s 5D(2) is engaged: see, for example, Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420 at [54] - [55] as follows:
"[54] Section 5D(2) makes provision for what it describes as "an exceptional case". But the Act does not expressly give content to the phrase "an exceptional case". All that is plain is that it is a case where negligence cannot be established as a necessary condition of the harm; the "but for" test of causation is not met. In such a case the court is commanded "to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party". But beyond the statement that this is to be done "in accordance with established principles", the provision offers no further guidance about how the task is to be performed. Whether, or when, s 5D(2) is engaged must depend, then, upon whether and to what extent "established principles" countenance departure from the "but for" test of causation.
[55] At once it must be recognised that the legal concept of causation differs from philosophical and scientific notions of causation. It must also be recognised that before the Civil Liability Act and equivalent provisions were enacted, it had been recognised that the "but for" test was not always a sufficient test of causation. But as s 5D(1) shows, the "but for" test is now to be (and has hitherto been seen to be) a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2)."
138 As previously mentioned, Dr Cooke was of the view that painting made a trivial difference because the wheels of the bikes were said to have slipped on gradients whose slope or steepness would itself have contributed to the propensity for that to occur. In other words, no surface of equivalent characteristics can be regarded as non-slip at those gradients. On the contrary, the burden of Mr Simpson's evidence was that, on the balance of probabilities, there was an expectation that the painted surfaces, at least when wet, would be rendered "potentially dangerous during those times". Mr Simpson expressed a view which supported Dr Cooke's suggestion that steepness was related to slipperiness. The answer to question 8 produced following the conclave confirms this. As appears earlier from the cross-examination of Mr Vreman, he also acknowledged that he knew that any sloping surface was a riskier place to ride a BMX bike than a flat surface. I take it to be uncontroversial that Mr Vreman's concession was in line with Dr Cooke's contention, and the result of the conclave, that steepness and slipperiness were directly related having regard to the gradients involved in this case.
139 The evidence of how the plaintiffs' accidents occurred is set out above. In the scheme of things the evidence is limited in scope and extent. This is understandable. The Council submitted that "slippery" was a relative term connoting a comparison between the apparent characteristics of two or more surfaces or of the same surface in different conditions. The Council submitted, however, that demonstrating a difference in apparent levels of available friction between a particular surface and a shoe or a wheel did not of itself establish that the person or object upon that surface would necessarily perform differently in the course of executing the same activity.
140 Mr Byatt's evidence concerned in part the relative performance of a skateboard with hard wheels of two inches in diameter turning, or in the course of what he described as "a transition", when ascending a painted surface. The Council submitted that there was no evidence that connected that relative performance of one type of object performing a particular manoeuvre with the allegedly different result that might be caused to a BMX bike with rubber tyres landing on a downslope at a speed generated by a course of travel through the air over some metres in the case of Mr Vreman or propelled by gravity down a roll-in in the case of Mr Morris.
141 No lay witness, including Mr Byatt, gave any evidence that differentiated between the relative performance of any object on wet and dry surfaces. The Council submitted in this respect that the evidence was uniformly non-specific and failed to address the difference, if any, between landing on a downslope after jumping at all, let alone in a way that informed the issue of whether the presence or absence of paint made any difference to the circumstances of Mr Vreman's fall.
142 There does appear to be insufficient evidence of either fall to be satisfied of the mechanics of the falls, at least in a way that permits me to be satisfied that the relative slipperiness of the painted surfaces, compared to the previously unpainted surfaces, made any difference to the result, or more specifically caused the accidents to occur in circumstances where, all other things being equal, they would not otherwise have occurred. In so saying however I am not prepared to discount the evidence of either plaintiff by accepting the Council's submissions that the mere description of the falls given by the plaintiffs themselves somehow produces a description which is mechanically or physically inconsistent with their wheels slipping in the ways that they each described. The wholly idiosyncratic nature of such accidents seems to my mind to mean that they are incapable of any reliable reconstruction without something as empirically accurate as an actual visual recording of what occurred. I observe that I have already rejected Mr Walker's version of Mr Vreman's accident.
143 In neither case can it be said that the cause of the accidents can be inferred from the alleged breach and the damage that followed. The differences between the painted surfaces and the unpainted surfaces are accompanied by too many other uncertain but possible causes of the accidents. It is not possible in my view to say that either accident would not have happened if the surface of the skate park had been unpainted concrete.
144 The Council's defences pleaded a reliance on Part 5 of the Act in general and s 42 of the Act in particular. No submissions were directed to this part of the defences. This is unsurprising. I do not consider that the simple application or removal of a coat of paint to a skate park facility would enliven a viable defence to the effect that the Council neither had a duty nor had breached it in the circumstances of this case.
Contributory negligence
145 For my part I consider that it is artificial and unsatisfactory to attempt to determine this issue in a hypothetical way. There is no medical evidence before me that permits me to compare the result that might have followed if Mr Vreman had been wearing a helmet. The Council was not negligent according to my finding and any proper assessment of the way in which either plaintiff may have contributed to his own loss or damage ought necessarily, or at least preferably, await a finding that the Council was negligent, and the ways in which it was negligent, should that outcome ultimately occur.
Orders
146 I make the following orders in each case:
1. Verdict for the defendant.
2. I will hear the parties on the question of costs at such time as may be convenient to the parties and to the Court to be arranged in consultation with my Associate.
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