Adamson v Brisbane City Council [2004] QDC 76

DISTRICT COURT OF QUEENSLAND CITATION: Adamson v Brisbane City Council [2004] QDC 076 PARTIES: GAY ELIZABETH ADAMSON Plaintiff v BRISBANE CITY COUNCIL Defendant FILE NO: 1594 of 2000 DIVISION: Civil PROCEEDING: Claim ORIGINATING COURT: District Court of Queensland DELIVERED ON: 15 April 2004 DELIVERED AT: Brisbane HEARING DATE: 3 and 4 March 2004 JUDGE: Alan Wilson SC, DCJ ORDER: Judgment for the plaintiff for damages of $42,000; and, order that the defendant pay the plaintiff’s costs of and incidental to the action (including reserved costs) assessed on the standard basis and on the scale of costs applying in matters where the amount recovered is not more than $50,000. CATCHWORDS: NEGLIGENCE – OCCUPIER’S LIABILITY – LOCAL AUTHORITY – TRACK IN PUBLIC RESERVE – where defendant constructed an “art trail” in a public reserve containing examples of indigenous art and, by signs, invited and encouraged members of the public to walk the trail – where the last part of the trail required visitors to traverse a rocky creek bed to read a plaque, and view some indigenous art – whether defendant negligent because of a failure to construct a safe means of access to that plaque and those signs – whether the plaintiff is guilty of contributory negligence. Cases considered: Brodie v Singleton Shire Council (2001) 206 CLR 512 at 639 March v Stramare (1991) 171 CLR 506 Nagle v Rottnest Island Authority (1993) 177 CLR 423 -- 1 of 9 -- 2 Romeo v Conservation Commission (Northern Territory) (1998) 192 CLR 431 Secretary to the Department of Natural Resource and Energy v Harper (2001) 1 VR 133 Veitch v State of Queensland (2003) QCA 144 Wyong Shire Council v Shirt (1980) 146 CLR 40 Uniform Civil Procedure Rules, Schedule 2 COUNSEL: Mr C Newton for the plaintiff Mr P Major for the defendant SOLICITORS: Carter Capner for the plaintiff King & Co for the defendant [1] The plaintiff alleged she was injured when she fell over in a creek bed while traversing the Aboriginal Art Trail in Mt Coot-tha Forest Park on the morning of 7 October 1999. She claims damages which by agreement were measured at $42,000. Liability for those damages was, then, the only issue. The case requires the court to undertake the exercise described by one legal academic writer as grappling “… with the competing policy considerations of protecting the natural and scenic values of a place while protecting visitors”1. [2] The Aboriginal Art Trail (“the trail”) is in the JC Slaughter Falls section of Mt Coot-tha Forest Park and is described in the defendant’s website in these terms: “ the Mt Coot-tha Aboriginal Art Trail showcases aboriginal art in its natural setting. It demonstrates the function of aboriginal art as a way of ‘mapping’ the land and passing on cultural information. The 1.5 km walking trail features eight artworks including the Main Gallery at the end of the track, which is an aboriginal map of the whole site. Interpretation signs are provided at each location. The artworks include tree carvings, rock paintings and etchings, rock arrangements and a dance pit. The Brisbane Aboriginal Council of Elders allowed the use of cultural information to help with the design and formation of the trail. … The Mt Coot-tha Aboriginal Art Trail is a significant piece of aboriginal cultural history and artistic endeavour which has created a public art space for Brisbane residents and visitors to enjoy. Elsewhere in the website the trail is described as being 1.8 km long2. [3] At the request of counsel for both parties I walked the trail, following a clockwise direction like the plaintiff. It is obviously manmade but rough and visitors are compelled to watch where they are walking at all times. The track is gently graded and usually about a metre wide, with stone steps added in various places where the grade is a little steeper. Artwork in the form of markings on rocks and trees is placed at various points, indicated by signposts near the edge of the path. Most can be seen from the path itself, as appears in some photographs included in a report from the defendant’s engineer, Mr Wright, of 25 September 20023. In two places, however, the visitor must leave the path to see the artwork. The first is on the 1 Jan McDonald The Financial Liability of Park Managers for Visitor Injuries Environmental and Planning Law Journal vol 18 No 6, December 2001, p 579. 2 Ex 4. 3 Ex 9. -- 2 of 9 -- 3 western section of the path where, to properly view the art, visitors must descend some wooden stairs into a gully4. These steps, joined by a concrete pad, were built in 1995 about two years after the path was first constructed in 1993. [4] The second is at the place where the plaintiff alleged she fell. It was generally referred to as the “Main Gallery” or “Gallery”, and it is the last art site on the trail when traversed clockwise. Near the path there is a sign reading: Take these steps to the Main Gallery of artworks. This Gallery is an aboriginal map of the whole area representing all the sites and the trail in a traditional way Near the sign is a set of stone steps obviously leading down to the creek bed. The steps are rough, and irregular. They end in the creek bed at a point where the rock is fairly level, but from which the actual gallery and a plaque relating to it are not obvious. The plaque itself can be glimpsed about 20m downstream and some of the artwork can be detected on rock faces near it. It is, then, readily apparent to the visitor that to read the plaque and see all the artwork in the Main Gallery it is necessary to traverse parts of the creek bed where, as it is also readily apparent, the rock is quite uneven and traversed by several channels which contained water at the time of the inspection. An impression of the surface of the creek bed can be obtained from the photographs which are Exs 5 and 6, and those included in Mr Wright’s report, Ex 9. [5] The place where the plaintiff said she was standing when she fell about 8 am on 7 October 1999 has been marked by her with a red cross on two of the photographs in Ex 5. The small sign shown in some of them is near the artworks, and about 20m down the stream from the base of the steps leading down from the park. The plaintiff had walked the trail with three other persons and said, and I accept, that she wanted to read the plaque and for that purpose had moved out into the creek bed ahead of the other members of her party but, as she was crossing it, began to have some doubts whether she ought to proceed. She stopped on a rock and turned back to those persons and then slipped into some water, and was injured. She thinks the rock on which she was standing was dry and is unable to say precisely what caused her to fall5. [6] Evidence called by the defendant from Mr John McKenzie and Mr Robert Friend, who were involved with the construction of the trail on the defendant’s behalf, showed it had been built in 1993 with funding which came at least in part from the Federal Government. Mr McKenzie had a supervisory role and said a conscious decision was made to ensure the path did not intrude too much upon the “natural setting” and to provide access to the art but “in a traditional way”. Mr Friend was involved in the design and construction of the path which he said had a budget of $80,000-$100,000. He said, and I accept, there was some consultation and liaison between those involved in the installation of the aboriginal artwork, and those like him who were to see to the building of the path and the placing of signs. These two projects began, he said, concurrently but had separate funding6. 4 Ex 9, photograph No 7. 5 T18.13-20.5; T26.29-29.44; T30.4-.13. 6 T74,T78. -- 3 of 9 -- 4 [7] Evidence was also provided by engineers. For the plaintiff, Mr Richard Steindl provided a report suggesting the risk of falls, like that suffered by the plaintiff, could be reduced or eliminated by steps which would have cost $4,500-$7,500 at the time of construction in 1993-94. The major steps involved “concrete patching” or “dental concreting” of an area about five or six metres square at the bottom of the steps and relocation of the plaque, now 20 metres downstream, closer to that patched area, with a warning that proceeding further was “not recommended” because rock in the creek bed might be slippery. Cross-examination revealed some potential minor problems with his suggestions, including the need for an edge around the concreted area which might itself be hazardous and the possibility that all the artwork could not be seen properly from it. The defendant also called an engineer, Mr Peter Wright who had designed a walkway from the bottom of the stairs to the vicinity of the plaque which would cost almost $40,000 and which would not, as Mr Wright said and the defendant’s other witnesses agreed, be in “character” with the trail. [8] In Romeo v Conservation Commission (Northern Territory) (1998) 192 CLR 431 Kirby J suggested it was highly desirable that trial courts approach disputes of this kind by considering certain standard questions, and in a particular order7. The first concerns the duty of care issue – is a duty of care established? If so, what is the measure or scope of that duty, in the circumstances (the scope of duty issue)? Has it been proved that the defendant is in breach of the duty, so defined (the breach issue)? If so, was the breach the cause of the plaintiff’s damage (the causation issue)? The last two questions, if reached, concern contributory negligence and (where relevant) what Kirby J calls the “policy/operations” issue which is addressed by asking, firstly, whether the faults alleged on the part of the public authority were within the area of the authority’s legitimate discretion on questions of policy and allocation of resources, so that there was no duty of care owed to the plaintiff? And, second, was any suggested breach a matter left by law to the authority whose decision the courts would respect and uphold against the plaintiff’s complaints? [9] The defendant’s last pleading admits that it “exercised control” over the area of land in the Mt Coot-tha region in the vicinity of JC Slaughter Falls and owed a duty to persons entering that area “… to take reasonable care for persons exercising reasonable care for their own safety”. The pleading also asserts that the scope of that duty was limited by the nature of the premises and the expectations of those entering it8. Romeo and Nagle v Rottnest Island Authority (1993) 177 CLR 423 contains statements confirming that managers in the position of the defendant which provide access and recreational facilities owe a duty to take reasonable care to avoid foreseeable risks of injury to lawful visitors9. [10] As the commentator cited earlier, Jan McDonald, points out10 the source of the duty is the statutory power conferred on the agency and the statutory duty of care, control and management. The duty extends to averting foreseeable risks present at the area to which visitors have been encouraged, or appropriately warning them of those risks11. 7 Romeo v Conservation Commission (Northern Territory) (1998) 192 CLR 431 at 475. 8 Further amended defence of the defendant filed 26 September 2003, paras 3(a), 5(a) and (b). 9 Nagle v Rottnest Authority (1993) 177 CLR 423 at 429-430; Romeo (supra) at 460. 10 Op cit at 580. 11 Nagle (supra) at 430. -- 4 of 9 -- 5 [11] Here, the most vivid conflict concerns the nature and scope of the duty. That is a question to be considered within parameters which have proper regard for the nature of the walk itself and the place where the plaintiff fell. Those circumstances were clearly described by Williams JA in a recent decision of the Queensland Court of Appeal Veitch v State of Queensland (2003) QCA 144: “[26] WILLIAMS JA: One of the great attractions of Australia is its vastness. Remote areas attract visitors because of the unique scenery and the diversity of flora and fauna available for enjoyment. Indeed it is often the solitude derived from the remote location that makes a trip to such places even more appealing. To facilitate the enjoyment of such natural phenomena by both residents of Australia and overseas tourists, governments and other bodies have taken steps to make these areas more readily accessible. Many national parks have been created and maintained as near as possible in their nature state. Such development, even at a minimum level, has created problems. Many citizens concerned with the preservation of our natural environment see the construction of even the most basic road as a threat to the ecology of the district. The great distances involved, and the sparse numbers in overall terms using the infrastructure, have placed governments in a dilemma. Access must be made available, but it must have minimal impact on the environment, and the cost of constructing and maintaining roads and associate infrastructure must be kept to a realistic level. It is therefore not surprising to find that roads and walkways in and leading to national parks are constructed from materials locally available and maintained at a minimum level.” [12] Remarks to similar effect have been made elsewhere. In Secretary to the Department of Natural Resource and Energy v Harper (2001) 1 VR 133 Tadgell JA said, at 135: “ Forests are a hazard by the very nature of them … an area such as that in question is not to be compared, for example, with a metropolitan park, a municipal playground or an ordered picnic spot, much less with some sculptured woodland glade.” And Batte J said: “ To enter a forest or its immediate surrounds, like entering the surf, is to take a risk of injury, or be it a remote risk. The risk is “endemic” or part and parcel of the recreation of camping, walking and indeed living outdoors in the Australian bush and in particular forest reserves.” Statements to this effect reached something of an apotheosis in the already much quoted statement of Callinan J in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 639: “The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this.” ( my emphasis) [13] It cannot be gainsaid that traversing the creek bed to read the sign and see the pictures in the Main Gallery from a reasonable vantage point involves an obvious risk. The creek bed is irregular, with rocks and vegetation and the extra hazard of water and the presence of moss or slime. The plaintiff contended that in circumstances where the respondent designed and constructed this particular walk and encouraged the public to traverse it, and where there was a strong inference the Main Gallery was the piece de resistance of the trail, the defendant was therefore also obliged to provide a safe means of access to the sign and the pictures; and, acknowledging that the cost of access was a relevant issue, she adduced evidence showing how that might be achieved. -- 5 of 9 -- 6 [14] The defendant, while acknowledging the risk, pointed to the fact that it was obvious. The defendant also emphasised the importance of the “natural setting” and emphasised the benefit of seeing the indigenous art in a setting of that kind – in a ‘traditional way”. The risk being apparent the defendant was not obliged, it was submitted, to undertake costly steps which would significantly alter the character of the natural setting. The defendant also rejected the proposals from the plaintiff’s engineer, Mr Steindl (and evidence from the defendant’s witnesses was to the effect the workers who had constructed the path lacked the skills for this kind of concreting, or resources and, in any event, funds were insufficient). [15] The measure of an appropriate response and the nature of it was considered by the High Court in Brodie: “ The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, a consideration of various matters: In particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing and conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case12. [16] The arguments presented by each of the parties here were traversed, in effect, by Hayne J in His Honour’s judgment in Romeo13: “What is reasonable must be judged in the light of all the circumstances. Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring and the difficulty and cost of averting the danger will loom large in that consideration. But it is not only those factors that may bear upon the question. In the case of a public authority which manages public lands, it may or may not be able to control entry on the land in the same way that a private owner may; it may have responsibility for an area of wilderness far removed from the nearest town or village or an area of carefully manicured park in the middle of a capital city; it may positively encourage, or at least know of, use of the land only by the fit and adventurous or by those of all ages and conditions. All of these matters may bear upon what the reasonable response of the authority may be to the fact that injury is reasonably foreseeable. Similarly, it may be necessary, in a particular case, to consider whether the danger was hidden or obvious, or to consider whether it could be avoided by the exercise of a degree of care ordinarily exercised by a member of the public, or to consider whether the danger is one created by the action of the authority or is naturally occurring”. (my emphasis) [17] In the same case Kirby J expanded upon the question of the cost of taking steps by way of a reasonable response to the particular risk14: “ As to the expense of taking alleviating action, it is increasingly recognised that courts must ‘bear in mind as one factor that resources available for the public service are limited and that the allocation of resources is a matter for’ bodies accorded that function by law. Demanding the expenditure of resources in one area … necessarily diverts resources from other areas of equal or possibly greater priority. Whilst this consideration does not expel the courts from the evaluation of what reasonableness requires in a particular case, it is undoubtedly a fact that to be taken into account in making judgments which affect the operation or priorities of a public authority and justify a finding that their priorities were wrong … in so called operational decisions, which are subject to court assessment, it is necessary to evaluate more than simply the cost of preventing a particular accident.” 12 Gaudron, McHugh and Gummow JJ at 577-578. 13 Supra, at 488-489. 14 Supra, at 480-481. -- 6 of 9 -- 7 [18] While the danger here is obvious, it arises in the particular context of a walking track containing an inducement: the opportunity to see indigenous art, albeit created only recently, in a “natural” setting and a “traditional” way. As the attraction has been constructed those who undertake the walk are, with one exception (the earlier site containing wooden steps into the gulley) able to see the art without any significant deviation from the track but, when they reach this particular section, are invited by the sign on the track to take steps to the “Main Gallery” containing a map of the “whole area representing all the sites”. The almost automatic inference drawn by any visitor would be that this site is the paramount, or at least an important feature of, the trail and full enjoyment of the whole trail would be incomplete without it. [19] That conjunction of features makes it highly probable visitors will descend the rough steps to the creek bed and, seeing the sign and the art some distance away from the bottom of those steps, will attempt to traverse the creek. For the reasons given earlier, and manifest from the photographs (and confirmed during the view) that is a dangerous exercise. Nevertheless, a conjunction of features including the previous parts of the trail and the art works seen there, the sign on the path near this particular section, and the apparent presence of another sign and some art work further down the creek from the base of the steps is likely to induce the visitor to attempt the exercise, notwithstanding the obvious risk. To put the matter another way it is reasonably foreseeable that a careful visitor will nevertheless attempt to cross the creek bed because all the previous elements of the trail will engender a determination to properly view these last, apparently important, features of it. [20] These inevitable conclusions mean the defendant, in the words of Hayne J cited earlier, both created the danger and positively encouraged visitors to take the risk of acting in the face of it. On one view this conclusion has a surprising element in that the creek bed is a natural formation with, as is acknowledged, obvious risks for those attempting to cross it but, as counsel for the plaintiff properly conceded during oral submissions his client and indeed anyone traversing the area could not establish a duty of care if the area had simply been left in its natural state, or if the path passed along the top of the banks of the creek and was unsigned, and there were no obvious steps down to the creek bed. Rather, it was argued, it is the presence of inducements, encouraging the visitor into the creek bed, which gives this case its special elements. [21] In my view the circumstances described mean those elements must include an obligation to provide a reasonably safe means of access to the sign, and the pictures. [22] Some debate arose about Mr Steindl’s proposals which also involved moving the sign nearer to the concrete pad he proposed so it was legible from that pad, and the question whether visitors would nevertheless be unable to see all of the artwork in the Main Gallery from that position. They are minor drawbacks, when weighed against the risk to all visitors of an arrangement which required them to traverse the creek bed. [23] The same conclusion applies to questions of practicality, and cost. On the scale of the project costs Mr Steindl’s figures add a little to it. Even if Mr Wright’s evidence is accepted the additional cost is still warranted when the same balancing process is undertaken. Having visitors traverse the creek bed is, simply, too dangerous and a prudent response involved, either, ignoring the artwork in this -- 7 of 9 -- 8 gallery and refraining from directing visitors to it; or, ensuring they could see it without attempting to clamber across the creek bed. [24] The plaintiff also alleged the defendant should have provided “appropriate warnings as to the hazards associated with traversing the rocks …”15 and, said in her evidence that if she had “… seen danger signs at the bottom, it would have made a difference”16. Part of Mr Steindl’s solution involving the concrete pad, and the moving of the explanatory sign involved additional words being added to it on the lines of “viewing point” and “caution, proceeding beyond this point is not recommended. The rock beyond this point can be slippery under foot”. This was to be accompanied by a diagram identifying the location of the pictures. All of this, he thought, would be sufficient to alleviate the risk. [25] The question whether a warning is an appropriate response is to be considered, here, in the face of the fact the danger is obvious, and the question whether a warning would be efficacious. The danger is obvious but for the reasons mentioned earlier visitors are effectively encouraged to confront it when, ordinarily, they might not. The repositioning of the plaque and the addition of the words suggested by Mr Steindl would have been likely to remind the visitor to consider the risk, notwithstanding all the things they had already seen and done and the encouragement those things might have given them to attempt the creek traverse. The only detriment would be that the artworks remained some distance away and could not be viewed as closely as other features at other sites on the trail. [26] I am satisfied it was negligent of the defendant to construct the trail in a way which required visitors to enter the creek bed and hazard an obviously dangerous traverse; and also that the reasonable steps necessary in the face of that risk included the provision of a sign in those terms. [27] Causation is a live issue although it was not seriously disputed by the defendant. The plaintiff is uncertain how or why she came to fall and does not know, for example, whether it was because of some moisture on her foot, or the angle of the rock upon which she was standing. Her description of the creek bed at the time suggests the water was a little higher than at the time of my view but the presence of rocks with a relatively smooth surface, moisture and vegetation is a potent combination so far as the risk of slipping is concerned. In any event those questions do not constitute the central issue surrounding causation here which addresses the question whether the defendant was the cause of the plaintiff’s harm because it would not have occurred had the trail not required her to traverse the creek bed17. The plaintiff impressed as a sensible, pleasant woman of about middle-age and her evidence that she had gone some little way into the creek before the true nature of the risk caused her to stop and turn to her companion, while consoling with the fact the danger is obvious, also supports the conclusions reached earlier about the whole trail constituting, at that point, a form of inducement to take a risk. In any event so far as causation is concerned the incident would not have occurred but for her presence in the creek bed and that is sufficient to establish that the defendant’s negligence was the cause of her injury on the balance of probabilities. 15 Further amended Statement of Claim filed 21 August 2003, para 7(b). 16 T24.27. 17 March v Stramare (1991) 171 CLR 506. -- 8 of 9 -- 9 [28] Contributory negligence was pleaded by the defendant but there is no evidence the plaintiff failed, for example, to keep a good look out or wear appropriate footwear; or, to take some alternative route (none was apparent at the time of the view); or, to take reasonable care for her own safety – I accept her evidence that she was walking cautiously and carefully and only chose the particular rock upon which she slipped because she believed it to be “dry”. More poignant is a suggestion that she was the author of her own injury by the unreasonable act of turning while standing on a sloping surface; the very fact she stopped confirms both the existence of a significant risk, and that she had been induced to place herself in a risky position because of the manner in which the trail was constructed. It would be unfair to criticise her for pausing, midstream as it were as her alarm in the face of the risk grew. [29] There should be judgement for the plaintiff for the agreed amount of $42,000; and, the defendant must pay her costs assessed on the standard basis on the scales applying where the amount recovered is not more than $50,00018. 18 Uniform Civil Procedure Rules, Sch 2. -- 9 of 9 --