Reported Decision : (2000) 31 MVR 312 New South Wales Court of Appeal CITATION : Carlisle v Mullrai Pty Ltd & Ors; Atkinson v Mullrai Pty Ltd & Ors [2000] NSWCA 190 FILE NUMBER(S) : CA 40436/1998; 40583/1999 HEARING DATE(S) : 25/07/2000 JUDGMENT DATE : 3 August 2000 PARTIES : Melinda Bronwyn Carlisle v Mullrai Pty Ltd & Ors Melanie Gai Atkinson v Mullrai Pty Ltd & Ors JUDGMENT OF : Powell JA at 1; Stein JA at 2; Foster AJA at 3-30 LOWER COURT JURISDICTION : Supreme Court LOWER COURT CLD 400011/95; 400074/96 FILE NUMBER(S) : LOWER COURT Newman J JUDICIAL OFFICER : COUNSEL : B. Toomey QC / J. Singh - Appellants J. Hislop QC / M. Vesper - Respondents SOLICITORS : Fallon Safetly Lawyers - Appellants Henry Davis York - Respondents CATCHWORDS : Negligence - Claim for damages for personal injuries suffered by sixteen year old girls in "All Terrain Vehicle" accident ("ATV") - whether there was an "allurement" within the meaning of the "children's cases" authorities - whether there was a foreseeable risk that the girls would take the ATV without permission in circumstances where the key had been left in the ignition. Glasgow Corporation v Taylor (1922) 1 AC 44 Thompson v Bankstown Corporation (1953) 87 CLR 619 CASES CITED: Wyong Shire Council v Shirt (1980-81) 146 CLR 40 Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 Inverell Municipal Council v Pennington (1993) Aust.Torts Reports 81-234 DECISION : Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40436/98; 40583/99 CLD 400011/95; 400074/96 POWELL JA STEIN JA FOSTER AJA Thursday, 3 August, 2000 Melinda Bronwyn CARLISLE v MULLRAI PTY LTD & ORS Melanie Gai ATKINSON v MULLRAI PTY LTD & ORS JUDGMENT 1 POWELL JA: I agree with Foster AJA. 2 STEIN JA: I agree with Foster AJA. 3 FOSTER AJA: This is an appeal from two decisions given by Newman J on 3 June 1998, in which his Honour dismissed actions for negligence brought by the plaintiffs, Melinda Bronwyn Carlisle and Melanie Gai Atkinson, in respect of an accident occurring on 25 October 1991. The actions were heard together. The first defendant, Mullrai Pty Limited was the occupier of the rural property near Corowa upon which the accident happened and the motor bike was used on the property. The second and third defendants, Bruce Mulligan and his wife Rainee Veronica Mulligan, were the proprietors of the first defendant. Proceedings against a fourth defendant, the Nominal Defendant were settled. 4 The first defendant conducted a farming business upon the property under a lease which was about to expire and, on the day of the accident, was holding an auction on the property of items of equipment, of which it was disposing as part of the process of winding up its business. The auction was being conducted from a truck parked on an open flat paddock, upon which was situated a large shed. That paddock, which was about 150 x 300 metres in size adjoined another larger paddock, upon which the accident happened. It appears that activities on the paddock upon which the shed was situated were reasonably observable from the vicinity of the shed, whereas activities on the other paddock were not. The auction commenced at about 11.00 am and finished at 3.15 pm. Mr and Mrs Mulligan were present during that period, as was their fourteen year old son Matthew. 5 Matthew was a member of the Corowa Rowing Club, as were the plaintiffs, who were each then sixteen years of age. That club, as a fund raising exercise, conducted a food and drink stall at the auction site, with the permission of the defendants. The plaintiffs, throughout the period of the auction, assisted at this stall. A number of persons were present including Ms Carlisle's parents, who gave evidence in the case. A number of other persons were present during the auction. It is clear that the period of the auction was a fairly busy one. 6 The defendants had, at the property, the motor bike to which reference has been made. It was not a usual motor bike. It was a four wheel motor bike known as an All Terrain Vehicle ("ATV"). It was specially designed for rural work. There was a need for its driver to have special skills, in order that it might be operated safely. The manufacturer's manual indicated that it should be operated by a driver only, without a pillion passenger, as the additional weight of such a passenger could cause very dangerous instability in manoeuvres such as turning and ascending and descending slopes. Matthew Mulligan, although only fourteen, had acquired the necessary skills. In fact, he had been using the bike since he was twelve. With his parents' permission, he used the vehicle during the auction to transport sales slips from the auction area to an area in the shed used as a temporary office. When performing this role, he rode the bike alone. The bike had a relatively long seat. It was not designed to accommodate a pillion passenger but it was possible for such a passenger to sit behind, but in close proximity to the driver. The evidence established that, despite the manufacturer's warning as to the carrying of a passenger, Matthew had, in the past, to the knowledge of his parents, given young visitors rides as pillion passenger on the ATV, such rides occurring on the farm's paddocks, which, it appears, were fairly level. This required skill. It appears that Matthew was competent in this regard. 7 At the conclusion of the auction, when the ATV had no further role to play, Matthew, as his Honour found, obtained his mother's permission to give rides, at their request, to the two plaintiffs whose role with the food stall had also finished. Matthew also gave rides that afternoon to a young male friend, who had also been present during the auction. Each of the plaintiffs rode behind Matthew after the auction had finished having one ride each. During this period Matthew performed manoeuvres with the ATV such as driving in figure of eight patterns in the paddock on which the shed was situated. These activities were observable from the shed. 8 At about 4.00 pm Matthew and his friend were required to leave the property and travel to Corowa, where they were to take part in a squash match. It appears that they were running a little late. Mrs Mulligan was to drive them to Corowa in her car. She hurried them along. At her direction Matthew placed the ATV in the shed. He left the ignition key in the ignition switch on the bike. The receptacle in which it was usually placed had, in fact, been sold at the auction. 9 Although there were no eye witnesses and neither of the plaintiffs, because of their injuries, had any relevant recollection, it is clear that, after the departure of Matthew and Mrs Mulligan, the plaintiffs drove the bike from the shed and into the adjoining paddock. No one observed the progress of the ATV nor the occurrence of the accident, which took place about 400 metres from the shed. It is clear that the bike overturned and that the two plaintiffs were flung heavily from it, each receiving very severe injuries. 10 Each of the plaintiffs were known to the Mulligan family. They had good school and sporting records. They were active sixteen year old girls who, it would appear, had, neither on the day of the accident nor previously, exhibited any irresponsible traits. Neither of them had had any prior experience in the control of motor vehicles and certainly not in the control of an ATV. They asserted that they had received some instruction that afternoon from Matthew, in the presence of his father, in the operation of the bike. They also asserted that, before Matthew's departure, they had, in fact, driven the ATV with Matthew riding pillion. Both Matthew and his father denied this. Their evidence was preferred to that of the plaintiffs. Neither of the plaintiffs could remember the accident or the events immediately leading up to it. No one present at the auction site saw it occur, but the fact that the vehicle was found overturned in the paddock at the accident site indicated that the driver must have lost control of it. It is also clear that the plaintiffs, in concert, must have switched on the motor of the ATV and driven it from its parked position to the point of the accident. 11 The plaintiffs' case at trial Each plaintiff alleged that the defendants had been guilty of negligence towards her. A number of particulars were provided in the statements of claim. These were summarised by his Honour into the following allegations, each of which were in dispute at the trial: · "that either Matthew or Bruce Mulligan gave the plaintiffs rudimentary instruction on how to ride the ATV · that the Mulligans gave the girls permission to ride the bike · that Melanie Atkinson had ridden the bike solo prior to Matthew leaving the property · that Bruce Mulligan had seen the plaintiffs riding as passengers and riders after Matthew had left and had done nothing to prevent this continuing." 12 Other allegations were made and not accepted, but these are not relevant for present purposes. 13 None of these disputed facts were established in favour of the plaintiffs at the trial. His Honour preferred the evidence for the defendants bearing on these issues to that called for the plaintiffs. His preference was based on his view as to the reliability of the witnesses including the plaintiffs and Mr and Mrs Carlisle. It has not been sought, on appeal, to review these findings. 14 The plaintiffs' main case, which was thus rejected, was that, being inexperienced with the ATV, they had been given inadequate instruction in the control of it and had been expressly permitted to operate it by the defendants, in circumstances where it was clearly dangerous for them to do so, it being also asserted that they were observed by the defendants to be riding the ATV, with no steps being taken to prevent them. 15 In the event that this case had been rejected an alternative case was put on their behalf to Newman J. As appears from his Honour's judgment it was put in two ways. 16 Firstly, it was submitted that the plaintiffs could succeed on the basis of the "children's cases" (e.g. Glasgow Corporation v Taylor (1922) 1 AC 44 and Thompson v Bankstown Corporation (1953) 87 CLR 619). It was submitted that, in the circumstances, the ATV, with the key available in its ignition, constituted, relevantly, an "allurement" within the meaning of those authorities. This submission was rejected by his Honour. It has not been repeated in the appeal. 17 Secondly, it was submitted to his Honour that, in the circumstances, in accordance with the principles enunciated in Wyong Shire Council v Shirt (1980-81) 146 CLR 40, the leaving of the ATV in the shed in an operable condition involved a foreseeable risk of injury to the plaintiffs, giving rise to a duty of care on the part of the defendants, which was breached by the failure to remove the ignition key or to give a direction to the girls that they should not drive the bike. His Honour referred to this submission and dealt with it as follows:- "Mr Toomey QC on behalf of the plaintiffs, submitted that the act of Matthew Mulligan in leaving the keys of the bike in its start mechanism constituted a breach of duty for which the defendant company was vicariously liable. While an issue rose as exactly where it was that the motorcycle was parked, for the purposes of Mr Toomey's submission it matters not whether the bike was parked near the entrance of the shed or deeper within it. His submission was that by leaving the keys in the machine, Matthew Mulligan's action constituted an allurement to the plaintiffs. It was foreseeable that to do so could induce two high spirited girls to take the bike and use it. I should add that Matthew Mulligan left the keys in the bike because the receptacle in which they were normally kept had been sold at the auction. The evidence in the matter demonstrated that both plaintiffs had been achieving at a satisfactory rate at school and were both sportswomen of quality. While no doubt high spirited active sixteen year old girls, not only is there nothing in the evidence to suggest that they were irresponsible, the very reason for their presence on the property on the day, namely to assist at the food stall for their rowing club to help raise funds, points in the opposite direction." His Honour then referred to and rejected a submission based upon " the children's cases" and continued:- "Nobody acting reasonably could, in my view, foresee that two apparently responsible girls would act foolhardily by riding a motorbike which, as I have found, they knew not how to ride. In other words, I find that the plaintiff's actions in unauthorisedly taking the bike and riding it were not foreseeable by the defendants in terms of the decision in Wyong Shire Council v Shirt (1980-81) 146 CLR 40 particularly Mason J at 48." 18 The Appeal It is this last finding that has been disputed in this appeal. There is a problem, in that Mr Toomey QC, appearing on the appeal as he did at first instance, stated that he is confident that he did not restrict his submissions solely to the alleged negligence of Matthew. He informed us that he relied also upon the part played by his mother in the leaving of the key in the ignition prior to the departure to Corowa. Indeed, it is upon the alleged negligence of Mrs Mulligan that he primarily relies. This leads to difficulties in the appeal. However, before I advert to these, it is convenient to set out the passage from the judgment of Mason J in Shirt (supra) upon which reliance was placed: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." 19 Mr Toomey has submitted, correctly in my view, that these principles must be applied in determining whether there was a foreseeable risk that the plaintiffs would seek to take the ATV for a ride on their own, after it had been left in the shed by Matthew. He was also correct in submitting that, in determining the issue of foreseeability, it was necessary to have regard to the general factual context in which this event took place. He stressed that the plaintiffs were on friendly terms with the Mulligans and submitted that, in those circumstances, permission having been granted for them to ride on the ATV as pillion passengers behind Matthew, it might reasonably be foreseen that they would assume that they had permission to take the bike out on their own. Reliance was also placed upon the fact that, contrary to the true position, no indication had been given to them that it was dangerous for two persons to ride the bike together. Riding in this way had occurred in the short period of time immediately preceding their taking the bike, without there having been any attempt to prevent it. Also, although the ATV was potentially dangerous if driven by an unskilled driver, particularly during turning manoeuvres, this was not something of which they would have been expected to be aware. Indeed, the bike had four large wheels and looked reasonably stable and safe. 20 Although these background facts may readily be accepted for the purpose of the appeal, the difficulties to which I have adverted, arise when one comes to consider foreseeability on the part of Matthew and Mrs Mulligan. They are the only two persons, who, it is suggested, should, in the circumstances, have foreseen the risk that the girls might decide to take the bike for a ride on their own. Matthew and his mother give different versions as to the events surrounding the leaving of the keys in the ignition of the ATV. His Honour has made no findings other than that Matthew left the keys in the machine in circumstances where there could have been no relevant "allurement" of the plaintiffs. In this he was plainly correct. On Matthew's evidence, he merely drove the ATV into the shed, turned the engine off, left the keys in the ignition because there was nowhere else to put them and hurried to join his mother at the car. When he entered the shed, the two plaintiffs were some 50 metres away, walking towards the shed from the position where the rides had finished. Matthew had done no more than give them a short ride each on the pillion position of the ATV. He knew that they could not control the bike and, indeed, had no experience with it other than that which had just been provided to them. In these circumstances, in my opinion, the plaintiffs being nowhere near the bike when Matthew left it, any risk of their seeking to ride the bike of their own should be regarded as far-fetched and fanciful. 21 His Honour made no specific findings in relation to what Mrs Mulligan might reasonably have foreseen, except in so far as he, perhaps, included her in his finding that "nobody acting reasonably" could have had the relevant foresight. Mr Toomey QC has based his submissions to this Court upon aspects of Mrs Mulligan's evidence to which I shall make reference. However, there are unresolved areas of conflict between her evidence and that of Matthew. An aspect of her evidence, much relied upon in Mr Toomey's submission, was that, at the time Matthew left the bike with the keys in the ignition and came to the car where she was waiting, the two girls were then seated on the rear luggage tray of the bike, in a situation where, arguably, they could observe that the key was in the ignition. This, it was submitted, operated as an invitation to two high spirited sixteen year olds, which should have led to an appreciation on Mrs Mulligan's part that there was a risk, not far-fetched or fanciful, that the girls would seek to ride the bike. Matthew's evidence, in my view, does not reasonably admit of the view that the girls were so positioned on the bike. They were at some considerable distance from the shed when he left it. Another feature of Mrs Mulligan's evidence relied on in relation to the issue of foreseeability, was her statement that she told Matthew to leave the keys in the ignition. Matthew gives no such evidence, either in examination-in-chief or in cross-examination. So far as his evidence goes, his mother would not have been aware that the keys were in the ignition at the time when she and Matthew left for Corowa. 22 These difficulties are enhanced by the fact that his Honour expressly found Matthew's evidence to be reliable. In respect of Mrs Mulligan's evidence he found only that it was honest. 23 In the end, however, I have come to the conclusion that these problems may be ignored. That is because I have come to the view that Mrs Mulligan's evidence, taken at its highest, does not support a finding that she should reasonably have foreseen that the girls would ride the bike after her departure. 24 Her evidence was that she had told Matthew to put the bike inside the shed and that he did so, leaving it some fifteen feet from the door. She says that Matthew asked her what to do with the key and she had told him "just leave it". She had seen the two girls sitting on the rear rack of the bike in the shed, with the key in the bike, prior to her departure. They were not sitting on the riding seat of the bike. They were sitting on the rack as if it were a chair, in circumstances where, the shed having been cleared, there was nowhere else to sit. She said that "it never entered my head" that the girls might ride the bike. 25 Additionally, she gave the following evidence:- "Q. Is it possible that you felt some guilt or at least some responsibility, because you had allowed the girls to ride the bike? A. I thought - I have thought that over the period of time since the accident. I have thought: Was there anything I could have done to not let this happen? Q. What is the answer you have come up with? A. The key in the bike is a thing in my mind that if perhaps I had taken the key, perhaps if I had put it somewhere else, perhaps if I would have asked Bruce to go and take the key out, that these girls wouldn't have been hurt but I don't feel responsible for the girls being hurt. I feel very distressed about it. I think as an adult you always say to yourself: What could I have done, if these kids were hurt. That is what I feel to this minute." 26 She also gave the following significant evidence:- "Q. You feel that there may be some justification in saying to you that you shouldn't have left two young girls with a tempting, glamorous piece of machinery with a key in it. Is that correct? A. No, I don't see it like that. Q. How do you see it? A. I see it that - at the time I never dreamt they would take the bike. It wasn't in my wildest dreams. Q. I am asking you how you see it now? A. Beg your pardon? Q. I am asking you how you see it now? A. I see it that it was an accident. I didn't foresee that accident happening at the time at all. Q. But you have examined your conscience as to whether or not you should have foreseen it, have you not? A. Yes, I think I have. Q. On the basis that you knew the motorbike had the key in it and you knew the girls were there not being supervised? A. But their parents were there. One set of parents were there, and they were standing very close to them when I left. I didn't even think of that at the time. I have thought of that since the accident. At the time of the accident I had visitors coming to dinner. Kids to get to squash. Come back and finalise what was happening out there. I had been flat-out all day. Extremely busy all day. The last thing I thought about or would have dreamt about was that there was going to be an accident." 27 In my view, two things emerge from this passage, in the first place Mr and Mrs Carlisle were observed by Mrs Mulligan to be standing close to the girls when they were seated at the rear of the bike. Accordingly, when Mrs Mulligan left the scene, the situation, as reasonably perceived by her, was that the girls were in a position to be controlled by the parents of one of them. Secondly, Mrs Mulligan's appreciation of the situation was, necessarily, a hurried one. 28 In my opinion, care must be taken in applying the principles in Shirt. It is most important that the issue of reasonable foreseeability be not evaluated with the wisdom of hindsight. Moreover, Shirt and cases which have followed it have been concerned with situations of alleged danger which were static and were, therefore, capable of being evaluated in an unhurried way. The diving ledge and submerged rocks in Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 and the shallow end of the municipal pool in Inverell Municipal Council v Pennington (1993) Aust. Torts Reports 81-234 provide illustrations. In the present case Mrs Mulligan's opportunity to perceive risk was very limited. Her later concerns about her failing to remove the key are, in my view, properly attributable to hindsight. They do not, in any way, indicate to me that this was a matter that she should reasonably have considered at the relevant time. 29 Even if the conflicts between the evidence of Mrs Mulligan and Matthew are ignored and her evidence be considered on its own, I am not thereby persuaded that a reasonable person in her position would have seen the risk of the plaintiffs' taking the ATV for a ride as being other than far-fetched or fanciful. 30 It follows that, in my opinion, this appeal should be dismissed with costs. ************* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.