New South Wales Court of Appeal CITATION : Mortimer v Propix Pty Limited [2001] NSWCA 478 FILE NUMBER(S) : CA 40182/01 HEARING DATE(S) : 12 December 2001 JUDGMENT DATE : 12 December 2001 PARTIES : Neil Mortimer v Propix Pty Limited trading as Jamberoo Recreational Park JUDGMENT OF : Meagher JA at 29; Hodgson JA at 30; Grove J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT 435/99 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER : COUNSEL : P. Menzies QC with W. Ward (Appellant) M.L. Williams SC with M. Gilbert (Respondent) SOLICITORS : Gajic & Co (Appellant) Sparke Helmore (Respondent) CATCHWORDS : NEGLIGENCE - AMUSEMENT PARK RIDE - FACTS RELATING TO CONDUCT OF PARTICULAR FACILITY KNOWN AS WIEGAND TOBOGGAN - ABSENCE OF EVIDENCE OF BREACH OF DUTY - NO PARTICULAR POINT OF PRINCIPLE DECISION : APPEAL DISMISSED IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40182/01 MEAGHER JA HODGSON JA GROVE J Wednesday 12 December 2001 NEIL MORTIMER v PROPIX PTY LIMITED (trading as JAMBEROO RECREATIONAL PARK) JUDGMENT 1 GROVE J: This is an appeal against a judgment for the defendant entered after trial by her Honour Judge Sidis in the District Court. 2 The appellant sought damages in relation to personal injuries which he sustained as a result of an accident which occurred in about October 1996 when he was using a facility at a recreation park operated by the respondent. 3 The particular facility was called a Wiegand toboggan run and was located in the respondent's park along the escarpment of the Great Dividing Range just south of the City of Wollongong. 4 The facility consisted of what in other climates would be a snow toboggan run but this apparatus was obviously adapted to enable its use without the presence of snow. 5 A track of a stainless steel type character descended for about three hundred metres. It was curved and banked in the conventional fashion of a toboggan run. Those wishing to use the facility were provided with a small implement which was wheeled and which was controlled by the use of a joystick. When seated upon the toboggan the joystick would be between the knees of the rider and it operated in the function of what has been called a "dead man's handle". That is to say in order to release the brakes the joystick is pushed forward and if pressure is released brakes are automatically applied. In addition, the brakes could be applied by a positive act of pulling the joystick towards the rear. 6 At trial a considerable amount of evidence was devoted towards analyses of various signs and warnings in and about the facility but no ground of appeal is now pressed in relation to this. 7 Two grounds of appeal are advanced. The first expressed in these terms, "Her Honour erred in failing to find the absence of a system to remove an abandoned toboggan constituted negligence" and, second, "Her Honour erred in failing to find the respondent failed to reasonably do all in its power to ensure the safety of users of the ride such as the appellant; generally, and specifically in the context of reasonable foreseeability of injury to persons in the position of the appellant should they collide with a stationary toboggan, particularly on the 'fast track'." 8 I should mention that in written submissions on behalf of the appellant leave is sought to amend the particulars at trial to assert that the respondent was negligent in failing to maintain a system to keep toboggans sufficiently separated so that a collision could be avoided if a toboggan became stationary on the track. 9 That amendment is opposed by the respondent. In my view, it makes no difference to the outcome of the appeal whether the amendment is allowed or not. 10 Senior counsel for the appellant indicated that in broad terms two challenges were advanced against her Honour's finding. 11 The first related to the system for removing a toboggan which had been abandoned by a preceding rider and in relation thereto the provision of appropriate staff and second, the failure to institute a system whereby there was sufficient separation between riders so as to reduce the risk of injury by collision. 12 There was evidence that the system in operation in relation to the latter required a separation of fifteen metres between riders. It was suggested in submission that at least thirty metres would be appropriate, although for my part I might observe that it is difficult to see how this would have made any difference in the current circumstances. 13 The happening of the accident was described at trial in extremely economical terms. The only evidence was from the appellant himself who had testified that he had come to the amusement park with friends for the day. He had used the facility on about seven or eight occasions prior to the incident. None of the prior occasions had resulted in anything uneventful. 14 He agreed that the joystick allowed him adequate control over the toboggan. Asked about the incident, he said, "I approached the ride as we'd been doing for the majority of the day, go on the toboggan, set off down the track as normal and about, I don't know whether it was halfway down, three-quarters of the way down, I've approached a bend and as I've come round the bend, there's a stationary toboggan left on the track, an empty – there's no-one sat on it, I've tried to pull the braking system with not much luck and obviously first reaction is you try and stop yourself, I've put my hand down and my feet out to try to stop myself from hitting the other toboggan and that's when the injury occurred." 15 The appellant sustained a fracture to his wrist which was quite serious and no issue was seriously fought at trial concerning his claims of damage. 16 Her Honour did deal with the subject matter of the first proposition advanced before this Court relating to the provision of sufficient staff to perform functions such as for example removing an abandoned toboggan. 17 There was evidence that on a day such as the relevant one the respondent arranged for three attendants, two at the top of the ride, one of whom had a full view of the facility and was able to operate a stop/go light mechanism. Another was at the bottom of the facility and the third person was there to check the state of the track and assist or indicate to riders that they could commence their journey down the track. 18 It was suggested that additional staff ought to have been provided in order to perform functions such as removing abandoned toboggans. 19 It is difficult to conceive how this could be assessed to be a reasonable requirement of a person in the position of the respondent, given that there is no evidence at all as to at what point along the track the incident occurred. It would in my view be entirely unreasonable to require the respondent to have attendants located all the way along the track in order to cope with a situation which might arise at any point along it. 20 The matter was adverted to her Honour's judgment and she indicated that she had exercised her mind as to whether a fourth attendant should have been in position along the ride in order to assist persons if they fell off and to remove any obstructions that may be on the slide, whether they be toboggans or other items. She expressed her finding as follows, "I have concluded that the step would have made little difference overall. There is no evidence of precisely where the plaintiff's injury occurred and to whether a person positioned at the side of the ride would have been in a position to have assisted him." 21 Her Honour's finding was open to her and I would add that it is manifestly correct. 22 There was unchallenged evidence that at any point along the ride there was a minimum of some thirty metres of view ahead. The parties agreed that given the approximate span of time of the ride of eighty seconds and its length of three hundred metres it can be calculated that a rider proceeds at an average speed of 3.75 metres per second or 13.5 kilometres per hour. Nevertheless, it is also correct, as can be inferred from the photography, that at various points along the ride it is likely that riders on the track would be proceeding at much faster than the average. There is no evidence as to the speed of the appellant at the time that he sighted the abandoned toboggan on the track ahead of him. 23 I have already commented that it is difficult to my mind to perceive that any separation greater than the fifteen metres prescribed by the respondent would have made any difference in the particular circumstances of this incident. The appellant did not prove where he was on the track at the time and therefore it cannot be known how much view he had. 24 He was not questioned as to whether or not he was keeping a look out, nor was he questioned about what braking he had applied, if any, prior to reaching whatever point it was along the line that he saw the stationary toboggan. 25 He agreed in cross-examination that common sense would suggest that a person who came to a situation of parting from their toboggan would remove it from the track. 26 The correctness of his concession is self evident and in addition there was evidence that the respondent had given advice to users in terms likely to be readily understandable to them by erecting a sign at the beginning which read: "IF YOU STACK, GET OFF THE TRACK". 27 In my view there has been no demonstration that in any way the respondent has behaved in a fashion which could be held in breach of a duty of care to the appellant. 28 I would dismiss the appeal with costs. 29 MEAGHER JA: I agree. 30 HODGSON JA: I also agree. 31 MEAGHER JA: The order of the Court therefore is the appeal 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. 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