Ah Tong v Wingecarribee Council

[2003] NSWCA 381

CITATION:	Ah Tong v Wingecarribee Council [2003] NSWCA 381
HEARING DATE(S):	15/12/03
JUDGMENT DATE:	19 December 2003
JUDGMENT OF:	Giles JA at 1; Ipp JA at 21; Tobias JA at 83
DECISION:	In each case CA 40526/03 & CA 40527/03: (1) Application for leave to appeal granted. (2) Appeal allowed. (3) Set aside the verdict and judgment of Dodd DCJ of 1 November 2002 and in lieu thereof enter a verdict and judgment for the claimant in the sum of $40,000. (4) Order that the opponent pay the costs of the claimant in the District Court and the costs of the appeal. (5) The opponent to be entitled to a certificate under the Suitors' Fund Act 1951 if otherwise entitled.
CATCHWORDS:	NEGLIGENCE - Claim by parents for damages for mental trauma resulting from death of son who fell down cliff at reserve maintained by opponent - Whether opponent should have installed safety fences - Whether opponent should have erected warning signs - Whether the risk of cliff edges being proximate to picnic area or bush path was obvious. ND
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185 Francis & Ors v Lewis [2003] NSWCA 152 Hoyts Pty Ltd v Burns (2003) 201 ALR 470 Parsons v Randwick Municipal Council [2003] NSWCA 171 Reynolds v Katoomba RSL All Services Club Limited (2001) 53 NSWLR 43 Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Waverley Municipal Council v Swain (2003) Aust Torts Reports 81-694 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES :	CA 40526/03 Rosie Lucia Ah Tong (Claimant) Wingecarribee Shire Council (Opponent) CA 40527/03 Ronald Kelvin Ah Tong (Claimant) Wingecarribee Shire Council (Opponent)
FILE NUMBER(S):	CA 40526/03; 40527/03
COUNSEL:	CA 40526/03; CA 40527/03 D E Baran (Claimants) J E Maconachie QC/N Polin (Opponent)
SOLICITORS:	CA 40526/03; CA 40527/03 Buttar Caldwell & Company (Claimants) Phillips Fox (Opponent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6474/00; DC 6475/00
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

CA 40526/03
CA 40527/03
DC 6474/00
DC 6475/00

GILES JA
IPP JA
TOBIAS JA

Friday 19 December 2003

ROSIE LUCIA AH TONG v WINGECARRIBEE SHIRE COUNCIL

RONALD KELVIN AH TONG v WINGECARRIBEE SHIRE COUNCIL

Judgment

1 GILES JA: I have had the advantage of reading the reasons of Ipp JA in draft. Drawing upon his Honour’s reasons, with which I am in general agreement, in the following paragraphs I explain my own path to the orders his Honour proposes.

2 The claimants’ proceedings rested on a duty to take reasonable care to avoid psychiatric injury to them, see for example Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449. The judge recorded that it was assumed in their favour that the opponent owed a duty to take reasonable care to avoid foreseeable risk of injury to persons using the Mt Gibraltar Reserve, citing in particular Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. The injury to which that case referred was not psychiatric injury where, as Tame and Annetts show, special considerations apply in determining the existence of the duty of care. However, the opponent properly acknowledged that the duty of care assumed in favour of the claimants was taken at the trial to have extended to a duty to take reasonable care to avoid psychiatric injury to them, and it did not depart from that stance in the applications.

3 As Tame and Annetts also show, there could be more or less to breach of the duty of care owed to the claimants than failure in a duty of care owed to Everard. The claimants contended for breach because the opponent did not fence off the quarries with cyclone wire, or alternatively did not erect a sign or signs in the picnic area alerting users of the area to the existence of cliff faces nearby. The former breach would be causative via Everard’s conduct, in that it was said that the fence would have prevented Everard’s access to the quarries’ cliff faces and his fall. No doubt that is why a cyclone wire fence was proposed, rather than a lesser fence which may not have kept a six year old boy from the quarries. The latter breach would be causative via the claimants’ conduct. A sign or signs may not have meant much to Everard, but it was said that the sign or signs would have caused the claimants to ensure that he did not go near the quarries.

4 For the reasons given by Ipp JA, the judge correctly held that breach by failure to fence off the quarries with cyclone wire had not been established.

5 The judge explained in two passages his holding that breach by failing to erect a warning sign or signs had not been established.

6 In the first passage the judge said -

“Plaintiff’s counsel conceded in submissions that if I found the risk to be so obvious as to be self-evident then the plaintiff could not succeed. That will not necessarily always be so but I need not argue against the proposition in the circumstances of this case. I have come to the view that the risk was and is so obvious as to be self-evident. It does not matter whether the risk is expressed to be in terms of the possibility of cliff faces being in the Reserve, or in terms of risks to children if they get away from their parents in the bush, whether the risk to a child is confined to falling over a cliff, or more generally expressed in terms of the variety of risks of injury due to different possible causes. For the purposes of this case the risk should be articulated as the risk that a six year old child who wanders away from his parents might fall over a cliff. The plaintiff knew he was going to a mountain, he knew there was a drop to the township from the picnic area. That is sufficient in my view to make it obvious to the ordinary person that a child who wanders out of sight of his parents on Mt Gibraltar might fall over a cliff.”

7 In the second passage the judge said -

“I am also of the opinion that the plaintiff has not made out his case that a reasonable response to the risk would be to erect signs. This is partly because in my view the risk is obvious. However, even if a different conclusion was reached on that aspect it seems to me that the plaintiff fails. I am far from persuaded as to the efficacy of any signs, whatever their content. The closer persons get to the cliffs, presumably there is a need for a greater number of signs at various points along or corresponding with the length of the cliff face. This raises issues of aesthetics, access and maintenance, and hence cost. Bearing in mind that no previous difficulty has apparently been experienced with these cliffs and the nature of the risk, the defendant could reasonably take the view that the magnitude of the risk is not high. In my view the defendant can reasonably take the approach that the erection of signs of whatever kind, wherever placed is not likely to alleviate the risk and the various costs, including aesthetic, of doing so outweigh any possible benefit. In my opinion the defendant can reasonably take the approach that designating and maintaining safe walking paths is the most efficacious method protecting Reserve users from the possibility of anyone inadvertently falling over a cliff because they could not find a safe walkway.”

8 I do not think that, in referring to a risk that was obvious, the judge meant that the particular risk presented by the disused quarries was obvious. He began with a generalised risk of hazards in an area of bushland with which persons coming to the picnic ground would usually not be familiar, and considered that those persons would have recognised it. The judge then included in that generalised risk the hazard “that a child who wanders out of sight of his parents on Mt Gibraltar might fall over a cliff”, so that it would be recognised that young children not kept under close control might be injured from that kind of hazard as well as other kinds of hazard. It was obviousness of risk in this sense, and with extension to the hazard of falling over a cliff, which caused his Honour to conclude that there was no need for the opponent to erect a sign or signs warning of the hazard presented by the quarries’ cliff faces.

9 I agree that the opponent could reasonably expect persons coming to the picnic ground to be aware that there might be hazards of various kinds in the surrounding bushland: for example rough ground, fallen trees, and snakes. But in my view the disused quarries presented a risk of a different quality. As appears from the evidence of Mr Ah Tong cited by Ipp JA, the location was not one indicative of naturally formed cliffs. It stretches obviousness to take it to the hazard of an unattended child falling over a cliff when the appearance of the Reserve was as described by Mr Ah Tong, and there was no evidence that in fact the Reserve was particularly rough in terrain or marked by cliffs or other opportunities for falling. More to the point, the quarries were artificial features presenting cliff faces close to an evident, albeit rudimentary, walking track, not visible from the track. The picnic area invited families with young children to proximity to the quarries, and the track opened the possibility that children would be allowed to go unattended to where the hazard of the artificial cliff faces existed. This was much more than a generalised risk of possible hazards. It was a specific hazard, reasonably likely to be encountered by unattended children, but not indicated by the appearance of the bushland.

10 The judge thought also that a sign or signs would not be particularly efficacious and that the risk was not high, so that the financial and aesthetic cost outweighed the need for a sign or signs. It is necessary, of course, to avoid hindsight, and I acknowledge that in such judgmental matters there should not lightly be departure from the opinion of the trial judge. I have concluded, however, that the judge’s opinion can not be upheld. There was no evidence of cost but it would be slight; as Ipp JA has indicted, there would not be great aesthetic impact. The risk of a fall was not remote, and the consequences could be severe. In the balancing exercise called for by Wyong Shire Council v Shirt (1980) 146 CLR 40, the response of a reasonable opponent in my view would have been to warn by a sign or signs at the picnic ground that the disused quarries were nearby, so that particular care could be taken by persons coming to the picnic ground including by close supervision of young children.

11 The judge then found that in any event breach by failure to erect a warning sign or signs was not causative. His Honour said -

“In my view the defendant has also made good its submission that any sign would not have caused the plaintiff to behave differently and therefore the absence of a sign did not cause the plaintiff injury. The plaintiff saw no cliff. He went for a walk a very short distance. He knew there was a designated walking track. He turned back and expected Everard to follow. He did not think he was exposing his son to danger. A sign pointing out generally that there were cliffs somewhere on the mountain would have made no difference, because in my view he knew that or suspected it already. A sign at the car part or picnic ground saying, for instance, ‘Cliffs 100 metres from here’ and pointing in their direction, would in my view have made no difference because the plaintiff never intended going near the drop to the township, did not go so near as even to see the clifftop, turned back after going a very short distance, expected Everard to follow and never thought that he was in any danger, until he realised Everard was not following. If he had thought Everard would wander away from him on top of the mountain I have no doubt he would never have gone there at all. But so long as Everard was with him, he was in no danger. In order words, the operative cause of the problem was not the existence of the cliffs, but the fact that Everard got away from the plaintiff. What could the defendant do about that?”

12 This should be read in the light of the passage earlier in his Honour’s reasons -

“The plaintiff argues that a sign such as that now on the access road should have been placed there at the time, and that signs should have been placed in the picnic area alerting users to the existence of cliff faces nearby. The plaintiff says that the risk was hidden and not obvious. The sign now on the road has against a yellow diamond a representation in black of a person falling off a cliff with the words next to it: ‘CLIFF EDGE’, that all being beneath the words: ‘General Warnings’. Clearly, by the fact that it is now there, it would have been easy enough for the defendant to put the sign up before.
As to other signs, nothing is before me as to precisely where such signs should have been placed, how many there should have been, nor precisely what they should have said. There is no direct evidence that if the plaintiff had seen such signs it would have made any difference to his behaviour .” (emphasis added)

13 The judge made a finding of fact, and Hoyts Pty Ltd v Burns (2003) 201 ALR 470 is a recent reminder that this Court should be cautious, to say the least, in reversing such a finding of fact. However, it seems to me that the judge’s finding was flawed in three respects.

14 First, even if it were accepted that Mr Ah Tong knew or suspected “that there were cliffs somewhere on the mountain”, the reasoning thereafter is astray. It pays no regard to any effect on Mr Ah Tong’s supervision of Everard of a specific warning that the disused quarries were nearby.

15 Secondly, I do not think the judge was entitled to find that Mr Ah Tong knew or suspected that there were cliffs somewhere on the mountain. That was contrary to his evidence. There was no evidence that in fact there were cliffs somewhere on the mountain, other than the quarries’ cliff faces. The generalised risk to which I have earlier referred may be accepted, but not the extension to knowledge or even suspicion of cliffs and still less to knowledge or suspicion of the particular hazard of the quarries’ cliff faces.

16 Thirdly, in proceeding on the basis that there was no direct evidence that “such signs” would have made any difference to Mr Ah Tong’s behaviour the judge appears to have overlooked the evidence -

“Q. Sir, if you had known there was a disused cliff [sic] in the area what would you have done?
A. We are very careful parents, Joshua [sic] is our eldest, we would have never exposed him to any risk at all even just a bush walk.”

17 “Such signs” in the judge’s reasons must have included not just the sign later erected at an unclear point on the road into the Reserve, but also what the judge referred to as “signs … placed in the picnic area alerting users to the existence of cliff faces nearby”. This evidence engaged signs to that effect. Despite the odd reference to a “disused cliff”, the substance of the question was clear, and despite the reference to Joshua rather than Everard (Everard was the elder) the answer was direct.

18 The evidence was not challenged in cross-examination. It was indirectly supported when Mr Ah Tong was asked in cross-examination whether he was ”reasonably comfortable” in letting Everard “continue on by himself”: he disagreed, and said, albeit obscurely, that “I would only allow him had I known for sure that the track would’ve gone back but I did not know the track would go – I assumed it went back, but I did not know for sure it went back.”

19 The judge saw and heard Mr Ah Tong give his evidence, and had a trial judge’s advantages. But I do not think that, when the evidence of Mr Ah Tong to which I have referred is taken into account, the judge’s finding can remain. There must be allowance for the effect of the tragedy on Mr Ah Tong’s later evidence of how he would have acted had there been a warning sign or signs. But his evidence was by no means at odds with how a caring parent would have acted, and in my opinion on the evidence at the trial causation was established.

20 I agree with the orders proposed by Ipp JA.

21 IPP JA: These reasons relate to two applications for leave to appeal and appeals against decisions by Dodd DCJ by which his Honour entered verdicts and judgment for the opponent in actions brought by the claimants against it, in negligence, for damages for mental trauma.

22 Dodd DCJ treated the claims of the claimants, Mr and Mrs Ah Tong, on the basis that each claim arose out of the same set of relevant circumstances and his reasons for judgment applied to each. The parties themselves accepted that the same set of relevant circumstances applied to each claim. I shall deal with the two matters in the same way.

23 The claimants are married to each other. Their claims arise out of the tragic death of their son, Everard, who died on 9 October 1997, aged six years, when he fell down a steep cliff formed by a disused quarry on the Mt Gibraltar Reserve near Bowral.

24 The parties have agreed that, subject to the opponent’s liability being established, each claimant is entitled to an amount of $40,000 in respect damages.

25 Mr Maconachie QC, who together with Mr Polin represented the opponent, did not oppose the grant of leave to appeal in each case and I would grant leave.

26 The opponent was an owner of and had the care, control and management of the Mt Gibraltar Reserve. On this basis, his Honour held that the opponent owed the claimants a general duty to take reasonable care to avoid foreseeable risk of injury to them. The opponent did not dispute this finding.

27 The issues before this Court involved the scope of duty, whether it had been breached by the opponent and, if so, whether such breach had caused the claimants to suffer damage.

28 On 9 October 1997, the claimants, together with their two young boys, Everard and Joshua (who was then aged four years), drove from their home in Wollongong to Bowral to see the tulip festival that was being held there.

29 After having looked at some of the gardens on display, the claimants decided to have a picnic. They purchased some food and drove out of the town to look for a congenial place where they could enjoy their lunch. As they were driving outside the Bowral township, Mr Ah Tong noticed a sign indicating a turn-off to the Mt Gibraltar lookout. The claimants decided to have their picnic there. They drove up Oxley Drive towards Mt Gibraltar to the lookout site and turned off on to an access road to a dedicated picnic area adjacent to what is referred to in the documentary evidence as the Bowral lookout.

30 Mr Ah Tong said that the lookout site was “very welcoming”. There were picnic facilities with tables and swings for the children, a parking area for cars, and toilets. The area of the site was relatively wide, grassed and “very pleasant”. It was particularly suitable for use by families with young children.

31 Mr Ah Tong parked his car, and the family had lunch at the picnic area that was part of the lookout site. After lunch was over, the two children asked Mr Ah Tong to take them for a walk. Mr Ah Tong had earlier noticed a sign-posted walking track that went from the Bowral lookout down to the bottom of the mountain. Mr Ah Tong was not interested in walking down the mountain with the children and looked around for something more suitable.

32 He saw what he described as two “well-worn” tracks leaving the grassed area at the picnic site. The tracks were at different angles to the grassed area and he thought that they were part of a single circular track that left and returned to the picnic area. He thought that such a track would be suitable. He described it as a “standard bush walk path”. He said, “there were children towards a later (sic) part of it”. He was not asked to clarify what he meant by a “later part”, but the inference is that at some time on the day in question he saw children on the track.

33 There were other tracks running through the grassed area. None of the tracks was fenced off and there was no area in the vicinity to which access was restricted. There were no signs indicating the presence of any danger.

34 In fact, unbeknown to the claimants, there were two disused quarries below the picnic area and lookout site. The top of the cliff of at least one of the quarries was in relatively close proximity to the track to which I have referred.

35 Mr Ah Tong, together with Joshua and Everard, began to walk along what Mr Ah Tong thought was a circular track. He thought that he would be walking to a clearing so that he could observe the township of Bowral from a different viewpoint.

36 I pause here to note that the evidence of the topography of the relevant area, that is, the lookout site as a whole, the picnic area, the different grassed areas, the track along which Mr Ah Tong, Everard and Joshua walked, the other tracks, and the cliffs of the quarries, was sadly lacking in detail. Mr Ah Tong was the only witness who testified at the trial. He did his best, no doubt, but the questions that he was asked in regard to these matters paid little attention to the need to create a reasonably comprehensible and accurate picture of the scene. Aspects such as the density of the bush throughout the area between the track along which the walk took place and the quarry cliffs, the visibility of the quarry cliffs from relevant points off the track, what was to be found at the end of the track, and the precise topographical relationship (including distances) between the quarry cliffs, the picnic area, the various tracks and where Everard was found, were either not dealt with at all or only touched upon. Photographs were tendered and received into evidence, but most were not identified, few were the subject of oral testimony and, therefore, few are of any help. Neither Mr Maconachie, nor Mr Baran (who represented the claimants), appeared at the trial, and understandably each had difficulty in answering many of the questions that were put to them by the Court on these issues. I shall do the best I can to describe the scene by reference to the material available. What follows is based on the sparse evidence that was led.

37 The track along which Mr Ah Tong and his children walked was only wide enough for one person to walk on. Accordingly, Mr Ah Tong walked with or carried Joshua, and Everard walked in front. They walked for about 50 metres from the point where they started.

38 The area into which they walked was grassed; in other words, adjacent to the track, on both sides, was a grassed area. This was a different grassed area to that of the picnic site. The grass alongside the track was about knee height. According to Mr Ah Tong, however, “the vegetation growth was only very slight in the areas that was [sic] well walked on”.

39 Next to the grassed area was bush, which was “pristine” and “beautiful”. The bush seems to have been so thick that one could not see for any distance through it. Mr Ah Tong said that he could see nothing beyond the bush.

40 Mr Ah Tong said that the slope of the land, whilst walking, was “mostly flat”. He encountered a log lying across or alongside the track. At that point the track curved and there was a “little drop”. This caused Mr Ah Tong to think that the track led to the base of Mt Gibraltar, to which he did not want to walk. He decided that it was time to return to the car. He told Everard that there could be snakes under the log and they should turn back. Mr Ah Tong turned around and told Everard to follow him and Joshua.

41 Mr Ah Tong walked back to the picnic area with Joshua in his arms. Joshua was talking to him and it is apparent that his attention was thereby distracted. When he returned to the picnic area he discovered that Everard was not behind him. He thought that Everard might have continued on the circular track and returned before him, but his wife told him that that was not the case. They immediately commenced searching frantically for Everard, but he was not to be found.

42 Mr Ah Tong retraced his steps and continued on the track a further 20 to 30 metres beyond where he had turned back with Joshua. He saw that at some point thereafter the track vanished.

43 He called Emergency Services and, as Dodd DCJ found, Everard was found at the foot of a 30 metre quarry cliff. He was attended to by ambulance officers but to no avail.

44 Mr Ah Tong was asked: “Compared to where you were walking where was the cliff”? He replied: “I would say it would be no more than 20 metres, 30 metres”. Mr Ah Tong was not cross-examined on this evidence and it must be accepted that the quarry cliff was no more than 20 or 30 metres from the path that he and his children walked on.

45 The following exchange then occurred:

“Q. Was it twenty metres further on from where you didn’t walk or was it twenty metres adjacent to where you had already walked?
A. I think it was both. It was a lot closer I think if it was adjacent. The cliff and the quarry I presume was curved, so there was a cliff ahead of the track, but as you went along there was also another cliff on this side of it.”

46 Mr Ah Tong was also not cross-examined on this evidence. While it is not clear how much of this testimony is presumption and how much is based on what Mr Ah Tong observed, it is evidence that confirms the close proximity of the quarry cliff to the track.

47 Dodd DCJ observed that the claimants’ case ultimately came down to two principal grounds of negligence. Firstly, the claimants contended that the opponent should have installed safety fences along the cliffs created by the quarry or quarries. Secondly, the claimants contended that the opponent should have erected a sign or signs in the picnic area warning of the proximity and direction of the disused quarries and their cliffs.

48 Dodd DCJ held that the claimants had not established that a reasonable response to the risk of injury was to fence the cliff face. He rejected the contention that the opponent was negligent in failing to fence the cliffs.

49 I consider that his Honour was entirely justified in this conclusion. The evidence was woefully inadequate in regard to this issue. In particular, there was no evidence as to the extent of the cliffs, the length of their perimeter, the extent and nature of fencing required, the efficacy of any fencing that might be erected, the cost thereof and how the fencing might affect the aesthetics of the environment. There was simply no evidential basis to assess the reasonableness of the fencing measure contended for by the claimants.

50 His Honour did not accept, for two main reasons, that the erection of signs would be a reasonable response to the risk constituted by the quarries. Firstly, he found that the risk was obvious. Secondly, he said that he was “far from persuaded as to the efficacy of any signs whatever their content”. In the latter regard, he said:

“The closer persons get to the cliffs, presumably there is a need for a greater number of signs at various points along or corresponding with the length of the cliff face. This raises issues of aesthetics, access and maintenance, and hence costs.”

51 In addition, his Honour found that a sign would not have caused Mr Ah Tong to behave differently. Therefore, he held, the absence of a sign did not cause the claimants’ damage. He said:

“The plaintiff saw no cliff. He went for a walk a very short distance. He knew there was a designated walking track. He turned back and expected Everard to follow. He did not think he was exposing his son to danger. A sign pointing out generally that there were cliffs somewhere on the mountain would have made no difference, because in my view he knew that or suspected it already. A sign at the carpark or picnic ground saying, for instance, ‘Cliffs 100 metres from here’ and pointing in their direction, would in my view have made no difference because the plaintiff never intended going near the drop to the township, did not go so near as even to see a cliff top, turned back after going a very short distance, expected Everard to follow and never thought that he was in any danger, until he realised Everard was not following. If he had thought Everard would wander away from him on top of the mountain I have no doubt he would never have gone there at all. But so long as Everard was with him, he was in no danger. In other words, the operative cause of the problem was not the existence of the cliffs, but the fact that Everard got away from the plaintiff. What could the defendant do about that?”

52 Accordingly, his Honour found that the opponent was not in breach of its duty of care by omitting to provide warning signs at appropriate places at or near the picnic area.

53 Dodd DCJ’s conclusion that the danger of the quarry cliffs was obvious underpinned his Honour’s reasons on this question and it is necessary to examine this finding against the evidence.

54 Mr Ah Tong said that the drive to Mt Gibraltar was a gradual incline upwards. He denied that in the general area there were hills and cliffs and steep drops. He said that he knew that he was driving up a mountain but there were no steep rises and steep drops in the area.

55 The following exchange occurred:

“Q. As you look down it’s a bushy area leading all the way down to the township of Bowral?
A. Yes.
Q. You would’ve thought that there would’ve been maybe some sharp drops and some flat areas and the like as you worked your way, say as the crow flew, from the lookout down to Bowral?
A. Bowral, no.
Q. Well you’d have to travel down, if you went the way the crow flew to Bowral, you’d have to travel down hundreds of metres, wouldn’t you?
A. But that 100 metres weren’t obvious to me as a straight drop in areas. There were foliage and trees and vegetation in there which makes it a symmetrical contoured mountain down. I think if you look from the lookout you’d find that it is not as you look at other lookouts where there is a steep drop of nothing in front of you. There are trees and there are things in front of you. When you stand from the lookout you can see those – you can see the vegetation and when you see vegetation you’d assume naturally that the mountain texture is normal too.”

56 Mr Ah Tong said that it was not possible at the lookout site or picnic area to perceive that there were disused quarries and cliff faces around the general area. It was also not possible to observe any quarries or cliff faces along the walk that he had taken with his children. He said that when he turned to walk back to the picnic area there was nothing to alert him to any danger in the vicinity.

57 Mr Ah Tong’s evidence that it was not possible to detect the presence of quarries or cliffs while at the lookout site or when walking along the track in question was clear and he was not shaken in any way in regard to these matters in cross-examination. The opponent led no evidence to contradict him.

58 The lookout site was publicised by at least one road sign. It had been made attractive to the public, in general, and families and children, in particular. There were inviting paths leading away into the bush from the picnic area.

59 There was nothing in the particular rock formation or slope of the ground in the vicinity of the lookout site, visible to the claimants, which would in any way suggest the existence of a quarry or dangerous cliffs.

60 The mere fact that Mr Ah Tong knew that there was a drop in height from the picnic area to the township of Bowral did not mean that he knew that there was a dangerous cliff close by and about 20 to 30 metres from the track along which he took his children for a walk. Not every hill or mountain has sheer cliffs or precipices. And where such features exist, they may be in isolated parts, not near a designated lookout site intended and equipped for use by the public as a picnic area. The mere fact that one is on a lookout site at an elevated position does not mean that there are dangerous precipices in the vicinity.

61 Mr Maconachie submitted that the bush is a dangerous place that has many hidden dangers for children, and the bush on a hill or mountain is even more dangerous as there is an inherent risk that in such an area there could be dangerous cliffs.

62 I accept that the bush holds many hidden dangers for children, but the existence of a concealed, disused quarry, within 20 or 30 metres of a well-worn track, leading from a designated and publicised lookout site and picnic area, is not ordinarily one of them.

63 In my opinion, the evidence did not justify a finding that there was an obvious risk that dangerous cliffs or quarries might be relatively near the picnic area and the track along which Mr Ah Tong and his children walked. Indeed, the contrary is the case.

64 In my opinion, the existence of the quarry cliff, down which Everard fell, was not obvious (it was concealed from the claimants as they drove up to the lookout site and had their picnic, and while Mr Ah Tong took his boys for a walk). Moreover, the risk of such a cliff being in close proximity to the picnic area and track was not obvious.

65 I do not agree that a reasonable response to that risk would require the opponent to place a large number of signs “at various points along or corresponding with the length of the cliff face”. A reasonable response would merely require a sign or signs to be placed in appropriate parts of the picnic area, particularly at or near the entrance to the tracks leading towards or which pass in the vicinity of the cliffs, warning of the existence, proximity and direction of the nearby quarry cliffs.

66 Such signs would not necessarily be aesthetically objectionable. After all, the picnic area itself, as appears from the photograph tendered in evidence, was not an area untouched by human hand. As I have noted, there were various buildings there, as well as equipment. In any event, there was a sign at the path leading to the bottom of Mt Gibraltar. A few other signs in the picnic area, warning of the quarry cliffs and indicating their direction, would be unlikely to jar the sensibilities of visitors to the area.

67 I next turn to the finding that such a sign would not have caused Mr Ah Tong to behave differently.

68 Mr Maconachie submitted that this finding was based on demeanour and was protected by the doctrine in Abalos v Australian Postal Commission (1990) 171 CLR 167 and like cases.

69 For several reasons, I do not accept this argument.

70 Firstly, the finding appears to be based on his Honour’s (erroneous) view that the risk was obvious. This underlies his Honour’s finding that:

“A sign pointing out generally that there were cliffs somewhere on the mountain would have made no difference, because in my view he knew that or suspected it already.”

71 Secondly, the relevant issue was not whether Mr Ah Tong knew or suspected that there were cliffs somewhere on the mountain. It was whether he knew or suspected that there were cliffs caused by quarry workings near the track along which he and his children were walking.

72 Thirdly, the uncontested evidence of Mr Ah Tong was that he did not know or suspect that there were such quarry cliffs nearby.

73 Fourthly, the objective evidence was that nothing in the natural lie of the land indicated that there were quarry cliffs nearby.

74 Fifthly, Dodd DCJ said:

“There is no direct evidence that if [Mr Ah Tong] had seen such signs it would have made any difference to his behaviour.”


The reference to “such signs” is to a sign that was placed in Oxley Drive after Everard’s death indicating, in black, against a yellow diamond, a representation of a person falling off a cliff with the words next to it “Cliff Edge”.

Mr Ah Tong testified that if he had known that there was a disused cliff in the area he would not have taken the children on the walk. He said that he and his wife were “very careful parents” and “vigilant with the children”. He said that he would not have exposed his children to any risk at all, “even just a bush walk”. He was not cross-examined on this evidence.

Accordingly, there was direct evidence that if Mr Ah Tong had seen such a sign it would have made a material difference to his behaviour. His Honour seems to have overlooked this and in my view this alone vitiates his finding that a warning sign would not have caused Mr Ah Tong to behave differently.

75 Finally, on this issue, I would comment on the following question his Honour’s posed for himself:

“If he had thought Everard would wander away from him on top of the mountain I have no doubt he would never have gone there at all. But so long as Everard was with him, he was in no danger. In other words the operative cause of the problem was not the existence of the cliffs, but the fact that Everard got away from the plaintiff. What could the defendant do about that?”

In my view, the question so posed was irrelevant. The relevant question was not what the opponent could have done to prevent Everard getting away from his father; rather, it was whether Mr Ah Tong would have taken his children along the walk had there been warning signs in the picnic area.

76 In my view, there is nothing to suggest that Mr Ah Tong’s evidence on this issue should not be accepted. In my view, the existence of a warning sign or signs in the picnic area would have resulted in Mr Ah Tong not taking his children on the walk at all.

77 Mr Maconachie submitted that the duty of care owed by the opponent to the claimants was “conditioned” on the duty of the claimants, as parents to look after Everard. He referred to David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185 which he submitted supported this argument.

78 David Jones (Canberra) Pty Ltd v Stone concerned a child who was injured while riding on an escalator with his mother. At the entry to the escalator there was a sign that warned that children must not ride on the escalator unless accompanied by an adult. The mother’s attention was distracted and the child was injured when he caught his fingers in the moving treads. The High Court held that the child’s use of the escalator was not a reasonable use and there was no breach of the store-owner’s duty of care. This case was based on the duty of an owner of premises to an invitee and has limited relevance since Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. Moreover, the present case is concerned with the duty to the claimants, not their child. In any event, the circumstances in David Jones (Canberra) Pty Ltd v Stone are simply not comparable to the present. In David Jones, a reasonable way to avoid the danger was to erect a sign, which was done. In the present case, no steps were taken to avoid the danger.

79 Recently, there have been several cases that have emphasised the need to take into account, when assessing whether there has been a breach of a duty of care, the need for individuals to take reasonable care for their own safety and to accept personal responsibility for their own conduct. It is sufficient to refer to Brodie v Singleton Shire Council;Ghantous v Hawkesbury City Council (2001) 206 CLR 512 at 581, Reynolds v Katoomba RSL All Services Club Limited (2001) 53 NSWLR 43, Waverley Municipal Council v Swain (2003) Aust Torts Reports 81-694 Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204, Francis & Ors v Lewis [2003] NSWCA 152 at [40], Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679 and Parsons v Randwick Municipal Council [2003] NSWCA 171.

80 In my view, however, the claimants have not been shown to have failed to take reasonable care for their own safety. In my view, Mr Ah Tong was not careless by walking back to the carpark, leaving Everard to follow him while he took Joshua in front. The distance was relatively short, only 50 metres. There was no reason to suspect that Everard could come to any harm. Mr Ah Tong was entitled to think (had he applied his mind to the question) that, in the unlikely event of the boy wandering off the path in the brief time involved, he would not come to any harm and would be found without any trouble. I do not think that the approach in the cases I have mentioned has relevance to the present case.

81 In my view, for the reasons I have expressed, the opponent was negligent in failing to erect appropriate warning signs in appropriate positions at the lookout site and that negligence caused the injuries sustained by the claimants as a result of their son’s death.

82 In each case I would propose the following orders:

(1) Application for leave to appeal granted.

(2) Appeal allowed.

(3) Set aside the verdict and judgment of Dodd DCJ of 1 November 2002 and in lieu thereof enter a verdict and judgment for the claimant in the sum of $40,000.

(4) Order that the opponent pay the costs of the claimant in the District Court and the costs of the appeal.

(5) The opponent to be entitled to a certificate under the Suitors’ FundAct 1951 if otherwise entitled.

83 TOBIAS JA: I agree with Ipp JA.

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Last Modified: 12/22/2003