Brown v Hewson - [2015] NSWCA 393

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Brown v Hewson [2015] NSWCA 393
Hearing dates: 2 October 2015
Date of orders: 14 December 2015
Decision date: 14 December 2015
Before: Macfarlan JA at [1];
Sackville AJA at [13];
Adamson J at [113]
Decision:
1. Appeal allowed in part.
2. Set aside the verdict and judgment given by English DCJ for the Plaintiff in the sum of $192,721.
3. In lieu of the judgment referred to in Order 2, enter judgment for the Plaintiff in the sum of $92,721.
4. Otherwise dismiss the appeal.

Catchwords:
TORTS – negligence – duty of care – breach of duty –child at day care centre was allowed to climb on balance beam with shoes on incorrect feet – beam exceeding height prescribed in regulations by 50 mm

TORTS – negligence – common law causation – whether failure to detect incorrect footwear materially contributed to accident – whether height of beam materially contributed to accident – whether plaintiff sustained any head injury in the accident
DAMAGES – past and future economic loss – buffer – whether finding plaintiff had suffered loss of earning capacity supported by evidence
Legislation Cited: Centre Based and Mobile Child Care Services Regulation (No. 2) 1996 (NSW)
Children (Care and Protection) Act 1987
Civil Liability Act 2002 (NSW)
Cases Cited: Adelaide Stevedoring Company Ltd v Forst [1940] HCA 45; 64 CLR 538
Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36
Bendix Mintex Pty Ltd v Barnes, (1997) 42 NSWLR 307 (1997) 42 NSWLR 307;
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Betts v Whittingslowe [1945] HCA 31; 71 CLR 637
Fox v Percy [2003] HCA 22; 214 CLR 118
Graham v Baker [1961] HCA 48; 106 CLR 340
Jones v Dunkel [1959] HCA 8; 101 CLR 298 Leichhardt Municipal Council v Montgomery [2005] NSWCA 432
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1
March v Stramare (E & MH) Pty Ltd [1990] HCA 12; 171 CLR 507
McGhee v National Coal Board [1973] 1 WLR 1
Penrith City Council v Parks [2004] NSWCA 201
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) Aust Torts Reports ¶81-949
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330
Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870
State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536
Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153
Wilsher v Essex Area Health Authority [1988] AC 1074
Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460
Category: Principal judgment
Parties: Rodney Brown and Rowena Brown t/as Town and Country Children’s Centre (Appellant)
Benjamin Hewson by his tutor Sharon Hewson
(Respondent)
Representation:
Counsel:
R Cavanagh SC / S Maybury (Appellant)
MJ Cranitch SC / MB Inglis (Respondent)
Solicitors:
Meridian Lawyers (Appellant)
Commins Hendricks Pty Ltd (Respondent)

File Number(s): 2014/357408
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

7 November 2014

Before:

English DCJ

File Number(s):

2000/66058

Judgment

MACFARLAN JA: I have had the advantage of reading the judgments of Sackville AJA and Adamson J. I agree with the orders Sackville AJA proposes and with his Honour’s reasons in relation to damages and the cross-appeal. So far as the issues of negligence and causation are concerned, I agree with Adamson J in relation to the alleged negligence concerning the height of the jumping beam (and the consequential causation issue) but disagree with both of their Honours in relation to the issue of negligence concerning the plaintiff’s shoes. My view is that the plaintiff established causative negligence in respect of the shoes and for that reason (rather than the reason given by Sackville AJA) the finding in the plaintiff’s favour at first instance on liability was correct. My reasons are as follows.

The height of the beam

I agree with Adamson J that non-compliance with standards can be evidence of negligence but that such non-compliance does not of itself establish negligence. As her Honour points out, the disparity between the height for which the relevant Standard provided (500 millimetres) and the actual height of the beam (550 millimetres) was de minimus and therefore did not warrant a finding of negligence. I respectfully disagree with Sackville AJA’s description of the disparity in height as “a small but an appreciable margin” ([61]) and his Honour’s conclusion that “[g]iven the laws of physics, the increased height of the beam is likely to have had some effect on the force with which the Plaintiff came in contact with the ground” (ibid). The difference in height was in my view too small to justify this conclusion insofar as it implies that the plaintiff’s impact with the ground would have been significantly affected. This is particularly so when regard is had to the surface beneath the beam being what the New South Wales Department of Community Services Accident Report described as “well maintained grass”.
I also agree with Adamson J that were a different view taken on this issue, an inference that the negligence caused or contributed to the plaintiff’s accident could not in any event be drawn. As her Honour points out, principally by reference to the decision in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, a negligent act or omission’s increase of the risk of harm is not of itself sufficient to warrant the conclusion that that act or omission caused or contributed to a plaintiff’s injury (see [146] below). The plaintiff must go further and establish on the balance of probabilities that the risk materialised or “came home” (Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 at [29] per Giles J (Beazley JA as she then was relevantly agreeing) and [124] per Ipp JA).
Whilst the difference between the actual height and the Standard height would theoretically have increased the plaintiff’s risk of suffering an injury, the difference was so small that I do not consider that an inference that it contributed to the injury can be drawn. Unlike Sackville AJA, I therefore regard the difference in heights as so small as to be trivial.

The plaintiff’s shoes being on the wrong feet

As the primary judge noted, the plaintiff’s father gave uncontradicted evidence that when he arrived at the childcare centre shortly after the accident the plaintiff’s shoes were on the wrong feet (Judgment p 31).
The evidence of Ms Bentley, who was supervising the plaintiff at the time of the accident, included the following propositions:

It would be “entirely inappropriate” if the plaintiff was wearing his shoes on the wrong feet (Transcript p 90).

It would be “asking for trouble” to allow this to occur because having shoes on the wrong feet would affect a child’s balance “and their co-ordination and everything else” (ibid).

It was the staff’s responsibility to ensure that the children were wearing their footwear properly (ibid).

When the children finished their rest in the middle of the day, staff would ensure that they put their shoes on before going outside in the afternoon (p 89).

If the children were playing in the sandpit they would sometimes take their shoes off (p 89).

If the plaintiff had taken his shoes off to play in the sandpit, a staff member would have assisted him to put them back on (p 91). Accordingly, if his shoes “were on incorrectly, it would be the fault of the staff, one of the members of the staff” (ibid).

This evidence supports the primary’s judge’s conclusion that the defendant, through its staff, was negligent in failing to ensure that the plaintiff was wearing his shoes correctly (Judgment p 31). This follows from the children being very young (the plaintiff was aged 3½ at the time of his accident); the correct wearing of their shoes being important for their safety; the defendant, through its staff, assuming responsibility for the children’s safety; and the defendant’s acceptance that ensuring that the children were wearing their shoes correctly was part of its staff members’ duties.
The defendant’s duty was not of course absolute. Rather, it was a duty to take reasonable care. While it is conceivable that the plaintiff might have managed to take off his shoes and put them on the wrong feet, notwithstanding the exercise of reasonable care by the staff, in light of Ms Bentley’s evidence it is more probable that there was a careless oversight by a staff member, perhaps in failing to assist the plaintiff to put his shoes on correctly after playing in the sandpit.
As to causation, Ms Bentley’s evidence makes it clear that the plaintiff’s risk of having an accident was increased by his shoes being on the wrong feet because he was engaged in an activity that required balance and co-ordination and those attributes were impaired by him having his shoes on the wrong feet. Contrary to the views of the other members of the Court, I consider that it should be inferred that this increased risk came to pass and that the plaintiff’s incorrect wearing of his shoes contributed to his accident and resulting injury. Unlike Sackville AJA, I do not consider that the fact that the plaintiff appeared to jump rather than fall from the beam prevents this conclusion. Although the plaintiff jumped, his incorrectly worn footwear could well have affected his take-off from the beam as well as his landing.
Indeed, Ms Bentley said that, on the jump that led to his injury, the plaintiff did not land in the same way that he had when he had earlier jumped and that:

“… he didn’t land on his feet; he landed forward when he jumped. I don’t know what part exactly hit the grass first, but he landed and it looked awkward the way he landed, and he’s cried and screamed automatically, and I was straight to him” (Transcript p 76).

This description is consistent with the plaintiff having jumped from the beam in an unbalanced and unco-ordinated fashion as a result of his incorrect footwear and/or with him landing awkwardly for the same reason. I do not understand Ms Bentley’s reference to the plaintiff not landing on his feet as indicating that his feet did not hit the ground first but rather that, whether or not they did, he did not remain upright on his feet after the jump. Likewise, I do not regard Ms Bentley’s evidence that the plaintiff jumped as necessarily indicating that his jump involved a perfect take-off.
I do not consider that the plaintiff’s earlier execution of jumps without difficulty or injury indicates that his incorrect footwear did not contribute to his accident. Rather, it shows that he had reached an age where he was capable of effecting such jumps but that something went wrong with the jump in question. Undoubtedly, he fell because of a lack of balance and co-ordination. Those were the very attributes that were impaired by his shoes being on the wrong feet. In my view, it is therefore more probable than not that that impairment contributed to his fall: “[t]he facts proved … form a reasonable basis for a definite conclusion” to that effect (Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 305).
SACKVILLE AJA: The respondent, then aged three and a half, was injured on 10 February 1998 when he fell or jumped from a balance beam at a child care centre in Wagga Wagga. The respondent, to whom I refer as the Plaintiff, commenced proceedings by his tutor [1] in May 2000. He sought damages for negligence against the appellants, the proprietors of the child care centre.
1. The Plaintiff’s tutor was his mother. She died before the trial but by that time the Plaintiff had attained his majority.
The Plaintiff alleged that, in consequence of the accident, he fractured his left elbow and had also sustained a significant closed head injury. He claimed that the injury to his elbow caused him to suffer continuing disabilities and that the head injury was responsible for him experiencing major headaches and behavioural problems.
The case was heard in the District Court at Wagga Wagga in November 2014, sixteen years after the accident occurred. The delay in bringing the matter on for hearing was apparently the result of an agreement between the parties. In any event, no issue was taken at the trial by reason of the delay.
There was no dispute at the trial that the Plaintiff had jumped or fallen from a beam at the child care centre and had fractured his elbow in the accident. However, the appellants denied liability for any injuries sustained by the Plaintiff. In addition, they disputed that the Plaintiff had suffered a head injury in the accident or that any of his ongoing neurological or behavioural problems were attributable to the accident.
The primary Judge (English DCJ) delivered judgment three days after the hearing concluded. [2] As her Honour pointed out, the accident pre-dated the enactment of the Civil Liability Act 2002 (NSW) and thus the Plaintiff’s claim had to be determined in accordance with common law principles.
2. Hewson By His Tutor Hewson v Brown & Brown T/As Town & Country Childrens Centre (District Court (NSW), 7 November 2014, unrep) (Primary Judgment).
The Primary Judgment is not entirely clear as to the precise nature of the appellants’ breach of duty. However, Mr Cavanagh SC, who appeared with Mr Maybury for the appellants, accepted that her Honour found that the appellants had breached their duty of care to the Plaintiff in two respects. First, they had placed the “offending balance beam” at least 550 mm above the ground, without providing a soft fall base in accordance with the regulations in force at the relevant time. Secondly, the appellants had failed to ensure that the Plaintiff’s shoes were on his correct feet when he climbed onto the balance beam.
Although the primary Judge found that the appellants had breached the duty of care they owed to the Plaintiff, her Honour did not accept that the Plaintiff had injured his head in the accident. Accordingly, her Honour found that the Plaintiff was not entitled to damages for any neurological or behavioural problems he had experienced.
In assessing damages, the primary Judge found that the Plaintiff, who wished to complete his apprenticeship as a mechanic, might be at a disadvantage in the open labour market as a result of an ongoing disability in his elbow. On this basis, her Honour assessed damages at $192,721, made up as follows:

General damages $ 60,000.00

Interest on general damages $ 32,721.00

Buffer for past and future economic loss $100,000.00

Total: $192,721.00

The appellants challenge the finding that they were negligent. Even if the finding stands, they contend that the primary Judge erred in finding that the Plaintiff suffered any continuing injuries or disabilities attributable to the accident.
The Plaintiff has filed a cross-appeal in which he challenges the primary Judge’s rejection of his claim to have suffered a significant injury to his head as a consequence of falling or jumping from the beam.

the primary judgment

The primary Judge did not give a precise description of the balance beam from which the Plaintiff either fell or jumped. An expert report prepared on behalf of the appellants stated that the beam rested on two trestles, each of which was 60 cm in height and constructed of powder coated galvanised steel. The beam itself was made of “strong plastic material” and was 2.4 metres in length. A photograph of the beam when placed on the trestles suggests that it sagged towards the middle.
The Plaintiff gave evidence but not surprisingly had no recollection of the accident. The only witness who saw the accident was Ms Bentley, an experienced child care worker.
The primary Judge found that Ms Bentley was an impressive witness and that her account of the accident was reliable. Her Honour noted that Ms Bentley had been mistaken in her oral evidence when she said that she was supervising the children from a nearby verandah. A note prepared by Ms Bentley (then known as Ms Allen) shortly after the accident showed that she actually observed the Plaintiff at play from a grassy area adjacent to the balance beam. In her Honour’s view, this error did not affect the overall reliability of Ms Bentley’s evidence.
Ms Bentley said that at the time of the accident, the children were playing outside under the supervision of staff. The children were permitted to choose the equipment on which they wanted to play and the Plaintiff had chosen to get up on the balance beam. Ms Bentley saw what happened from a distance of about 2.5 metres from the beam.
The primary Judge summarised Ms Bentley’s evidence as follows:

“There was a group of children climbing over the trestles, walking on the beam, bouncing on it and then jumping onto the lawn. They were talking [sic taking] turns following each other and the beam had a small amount of flex. She says she saw the plaintiff injured. He was with the group of children climbing over the trestles and walking along the beam bouncing. He had done that a couple of times. She saw him come over the trestle, walk along the beam, bound and jump, landing onto the grass. She saw him land and fall.
It looked like ‘an awkward land’. She heard him scream and she went to him immediately. He said to her he had hurt his arm. She says when his body hit the ground it was the upper part of his body, it was not his head. When she went to him he was awake and alert and crying. She cuddled him. His arm was limp. She could tell it looked unusual. Another staff member Cheryl Blake came to assist. She grabbed an icepack. Other parents were present and so too was the owner, Rowena Brown. A call was made by another staff member to the plaintiff’s parents.
She says she had a conversation with Mr Hewson [the Plaintiff’s father] when he arrived to pick up the plaintiff. She told him he was walking and jumping and hurt his arm. She filled out an accident report book which stated:
‘Lisa Addison and I, Emma Allen, were supervising the children in the large playground. The children had just had afternoon tea and were involved in free play. Benjamin Hewson was balancing on the blue plastic walking board which, was suspended between two trestles 55 cms above the lawn. [3] I was sitting on the grass adjacent to the board and saw Benjamin jump from the board, landing on his left arm. Ben cried and I sat him up to stabilise his arm. Cheryl Blake heard his cry and rushed from the children’s bathroom to assist. We moved Ben to a chair on the verandah and Cheryl and I applied icepack and bandages. Meanwhile Kylie Gumar rang his parents. Cheryl and I comforted Ben until his father arrived. A sling was applied and Ben left with his father at 4.05pm to proceed to Wagga Wagga Base Hospital.’

The entry was then signed by Emma Bentley and Cheryl Blake.”
3. The Primary Judgment quotes the report as referring to the beam as “55 millimetres above the lawn”. In fact the report says “55 cms above the lawn”.

Her Honour noted that Mr Hewson did not see the accident, but arrived at the child care centre at about 10 to 15 minutes later. On arriving at the child care centre, Mr Hewson observed that the Plaintiff’s shoes were on the wrong feet: that is, the left shoe was on the Plaintiff’s right foot, and the right shoe was on his left foot. Mr Hewson could not recall whether the Plaintiff’s shoes were of the lace up or the slip on variety. Mr Hewson estimated that the balance beam was 700 mm to 800 mm off the ground. He described the ground beneath the beam as “dry and hard with sporadic grass”.
Her Honour placed some reliance on an expert report tendered on behalf of the Plaintiff. The report, which was prepared by an architect experienced in the design of children’s playgrounds, assumed (consistently with Mr Hewson’s evidence) that the balance beam had been placed between 550 mm and 750 mm above the ground and that the area beneath the beam consisted of bare earth. The expert stated that a generally accepted standard among playground designers was a height of 500 mm, where the surface beneath the equipment consisted of bare earth. The expert considered that, in the present case, the beam exceeded the safe height.

After considering the medical evidence in detail, the primary Judge made the following findings:

The Plaintiff sustained a fracture to his left elbow:

“as a result of a jump or a fall, it matters not which, from a beam which was at least 550 mm high off the ground which had not been placed on a soft fall base in accordance with the regulations in place at the relevant time. I find that the accident result [sic - ‘resulted’] in a significant fracture, demonstrative of the need for the regulation to be rigorously adhered to.”

The appellants were negligent in failing to ensure that the Plaintiff was wearing his shoes correctly:

“Common sense would dictate that a child wearing shoes on the correct feet was also an accident waiting to happen, particularly a child walking along, bouncing and jumping off a balance beam.” (Emphasis added.)

The Plaintiff’s fracture of his elbow had caused:

“ongoing minor pain and aching ever since, initially more severe. The ongoing ache does cause him some minor impairment.”

The Plaintiff had no history of migraine-type headaches until about July or August 1999, some 18 months after the accident.

On the medical evidence, the Plaintiff was not suffering from disabling headaches from the time of the accident. Any behavioural problems he experienced did not commence until three years after the accident.

Her Honour did not accept that the Plaintiff sustained a head injury in the child care centre fall:

“There is no evidence that the plaintiff struck his head on concrete and there is no evidence that he sustained an organic brain injury as asserted by him. There is, indeed, no independent evidence of any head injury sustained as a result of the fall or, indeed, any loss of consciousness, amnesia, disorientation or confusion or any other symptom which could be expected if a child did, in fact, suffer a head injury, which has variously been described as anything from minor to a significant traumatic brain injury in some of the reports.”

The primary Judge was not satisfied that the headaches and behavioural problems experienced by the Plaintiff resulted from an injury to his head sustained in consequence of the fall at the child care centre.

The Plaintiff:

“may well be at a disadvantage in the open market as a result of his ongoing disability of his elbow and … he is entitled to be compensated in that regard.”

The Plaintiff was entitled to receive $60,000 in general damages, plus interest, and a buffer for past and future economic loss in the sum of $100,000.

submissions

The appellants’ submissions

As is often the case in appeals to this Court, the appellants’ written submissions and the oral argument presented on their behalf diverged to some extent. In the end, Mr Cavanagh pressed three arguments.
First, Mr Cavanagh submitted that the primary Judge erred in finding that the appellants had breached their duty of care by:

permitting the Plaintiff to climb onto the balance beam with his shoes on the wrong feet; and

placing the beam on the trestles in such a manner that its height exceeded the safe limit of 500 mm specified in the regulations, without ensuring that a soft fall base was in place.

Mr Cavanagh accepted that there was evidence to support the primary Judge’s finding that the Plaintiff’s shoes were on the wrong feet when he climbed onto the balance beam. However, he submitted that in the absence of evidence as to the kind of shoes the Plaintiff was wearing and the reason his shoes came to be worn incorrectly, her Honour was not entitled to find that the appellants had been negligent in failing to detect that the Plaintiff’s footwear was inappropriate.
The notice of appeal does not include a ground challenging the primary Judge’s finding that the balance beam was placed at least 550 mm above the ground. Nonetheless, in his oral submissions Mr Cavanagh challenged the finding. He submitted that the primary Judge had overlooked a report prepared by an officer of the Department of Community Services (DOCS) who visited the child care centre on 17 February 1998, six days after the accident. This report stated that the height of the equipment was “510 centimetres [sic – 510mm]” and was on well-maintained grass.
Mr Cavanagh accepted that at the time of the accident, the relevant Australian Standard (AS/NZS 4422:1996) (Australian Standard) referred to a height for play equipment of 500 mm. But he submitted that even if the beam had been placed 550 mm above ground level, the difference of 50 mm was so slight as to be immaterial. In any event, so he argued, the Australian Standard was merely a guide for child care centres and a minor contravention of the guide should not be characterised as a breach of the appellants’ duty of care. He pointed to the DOCS report, which suggested that the ground beneath the balance beam consisted of well-maintained grass.
Secondly, the appellants submitted that even if they had breached their duty of care, there was no evidence that the breach caused any injury to the Plaintiff. There was nothing to show that the “over height” of the beam made any difference to the nature of the Respondent’s fall or to the extent of his injury. Furthermore, if the Plaintiff’s shoes were on the wrong feet, there was no evidence that this contributed to the injuries he sustained, particularly as Ms Bentley had given evidence that the Plaintiff jumped from the beam and did not simply fall.
Thirdly, the evidence did not support the award of the buffer for loss of earning capacity. According to Mr Cavanagh, the Plaintiff’s own evidence did not indicate that he had experienced any problems in securing work by reason of the injury to his elbow.

The cross-appeal

In support of the cross-appeal, Mr Cranitch, who appeared with Mr Inglis for the Plaintiff, submitted that the primary Judge had given insufficient reasons for rejecting the Plaintiff’s claim for damages for injuries to his head. Mr Cranitch submitted that the primary Judge had overlooked evidence that the Plaintiff or his parents had complained of headaches shortly after the accident had occurred. In the light of this evidence, Mr Cranitch invited this Court to substitute its own finding that the accident had caused the Plaintiff to sustain injuries to his head and that these injuries led to chronic headaches and behavioural problems. In the alternative, Mr Cranitch submitted that a new trial should be ordered.

reasoning

Difficulties with the Primary Judgment

Both Mr Cavanagh and Mr Cranitch agreed that the Primary Judgment does not deal satisfactorily with certain issues. The principal difficulty is that the primary Judge did not expressly address whether any breach of duty by the appellants caused the injuries sustained by the Plaintiff in the accident. Mr Cranitch rather faintly suggested that the Primary Judgment could be read as making “implicit” findings on causation, but he acknowledged that the Primary Judgment contains no express reasoning on the point.
Her Honour appears to have assumed that if the appellants’ breach of duty consisted of failing to detect that the Plaintiff’s shoes were on the wrong feet, the state of his footwear must have contributed to his jumping or falling from the beam or perhaps to the manner in which he landed. Similarly, her Honour seems to have assumed that if the appellants’ breach of duty consisted of placing the beam on the trestles at an excessive height, the Plaintiff’s injuries could be attributed to the extra height above the accepted standard. In other words, her Honour seems to have assumed that the Plaintiff would not have been injured had he jumped or fallen from a balance beam placed no more than 500 mm above the ground.
The primary Judge’s failure to address the question of causation may explain her rather curious statement that it did not matter whether the Plaintiff jumped or fell from the beam. [4] Determining whether the Plaintiff jumped or fell might well have been very significant in deciding whether the appellants’ negligence caused the Plaintiff’s injuries. For example, if the Plaintiff fell from the beam, the fact that his shoes were on the wrong feet may well have caused him to lose his balance and thus contributed to the fall. But if the Plaintiff jumped from the beam, the state of his footwear may have had nothing to do with the jump or the way in which he landed on the ground.
4. See above at [19].
A further difficulty is that her Honour made no finding as to the composition of the surface on which the Plaintiff landed. As I have noted, her Honour referred to the Plaintiff’s expert report which assumed, on instructions, that the surface comprised bare earth. Ms Bentley’s evidence, however, was different. She described the area beneath the balance beam as “a lawn area” or a “grass area” and she was not challenged on that description. The report of the DOCS’ officer who inspected the site six days after the accident recorded that the play equipment, at that time, was on “well-maintained grass”.
For reasons that will become apparent, the composition of the ground beneath the beam is not relevant to whether the beam was placed at a height that contravened the Australian Standard. [5] But if the surface comprised well maintained grass rather than hard and dry ground, it might be more difficult to conclude that the height of the beam contributed to the Plaintiff’s injuries.
5. See below at [46] – [47].
A failure by a trial judge to deal with the significant factual issues may require a matter to be remitted for a new trial. As both Mr Cavanagh and Mr Cranitch acknowledged, this is an outcome that should be avoided if this Court can resolve the issues in dispute on the material before it. With that in mind, I turn to the issues argued on appeal.

Breach of duty

There was and could be no dispute that the appellants owed a common law duty to take reasonable care to avoid the Plaintiff sustaining injuries while he was in their care at the child care centre. I have identified the two breaches of duty found by the primary Judge. [6]
6. See above at [7].

Incorrect footwear

Once it is accepted that the Plaintiff’s shoes were on the wrong feet when he climbed on the balance beam, the primary Judge’s finding that the appellants breached their duty of care is unexceptionable. This conclusion follows from Ms Bentley’s evidence:

“Q.   Ma’am so far as the footwear was concerned, it would be entirely inappropriate if he was wearing his shoes on back to front, wouldn’t it?
A.   It would be.
Q.   It would be asking for trouble because it affects their balance and their coordination and everything else, doesn’t it?
A.   Yeah, well yes if they were on the wrong feet it would.
Q.   And it’s the responsibility of staff to ensure that they’re wearing their footwear properly, isn’t it?
A.   Yes.
Q.   You are aware, are you not, that he was wearing his shoes back to front on this day?
A.   No.
Q.   You picked up him. Didn’t you check?
A.   He wouldn’t – shoes wouldn’t not have been put on incorrectly.
Q.   Wouldn’t have –
A.   Staff would have put his shoes on correctly.
Q.   But you say he might have taken them off and put them back on again?
A.   A staff member would have assisted him put them back on if that was the case.
Q.   So, if they were on incorrectly it would have been the fault of the staff, one of the members of the staff, is that right?
A.   Yeah, if they were on incorrectly.”

This evidence demonstrates that if a young child is allowed to climb onto a balance beam with his or her shoes on the wrong feet, there is a significant risk that the child’s balance and coordination will be affected and that, in consequence, the child may fall and sustain injury. The evidence also supports the primary Judge’s finding that the exercise of reasonable care by a child care operator requires the supervising staff to check whether a child’s footwear is correct before he or she is allowed to play on a balance beam or similar equipment from which the child might fall. On the primary Judge’s findings, supervising staff at the centre failed to detect that the Plaintiff was wearing his shoes incorrectly. This failure constituted a breach of the duty of care owed to the Plaintiff.
In my opinion, the primary Judge did not err in finding that the appellants failed to exercise reasonable care in supervising the Plaintiff’s activities on the balance beam. Specifically, they failed to exercise reasonable care in that they neglected to inspect the Plaintiff’s footwear to ensure that he was wearing his shoes correctly before he was permitted to climb onto the beam.

The height of the beam

The primary Judge did not identify the regulation that the appellants breached by placing the beam (as her Honour found) more than 500 mm above the ground. Curiously, neither party referred to the relevant regulation in their submissions to this Court. Indeed, the appellants’ submissions assumed that the only relevant “guide” was the Australian Standard, which lacked the force of a regulation.
The regulatory framework at the relevant time was explained in a document in evidence, which was provided by DOCS to the Plaintiff’s solicitors. The document pointed out that the Centre Based and Mobile Child Care Services Regulation (No. 2) 1996 (NSW) (Regulation) set out the Licensing Standards applicable to a “centre based child care service”. [7] Schedule 1, cl 17 of the Regulation provided as follows:
7. This term is defined in Reg 5. I infer that the child care centre in the present case was within the definition.

“Play Equipment
(1)   Provision must be made at the premises of a service to ensure that play equipment (whether fixed or not) used on the premises does not constitute a hazard to children at the service because:
(a)   the surfacing used underneath or around the equipment does not comply with the requirements of AS/NZS 4422:1996; or
(b)   of the height from which a child can fall, or
…
(2)   Play equipment used on the premises of a service must comply with any relevant standards in force from time to time.
(3)   …
(4)   In this clause:
AS/NZS 4422:1996: means the standard published jointly by Standards Australia and Standards New Zealand under the title “Playground surfacing – Specifications, requirements and test method” and numbered AS/NZS 4422:1996, as in force on the commencement of this Regulation.”

The Australian Standard relevantly provided as follows:

“6.   Specific requirements for impact attenuation
6.1   Fall heights up to 50cm. For a free fall height up to and including 50 cm, surfacing may be used without its impact attenuation being tested. Materials such as well-maintained grass, mulch and naturally occurring sandy soils have been shown to have some limited impact attenuation functions, and are suitable for use in these situations.
6.2   Fall heights over 50 cm. For playground equipment with a free fall height of greater than 50 cm, surfacing which gives a HIC value less than or equal to 1000, and a g value less than or equal to 200 is required in the fall zone.
6.3    No impact energy attenuation. Materials such as bricks, stones, concrete, bituminous materials, macadam, timber and the like have no significant impact attenuating properties.
6.4   Impact attenuation requirements
6.4.1   General tests for the impact energy attenuation of the surface shall be carried out in accordance with Appendix A. A HIC value not exceeding 1000 or g value not exceeding 200, or both, is obtained for all existing free heights of fall.” [8]
8. There was no evidence as to the calculation of an HIC. The expression apparently refers to the time duration of head deceleration during impact.

As I have noted, the appellants submitted that if the height of the beam and the ground surface contravened the Australian Standard, the contravention was minimal. Mr Cavanagh supported this submission by challenging the primary Judge’s finding that the beam was “at least 550 millimetres high off the ground”. That finding was apparently based on Ms Bentley’s contemporaneous note, which stated that the “plastic walking board … was suspended between two trestles 55 cm above the lawn”. The words “at least” in the primary Judge’s finding may be a reference to the estimate made by Mr Hewson that the beam was set at a height of about 700 mm to 800 mm above the ground.
Ms Bentley was not asked how she measured or estimated the height of the beam and it does not appear that the Plaintiff’s father attempted to make a precise measurement of the height. As the appellants’ expert pointed out in his report, a precise estimate of the height would have been difficult in any event, because a grassed surface is not consistent and the height of the beam varied along its length.
Mr Cavanagh argued that it was unsafe to rely on the evidence of Ms Bentley or the estimate made by Mr Hewson. He submitted that the DOCS report, which was prepared six days after the accident and recorded a height of “510 cm [sic]” was more likely to be accurate. However, there was no evidence as to how the author of the DOCS report measured the height of the balance beam. Nor was there any evidence establishing that the beam remained in the precisely the same position throughout the six days following the accident.
The evidence as to the height of the balance beam is imprecise. Nonetheless, I think that the evidence is sufficient to support the primary Judge’s finding that the beam was placed at least 550 mm above the ground. In the absence of evidence that the DOCS report was based as a precise measurement of the equipment in situ, the height recorded in that report cannot be regarded as more accurate than Ms Bentley’s contemporaneous estimate or measurement of the height.
For these reasons I reject the appellants’ challenge to the finding that the balance beam was placed at least 550 mm above the ground. I interpret the words “at least” in her Honour’s finding to mean that the height of the beam was not less than 550 mm above the ground, but the height was not materially greater than 550 mm.
It is necessary to determine whether the placement of the balance beam at a height of 550 mm above the ground contravened the Australian Standard and the Regulation without the benefit of evidence as to the HIC value of the surface on which the Plaintiff landed. The language of the Australian Standard is not entirely clear as to whether a grassy surface is acceptable when the height of the beam exceeds 500 mm by a small margin. However, I construe the Australian Standard to mean that well maintained grass is acceptable as a surface for free fall heights up to 500 mm, but is not acceptable for greater heights unless “impact attenuation” has been tested.
This interpretation receives support from a “Fact File” provided by DOCS to the Plaintiff’s solicitor. The Fact File was evidently prepared by the Child Accident Prevention Foundation of Australia on the basis of the Australian Standard and endorsed by DOCS. The date of the Fact File in evidence is unclear, but it seems to have been in existence before the Plaintiff’s accident. The Fact File stated that:

“[P]layground equipment with a free fall height greater than 500mm must have soft fall material in the fall zones to cushion the impact of the fall”.

The Fact File also said that to comply with the Australian Standard:

“grass should not be used as its ability to cushion the fall is reduced because of wear and environmental conditions”.

In this state of the evidence, I am not persuaded that the primary Judge erred in finding that the height of the balance beam contravened the requirements of Sch 1, cl 17 of the Regulation. The height of the beam exceeded 500 mm by a relatively small margin, but the height was greater than that permitted by the Regulation in the absence of soft fall material having been installed. Even if the surface consisted of well-maintained grass, the evidence suggests that, unless the surface had been tested, the height of the beam did not comply with the Australian Standard and therefore did not comply with the Regulation.

The Plaintiff's case was not founded on a breach of statutory duty by the appellants, but on their failure to take reasonable care for his safety. In determining the scope of the appellants' duty and whether they failed to exercise reasonable care, the obligations imposed by the Regulation are relevant. [9] However, the fact that the appellants contravened the Regulation by placing the beam at a height greater than 500 mm without installing soft fall material or undertaking appropriate tests does not necessarily demonstrate that they failed to exercise reasonable care. It is necessary to consider whether the appellants’ acts or omissions breached their duty to exercise reasonable care to avoid physical injury to the Plaintiff while he was in their care.
9. Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 at [49] per curiam.
On the primary Judge's findings, since soft fall material had not been installed and impact attenuation tests had not been carried out, the balance beam was placed 50 mm above the height permitted by the Regulation. It is true that the height of the beam exceeded the standard specified in the Regulation by only ten per cent, but I do not think that the failure to comply with the standard can be dismissed as de minimis. When the obvious objects of the Australian Standard and the Regulation are taken into account, the appellants placed the beam at a height which exceeded the limit applicable in the circumstances by a small but an appreciable margin. Given the laws of physics, the increased height of the beam is likely to have had some effect on the force with which the Plaintiff came in contact with the ground.
It can readily be inferred that the Australian Standard, which was incorporated into the Regulation, specified safety criteria for child care centres based on an assessment of available data and the advice of experts. The criteria therefore reflected a considered, official assessment of the practices that ordinarily should be followed by child care operators in order to minimise the risk of injury to an extremely vulnerable group, namely very young children who are unable to make decisions in the interests of their own safety and who depend on the adults responsible for their care.
This does not mean that every contravention of the Regulation by a child care operator involves a failure to exercise reasonable care to avoid injury to children. All the circumstances must be considered. In the present case, for example, if the balance beam had exceeded the regulatory standard by only 10 mm, the contravention might well be regarded as trivial and, in any event, as insufficient to constitute a failure by the appellants to exercise reasonable care. Similarly, if there was evidence that the appellants appreciated that the height of the beam exceeded the regulatory standard by a small margin, but that they had taken reasonable steps to assess that the surface was sufficiently soft to provide a safe landing area, it might well be difficult to conclude that they breached their duty of care.
The appellants adduced no evidence that they made any attempt prior to the Plaintiff's accident to determine whether the height of the beam exceeded the regulatory standard. Nor did they adduce evidence that they had made an assessment that the ground beneath the beam was soft enough to provide a reasonably safe landing area if a child fell or jumped from a height greater than 500 mm. There is also nothing in the evidence to suggest that the appellants would have experienced any difficulty in placing the beam at a height no greater than 500 mm above the ground or in making an informed assessment as to whether the composition of the ground beneath the beam compensated for the absence of soft fall material. The worthwhile play activities in which the children participated could easily have been undertaken without any contravention of the applicable safety standard.
The onus is, of course, on the Plaintiff to establish that the appellants breached their duty of care. For the reasons I have given, I do not think that her Honour erred in finding that the appellants' contravention of the safety standard embodied in the Regulation provided sufficient evidence that they failed to exercise reasonable care to avoid physical injury to the Plaintiff.
I add two observations. First, the evidence of Dr Ewens does not in my opinion assist on the question of breach of duty. His report says that he was asked to assume that the beam was either 510 mm or 550 mm above the ground. However, the body of the report indicates that his opinions were based on an assumption that the height of the beam exceeded the standard by only two per cent. He seems to have made this assumption because his review of a photograph of the beam suggested to him that the estimate of height by DOCS (510 mm) was probably “more correct”. That was not the primary Judge’s finding.
Secondly, upholding the primary Judge’s finding on breach of duty is not in my respectful opinion inconsistent with the decision or reasoning of the High Court in Leighton Contractors Pty Ltd v Fox. The High Court said in that case that the Court of Appeal had erred in concluding, on the basis of a regulatory standard, that the principal contractor on a building site was under a “special or strict duty” to provide specific kind of induction training to sub-contractors. [10] The High Court pointed out that the question was whether the principal contractor had exercised reasonable care to avoid physical injury to persons coming onto the site, including other sub-contractors. [11] That question was not answered by imposing a “strict duty” on the principal contractor.
10. Leighton Contractors Pty Ltd v Fox at [50] – [51].
11. Leighton Contractors Pty Ltd v Fox at [48].
The appellants breached their duty of care not because the Regulation impose a “strict duty”, contravention of which would necessarily involve a failure to exercise reasonable care. They breached their duty of care because they failed to take reasonable measures to avoid physical injury to the children in their care, including the Plaintiff.

The cross-appeal

The finding that the appellants breached their duty of care to the Plaintiff does not establish that they are liable to compensate him for the injuries he claims he suffered in the accident. As I have noted, the primary Judge found that the Plaintiff did not sustain a head injury in the accident and thus was not entitled to damages for the physical and emotional problems attributed by him to head trauma. The cross-appeal challenges this finding.
Mr Cranitch submitted that the primary Judge misinterpreted the Plaintiff’s hospital records and thus mistakenly concluded that his parents had not informed hospital staff that the Plaintiff began to suffer headaches almost immediately after the accident. He relied principally on the notes relating to the Plaintiff’s emergency admission to the Wagga Wagga Base Hospital on 17 February 1998, six days after the accident at the child care centre. On this occasion, the plaintiff was admitted to the Hospital after he had fallen off his tricycle in the street. The notes record that he had apparently hit his head, but that the fall had not been witnessed. His symptoms on presentation included headaches and vomiting.
As the primary Judge observed, there are several sets of hospital notes relating to the admission of 17 February 1998. One set of notes refers to an “Alleged fall off Trellis (70-80 cm) height 6 days ago onto compacted ground”. These notes say that an elbow injury was sustained in the fall and that the Plaintiff experienced headaches for three days. However, the notes record that the symptoms had settled down prior to the tricycle accident.
A second set of notes, apparently prepared by a Dr Macleod, states that the Plaintiff fell off a trestle at his pre-school the previous Wednesday and sustained a fractured elbow but no other injury. These notes also say that the Plaintiff experienced headaches for three days afterwards, although the symptoms had improved over the weekend. A progress chart of the Plaintiff’s hospital admission records that he had a history of falling over a week earlier and had sustained a fractured left arm, as well as “striking head against ground”.
The primary Judge paid close attention to the hospital records and quoted from them at length. Her Honour recognised that the notes record that the Plaintiff had experienced headaches for a time after the accident at the child care centre and also record that the Hospital was told that the Plaintiff hit his head in the fall. However, her Honour considered that the notes did not justify rejecting Ms Bentley’s unequivocal evidence that the Plaintiff had not struck his head when he fell or jumped from the balance beam.
In reaching this conclusion, her Honour took into account the hospital records relating to the Plaintiff’s admission on the day of the accident and the notes concerning his return to the Hospital three days later to review the plaster cast on his arm. The primary Judge thought it significant that the hospital notes of 11 February 1998 (the date of the accident) did not refer to the Plaintiff suffering a head injury or complaining of headaches. Furthermore, the “Presenting Problem” was reported as “Fell Of [sic] Plank Landing on RT [sic] Wrist”. Her Honour also thought it significant that the hospital notes of 14 February 1998 record that the Plaintiff had been quite good since his discharge three days earlier and do not refer to any head injury or complaints of headaches.
Her Honour took into account several other matters in making the finding challenged on the cross-appeal:

When the Plaintiff’s mother reported the incident to DOCS on 17 February 1998, she referred to the elbow injury but made no mention of headaches. Her Honour considered that if the Plaintiff had been experiencing headaches that were thought to result from the accident, his mother would have been likely to mention the symptoms to DOCS.

Some of the histories provided to doctors by the Plaintiff’s family were clearly exaggerated.

According to the medical records, the Plaintiff’s history of migraines did not commence until about 18 months after the accident at the child care centre and his behavioural problems became evident only some three years after the accident.

The Plaintiff suffered a head injury six days after the accident at the child care centre.

Dr Brooder, a consultant neurologist who gave evidence on behalf of the Plaintiff, accepted that his opinion that the Plaintiff’s history of migraine could be attributed to the accident at the child care centre was entirely dependent on an assumption that the Plaintiff hit his head heavily when he fell or jumped from the balance beam.

As Mr Cranitch recognised, the primary Judge’s finding that the Plaintiff did not strike his head and did not suffer any head injuries in the accident rested largely on her Honour’s assessment of the reliability of Ms Bentley’s evidence. The evidence relied on by Mr Cranitch does not establish that Ms Bentley’s evidence was glaringly improbable, contrary to compelling inferences or inconsistent with incontrovertible facts. [12] While the evidence establishes that the medical staff were told on 17 February 1998 that the Plaintiff had suffered some headaches after the accident at the child care centre, the primary Judge took this evidence into account in making her finding. She considered that the evidence as a whole provided no basis for rejecting Ms Bentley’s clear account of the manner in which the Plaintiff struck the ground.
12. Fox v Percy [2003] HCA 22; 214 CLR 118 at [29] (Gleeson CJ, Gummow and Kirby JJ).
In my opinion, the Respondent has not established that the finding of the primary Judge was erroneous or should be set aside.

The Buffer

The findings made by the primary Judge are not easy to reconcile with her Honour’s award of $100,000 as a buffer for past and future economic loss sustained by the Plaintiff. The primary Judge found that the Plaintiff worked for two and a half years as an apprentice mechanic. Her Honour also found that it was probable that the Plaintiff left his employment of his own volition, rather than by reason of any dissatisfaction by the employer with his performance as an apprentice. The Plaintiff’s supervisor, who gave evidence on his behalf, “was supportive and was willing to mentor the [P]laintiff throughout his apprenticeship”. Furthermore, the primary Judge acknowledged that the Plaintiff had not given any evidence that he was unable to continue working because of his elbow injury or, indeed, because of the headaches he had experienced. The primary Judge also found that, after leaving his apprenticeship, the Plaintiff secured alternative employment but again chose to leave of his own volition. According to her Honour, the Plaintiff left his job because he was dissatisfied with being required to work unpaid overtime. His departure was unrelated to any issue concerning his elbow or other physical symptoms.
Mr Cranitch recognised that these findings created a difficulty for the Plaintiff, but he supported the primary Judge’s award of damages by relying on the report of Dr van der Rijt, an orthopaedic surgeon. The report, which was written in August 2004 when the Plaintiff was nine years old, stated as follows:

“It is safe for him to continue with his normal school activities and normal participation in sports. His ongoing symptoms could arise as a consequence of the supracondylar fracture or as a consequence of the osteochondritis of the capitellar epiphysis. An x-ray would be of value in assessing the probability of symptoms arising from the capitellar osteochondritis condition.”

Mr Cranitch also relied on the report of a surgeon, Dr Miller, dated 30 April 2014. This report, which was prepared at the request of the Plaintiff’s solicitors, recorded the following claims by the Plaintiff:

“In regard to his left elbow, he claims it still aches, especially in the cold. He also notices discomfort when he uses his left arm repetitively in a forceful manner.
He claims he experiences pain if he bumps his olecranon.”

The evidence relied upon by Mr Cranitch must be assessed in the light of the primary Judge’s unchallenged findings (recorded above) and the other evidence bearing on the consequences of the elbow injury. The Plaintiff gave the following evidence in cross-examination:

“Q.   You gave some evidence just a little while ago about your left arm, and I just want to be clear about the difficulties you have with it. You said that it aches in the cold weather?
A.   Yep.
Q.   And I wasn’t sure, but is the effect of that aching that it inconveniences you but you do your normal activities anyway?
A.   Yeah, I can still do, do everything fine. Its just a bit of pain in the arm.
Q.   It’s just painful to do some of those things?
A.   Yeah.
Q.   And so for example, with work, you were working as an apprentice mechanic for two and a half years?
A.   Yep.
Q.   You were able to keep doing that through winter?
A.   Yeah, I could do that.
Q.   Without any particular difficulty in relation to your left arm?
A.   Yeah.
Q.   Do you take medication when your left arm hurts at all?
A.   No. I usually just push through most of the pain.
Q.   You just put up with it?
A.   Yeah.
Q.   And have you had any treatment in relation to your left arm since basically it came out of a cast, as far as you can remember?
A.   No, not that I can remember.”

In a report prepared about a year before his April 2014 report, Dr Miller recorded the following:

“Today in my rooms he [the Plaintiff] claims he has minor discomfort in his left elbow in cold temperatures and sometimes when he uses his left upper extremity to perform strenuous activity. He claims however that his ‘problems are minimal’”.

It is significant that in the earlier report, Dr Miller expressed the following opinion:

“In regard to his left elbow, it would not appear there any restrictions that will occur in regard to his ability to work or engage in social activities”.

In his April 2014 report, Dr Miller, despite recording the complaints made by the Plaintiff, reaffirmed the opinion expressed in his earlier report. Dr Miller therefore adhered to the view that the Plaintiff will not experience any restrictions as the result of his left elbow injury, either in relation to his ability to work or to his involvement in social activities.
Damages for past and future economic loss are awarded to an injured plaintiff because his or her diminished earning capacity is or may be productive of financial loss. [13] In order to determine a plaintiff’s lost earning capacity and to assess the sum required to put the plaintiff in the same position he or she would have been in had the injury not been sustained, it is necessary to identify the earning capacity that has been lost and the economic consequences that will flow from that loss. [14]
13. Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) Aust Torts Reports ¶81-949 at [81] (McColl JA, Mason P and Beazley JA agreeing), citing Graham v Baker [1961] HCA 48; 106 CLR 340 at 347 (Dixon CJ, Kitto and Taylor JJ).
14. Pollard v Baulderstone Hornibrook Engineering Pty Ltd at [81].
It is no barrier to a plaintiff’s claim for damages that it may be very difficult to assess the extent of his or her loss. Evaluating the worth of a loss of capacity to earn is usually an imprecise inquiry. [15] Provided that the plaintiff has proved that his or her earning capacity has been reduced, a Court is not entitled to abandon the task of assessing damages because the evidence is meagre or imprecise. [16] The award of a “buffer” may be appropriate if the impact of the injury upon the plaintiff’s earning capacity is difficult to determine. [17]
15. State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [71] (Heydon J).
16. State of New South Wales v Moss at [87]. See also at [64], pointing out that the plaintiff in that case had an undoubted entitlement to some damages for economic loss.
17. Penrith City Council v Parks [2004] NSWCA 201 at [5] (Giles JA, Cripps AJA agreeing).
There is, however, an important qualification. A plaintiff must establish, on the balance of probabilities, that he or she has suffered some loss of earning capacity. The difficulty confronting the Plaintiff in the present case is that the evidence does not established that he has suffered a loss of earning capacity by reason of the injury to his elbow.
The fact that a plaintiff has not suffered any loss of income or capacity to earn income prior to the trial does not necessarily mean that his or her injuries have not produced a loss of earning capacity. The injuries may be such, for example that there is a small but significant risk that the injuries will create an incapacity sometime in the future, perhaps the distant future. [18] But in this case the evidence goes well beyond the Plaintiff’s concession in evidence that his elbow injury had not prevented him from working prior to or at the date of the trial. In particular, Dr Miller stated unequivocally that in his opinion the Plaintiff would not experience restrictions in the future in his ability to work by reason of the injury to his elbow. (Dr Miller took a very different view of the consequences of the Plaintiff’s neurological and behavioural issues for his ability to obtain employment).
18. Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [2] (Mason P).
The report of Dr van der Rijt, upon which Mr Cranitch relied, was prepared ten years before Dr Miller’s second report. In any event, Dr van der Rijt’s report does not provide a sound basis for concluding that the Plaintiff’s elbow injury created a risk that he might be precluded from working in the future. Perhaps not surprisingly given the Plaintiff’s age at the time, Dr van der Rijt’s report did not address the likely impact of the elbow injury on the Plaintiff’s future earning capacity.

In my opinion, the Plaintiff failed to establish that he had lost some earning capacity in consequence of the injuries sustained in the accident at the child care centre. It was therefore not open to the primary Judge to award a “buffer” for past and future economic loss. That award should be set aside.

Causation

The principles

Since the Plaintiff’s case is to be determined according to common law principles,[19] the question of causation is governed by the principles stated in March v Stramare (E & MH) Pty Ltd (March). [20] It is sufficient for a plaintiff to prove that his or her injuries were “caused or materially contributed to” by the defendant’s conduct. [21]
19. See now Civil Liability Act 2002 (NSW) s 5D.
20. [1990] HCA 12; 171 CLR 506 (Mason CJ, Toohey and Gaudron JJ agreeing).
21. March at 514.
In March, the majority of the High Court rejected the “but for” test as the exclusive criterion for determining causation in negligence cases. The majority recognised that the “but for” test can be a useful aid in determining whether something should be regarded as an effective cause of something else. In particular, the test will usually exclude causation for the purposes of the law of negligence if the accident which caused the injuries would have occurred in the same way even if the defendant had not been negligent. However, whether conduct is a cause of injury:

“remains to be determined by a value judgment involving ordinary notions of language and common sense”. [22]
22. March at 524 (Deane J, with whom Gaudron J agreed). See also at 515 – 517 (Mason CJ, Toohey and Gaudron JJ agreeing).

It is the plaintiff who bears the onus of establishing that the defendant’s breach of duty caused or materially contributed to the injuries. Causation is not established by the plaintiff showing that it was possible that the defendant’s default caused the injuries. Nor does it suffice merely to show that the breach of duty was followed by the injuries to the plaintiff. [23]
23. See Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 (Bendix) at 315 (Mason P) and cases cited there.
The expert evidence adduced by the parties did not address whether each of the two breaches of duty found by the primary Judge could be regarded as a cause of the elbow injury sustained by the Plaintiff. In the absence of such evidence, Mr Cranitch relied on the principle applied in Adelaide Stevedoring Company Ltd v Forst. [24] In that case, a waterside worker collapsed and died shortly after undertaking strenuous physical tasks at his workplace. The cause of death was coronary thrombosis, but the medical evidence was inconclusive as to the relationship between his exertion at work and the onset of the heart attack. The evidence suggested that coronary thrombosis could not generally be attributed to exertion, but exertion could be the cause in a particular case.
24. [1940] HCA 45; 64 CLR 538.
The majority upheld a finding that the worker’s death arose out of and in the course of his employment. Rich ACJ said that he could not see why: [25]

“a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology … why should not a court say that here is a strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death?”
25. Adelaide Stevedoring Company Ltd v Forst at 563.

In Betts v Whittingslowe,[26] a 14 year old boy was injured when feeding material into a power press. The power press was equipped with a shield, and there was no reliable evidence as to how the boy’s hand came to be trapped in the machine. Dixon J found that, although the shield was in place, the machine was not securely fenced or guarded in contravention of the relevant regulations. His Honour applied the principle: [27]

“that the breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty”.

In his Honour’s view, the facts warranted no other inference inconsistent with liability on the part of the defendant. [28]

26. [1945] HCA 31; 71 CLR 637.

27. Betts v Whittingslowe at 649.

28. The principle stated by Dixon J was applied by French CJ in Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36 at [49] – [51].

Failing to detect incorrect footwear

In considering whether the principles stated in these cases assist the Plaintiff, it is necessary to distinguish that between the two breaches of duty found by the primary Judge. It will be recalled that the first breach was the failure to detect that the Plaintiff was wearing his shoes on the wrong feet when he climbed onto the balance beam.
Ms Bentley’s evidence established that the appellants’ breach of duty increased the risk that the Plaintiff would fall off the beam, for example by losing his balance or tripping while attempting to walk on the beam. But there is nothing in her evidence, or that of any other witness, to suggest that the state of the Plaintiff’s footwear increased the risk of injury if he jumped from the balance beam. Ms Bentley agreed that if the Plaintiff’s shoes were on the wrong feet it would “affect [his] balance and … coordination and everything else”. She was not asked, however, whether the state of his footwear would have affected him if he jumped from the beam rather than falling from the beam after losing his balance or stumbling.
In my view, if the Plaintiff jumped and did not fall from the beam, he has not established that the state of his footwear materially contributed to the injuries he sustained in the accident. The danger or risk created by his footwear was not shown to be a contributing factor either to the manner in which the Plaintiff jumped from the balance beam or the manner in which he landed on the ground. In other words, on the assumption that the Plaintiff jumped from the beam, the appellants’ breach of duty contributed to the risk that the Plaintiff would sustain an accident, but not to the risk that he would sustain this accident. [29]
29. See Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 at [25] (Gummow, Hayne and Heydon JJ).
As I have noted, the primary Judge made no finding as to whether the Plaintiff jumped or fell from the beam. Ms Bentley, whose evidence the primary Judge accepted, was quite clear that the Plaintiff jumped from the beam, as he had on at least two previous occasions during the play session. Indeed, Ms Bentley was not challenged on this evidence. It follows, in my opinion, that the question of causation has to be approached on the basis that the Plaintiff jumped from the beam. On this basis, the Plaintiff has not established that the appellants’ breach of duty in failing to detect the state of his footwear materially contributed to the injuries he sustained in the accident.

Excessive height

The second breach of duty by the appellants was placing the balance beam at a height of 550 mm above the ground without ensuring that the surface underneath the beam complied with the requirements of the Australian Standard. The Australian Standard and the Regulation were clearly designed to limit, if not eliminate the risk of injury to young children coming in contact with the ground while using play equipment. As I have noted, the terms of the Australian Standard reflected an assessment that if the height of the play equipment was greater than 500 mm above the ground, there was an unacceptable risk of injury to a child unless the composition of the surface met specified requirements.
The risk addressed in the Australian Standard could have materialised whether a child fell from the equipment or jumped. Indeed, the risk of injury might be even greater if a child jumps from the equipment instead of falling off the equipment. A jump from a beam, for example, characteristically involves a child achieving a slightly higher elevation than a fall resulting from a loss of balance or a stumble.
The Plaintiff bore the burden of proving on the balance of probabilities that the appellants’ breach of duty caused or materially contributed to his injuries. The fact that the appellants’ breach of duty increased the risk of injury to the Plaintiff does not shift the onus to the appellants to prove that their actions did not cause or materially contribute to the Plaintiff’s injuries. The onus of proof always remains with the Plaintiff.
It is of course, possible that if the Plaintiff had jumped from the beam 500 mm above the ground, he would have landed in precisely the same way and suffered precisely the same injuries. Nonetheless, I think that the evidence sparse as it is, is sufficient to establish on the balance of probabilities that the appellants’ breach of duty materially contributed to the Plaintiff’s injuries.
The very point of the Australian Standard and the Regulation was to reduce the risk that a child would be injured by falling or jumping from play equipment such as the balance beam. The accident that occurred and the injuries the Plaintiff sustained were of precisely the kind that the Australian Standard and the Regulation were designed to prevent. Those framing the Australian Standard and Regulation did so on the basis of an assessment that if a child falls or jumps from a height greater than 500 mm otherwise than onto a soft fall surface (a technical term), there is an increased risk that the child will sustain injury.
The fact that a defendant’s breach of duty created a risk that the plaintiff would suffer harm may not be of great assistance in cases where the issue is which (if any) of two or more risk-creating events contributed to the harm sustained by the plaintiff. Bendix, to which Adamson J refers, was such a case. There, the plaintiff, who suffered from mesothelioma, had been exposed to asbestos in the course of two separate employments. The question was whether one of the two undoubted exposures had been shown to have materially contributed to his condition.
In the present case, there is no doubt that the Plaintiff was injured when he jumped or fell from the beam. No third party’s breach of duty could have contributed to the Plaintiff’s injuries. The only issue is whether the appellants’ breach of duty in placing the beam at an excessive height and allowing the Plaintiff to jump from that height materially contributed to his injuries.
In these circumstances, I think it is appropriate to apply the principle stated by Dixon J in Betts v Whittingslowe. As I have noted, the increased height of the beam from which the Plaintiff jumped is likely to have had some effect on the force with which he came into contact with the ground. Moreover, even a small increase in the height of the beam is likely to have resulted in a change, albeit small, in the position of his elbow when he struck the ground I therefore think it is appropriate to infer that it is more likely than not that the Plaintiff’s injuries were materially contributed to by the extra height from which he jumped, a situation brought about by the appellant’s breach of duty.
As Adamson J has pointed out, Kiefel J in Roads and Traffic Authority v Royal stated that the observations of Dixon J in Betts v Whittingslowe were referable to the circumstances of that case. [30] However, I do not understand Kiefel J to have suggested that it is never appropriate to draw the inference identified by Dixon J. In the circumstances of the present case, where the appellants’ breach of duty created a risk of injury appreciably beyond that which would otherwise have existed and an injury occurred of the kind that would be caused if that very risk materialised, an inference is available that the appellants’ breach of duty materially contributed to the Plaintiff’s injuries.
30. [2008] HCA 19; 245 ALR 653 at [139]
I therefore conclude that the appellants’ breach of duty in placing the beam at a height greater than that specified in the Australian Standard, materially contributed to the Plaintiff’s elbow injury. Causation is therefore established.

Conclusion

The appellants did not challenge the award of $60,000 by way of general damages if this Court upheld the finding of breach of duty and rejected the appellants’ submission on causation. Nor was there any challenge to the award of interest on the general damages.
I therefore propose the following orders:

1. Appeal allowed in part.

2. Set aside the verdict and judgment given by English DCJ for the Plaintiff in the sum of $192,721.

3. In lieu of the judgment referred to in Order 2, enter judgment for the Plaintiff in the sum of $92,721.

4. Otherwise dismiss the appeal.

As both parties have had some success on the appeal, in my view there should be no order as to the costs of the appeal.
ADAMSON J: I have had the benefit of reading the draft reasons of Sackville AJA. I adopt his Honour’s summary of the primary judge’s reasons. I agree with his Honour’s reasons as to damages and the cross-appeal. My reasons for coming to a different view on the question of liability are set out below.

Liability

On 11 February 1998 the respondent (the plaintiff), who was then three years old, fractured his elbow when he jumped onto the grass from a raised beam which had been erected in the child care centre operated by the appellants (the defendants) which he was attending.
In 2000, the plaintiff, by his tutor, commenced proceedings in the District Court at Wagga Wagga for damages against the defendants. As the statement of claim was filed prior to the commencement of the Civil Liability Act 2002 (NSW), the common law applies.
The proceedings were heard in 2014 by English DCJ. Her Honour found the defendants liable and assessed damages at $192,721, which comprised $60,000 for general damages; $32,721 for interest on general damages; and a buffer for past and future economic loss of $100,000. The defendants appealed to this Court on liability and damages. The plaintiff cross-appealed on damages.
Her Honour’s findings on liability are to be found in the following extract from the reasons:

“The plaintiff, in submissions, submits that the facts of this accident speak for themselves. I would not disagree. I find that the plaintiff sustained a fracture to his left elbow as a result of a jump or a fall, it matters not which, from a beam which was at least 550 millimetres high off the ground which had not been placed on a soft fall base in accordance with the regulations in place at the relevant time. I find that the accident result[ed] in a significant fracture, demonstrative of the need for the regulation to be rigorously adhered to.
Further, I find the defendant was negligent in failing to ensure that the plaintiff was wearing his shoes in the correct fashion. The uncontracted evidence is that, when his father arrived within minutes of being notified of the accident, he observed the plaintiff to be wearing his shoes on the wrong feet. Common sense would dictate that a child wearing shoes on the incorrect feet was also an accident waiting to happen, particularly a child walking along, bouncing and jumping off a balance beam.”

The primary judge accepted the evidence of Ms Bentley, the only witness to the accident, who said that the plaintiff had jumped from the beam. Accordingly, although there was no specific finding to that effect in the passage extracted above, it can be inferred from her Honour’s reasons that she accepted that the plaintiff jumped from the beam.
The primary judge’s findings of breach were not expressed in terms. However, the defendants accepted that the finding of liability was based on the following two breaches:

positioning a beam at a height greater than 500mm above ground that, although grassed, did not constitute a “soft fall” base; and

failing to ensure that the plaintiff was wearing his shoes in the correct fashion.

The first breach can be expressed in two different ways: positioning the beam at a height greater than 500mm above the ground over a surface of well-maintained lawn; or failing to install soft fall surface material under the beam, given that it was at a height above 500mm above the ground. These are, in substance, two sides of the same coin.

The evidence of Ms Bentley (nee Allen)

As the primary judge accepted the evidence of Ms Bentley, the only witness to the accident, it is necessary to address her evidence in some detail. Ms Bentley gave evidence that she was on the verandah watching the children on the grassed area. She described the children climbing over the trestle; walking along the long beam, which had a degree of give in it which permitted them to bounce; and then jumping on the lawn. The children were taking it in turns to climb over the trestle and onto the beam. The plaintiff had already done a couple of rounds of the beam before, on the third round, he jumped onto the lawn and injured himself. Whereas previously, he had landed on his feet, on this occasion he landed awkwardly. His body hit the ground but not his head. Ms Bentley observed that his left arm looked “unusual”. Ms Bentley was only about two and a half metres from the plaintiff when he fell. The plaintiff immediately complained about his left arm and burst into tears.
Ms Bentley moved the plaintiff to the verandah. She learned that another staff member had rung the plaintiff’s parents. When the plaintiff’s father came to collect him, Ms Bentley told him what had happened. The equipment on which the plaintiff had been playing when he fell was left in situ until the following day when it was measured. Shortly after the incident, Ms Bentley filled in the incident report book which read as follows:

“Date: 11.2.98
Time: 3.50pm
Re: Benjamin Hewson
Lisa Addison and I Emma Allen [now Bentley] were supervising the children in the large playground. The children had just had afternoon tea and were involved in free play.
Benjamin Hewson was balancing on the blue plastic walking board which was suspended between two tressels [sic, trestles] 55cm above the lawn.
I was sitting on the grass adjacent to the board and saw Benjamin jump from the board landing on his left arm.
Ben cried and I sat him up to stabilise his arm. Cheryl Blake heard his cry and rushed from the children’s bathroom to assist. We moved Ben to a chair on the verandah and Cheryl and I applied ice-pack and bandages. Meanwhile Kylie Gumar rang his parents. Cheryl and I comforted Ben until his father arrived. A sling was applied and Ben left with father at 4.05pm to proceed to W.W.B.H. [Wagga Wagga Base Hospital]
Staff Signature – (Emma Allen [now Bentley])
Cheryl Blake)”

The only discrepancy in Ms Bentley’s evidence (which I regard as immaterial) was that she recorded in the incident report that she had been sitting on the grass whereas she gave oral evidence that she had been sitting on the verandah.
In cross-examination, Ms Bentley was cross-examined about the plaintiff’s shoes. When she was asked whether she checked to see that he was wearing appropriate footwear, she answered:

“No. I could not say whether he had shoes on or not.”

Later Ms Bentley said:

“Before we go outside in the afternoons we would make sure that after they got up from their rest that we would put their shoes on, and they are on enrolment at the service they are told to wear a suitable shoe to day care, whether it be a jogger or a sandal, so we would then place their shoes on but then if they went out into the playground and they were in the sand pit, on occasions they would take their shoes off at the sandpit, if they were playing in the sandpit, and then not put their shoes on until later.”

She was further cross-examined about the shoes as follows:

“Q.   Ma’am so far as the footwear was concerned, it would be entirely inappropriate if he was wearing his shoes on back to front, wouldn’t it?
A.   It would be.
Q.   It would be asking for trouble because it affects their balance and their coordination and everything else, doesn’t it?
A.   Yeah, well yes if they were on the wrong feet it would.
Q.   And it’s the responsibility of staff to ensure that they’re wearing their footwear properly, isn’t it?
A.   Yes.
Q.   You are aware, are you not, that he was wearing his shoes back to front on this day?
A.   No.
Q.   You picked him up, didn’t you check?
A.   He wouldn’t – shoes wouldn’t not have been put on incorrectly.
Q.   Wouldn’t have--
A.    Staff would have put his shoes on correctly.
Q.   But you say he might have taken them off and then put them back on again?
A.   A staff member would have assisted him put them back on if that was the case.
Q.   So if they were on incorrectly it would be the fault of the staff, one of the members of the staff, is that right?
A.   Yeah, if they were on incorrectly, yes.
Q.   And I suggest to you that what happened was, he was wearing them incorrectly. He was trying to emulate the other boy who’d been walking backwards and he slipped and fell, didn’t he?
A.   No. No.”

The DOCS report

On 17 February 1998, the plaintiff’s mother rang the Department of Community Services (DOCS) to report the accident. On the following day, 18 February 1998, Patricia McLeod, of DOCS, visited the child care centre to inspect the location of the plaintiff’s fall and “check that all Regulations were being observed when the accident took place”. The DOCS report relevantly recorded:

“Height of equipment was 510 [sic, 51] centimetres but was on well maintained grass not soft fall.”

The “action” recommended included “that the soft fall requirement as per the Regulations was to be observed as a matter of priority”.

The content of the duty

The duty that the defendants owed to the plaintiff was a duty to take reasonable care to avoid the risk of injury to him. It was not to ensure that he did not suffer injury. Although the Civil Liability Act does not apply, questions of the social utility of the activity that caused the harm were also relevant under the common law: see generally Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460.
It was common ground that, as Dr Ewens, the defendants’ expert put it:

“falls are a natural part of play and are important to the learning process. That risk is a significant factor in play.”

Thus, the duty was not merely to take reasonable care to prevent a risk of injury, since, had the avoidance of risk of injury been the overriding consideration, children such as the plaintiff would not have been permitted, much less encouraged, to play and to test their balance and jumping and landing skills by walking along an elevated beam.

Relevant legislative provisions

Clause 6 of Schedule 1 to the Children (Care and Protection) Act 1987 relevantly provided:

“6 Conditions of licence or authority
A licence or authority is subject to:
(a) any condition prescribed by the regulations for licences or authorities or for a class of licences or authorities to which the licence or authority belongs, and
. . .”

Regulation 15 of the Centre Based and Mobile Child Care Services Regulation (No. 2) 1996 (NSW) relevantly provided:

“15 Conditions of licence for service
(1) Prescribed conditions
For the purposes of clause 6 of Schedule 1 to the Act, subclauses (2)–(8) are prescribed as conditions for licences for services.
. . .
(5) Licensing standards—responsibility of licensee of centre based child care serviceThe licensee of a centre based child care service must ensure that the grounds and buildings of the premises at which the service is provided and any equipment and amenities used in providing the service comply with the licensing standards set out in Schedule 1 (other than clause 7 (5) and 8 (2)) that are applicable to the service.
(6) Licensing standards—responsibility of licensee of mobile child care serviceThe licensee of a mobile child care service is to take all practicable steps to ensure that the grounds and buildings of the premises at which the service is provided and any equipment and amenities used in providing the service comply with the licensing standards set out in Schedule 1 (other than clause 7 (5) and 8 (2)) that are applicable to the service.
. . .”

Schedule 1 of the Centre Based and Mobile Child Care Services Regulation (No. 2) 1996 (NSW), which was accepted to apply to the defendants’ child care centre, provided:

“17 Play equipment
(1) Provision must be made at the premises of a service to ensure that play equipment (whether fixed or not) used on the premises does not constitute a hazard to children at the service because:
(a) the surfacing used underneath or around the equipment does not comply with the requirements of AS/NZS 4422:1996, or
(b) of the height from which a child can fall, or
(c) of the likelihood that a child can be trapped, pinched or crushed in the equipment or struck by it, or
(d) of sharp or rough edges and projections or rust, or
(e) of lack of stability.

(2) Play equipment used on the premises of a service must comply with any relevant standards in force from time to time.
(3) Play equipment used on the premises of a service must be safe and in good repair.
(4) In this clause:
AS/NZS 4422:1996 means the standard published jointly by Standards Australia and Standards New Zealand under the title “Playground surfacing—Specifications, requirements and test method” and numbered AS/NZS 4422:1996, as in force on the commencement of this Regulation.”

The relevant standard is AS/NZS 4422:1966 which, in Appendix E, makes provision for “Specific Requirements for Impact Attenuation”. Clause 6 of Appendix E provides:

“6   SPECIFIC REQUIREMENTS FOR IMPACT ATTENUATION
6.1   Fall heights up to 50cm For a free fall height up to and including 50cm, surfacing may be used without its impact attenuation being tested. Material such as well maintained grass, mulch and naturally occurring sandy soils have been shown to have some limited impact attenuation functions, and are suitable for use in these situations.
6.2   Fall heights over 50 cm    For playground equipment with a free fall height of greater than 50 cm, surfacing which gives a HIC value less than or equal to 1000, and a g value less than or equal to 200 is required in the fall zone.
. . .”

The primary judge’s findings of negligence with respect to the height of the beam and the nature of the ground surface

The primary judge’s findings on causation were relatively scant. Her Honour appears to have considered that the relatively slight non-compliance between the height of the beam and the standard, on the one hand, and the ground surface of well-maintained lawn rather than a “soft fall surface”, on the other, amounted to negligence and that the non-compliance was causative of the accident. Her Honour also found that the defendants were negligent in failing to ensure that the plaintiff was wearing his shoes in the correct fashion.
The primary judge appears to have reasoned on the erroneous basis that non-compliance with the regulations established negligence. While non-compliance with standards can amount to evidence of negligence, such non-compliance does not, of itself, establish negligence or, indeed, liability on another basis. The standards in this case are no more than conditions of a licence, breach of which could lead to its removal. Although it would be open to Parliament to enact provisions, breach of which gives rise to strict liability, there are no such provisions that apply in the present case.

Whether negligence was established

In Leighton Contractors Pty Limited v Fox [2009] HCA 35; 240 CLR 1, the High Court considered the relationship between breaches of statutory duty and the law of negligence. The Court said, at [49]:

"The obligation imposed on Leighton under the Regulation, while not founding an action for breach of statutory duty, is central to the Court of Appeal's conclusion that a common law duty existed. While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law. This is because, as Gummow J explained in Roads and Traffic Authority (NSW) v Dederer [(2007) 234 CLR 330 at 345 [43]; [2007] HCA 42], 'whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden'.”

In the present case the disparity between the permissible height and the actual height was no more than 50mm, or 10% (and possibly only 20mm, or 2%). It is difficult to conclude that this disparity per se amounts to negligence. This is particularly so when the area beneath the beam, although not a “soft fall” surface (as defined), was “well grassed” and therefore afforded some impact attenuation. Moreover, the unevenness of the ground meant that measurements could vary along the beam or by reference to the state of the ground on a particular day.
The evidence of Dr Ewens (who was not cross-examined) included the following:

“Balance beams are considered appropriate equipment for the development of gross motor capacity of young children.
. . .
One might question the exactitude of this measurement [the clearance of the beam from the ground], given that the equipment is portable and was situated on a grassed surface. The nature of the grassed surface is not consistent and therefore precise measurement, in situ, would be difficult. A series of measurements along the beam may have given a mean height that would meet the standard. Even so, a 2% variation is an acceptable tolerance in measurements of the magnitude involved.
Well maintained grass is an acceptable under surface for equipment of this type.
As the equipment use involves mounting and dismounting, it is my opinion that grass gives a more stable, yet safe surface than mulch, sand or soft gymnastic mats.”

In my view, the primary judge elided the distinction between a de minimus breach of a licence condition (that the height is likely to have exceeded 500mm) and a breach of the duty of care that the defendants owed to the plaintiff. This error infected the finding of breach of duty on the basis of the height of the beam and the surface underneath, which cannot, in my view, stand.

Causation

It is necessary to address the question of causation as I have come to a different view on liability than Sackville AJA. For the reasons given below I do not consider that the plaintiff has established that, even if the defendants were negligent, their negligence caused the plaintiff’s injury.
The determination of causation requires consideration of the counterfactual. In the present case, the primary judge would need to consider whether, had the beam been 499mm above the grass, or 510mm above soft fall ground (as recorded by Ms McLeod in the DOCS report), or 550mm above soft fall ground (as recorded in the incident book by Ms Bentley), the result would have been any different. There was no such consideration of the relevant counterfactuals; nor was there any evidence to establish the proposition for which the plaintiff contended. Although grass does not qualify as a soft fall surface for the purposes of the standard, there were no tests conducted of the impact attenuation of the grass on the defendants’ premises or any comparison between such attenuation and any soft surface. Nor was any attempt made to calculate the difference to the relative force of a fall that 10mm or 50mm would make. As Sackville AJA has said, one might infer from the laws of physics that the increased height of the beam is likely to have had some effect on the force with which the plaintiff came into contact with the ground, absent any evidence about the magnitude of the difference that 50mm would have made, no inference of materiality can be drawn, particularly in light of the absence of any evidence as to the impact attenuation of well-grassed lawn.
The defendants relied on the following evidence of Dr Ewens (who was not cross-examined):

“It is unlikely, that if Benjamin [the plaintiff] had lost control and landed on his arm, that other under surface material, recommended, would have saved Benjamin from his injury.”

Even if that evidence was inadmissible, it was for the plaintiff to discharge the onus of proof, which required him to establish that, but for the breach, he would not have suffered the injury (or, in other words, because of the breach, he suffered the injury). The plaintiff did not, in my view, discharge the onus he bore.
I do not consider that the primary judge’s finding should be upheld. That an act or omission may have increased the risk of harm is insufficient to establish that it caused or materially contributed to the harm that ensued. The relevant principles were summarised by Mason P in Bendix Mintex Pty Ltd v Barnes; Jsekarb Pty Ltd v Barnes, Exxon Ltd v Barnes(1997) 42 NSWLR 307 (Bendix Mintex) at 311-318.
Of present relevance, Mason P said at 311-312:

“It is sufficient for a plaintiff to establish that his or her injuries were “caused or materially contributed to” by the defendant's wrongful conduct: March v E& MH Stramare Pty Ltd (1991) 171 CLR 506 at 514.
. . .
The sufficiency of material contribution is well attested: March v E& MH Stramare (at 514); Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420. However, introduction of the notion of increased risk involves a different universe of discourse, albeit one which is not unhelpful, provided that the plaintiff's ultimate onus of proof is not displaced.”

Justice Mason went on to address the decision of the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1, as interpreted by the House of Lords in Wilsher v Essex Area Health Authority [1988] AC 1074. In McGhee v National Coal Board, the House of Lords found the Coal Board liable because its failure to provide washing facilities to McGhee led to an increased risk of dermatitis caused from contact between sweaty skin and brick dust. An inference that the failure to provide washing facilities caused McGhee’s dermatitis was drawn.
In Wilsher v Essex Area Health Authority, the plaintiff's blindness could have been caused either by one of four medical conditions associated with the plaintiff's premature birth; or by the negligent saturation of oxygen by medical staff. Medical science was unable to identify the actual cause. However, as the administration of excess oxygen increased the risk substantially, the English Court of Appeal (by majority) “presumed” a causal connection ([1987] 1 QB at 771). Although the House of Lords overturned the Court of Appeal’s decision in Wilsher v Essex Area Health Authority [1987] QB 730 (and found that the defendant was not liable), it explained its own decision in McGhee v National Coal Board on the basis that because the risk of contracting dermatitis was increased the longer the brick dust remained on the body, the inference was available that a failure to provide washing facilities probably materially contributed to the disease by materially increasing the risk. The House of Lords approach to McGhee v National Coal Board was explained by Lord Bridge in the following terms in Wilsher v Essex Area Health Authority at 1088:

“… where the layman is told by the doctors that the longer the brick dust remains on the body, the greater the risk of dermatitis, although the doctors cannot identify the process of causation scientifically, there seems to be nothing irrational in drawing the inference, as a matter of common sense, that the consecutive periods when brick dust remained on the body contributed cumulatively to the causation of the dermatitis. I believe that a process of inferential reasoning on these general lines underlies the decision of the majority in McGhee's case.”

Justice Mason (in Bendix Mintex) continued at 316-317:

“In the end I do not think it open to an intermediate court of appeal to take this path [that causation can be proved by proof of increase risk], in the light of the many Australian authorities starting with St George Club Ltd v Hines which I have cited above; and the more recent developments in England and Canada.”

At 316-318, Mason P referred to the following passage from “Causation and Medical Negligence” in [1988] Cam LJ 350 and summarised the present law in Australia in the following terms:

“’The law does not equate the situation where the defendant had materially increased the risk of injury with one where he had materially contributed to the injury.’ I respectfully agree. Only parliament or the High Court may change this.
. . .
But none of these procedural or adjectival concessions [set out in detail in the reasons but not presently material] in favour of the uncertain plaintiff support the principle that a party who negligently exposes a plaintiff to a risk of injury will be liable unless the plaintiff can persuade the trier of fact that it was probable that the risk came home.”

The correctness of Mason P’s analysis of the authorities was recently confirmed by the High Court in Roads and Traffic Authority v Royal [2008] HCA; 82 ALJR 870, where Kiefel J (who was in the majority that decided that the appeal ought be allowed) said:

“[143] It remains a requirement of the law that a plaintiff prove that a defendant’s conduct materially caused the injury. Nothing said in Betts [v Whittingslowe] detracts from that requirement, which forms the basis for the restatement of the test of causation in March. The question whether there is no real distinction between breach of duty and causation, and the question whether a failure to take steps which would reduce a risk amounts to a material contribution to the injury, have been discussed elsewhere in connection to a possible shift in the onus of proof. No decision of this court holds that there is that equivalence or some lessening of the requirement of proof. As the majority in Bennett observed, they are questions which have not been considered by this court.
[144] The present state of authority does not accept the possibility of risk of injury as sufficient to prove causation. It requires that the risk eventuate. Kitto J in Dunkel said that one “does not pass from the realm of conjecture into the realm of inference” unless the facts enable a positive finding as to the existence of a specific state of affairs. Spigelman CJ pointed out in Seltsam, with respect to an increased risk of injury, that the question is whether it did cause or materially contribute to the injury actually suffered. [the footnote for this passage included a reference to Bendix Mintex]. This inquiry is consistent with the commonsense approach required by March.”
[Footnotes omitted]

In my view, on the present state of authority, the plaintiff has failed to discharge his onus of proving causation even if, contrary to my view set out above, the defendants have been shown to be negligent.
I do not consider the present case to belong to the same category as McGhee v National Coal Board or Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 where it is appropriate to take a so-called “robust” approach to causation. Nor do I consider that the approach in Betts v Whittingslowe (1945) 71 CLR 637 is apposite in the present case. Betts v Whittingslowe concerned an accident which occurred when a fourteen-year old worker was injured when his hand came into contact with dangerous machinery which was insufficiently guarded. In those circumstances, as in Adelaide Stevedoring Co Ltd v Forst, one could infer causation from the circumstances.
By contrast, in the present case, it is a matter of common experience that bones can fracture as a result of a fall to the ground, even where there is no additional elevation. In these circumstances, a court is not entitled to draw an inference of material contribution from an arguable (but unquantified) increase in risk.

The alleged negligence with respect to the plaintiff’s shoes

I agree with Sackville AJA’s reasons concerning the alleged negligence with respect to the plaintiff’s shoes (being the alternative basis on which the plaintiff contended that the defendants were liable in negligence). I wish to add the following.
There is no evidence as to how the shoes came to be on the wrong feet; what kind of shoes they were; or whether they had laces. Therefore, although Ms Bentley accepted that it was the duty of the defendants’ staff to ensure that the plaintiff and all other children in their care at all times had their shoes on the right feet, her admission was merely a piece of evidence and did not determine the question. Once it is accepted that children can, and do, remove footwear and can replace certain kinds of footwear, it must be accepted that it cannot be inferred that a child’s incorrectly worn footwear involved any positive act of the staff.
It seems to me to be speculative to conclude that the defendants were negligent merely because the plaintiff wore his shoes on the wrong feet. It was not put to Ms Bentley, who was intent on observing the group of children which included the plaintiff, that she ought to have observed, from the plaintiff’s gait or otherwise, that he was wearing his shoes incorrectly. Moreover, the circumstances that he had successfully negotiated the beam on two previous occasions; and, at least on one occasion, walked backwards before jumping onto the grass, constituted powerful evidence that his shoes were not such as to compromise either his balance or his gait in any discernible way. It was not suggested to Ms Bentley in cross-examination that she ought to have been aware, from observing the plaintiff on the beam, that his shoes were on the wrong feet or that she should have rectified the situation. Accordingly, the only way in which the defendants could have been negligent as a result of the shoes would be if they had a duty to audit the children at all times to ensure that they were correctly shod. This was not put to Ms Bentley and would, in my view, be an absurd proposition.
The plaintiff bore the onus of proving causation. While it may be accepted as a general proposition (as Ms Bentley did) that wearing shoes on the wrong feet will have a general tendency to impair gait and balance, this proposition may well admit of exceptions depending on the shoes worn such that the effect on gait may be marginal or non-existent. It was not established what type of shoes the plaintiff was wearing, whether he was able to remove and replace them himself and when he had last been barefoot. In my view, it is speculative to suppose that the shoes made any difference. In these circumstances, it would, in my view, be wrong for this Court to maintain the judgment for the plaintiff on the ground that it could be supported by the defendants’ putative negligence with respect to the shoes.
The importance of the trial ought not be underestimated. Parties are obliged to raise factual matters for consideration at the trial so that they can be ventilated and determined by the tribunal of fact. This obligation is not met merely by particularising the negligence or seeking general concessions from witnesses. What is required is that each of the separate ways in which a party puts his or her case is put to relevant witnesses. This requirement is an aspect of procedural fairness. In order to fulfil this requirement with respect to the plaintiff’s case based on the manner in which the plaintiff was wearing his shoes, the plaintiff was obliged to put to Ms Bentley the sequence of events which could have led to the plaintiff being wrong-footed, and what she ought to have done in that regard, as well as what difference it could, or would, have made. In my view, the plaintiff did not sufficiently raise this aspect of its case at trial (through the cross-examination of Ms Bentley who was the relevantly material witness) to permit its consideration on appeal.

Conclusion on liability

For the foregoing reasons I am persuaded that her Honour was in error in finding that the defendants were liable to the plaintiff. In my view the plaintiff failed to establish both negligence and causation.

Damages and the cross-appeal

The questions raised by the relevant grounds in the notice of appeal and in the notice of cross-appeal do not arise in light of my conclusions on liability. However, I can express my views on the cross-appeal and on the question of damages briefly, as I agree with Sackville AJA’s reasons for dismissing the cross-appeal and for setting aside the buffer of $100,000 for economic loss.

Proposed orders

I propose the following orders:

Appeal allowed.

Set aside the judgment of English DCJ ordered on 7 November 2014 and, in lieu thereof, order judgment in favour of the defendants.

Unless an application for a different order is made within seven days, order the plaintiff/respondent to pay the defendants’/appellants’ costs of the trial and of the appeal.

**********

Endnotes

Decision last updated: 14 December 2015

Medium Neutral Citation:	Brown v Hewson [2015] NSWCA 393
Hearing dates:	2 October 2015
Date of orders:	14 December 2015
Decision date:	14 December 2015
Before:	Macfarlan JA at [1]; Sackville AJA at [13]; Adamson J at [113]
Decision:	1. Appeal allowed in part. 2. Set aside the verdict and judgment given by English DCJ for the Plaintiff in the sum of $192,721. 3. In lieu of the judgment referred to in Order 2, enter judgment for the Plaintiff in the sum of $92,721. 4. Otherwise dismiss the appeal.
Catchwords:	TORTS – negligence – duty of care – breach of duty –child at day care centre was allowed to climb on balance beam with shoes on incorrect feet – beam exceeding height prescribed in regulations by 50 mm TORTS – negligence – common law causation – whether failure to detect incorrect footwear materially contributed to accident – whether height of beam materially contributed to accident – whether plaintiff sustained any head injury in the accident DAMAGES – past and future economic loss – buffer – whether finding plaintiff had suffered loss of earning capacity supported by evidence
Legislation Cited:	Centre Based and Mobile Child Care Services Regulation (No. 2) 1996 (NSW) Children (Care and Protection) Act 1987 Civil Liability Act 2002 (NSW)
Cases Cited:	Adelaide Stevedoring Company Ltd v Forst [1940] HCA 45; 64 CLR 538 Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36 Bendix Mintex Pty Ltd v Barnes, (1997) 42 NSWLR 307 (1997) 42 NSWLR 307; Bennett v Minister of Community Welfare (1992) 176 CLR 408 Betts v Whittingslowe [1945] HCA 31; 71 CLR 637 Fox v Percy [2003] HCA 22; 214 CLR 118 Graham v Baker [1961] HCA 48; 106 CLR 340 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 March v Stramare (E & MH) Pty Ltd [1990] HCA 12; 171 CLR 507 McGhee v National Coal Board [1973] 1 WLR 1 Penrith City Council v Parks [2004] NSWCA 201 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) Aust Torts Reports ¶81-949 Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 Wilsher v Essex Area Health Authority [1988] AC 1074 Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460
Category:	Principal judgment
Parties:	Rodney Brown and Rowena Brown t/as Town and Country Children’s Centre (Appellant) Benjamin Hewson by his tutor Sharon Hewson (Respondent)
Representation:	Counsel: R Cavanagh SC / S Maybury (Appellant) MJ Cranitch SC / MB Inglis (Respondent) Solicitors: Meridian Lawyers (Appellant) Commins Hendricks Pty Ltd (Respondent)
File Number(s):	2014/357408
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Date of Decision: 7 November 2014 Before: English DCJ File Number(s): 2000/66058