Fitzpatrick v Moira Shire Council
[2015] VCC 527
•6 May 2015
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-10-02186
| HARLEY JAMES FITZPATRICK (who sues by his Litigation Guardian, CANDY FITZPATRICK) | Plaintiff |
| v | |
| MOIRA SHIRE COUNCIL | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 25, 26, 27 and 28 August 2014 | |
DATE OF JUDGMENT: | 6 May 2015 | |
CASE MAY BE CITED AS: | Fitzpatrick v Moira Shire Council | |
| MEDIUM NEUTRAL CITATION: [First revision 20 May 2015] | [2015] VCC 527 | |
REASONS FOR JUDGMENT
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Subject:DUTY OF CARE
Catchwords: Negligence – duty of care – scope of duty – occupier’s liability – supervision of children – activities of children – childish activities – without a parent or guardian present – risk of harm – requirement of causation – quantum of damages
Legislation Cited: Wrongs Act 1958, Part IIA, Part X, s48, s49, s51
Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London & Ors [2011] VSC 589; Gunnersen v Henwood & Mornington Peninsula Shire Council [2011] VSC 440; Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; Grinham v Tabro Meats Pty Ltd & Anor; Victorian WorkCover Authority v Murray [2012] VSC 491; Benic v State of New South Wales [2010] NSWSC 1039; Chapman v Hearse (1961) 106 CLR 112
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell QC with Mr J Sala | J G Thompson |
| For the Defendant | Mr D C Oldfield | Norris Coates |
HER HONOUR:
1 The plaintiff, Harley Fitzpatrick (Harley), is fifteen years of age, being born in May 1999, and brings the proceeding by his mother and Litigation Guardian, Candy Fitzpatrick.
2 The proceeding is brought in relation to injuries Harley suffered when he attended a function conducted by the defendant, Moira Shire Council (“the Council”) on 22 June 2007. The function was an event for youth, known as the FReeZA Meltdown Dance Party (“the event”). The Council hired a venue called the Cobram Italian Social Club for the event, and engaged security personnel through an organisation called Backup Security Services.
3 Harley alleges he was injured at the event when he ran, slipped and struck a desk on the premises, which then fell on him (“the accident”).
4 Harley alleges the accident was caused by the negligence and/or breach of duty of the Council in:
(a) failing to keep a proper lookout for his safety;
(b) failing to supervise, or adequately supervise him;
(c) failing to secure the desk so it would not fall on and injure him;
(d) failing to secure the desk so it would not be a danger to him;
(e) failing to warn him of the dangers caused by the desk;
(f) failing to undertake an appropriate risk assessment for a discothèque function for youths and young children;
(g) failing to identify the desk as a potential hazard for young children;
(h) failing to remove the desk from access by young children;
(i) permitting young children to be in the vicinity of the desk;
(j) failing to provide close supervision of young children, together with supervised activities of interest for young children.
5 Harley alleges he suffered injuries because of the accident, in particular, a fracture of the left femur, scarring of the skin in the area of the injury, irritation and nervous shock.
Issues
6 Broadly, Harley’s claim is one in negligence.
7 Counsel for Harley submitted that the Council’s duty of care is to take reasonable care in the conduct of the event and in the provision of safety so as to avoid a foreseeable risk of injury to those attending.[1] At trial, Counsel for Harley relied heavily on this claim. In the alternative, Harley claims that the Council owed a duty as an occupier of premises and cites s14B(3) of the Wrongs Act 1958.
[1]Transcript (“T”) 12, Line (“L”) 21
8 Counsel for the defendant submitted that the duty of care, or the relevant risk of injury, was that a child might fall to the ground attempting to climb on furniture within the premises.[2] The Council conceded in its Notice of Defence that it was an occupier and that it owed a duty of care in accordance with Part IIA of the Act, relating to ‘Occupier’s Liability’. The scope and breach of the duty was in issue.
[2]T258, L12–15
9 Whilst the Council admitted it had a duty as an occupier, it did not expressly admit any duty beyond that.
10 The issues are –
· Whether the Council owed a duty to provide safety to patrons, and whether there was breach of that duty which was causative of the injury;
· In the alternative, whether the Council breached its duty as an occupier, and whether the breach was causative of the injury.
11 Counsel for the defendant informed the Court that whilst pleaded, the Council did not propose to pursue the matter of contributory negligence in the conduct of Harley’s mother.
12 However, the Council maintained that Harley was contributorily negligent. Counsel for the defendant did not address contributory negligence in closing submissions; it was not pressed.
Evidence
13 Harley gave evidence and he was cross-examined. He relied on evidence from the following witnesses:
·his mother, Candy Fitzpatrick;
·his cousin, Brittney Fitzpatrick;
·his cousin, Sean Fitzpatrick;
·his cousin, Andrew Fitzpatrick; and
·his sister, Sarah Bishop.
14 The Council called evidence from the following witnesses:
·Kenneth Liddicoat, an employee of the Council at the time;
·Angus Kent, a junior Council member, who at the time was a student at Numurkah Secondary College;
·Anthony Barker, club secretary of the Italian Club;
·Trevor Manly, retired school teacher;
·Michelle Randell, security guard;
·Kay Thomson, Manager of Community Development at the Council.
Evidence of Harley Fitzpatrick
15 In evidence, Harley was asked about his medical history. From approximately five years of age, Harley was prescribed the medications Dexamphetamine and Catapres for his behavioural problems. He said that the medications effectively “calm him down a lot”, and help him sleep. In cross-examination, Harley agreed he was taking Dexamphetamine and Catapres at the time of the accident, and when he returned to school afterwards, but he could not recall the quantity. At the time of the accident, the medications worked and were effective. At the time of trial, he was taking one Dexamphetamine pill twice daily, and two Catapres pills at night. He agreed that if he does not take the Dexamphetamine, he becomes “quite hyper”.[3]
[3]T38, L10
16 Harley gave evidence that he loves sport, and was an active participant in sport prior to the accident, particularly basketball and football. In cross-examination, Harley said that in about 2007, prior to the accident, he was not playing club football.
17 Harley gave evidence that, in 2007, he received a flyer at his school advertising the event. He was unable to remember much about the contents of the flyer. In cross-examination, Harley said the event flyer was given to him by his teacher.[4] In re-examination, he was shown the flyer but could not remember seeing a copy before.
[4]T41, T44
18 Harley recalled attending the event. He was eight years of age at the time. He said that his cousin, Sean, drove him, his brother Jai, sister, Sarah, and Sean’s two children, Brittany and Andrew, to the event.[5] Harley recalled that Brittany was about seven or eight years of age at the time, and Andrew was nine or ten. In cross-examination, Harley said he arrived at the event with Sean, Brittney, Andrew and his brother, Jai.[6] He agreed his sister, Sarah, also went to the event.[7] When asked in cross-examination, Harley could not recall being dragged into the event by his sister, Sarah.
[5]T20
[6]T36, L6
[7]T37, L7
19 Harley gave evidence that after arriving, he saw his cousin, Sean, speak to someone just inside the door of the event.[8] However, in cross-examination, he conceded that his mother told him Sean spoke to someone at the event about supervision.[9] Sean then went home after dropping the children off.
[8]T40
[9]T40
20 In cross-examination, Harley gave evidence that he stayed with his sister, Sarah, at the start of the event, and then ended up “doing his own thing”, together with the other children (his brother and cousins).[10]
[10]T45
21 Harley said that he saw other children, about his age, at the event, whom he did not know personally.[11] He did not recall seeing anyone at the event that looked over 18 years of age, except for one security guard.[12] He could not recall staff at the reception desk upon arrival, although he said there might have been.[13]
[11]T37, L18
[12]T21, L3
[13]T50
22 Harley said that music was played in the main room. However, there was nothing at the event that interested him as an activity.[14] He gave evidence that “we” (presumably he and the other children), did not really get into or engage with the music. He was more interested in “sports sort of stuff”, and activities like musical chairs, duck-duck-goose, and dodge ball.[15] He played tiggy and “mucked around” with balloons. He recalled that other children of his age played tiggy, which involved running around at the event.[16]
[14]T21, L11
[15]T21, L7-16
[16]T22
23 Harley recalled a security guard told him to stop running around, but said that the children (presumably he, his cousins and brother) did not particularly listen, because they were young.[17] In cross-examination, he agreed that he was told once to stop running around and playing tag, but could not recall who told him to stop, or whether they said he could get hurt.[18] He agreed that when told to stop, he calmed down for a while.[19] He said there was no rule imposed at the event as to where he was allowed to go within the premises.
[17]T22, L16-20
[18]T46
[19]T47
24 When asked to recall the accident, Harley gave evidence that he ran out of the main room and through the hallway, turned right, and into the foyer, where he slipped and slid across the ground for a bit, then hit the desk, which fell onto him. He identified the desk in a photograph that was tendered[20] as being the front desk at the venue. He recalled that the floor in the area of the accident was a polished, wooden floor. Harley said that as he entered the foyer immediately before the accident, he did not see the security guard, and he could not recall when he last saw the security guard.[21] In cross-examination, Harley denied that he attempted to jump up onto the desk.
[20]Exhibit 2
[21]T25, L28-30
25 When the desk struck him, Harley gave evidence that he experienced “heaps of pain” in his left femur. He was unable to move. He said people lifted the desk off him, but he did not remember who they were; he said they did not look over 18 years of age.[22] In cross-examination, he could not recall the security guard or teacher lifting the desk off him. Neither could he recall a woman (a former nurse) who sat with him until the ambulance arrived.
[22]T26, L7
26 In evidence, Harley said that he probably would not have played tiggy if he had been playing musical chairs or dodge ball at the event. He said there was room at the venue to play such other activities. In cross-examination, he agreed it was probably unrealistic to play these games in a room with 150 young people watching a band. In re-examination, Harley said that duck-duck-goose and dodge ball would require a certain area within the venue.[23] If he was playing musical chairs, he judged that he could do that within a space approximately the size of four rows of the chairs in the Court.
[23]T64
27 Harley gave evidence that after the accident, he was immediately taken by ambulance to the Goulburn Valley Hospital, where he was met by his mother. He went into surgery. He was unable to recall how long he spent in hospital. After Harley was discharged from hospital, he gave evidence that he was still in pain. He used crutches and a walking frame to assist him. At home, he slept on a mattress on the floor as he could not get into his bed. He did not recall taking medication after returning home. He returned to hospital for check-ups and x‑ray. He had time off school, and although he could not recall the length of time, he said it was “pretty long”.[24]
[24]T28, L3
28 Harley gave evidence that when he returned to school, he required the use of a wheelchair and crutches. He had to stay inside at break times, and this made him sad and angry. Harley said he was angry and sad in and around the months after the accident because he could not really do anything.[25] Harley said he was taking his behavioural medications at the time, which worked and were effective. He could not play basketball or football, but could not recall for how long he was unable to do so. When he was able to stand up and weight-bear, he tried to return to football but said it still hurt a lot.
[25]T28
29 In January 2008, Harley gave evidence that he had the metalware removed from his leg that was inserted after the accident.[26]
[26]T33, L15
30 Harley gave evidence that his left leg is weaker than his right by “heaps”.[27] He is unable to walk or run for long before his left knee starts to ache.
[27]T32
31 Evidence was led regarding Harley’s knee problems after the accident. In cross-examination, Harley agreed that he did not notice his knee problems until about 2009. He agreed it did not stop him from undertaking any activities, but when he returns home he is in “a heap of pain”.[28] He agreed this happens when he goes really hard or overextends himself in an activity such as football. Harley said he is not required to take medication for his knee, but has painkillers.[29]
[28]T62
[29]T62, L16
32 Harley was cross-examined as to his various sporting activities after the injury. He agreed that just after the injury, he played sports at school with classmates.[30] By 2008 and into 2009, he managed to return to sport and was active. Harley agreed that in 2010, he was competing in a cross-country regional championship for his school. In addition, after school, he would play on his scooter.[31] At age ten or eleven, Harley said he took up skateboarding. However, he effectively quit after he broke his wrist at the skate park. He does skate on occasion when he goes down the street with his friend, including jumping over gutters.[32]
[30]T58
[31]T59
[32]T60
33 In cross-examination, Harley agreed that he was a bit of a “knock-about sort of kid”, who is injured on occasions and then recovers.[33] Various examples were led in cross-examination. Harley agreed that in 2012, he broke his wrist at the skate park. In 2014, he broke his wrist when tackled during football; the wrist has mended and he has no problems with it now.[34] In 2014, he fractured his knuckles. Harley did not recall another occasion where he fractured his big toe, although he could remember obtaining an ultrasound of his foot.[35]
[33]T62, L1-3
[34]T60
[35]T61
34 Harley attempted to play soccer after his injury, but stopped because he was being hit in the leg too much. He said it was hurting too much.[36] In cross-examination, Harley agreed he twisted his knee when playing soccer in December 2013. He was standing on his left foot, and motioned to kick the ball with his right foot, when his left knee collapsed and he fell to the ground. He agreed his knee recovered afterwards.[37]
[36]T30
[37]T63
35 In respect to basketball, Harley gave evidence that when he jumps, his left knee hurts.[38] He does not have the same confidence playing basketball. He pulled back because of the pain in his left knee.[39] In cross-examination, Harley agreed he returned to basketball after the accident, but quit in 2013 because it hurt his knee too much. He gave evidence that his knee affected his performance.[40]
[38]T29, L28-30
[39]T30
[40]T57
36 Harley gave evidence that he continues to play football after the accident, but not with the same confidence. He has problems with knee pain. He puts up with the pain and plays on, because he really likes sport. By the third and fourth quarter, his left knee started to hurt, and on occasions his knee gives way. He gave an example where his knee gave way when he was tackled, and he broke his wrist. After a match his mother (Candy) rubs Deep Heat on his leg. In cross-examination, Harley said that a couple of years ago (2011-2012), he joined a football club and started playing competitive football on a weekly basis.[41] He agreed he is good at it and is well regarded by his team mates. He said he can “go pretty hard”, but sometimes pulls back.[42]
[41]T39
[42]T58, L4
37 Harley gave evidence that in 2012, he was diagnosed with a left leg that is longer than the right leg. He walks differently, with his left foot turned out a bit, because if he walks with his foot straight, it hits the ground.[43] Initially, Harley attended the Royal Children’s Hospital every couple of months, to monitor the length of his legs and for the legs to be x-rayed. In 2013, he underwent a day procedure which involved taking the growth out of his left knee so that it will not grow as fast. This is to allow the right leg length to catch up to his left leg. He had crutches after the surgery. He was required to return to the hospital for follow-up appointments. In re-examination, he said he attended the Royal Children’s Hospital every three or six months.
[43]T31
38 As to scarring, Harley’s evidence was that he has a scar on the left leg as a result of a procedure to open up his leg and reconnect the bone that snapped, and he has four small drill holes on his knee.[44] He tries to hide the scarring because he is ashamed, and because so many people ask about it. When he plays football, he usually wears ‘skins’ to cover it, and when he plays basketball, he wears long basketball shorts. He said the scarring feels weird; it feels smoother. Harley said he protects the scarring from coming into contact with people or things. For example, when he is playing football, he always favours his right side, because if he is tackled on his left side, it really hurts his leg.[45]
[44]T33
[45]T35
39 Harley gave evidence about the application of cream to his leg and the scarring. He said his mother applied cream to the scarring. When his knee aches, she rubs cream from his knee up to his hip. The cream is applied about once a week.[46] His mother rubs Deep Heat on his leg after every game of football and basketball.[47] In re-examination, he said the cream on his scar is rubbed on probably after every game of football.[48]
[46]T34, L25
[47]T33, L2-6
[48]T65, L21-24
Evidence of Candy Fitzpatrick
40 Candy is Harley’s mother; she has four children. Harley has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and she describes him as very hyperactive. She confirmed that Harley attends Dr Kerry Stubberfield for behavioural problems, and takes medication of Catapres and dexamphetamine. Candy explained that she is allocated a social worker because she has four children with ADHD. She is a widow and single mother, and requires assistance with her children’s behavioural issues.
41 Candy said she learned about the event organised by the Council from her social worker, Merinda. Merinda gave her a flyer or a card, and suggested it would be a good activity for “all of us to go to”.[49]
[49]T67, L24-25
42 Candy said she rang the contact telephone number on the flyer, and gave evidence about the conversation she says took place. She could not recall the person who answered. Candy told the person that she and some other parents had children who were interested in attending the event. She asked whether parents were required to attend and she was told “no”, as it was a fully supervised function. Candy explained to the Court that her cousin, Sean, and his partner, Lisa, were the other parents she had referred to.[50]
[50]T68, L30
43 Candy gave evidence that on the day of the event, Sean drove Andrew, Brittany, Harley, Jai, Sarah and William to the event and dropped them off. Candy decided it was a good opportunity for her to go to Harvey Norman to buy a computer and do some shopping. She said her daughter, Sarah, was aged fourteen or fifteen at the time; her son, Jai, eleven or twelve; and Harley was eight.
44 After the accident, Candy first saw Harley at the Goulburn Valley Hospital that evening.
45 Candy’s evidence was that when Harley left the hospital, he was not able to bear weight. He used a walking frame, crutches and wheelchair for approximately four months, and could not stand independently. Harley progressed very well during that period, and pushed himself to the limit to get better. Candy said there was “a lady that used to come to the house to do dressings”,[51] and, in addition, Harley attended physiotherapy.
[51]T70, L29-31
46 Candy gave evidence that when Harley returned to being active, he had problems playing sport. His leg and hip ached, his knee had shooting pain, his scar was very tender and cream was applied to the scar. He complained that his leg was sore and he could not walk properly. She told him to rest, have a bath and apply cream, and took him to physiotherapy.
47 Candy gave evidence that at some stage, she noticed Harley’s legs looked different; she described one leg as being fat, and the other as skinny. The skinny leg was the injured one. Furthermore, she noticed that Harley was walking with a slouch. She took him to the general practitioner, who referred him to the Royal Children’s Hospital. The doctors at the hospital diagnosed the left leg as approximately 3.5 centimetres longer than the right leg.
48 In 2013, an operation was performed to stop further growth of the injured leg. It has been approximately twelve months since the operation and the right leg has grown one centimetre. The aim is to have both legs at the same length at maturity. Harley was to return to visit the hospital in November 2014. Referring to Harley’s medical treatment, Candy said that he will have a choice whether to cope with the pain while playing sport, to use a heel raise, and/or to have another operation to correct the leg length.
49 Candy’s evidence was that Harley told her that the scarring is tingling. Candy purchased creams which are applied to the leg after football games. She said he does not show people the scar. He wears long shorts or pants, except when he is playing football, and he wears little shorts. He used to wear skins.
50 In cross-examination, Candy said her children did not provide her with the flyer advertising the event. She could not remember whether she spoke to a man or a woman when she rang the contact number. She said she told the person the age of the children who would be attending. She was told it was a supervised event.
51 Candy said she did not attend the event because it was fully supervised. She did not have a lot of time by herself. Sean drove her to Shepparton on the evening of the event as she did not have a licence.
52 Candy agreed that Harley loves sport. She agreed that Harley played with his friends skating, and still does that from time to time. She agreed that as he has become older, he plays in more competitive environments, particularly football. He is now playing football at club level and is a very good player.
Evidence of Brittany Eloise Fitzpatrick
53 Brittany is Harley’s cousin and was fifteen years of age at the time of trial. She gave evidence that she attended the event on 22 June 2007. Her parents told her about the event. She thought there would be fun and games, but said that when she arrived, there really was not much for her to do. She and her cousins were playing with balloons, which involved running around hitting each other with balloons. She said they got into trouble for that, so they decided to play tag.
54 Brittany said there were a few small children at the event, but most of them were older than her. The nearest in age was her cousin Harley.
55 Brittany gave evidence that, immediately prior to the accident, she was chasing Harley from the disco area (main room) into the little part of the venue. She was just behind him. She saw Harley slip and fall while running. The desk fell on top of Harley and she said the desk nearly “got” her too. Brittany said the security guard was outside when the accident took place. She said there was a boy present behind the desk, but was unsure if a girl was present too. Brittany said the people behind the desk ran outside and called the security guard in after Harley’s accident. Brittany could not remember anything about the assistance Harley was given at the scene of the accident.
56 In cross-examination, Brittany said her father, Sean, drove the children to the event, walked in with them and then left.
57 Brittany conceded in cross-examination that at some point, she was reprimanded by an adult for playing the balloon game. After that, she said the children decided to play tiggy.
58 Brittany was cross-examined about the circumstances of the accident. She said the accident happened while the children were playing tiggy. Immediately before the accident, Brittany was “It” in the game. She was chasing Harley, and was about one or two feet behind him as they ran into the foyer. As she was running into the foyer, Brittany said she saw the reception desk, and people behind the reception desk. She said they were wearing matching staff t-shirts. She did not remember seeing staff seated on a couch behind the reception desk, nor did she did recall seeing a security guard at that time. After the accident, she saw the security guard run from the direction of the front door; she could not say whether he had been inside or outside.[52] She could not remember seeing other adults when she ran into the foyer.
[52]T89, L16-30
59 Brittney said she did not see Harley jump onto the reception desk, nor did she hear Harley being told to get off the reception desk.
60 Brittany saw a number of people lift the desk off Harley immediately after the accident. She could not remember who lifted the desk.
61 Brittany said she talked about the accident to her aunt (Candy) around the time that it happened. Other than that, she had not spoken of the accident to any family members “until the other day”, when she told her aunt (Candy) that they were playing tag at the time of the accident and Harley slipped over.
62 Brittany was further cross-examined about her recall of details at the event. She recalled seeing some adults in the shop area of the venue, but could not remember seeing adults in the dance area. Nor could she remember how old the children were and how many people actually attended. However, her evidence was that she is sure Harley was not climbing on the desk, and said she remembered “a lot about what happened to Harley”.[53] She denied fabricating her account of the accident.
[53]T91, L15-16
Evidence of Sean Luke Fitzpatrick
63 Sean was born in June 1981 and is aged thirty-three. He has four children. In 2007, he was living in Cobram for a time with his aunt, Candy Fitzpatrick.
64 Sean could not recall how he learned of the event. He was the designated driver on the day, and gave evidence that he made two trips to the venue to drop off all the children. On the first trip, Sean took his two children, Andrew and Brittany, and Candy’s children, Harley and Jai, to the event. He spoke to an adult at the door, but could not recall whether it was a male or female. He asked whether he was required to stay and supervise the children. He was told “no”, that there were adults “running the show”. He returned to Candy’s house and took the next load of children, including Sarah and Michael, and dropped them off. He returned to Candy’s home and they went to Shepparton to shop for laptop computers. He was with Candy in Shepparton when they learned by telephone that there was a need to return. Candy received a telephone call from Sarah.[54] From Shepparton, he drove Candy to the hospital.
[54]T107, L12
65 In cross-examination, Sean said he left the children at the event because it was an underage party and they were supervised. At the time he went to the venue, the parents were not 100 per cent sure that it was a supervised event. He said he took the younger children to the event first, so that they could hear it for themselves when he spoke to somebody at the venue, and so that they were not disappointed later on that night. When he spoke to the adult at the venue, he said the children were either with him in the foyer or waiting in the car, he could not recall. He said at that stage, the children were around him, he was just not sure where.
66 It was put to Sean in cross-examination that he did not actually go into the venue or speak to any adult. He gave evidence that he clearly remembered that he did. He recalled entering the foyer and paying money at the desk; the person he asked about the evening was behind the desk.
67 Sean was asked whether he had discussed Harley’s accident with family members. He said they spoke more about Harley’s injury.
68 In re‑examination, Sean said the decision to go to Shepparton with Candy was made after it was accepted that the children could stay at the event without parents.
Evidence of Andrew Anthony Fitzpatrick
69 Andrew Fitzpatrick was born in November 1997, and was aged 16 at the time of trial. He remembered attending the event in June 2007. He learnt about the event through his school, Cobram Primary. He thought the school had organised the event with the Council. He was driven to the event by his father, Sean, together with his sister, Brittney, and his cousins, Sarah, Harley and Jai. It was dark upon arrival at the event.
70 Andrew said he and the other children went into the disco part (main room), and then they thought they would play tiggy. They started playing tiggy, because it was boring. There was not much to do, everyone else was just dancing. Andrew said he observed four adults at the front (foyer) of the venue.
71 While playing tiggy, Andrew said that he went into the foyer, and hid behind the couch. He hid because he did not want to be tagged by the other children. He could not remember precisely where the couch was located within the foyer.
72 While hiding behind the couch, Andrew said he heard a crash and looked up to see what was going on. He did not see what was happening in the foyer immediately before that. He said that he saw the desk “go flying”, and then saw Harley on the ground with the desk on top of him. There were two adults present in the foyer, who had been standing near the desk “before it went flying”. Immediately after Harley was injured, Andrew said they decided to get Sarah, who was in the main room. By the time they returned, the desk had been removed. Andrew could not recall whether any assistance was given to Harley.
73 Andrew could not recall how long they were playing tiggy, but said it was probably half-an-hour, or twenty minutes.
74 In cross-examination, Andrew agreed that he arrived with Sarah, Harley, Jai and Brittany, and they were in the same car. Before they walked in, Andrew said there was a group decision that the children would obey Sarah, the eldest, throughout the evening. He thought his father got out of the car with them in the car park. His father asked the children, “Right, are you’se (sic) all going to be fine?”, to which the children replied, “Yeah”. Then his father said he was leaving, because he had something to do with Auntie (Candy).
Evidence of Sarah Anne Bishop
75 Sarah Bishop is Harley’s older sister. She was twenty-two years of age at the time of trial, and she estimates she was fifteen years of age in June 2007.
76 Sarah remembered attending an event, called a ‘FReeZA’. Her mother, Candy, found out about it through their social worker, Merinda. Sarah said that Merinda advised the children that it would be good for them to attend, to give their mother a little break. Sarah gave evidence that her cousin, Sean, took the children to the event. In the car were Harley, Andrew, Brittany, Sarah and her ex‑partner, William.
77 Sarah said they went straight in and were advised by staff at the door that they were not allowed back out.[55] In cross-examination, Sarah said they were dropped off at the event by her cousin, Sean. She was “pretty sure” that Sean came to the front door of the venue.
[55]T116, L17-30
78 Sarah’s evidence was that she and the children went into the music area (the main room). She said her mother told her to look after the children, to make sure they did not “run amok”, because they get very active. Sarah said she walked around keeping an eye on them and making sure they were alright, and she noticed they were running around. She said there were a few adults sitting around in the music area.
79 Sarah did not witness the desk fall on Harley. Brittany called her to the accident scene in the foyer. Sarah’s evidence was that by the time she reached Harley, the desk had been removed. She did not notice who was around, as she was more focused on her brother. She saw the security guard coming through the entrance doors, and he was talking to bystanders. She said the security guard then came near Harley at the scene.
80 In cross-examination, Sarah was asked about the discussion she had with her mother in the days before the trial. Her mother had advised her of the date she was required to attend Court as a witness, and assisted her to calculate her age at the time of the accident.
81 Sarah denied that her mother said “You’re the eldest, you’re going to have to look after the kids because they’ve got ADHD”. Her mother just instructed her to “keep an eye on them”, and she agreed to do so. She agreed that at the event, she was more interested in the band and her friend. She let the young children “do their own thing”.[56] However, she walked around looking for the children every now and again. She said it was a small venue and there was not a huge number of children there.
[56]T122, L15
82 Sarah agreed in cross-examination that a period of time elapsed between the accident and her arrival in the foyer. There was enough time for the desk to have been lifted off Harley by the time she arrived in the foyer. She did not know who was in the foyer at the time of the accident.
The Defendant’s evidence
Evidence of Kenneth John Liddicoat
83 Mr Kenneth Liddicoat was employed with the Council in 2007 as the community services team leader.
84 The event the subject of these proceedings was called a ‘FReeZA Meltdown’ event. Mr Liddicoat said there was at least three months of planning for the event, and it involved seven schools across five towns. He said the event was targeted at a secondary school audience. Students in the Junior Council were involved in coordinating the event.
85 Mr Liddicoat gave evidence that the organisers operated within FReeZA guidelines, which provide that for an open-ages event, everyone can attend, including children. This is in contrast to a “youth event”, which strictly controls the age of entry from 12-25 years. He said the negative aspect of running a youth age event is that it breaks with the social justice of getting young people in and families together.
86 Mr Liddicoat identified the Freeza Meltdown flyer (exhibit 4). He agreed his work telephone number was written on the flyer. He did not recall receiving telephone calls from parents asking for information about the event. He received lots of calls, but they were from schools and, in particular, teachers. He said the event was tailor-made for secondary school-aged students. He said the event ran from 6.00pm until 10.00pm at night, and was held in July. Mr Liddicoat gave evidence that another staff member could have answered his telephone. If that occurred, staff would have taken a message. Otherwise, staff would only have advised the caller of the date and time of the event.
87 Mr Liddicoat’s evidence was that he conducted two site visits to the event venue, together with another staff member. On the second site visit, he invited some of the students involved to check out the venue. The purpose of the site visits were to check out whether the venue was appropriate for the purposes of a band event and a crowd of some 150-200 young people. Car parking was a significant issue, because students were coming from other towns on buses.
88 Mr Liddicoat gave evidence as to the process in assessing the venue for the event. The event space was a contained area within the venue. The bar/alcohol area and any smoke machines were covered over or isolated under FReeZA guidelines. Tables and chairs which were not required were relocated to a room that was not being used.
89 Mr Liddicoat created an Event Item Checklist (exhibit A) which he routinely used for events.
90 As a result of the site visits and checklist, Mr Liddicoat said that specific hazards were identified at the venue and accounted for. The main room contained an existing wood fire heater, which they did not intend to use for the event. Bollards were placed around the heater area, as it was a raised area and they did not want people to slip. The area was manned by staff, and security were also warned about it.
91 Mr Liddicoat said the foyer was purely a “meet and greet” area. A security guard was based on the left-hand side. On the right-hand side behind the desk, there were two Council or school staff who were there to meet and greet patrons and accept gold coin donations. He thought the desk was about 1.2 metres high. It was rectangular in shape, and was facing west towards the middle of the entrance.
92 Mr Liddicoat gave evidence that junior councillors at the event wore an identifying lanyard and white t-shirt with logo. There were approximately 35 to 40 junior councillors present at the event.
93 Mr Liddicoat’s evidence was that there was a Level 3 first-aid officer and two other Council staff present, including his direct manager, who he said was a qualified nurse. There were three security guards, and at least three or four teachers to supervise the event.
94 Mr Liddicoat gave evidence that part of his role was to roam the facility, both inside and out, making sure that everything was under control, doors were locked, people were in the correct area, and there was adequate security. He said security guards were posted at the front door, the rear entrance in the main room, and one guard near the fire heater.
95 Harley’s accident occurred while Mr Liddicoat was in the main room. Mr Liddicoat said he was informed by a junior councillor there had been an accident in the foyer. He went to the area and saw the boy (Harley) lying on the ground. He observed the Level 3 first-aid officer, a security guard, and some junior Council staff. He went to search for his manager, Kay Thomson, the qualified nurse.
96 In cross-examination, Mr Liddicoat said promotional material for the event, such as the flyer, was designed by the youth involved. However, the material was subject to a Council process for approval. Ultimate approval was granted by him and Kay Thomson. He said the flyer was distributed to secondary schools in the major towns surrounding the area. The schools promoted the event, through newsletters and handing out flyers. He said the Council also promoted the event on its website.
97 Mr Liddicoat said the music targeted the secondary-school-age group, but there was no problem with a young person or an old person coming to the event. He agreed that six to eight-year-olds were not prohibited from attending the event. He agreed that a family with a couple of six-year-olds could interpret the flyer and attend without consulting the Council. He explained that no age limitation was stipulated on the flyer because it met Freeza guidelines for an open-ages event.
98 Further in cross-examination, Mr Liddicoat said if a parent arrived at the event with three children aged six to eight, then that posed a difficulty for organisers. If they turned them away from the event, they would be prejudicing that group from attending. It was advertised as open to all ages. However, Mr Liddicoat said he would hope that a reasonable person would attend with the children as a minder, and be wary that six to eight-year-olds are unable to cope with attending an event for four hours.
99 Mr Liddicoat agreed the band and music itself was really not an activity that would interest a person in the age range of seven to eight.
100 Mr Liddicoat said the main room was sizeable considering the event and the number of people they anticipated would attend. He agreed a separate space could have been reserved for younger children, but said that required a number of qualified childcare workers to look after the children; there was no FReeZA funding for that. He agreed there were staff attending who would have been able, but not formally qualified to supervise the children, including himself as a parent and grandparent. He agreed it would have been possible to pre-plan for the attendance of young children, and develop a roster to supervise young children who attended without a responsible parent. He agreed that once the incident occurred, he saw children aged seven or eight present at the event.
101 Mr Liddicoat confirmed in cross-examination that there were Council staffers who could have answered his work phone. However, he would have instructed staff to provide callers with only basic details about the event, and to direct further enquiries to him personally. He did not believe Council staff would tell a parent it was not necessary for parents to be present as it was a supervised event. However, he did not give such instructions to staff at the front door of the event if an enquiry of that nature was made.
102 Mr Liddicoat said that if a young person were to attend the event, they should have a responsible parent or sibling with them. He agreed the flyer could have specified that a young person was required to be accompanied by a responsible parent or sibling. He agreed that he could have given instructions to that effect to staff at the front door who were responsible for admitting and excluding patrons. He agreed that an area could have been reserved for young children with a rotating staff roster to look after those children. However, he said he was not a qualified childcare worker.
103 Mr Liddicoat agreed that his experience in life told him that children aged seven or eight are very prone to exploring their environment. Children test the limit of their autonomy, and they are inexperienced in assessing potential hazards and dangers with respect to any activity they may involve themselves in. They need protection from themselves, and as a result, they require close supervision, particularly so in a new venue with a lot of people around. He said if the children were six or seven years of age, he would have expected a reasonable parent or guardian to be there.
104 Mr Liddicoat agreed that if a Council employee had told a parent that the event was fully supervised and parents did not need to attend, then that employee either disobeyed instructions, or acted wrongly on behalf of the Council. He said he would have preferred any such enquiries to be directed to him for further details. He agreed that he would have reprimanded any staff member if they had given such advice to a parent.
105 Mr Liddicoat said if he had been informed at the event that there were young children running around, he would have spoken to those children. He would have told the children they were forbidden from running, that they could be injured, and that the purpose of the event was to watch the bands. If the children were still disinterested, he would have sought to telephone a parent of theirs. Furthermore, in that scenario, he said he may have told the children to stay with him, or designated somebody to keep a close eye on them. He agreed he had senior authority on the night of the event.
106 Mr Liddicoat agreed that anyone could attend the event, but they were required to maintain good behaviour in the venue. He said if a person was just entering the venue, he would not have expected the security guard to contact him.
107 Mr Liddicoat agreed the game of tiggy was the sort of activity children aged seven and eight would play. He said running around at the event was not appropriate. If he had been aware of Harley running around, he would have told Harley that he might injure himself, and his next action would have been to telephone the child’s parents.
108 In re‑examination, Mr Liddicoat agreed he had prepared an incident report (exhibit C). He reiterated that as it was an open-ages event, they were required to let the children in, including a child such a Harley. However, the children were expected to behave themselves and obey the rules of the event. He said he would not have expected seven or eight-year-old children to attend unsupervised.
Evidence of Braham Edward Metry, Auctioneer and casual Security Guard
109 In 2007, Mr Metry worked for Backup Security, and attended the event on 22 June 2007 some time prior to 6.00pm. He was stationed at the front door and spent most of the evening in that position. He stood inside the front door, and was required to greet patrons as they entered. He was also required to ensure there were no pass-outs, and that patrons did not leave before the event was over. He said another Council member or other staff were present with him during the event.
110 Mr Metry recalled seeing a reception desk located to his far right in the foyer. At approximately 6.00pm or 6.30pm, he remembered the boy (Harley) arriving with a group of children ranging between seven, eight, ten and twelve years of age. There were no adults with the children. He did not recall an adult coming up to the entrance with the children. However, he did recall that there was a young girl who was virtually dragging Harley into the venue. He gained the impression that the boy did not want to be there.
111 Mr Metry observed the children at the event. They were “running feral”,[57] back and forth from the function area. He asked them not to run, and the children returned to the main room.
[57]T179, L28
112 Mr Metry witnessed the accident. He was standing by the entrance, and at the time of the accident, he was approximately four to six feet from the desk. Immediately prior, he noticed Harley standing next to the desk, and said Harley placed his hand on the desk. Mr Metry turned away briefly, and then turned around again to see Harley climbing onto the desk. Within “a minute or second”, the desk tipped over. Mr Metry did not observe Harley before he reached the desk.
113 Mr Metry said there were people behind the desk at the time of the accident. There was a staff member standing next to him at the front door. The accident happened within about a second of Harley trying to climb the desk. Harley had his hands on the desk and tried to pull himself up. I find there is some inconsistency here, as Mr Metry gave evidence that he had turned away briefly.
114 After the accident, Mr Metry immediately ran to Harley and lifted the desk off him. He called the other two security guards at the event. A first aid officer attended the scene immediately, and then a qualified nurse. An ambulance was called.
115 Throughout the event, Mr Metry communicated with the other security guards by radio. He said he had heard over the radio to “be on the lookout” for the group of children.[58]
[58]T183, L19
116 In cross-examination, Mr Metry said there were two other security staff who tended to roam around the event. He said he only looked after his “patch”.[59] He mentioned the children to the other security personnel. He thought Michelle Randall was in charge.
[59]T184, L17
117 Mr Metry did not remember speaking to an adult at the entrance earlier in the night, and said that parents do not normally speak to security regarding the event. He thought the person standing with him during the event was from the organising committee, but could not remember whether they were male or female.
118 Mr Metry said his job was the front door, and his role was to prevent children from leaving the venue. He said once the children went inside, they were supervised by the people who run the event. It was not his role to supervise the children once they entered the venue. He said his job was to look out the door, and alternate from looking at the door behind him.
119 Mr Metry could not recall whether he spoke to the Council staff member next to him about the children running around. He was required to follow a chain of command and that was to speak to his superior.
Evidence of Angus Kent, Tree Lopper
120 In 2007, Mr Kent said he was about fourteen years of age, having been born in January 1991.
121 In June 2007, Mr Kent was a junior Council member with Numurkah Secondary College. He was involved in organising the event with the Council. There were five other schools involved in organising the event, which was aimed at youth in the area.
122 Mr Kent gave evidence that his role on the night was to ensure that patrons were enjoying the night, knew where toilets were located, and had access to information such as bus times. Every Council staff member was issued with a badge with their name on it, the Council logo, and the title “Junior Moira Shire Council Member”.
123 Mr Kent said he spent most of the evening in the areas of the front door, the hallway and the main room. The accident occurred in the foyer. At the time, Mr Kent was situated in the back corner of the foyer. He said there were several tables and a large desk along the wall, but he did not recall seeing any couches. At the time of the accident, he was talking to Kirsty Lowe, a junior Council member, and another female, whose name he could not remember. He was greeting patrons.
124 From where Mr Kent was standing, he saw a young boy (Harley) running around. He witnessed the boy jump onto the highest point of the desk and, as he did this, the desk fell back onto him onto the ground. He said Harley ran up to the desk, jumped, and with both hands, grabbed the edge of the desk. He said the desk fell back onto the lower half of Harley’s body, and there was an awful scream. He immediately went to Harley, who appeared to be in a lot of pain. By the time he reached Harley, the desk had been removed. He saw a security guard, Ms Lowe, and a Moira Shire Councillor present with Harley.
125 In cross-examination, Mr Kent said that shortly prior to the accident, the only people in the foyer were him and the two young women he was conversing with. Immediately prior to the accident, he did not see the security guard or the Council staff member in the foyer. They were outside the front door. From his position, Mr Kent said he was looking straight through the doorway, and he saw the security guard outside. Mr Kent did not see another young boy enter the foyer and hide behind a couch.
126 Mr Kent could not recall whether Harley was being pursued by a young girl into the foyer. He said Harley did not run straight to the desk, but rather that he ran around the foyer a bit in a circle, and then up to the desk. At the time, Mr Kent said he did not consider that jumping up onto the desk was a hazard, as he was a young boy himself.
127 Immediately after the accident, Mr Kent saw two young patrons, a boy and girl, with Harley. In re-examination, Mr Kent said he responded almost immediately to the accident.
Evidence of Anthony Barker, Club Secretary
128 In 2007, Mr Barker was the Club Secretary of the Cobram Italian Social Club. He recalled the event organised by the Council, an underage disco. He said there were two club members present at the event, Angelo Diaco and Charlie Gatusay. He was aware that a young boy had been injured at the event.
129 Mr Barker said the reception desk was probably already at the venue when he joined the Club in 2004. Mr Barker said that throughout the time he has been involved in the Club, there have been all sorts of events held there: birthdays, weddings, Christmas parties, engagements, family functions, as well as corporate functions. He said it was a greeting point or a place where staff can sit to collect money. The desk is located in the foyer, but it can be moved if it is not required. He said over the years, young children have attended the venue regularly. He was not aware of any other incidents involving the desk.
130 In cross-examination, Mr Barker said, on occasions, he had seen young children playing at the venue who were under the supervision of their parents.
131 In re-examination, Mr Barker said sometimes parents were in the main room while children were playing in the foyer on their own.
Evidence of Trevor Eric Manly, retired School Teacher
132 Mr Manly was employed at the Sacred Heart College, Yarrawonga. He was the school representative at the event.
133 Mr Manly said that when he arrived, he met with Council officer, Kay Thomson, who was the facilitator of the event. Mr Manly’s job as a teacher was to wander around and make sure everyone was enjoying themselves and behaving. He said most of the teenage patrons were dancing. He recalled a number of younger patrons attending, younger than he expected, who were running around. Later in the evening, he saw the children in the foyer. He told them they needed to “tone it down a bit”, and they responded to that instruction.
134 At some stage, as the evening went on, Mr Manly said he went into the foyer and had a look around at the front door. He had been told by one of the patrons that there were children hanging around. He spoke to the security guard at the front door, and then went to check outside.
135 Mr Manly thought he had just returned inside when the accident occurred. He was facing outside to see if there was anyone about. He heard a noise, and spun around to see the young boy (Harley) on the ground; it looked like the desk was either on top of Harley or beside him. Mr Manly said there were a number of children in the area. He thought it was the security guard who lifted the desk off Harley. He notified Kay Thomson of the accident.
136 In cross-examination, Mr Manly said his teaching experience was mainly teaching secondary students, but he had worked in a primary school for a number of weeks. He said that if he was asked by Ms Thomson to look after these young patrons for half-an-hour, he would have tried, although he considered himself on a “roving commission”.[60]
[60]T219, L6
137 Mr Manly was asked if the Council had contacted his school before the night. More particularly, whether the Council had discussed the appropriate steps to alert Council staff at the event regarding the attendance of young children and potentially anything untoward at the event. Mr Manly’s evidence was that “no”, the Council had not.[61]
[61]T220
Evidence of Michelle Randall, Security Guard
138 Ms Randall is employed by Backup Security and has worked for the company for approximately twelve years. She was at the event in 2007 organised by the Council. She attended with Braham Metry and Tai Bullock, security guards. She probably arrived at 6.15pm. Braham was stationed on the front door, Tai was on the back door, and she was roaming the venue, checking behaviour, making sure that children were not “being stupid”, running around, and not doing what they were supposed to be doing.[62] She did observe some behaviour of that type.
[62]T222
139 On one occasion, Ms Randall spoke to Harley to “stop mucking around”, as someone would get hurt. She did not observe the boy being spoken to by other people. She said the children calmed down after she spoke to them, and stopped mucking around.
140 Later in the evening, there was an accident. Ms Randall was notified by a radio call from security staff to come to the foyer. After she received the radio call, she went straight to the foyer. She saw a young boy (Harley) lying on the ground; he was the same boy she observed earlier in the evening mucking around. There was a nurse and a first aid officer in attendance, and she called an ambulance.
141 Ms Randall said none of the security guards communicated with her about problems involving the children during the event.
142 In cross-examination, Ms Randall said she saw the children hitting each other with balloons in the main room and the hallway. After she spoke to them, they stopped this activity. She agreed they may well have been doing it before she saw them. She thought there were three or four young children.
143 Ms Randall gave evidence that she received the radio call to come to the foyer at around 7.35pm.
144 Ms Randall said Mr Metry was securing the inside of the front door. She said there were no pass outs, and no patrons were allowed to leave until their parents arrived to collect them.
Evidence of Kay Elizabeth Thomson
145 Ms Thomson was employed by the Council as manager of community development. Ms Thomson organised the event in 2007 with Ken Liddicoat’s assistance.
146 Ms Thomson arrived at the event around 5.00pm. Pursuant to Mr Liddicoat’s plan for the event, her role was in the drinks and cloakroom area. She said she only saw two young children at the event. She did not believe that patrons would have participated in a game of musical chairs if such a game was organised. She said it was advertised as a band event.
147 Ms Thomson witnessed Harley and another young child chasing around earlier in the evening. She saw the security guard follow them, and she presumed that the guard put a stop to the running around. She confirmed this in cross-examination.
148 Ms Thomson gave evidence that she next saw Harley on the floor of the reception area. The first aid officer, Tim, was beside Harley and so was another young man. She stayed with Harley, held his hip and leg, and talked to him until the ambulance arrived; she had a history as a nurse.
149 When questioned on the number of staff attending the event, Ms Thomson said there were four staff from Council, and three security staff. She also identified the names of five teachers who attended the event, but did not state an overall number of teachers who were present. Also attending were junior councillors.
150 In cross-examination, Ms Thomson agreed there was no activity to cater for seven or eight-year-old children, unless they liked bands. She agreed the flyer was targeted to secondary school students, but that seven or eight-year-olds were not excluded from the event.
151 Ms Thomson said that there were instructions given to councillors to report untoward conduct at the event. However, there was no report to her about children running around at the event.[63]
[63]T237
152 Ms Thomson said she had the ultimate authority at the venue. She said it did not cross her mind to arrange a roster of supervision for young children at the event. She agreed that Mr Liddicoat would have had the authority to arrange such a roster.[64]
[64]T237
153 In re-examination, Ms Thomson said she presumed that supervision was occurring at the event, and that the children were told not to run. She would only have expected behaviour to be reported to her if that behaviour was not ceasing.[65]
[65]T238
Credit of the witnesses
154 Overall, I accept that Harley was a credible witness. Harley answered all questions in a forthright manner. He made concessions. He agreed that he and his cousins were reprimanded at the event for playing with balloons and running around playing tiggy. On this aspect, Harley’s evidence was consistent with the evidence of his cousins, and the defendant’s witnesses.
155 Harley’s evidence as to his injuries and how they have affected his life is consistent with the evidence of his mother, and with what he reported to medical witnesses. All medical witnesses accepted the complaints he made. I accept that Harley did not exaggerate the consequences of his injuries and their effects upon his life. Furthermore, Candy’s evidence about Harley’s injuries and their effect upon his life was largely consistent with what she told certain medical witnesses. She did not exaggerate the effects of his injuries.
156 I accept that Brittany, Andrew and Sarah were also credible witnesses. There were some minor differences in their evidence which suggests they had not discussed the events with each other before giving evidence. For example, they gave differing accounts of whether Sean came into the venue when they arrived.
157 Candy gave evidence to the Court that her son, Jai, is receiving treatment for mental health issues and he was unable to cope with sitting in a Court room.
158 Sean gave evidence as to the number of trips he made to the event to drop off the children. This was inconsistent with the children’s evidence that it was one trip. Sean further said he spoke to someone at the desk as to supervision. This evidence was supported by Sarah, Harley and Brittney, but not by Andrew. Ultimately, I place little weight on Sean’s evidence, as it does not assist my Reasons for Judgment.
159 Mr Metry gave evidence which was inconsistent with his superior, Ms Randall. Mr Metry said he communicated with other security guards by radio. He said he heard over the radio to “be on the look-out” for the group of children. He said Ms Randall was in charge. He was required to follow a chain of command and report to his superior. Ms Randall said none of the security guards communicated with her about problems involving the children during the event. She received the radio call at 7.35pm to come to the foyer, where she saw Harley on the ground. Given Mr Metry’s evidence that he was required to follow a chain of command and report to his superior, I find it unlikely that Mr Metry received a call to be on the look-out for the group of children when Ms Randall said none of the security guards communicated with her about the children during the event. She received a radio call at 7.35pm to report to the foyer.
160 Overall, I accept the Council’s witnesses were credible. They made appropriate concessions. For example, Mr Liddicoat agreed that young children were permitted to attend without a parent or guardian. Mr Liddicoat and Ms Thomson accepted that running in the venue was an unsafe activity. I was impressed with the evidence of these witnesses.
161 I gained the impression that all witnesses were attempting to assist the Court. I take into account that all witnesses were recounting events that occurred approximately seven years ago at the time of trial. In addition, a number of key witnesses, including Harley, were children aged between eight and ten at the time of the accident. Harley’s sister, Sarah, was aged fifteen, and Angus Kent, a key witness for the defendants, was aged sixteen.
Findings of fact
162 The event was an underage disco which the Council intended for secondary school students. The purpose of the event was a rock band concert with a DJ. This was the evidence of witnesses involved in the organisation of the event, namely, Mr Liddicoat and Ms Thomson.
163 The stated purpose was consistent with the flyer distributed to advertise the event. Upon examining the flyer (exhibit 4), at the top left corner are the words “FREE EVENT OPEN TO ALL AGES”. The words “STRICTLY A DRUG, SMOKING AND ALCOHOL FREE EVENT” appear across the top of the flyer. On the right-hand corner are the words “BANDS AND A DJ”. Depicted on the flyer are drawings of a guitar, drumsticks and headphones. In small print are the words “Buses running from all major towns”. In square brackets under that, “$2 coin donation”. Under that, “Please see a local Secondary college for info”. Then under that, “For more info call Ken Liddicoat on #### ####”. I accept that the flyer advertised the event as open to all ages to attend.
164 There were inconsistencies in evidence as to how Harley learned of the event. Harley and Andrew said they received an advertising flyer from school. However, Harley’s mother said the flyer was given to her by Merinda, her social worker, and this was consistent with the evidence of her daughter, Sarah. I think the latter is the more likely explanation as to how the family came to know of the event. I accept that it is more likely, given the evidence of Candy and Sarah, and the nature of the event, that Harley’s family became aware of the event through the social worker, Merinda.
165 I accept that young children were invited to attend the event, including those of Harley’s age, despite the stated intention to design the event for secondary school students. I consider:
· The flyer advertised the event as open to all ages.
· Mr Liddicoat said the use of the words “open to all ages” meant that children eight years of age were not prohibited from attending the event.[66] This was in accordance with FReeZA guidelines.
[66]T154, L4–5
166 Further, I accept that young children were invited to attend the event. There was no requirement that they be supervised by a parent or adult. I consider:
· There was nothing stipulated on the event flyer which required an adult to attend with young children.
· Mr Liddicoat agreed that a family who picked up the flyer and had a couple of six-year-olds, could interpret the flyer without consulting the Council.[67] I accept that is the case in respect of the flyer.
[67]T154, L15–20
· Mr Liddicoat agreed that if a parent turned up at the event with children aged six to eight and did not intend to stay, the children would be entitled to stay, as it was an open event.[68]
· Mr Liddicoat agreed that he gave no instructions to staff at the front door to refuse entry if an enquiry of the above nature was made. He did not expect the security guard to contact him if young children came in without a parent.[69]
[68]T154, L28
[69]T169, L13-14
167 A particular fact in issue was whether Candy telephoned the number on the flyer prior to the event, and was told the event was supervised. In addition, a particular issue was raised as to whether Sean spoke to an adult or staff member at the door of the venue, before leaving the children at the event. Given Mr Liddicoat’s evidence that no instructions were given to door staff to refuse entry to young children, I find it is of little assistance to my analysis to determine whether Candy telephoned the Council, or whether Sean came to the door to receive this advice. The evidence was that there was no prohibition on young children attending the event without a parent or guardian.
168 I find that young children required supervision at the event; this was not disputed. Mr Liddicoat said he would have advised parents that young children could come along if properly supervised. Mr Liddicoat hoped that a reasonable adult would attend the event as a minder, because, in his experience, children would not be able to cope from being at an event for four hours.[70] He agreed young children needed protection from themselves and that they needed close supervision,[71] particularly in a new venue with a lot of people around. Mr Liddicoat’s evidence was that young children “are very prone to exploring their environment”.[72] Mr Liddicoat agreed that children of that age (around Harley’s age), are inexperienced in assessing potential hazards and dangers with respect to activity they involve themselves in.[73] I accept this evidence as a matter of commonsense.
[70]T155, L10
[71]T164
[72]T163-164, L23
[73]T163-164
169 I find that Harley and his cousins were bored by the event. The evidence of Harley, Brittney and Andrew was that they listened to the band for a time, it did not interest them, and they became bored. Apart from the music, there was no activity planned for a seven or eight-year-old. Harley and Brittney gave evidence that after they became bored, they played by tapping each other with balloons, and subsequently, they played tiggy. Mr Liddicoat agreed that a game of ‘tiggy’ was the very sort of activity young children aged seven or eight would play.[74]
[74]T169, L22
170 I find that it was inappropriate for children to be running around inside the venue. There was a crowd of patrons in the main hall. Persons were moving throughout areas of the venue. The floor in the foyer was identified as a polished wood floor, with a freestanding desk. The children were told to stop running by staff at the event. Ms Thomson’s evidence was that when she saw the children running, she knew the running had to stop because they or someone else might be hurt. This was reinforced by Mr Liddicoat’s evidence.[75]
[75]T166, L26
171 I find that the Council provided a basic level of supervision generally over children at the event. Specific evidence was given regarding supervision of Harley and his cousins at the event.
172 Ms Thomson said there were four Council staff at the event. She identified the names of five teachers who attended the event, but did not state an overall number of teachers present. Mr Liddicoat said there were 35-40 junior councillors attending, who were secondary school-aged students. In addition, the Council engaged Backup Security to provide security services for the event. There were three security guards at the event. They were positioned, respectively, at the front entrance, rear entrance and one roaming the event.
173 Two security guards, Ms Randall and Mr Metry, gave evidence as to their interaction or supervision over Harley and his cousins. Ms Randall and Mr Metry gave evidence of having individually spoken to the children during the event, and requesting them to stop their activity. Mr Metry said that supervision of the children at the event was not his role.
174 Mr Manly, school teacher, gave evidence that he asked the children to stop running around at one point. However, the Council had not provided formal instructions to his school regarding the supervision of young children at the event.
175 Ms Thomson presumed that supervision was occurring. She did not expect to be notified of untoward behaviour unless the children refused to cease acting in that manner.
176 Mr Liddicoat was unaware of the children’s activities at the event. Mr Liddicoat’s evidence was that he did not know Harley and the children were in the venue before the accident. Mr Liddicoat agreed that after the incident, he became aware of other young children of that age at the event.[76]
[76]T281
177 I find that the level of supervision at the event amounted to reprimands on three chance occasions by three different staff, namely Ms Randall, Mr Metry and Mr Manly. I find that the game of tiggy was not confined to a designated space and was not closely supervised by staff.
178 I accept the game of tiggy went on for quite some time; Andrew estimated 20 to 30 minutes. Mr Metry, the security guard, thought approximately half-an-hour.[77] Mr Kent, one of the junior Councillors, said there was a bit of running around before Harley made contact with the desk.[78]
[77]T184, L26
[78]T202, L4
179 I find that the plaintiff and his cousins responded to instructions when under the close and watchful eye of an adult. The children were told to stop their activities by Ms Randall, Mr Metry and Mr Manly respectively. Each of these witnesses gave evidence that the children responded to instructions and settled down. I find that, upon being approached by an adult in this manner, the children stopped their activity. The children resumed when they were not under watchful supervision.
180 Evidence was led as to the type or level of supervision that could reasonably have been organised for primary school-aged children at the event.
181 I find that the event was conducted in a sizeable venue, with adequate space to reserve an area for young children.[79]
[79]T158, L6
182 I find there were several Council staff and teachers roaming the event, who could have been allocated to specific tasks such as the supervision of young children. I accept that both Ms Thomson and Mr Liddicoat had the authority to allocate dedicated staff to closely supervise the young children. Mr Liddicoat agreed there could have been a rotation of adults looking after the children throughout the evening.[80] He agreed that the children could have been instructed to remain with him. Mr Liddicoat agreed that a space could have been reserved for the children, but he said that a childcare worker was required to supervise them.[81] I do not accept the evidence shows that a childcare worker was necessary. Mr Liddicoat conceded there were people who would be able, but not formally qualified, to supervise the children at the event.
[80]T163, L20
[81]T158, L6
183 I find that a risk assessment was performed by Mr Liddicoat, working together with another Council staff member and junior councillors. Certain hazards were appropriately identified and cordoned off, or put away. This includes the spare tables and chairs, and the wood heater area. There was no evidence that the freestanding desk was identified as a particular hazard on the Council’s risk assessment. I find that the risk assessment did not address the fact that the event was an open-ages event, where primary school children could attend.
184 A particular fact in issue was whether Harley fell and slid into the desk, or whether he ran to the desk and deliberately attempted to climb onto it. I find that ultimately, the precise mechanism of how the incident occurred is of little assistance to my analysis, for reasons which will become apparent.
185 There was no dispute as to the medical evidence submitted by the plaintiff. I accept the medical evidence as to the plaintiff’s injury and the evidence of the effects upon his life, and in particular, his sporting activities.
Determination of the claim
186 Counsel for the plaintiff submitted that the Council’s duty of care is to take reasonable care in the conduct of the event and in the provision of safety so as to avoid a foreseeable risk of injury to those attending.[82]
[82]T12, L21
187 Counsel for the defendant submitted that the duty of care, or the relevant risk of injury was that a child might fall to the ground attempting to climb on furniture within the premises.[83] The Council admitted it had a duty as an occupier. The Council took issue with the scope and breach of that duty. I accept that the duty of care of an occupier under the Wrongs Act is limited to the state of the premises. Harley’s case relied heavily upon the supervision required of young children. This type of case does not fall within an occupier’s liability, as supervision does not relate to the state of the premises.
[83]T258, L12–15
188 I find that the Council owed a duty to provide safety to those attending the event. I specifically find the Council owed a duty to provide safety to primary school-aged children attending the event. I find that the Council breached this duty, and the breach was causative of the injury in this case. Accordingly, it is not necessary for me to examine the alleged breach of occupier’s liability. I turn now to give my reasons.
Legal analysis
Legal matrix
189 The plaintiff’s cause of action in this case is based in negligence, as it stands at common law and as enunciated in Part X of the Wrongs Act. Relevantly, s44 of the Wrongs Act provides:
“This Part applies to any claim for damages resulting from negligence, regardless of whether the claim is brought in tort, contract, under statute or otherwise.”
190 This is subject to certain exceptions, which are not applicable in this case.
Duty of care
191 The question of the existence of a duty is to be determined by the application of common law principles.[84]
[84]Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London & Ors [2011] VSC 589 at [277]; Gunnersen & Gunnersen v Henwood & Mornington Peninsula Shire Council [2011] VSC 440 at [299]
192 The existence of the duty of care should be determined by looking at the features of the relationship between the Council and the patrons attending. I am assisted by the “salient features” which were identified by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar.[85] People of all ages were invited to the event. In this case, I find that the relationship between the Council and children of primary school age had many features which make it appropriate to impute a legal duty to take reasonable care. The Council invited children to the event without a parent or guardian. In accepting children into its responsibility without a parent or guardian present at an event where there were no pass-outs, the children became peculiarly subject to the care and control of the Council. I accept the Council owed a duty to take reasonable care in the conduct of the event and in the provision of safety, so as to avoid a foreseeable risk of injury to children.
[85](2009) 75 NSWLR 649 at 676, and cited with approval in Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London & Ors (supra) at [279], and Gunnersen & Gunnersen v Henwood & Mornington Peninsula Shire Council (supra) at [298]
Breach
193 The question of breach of a duty of care must be answered by reference to statute.[86] The relevant sections (s48 and s49) of Part X of the Wrongs Act provide as follows:
[86]Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London & Ors (supra) at 280
“Section 48: General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
(3) For the purposes of subsection (1)(b)—
(a) insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and
(b) risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.”
“Section 49: Other principles
In a proceeding relating to liability for negligence—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”
194 These sections are directed to breach, notwithstanding the heading in the Wrongs Act, ‘Division 2 – Duty of Care’.[87]
[87]Adeels Palace Pty Ltd v Moubarak (supra) at 432 at [13]
Identifying the risk of harm
195 Section 48(1) requires, as a starting point, identification of the risk of harm.
196 The definition of “harm” is contained in s43 of the Wrongs Act, and it includes “physical injury or death”. In this case, the harm is physical injury.
197 Next, it is necessary to determine the risk of harm in a way that will facilitate the analysis under the Wrongs Act.[88] In Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London & Ors,[89] Forrest J, at [289], said:
“It is also necessary to ensure that the particular harm is identified with sufficient precision to enable a finding to be made as to whether the harm would have been avoided by an alternative response to that which occurred.”[90]
[88]See Grinham v Tabro Meats Pty Ltd & Anor; Victorian WorkCover Authority v Murray [2012] VSC 491 at [143]
[89]Supra
[90]In Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London & Ors (supra), this statement is cited as a quotation from Adeels Palace v Moubarak; however, it does not appear in Adeels Palace. Accordingly, I have cited this as the statement of Forrest J in Ultra Thoroughbred Racing Pty Ltd (supra).
198 It is sufficient if the risk of harm is described as a class of injury, as distinct from the particular injury actually suffered by the plaintiff.[91]
[91]Gunnersen & Gunnersen v Henwood & Mornington Peninsula Shire Council (supra), Dixon J at [306]; Benic v State of New South Wales [2010] NSWSC 1039, Garling J at [83]
199 It is helpful to consider:
· the nature or type of harm (physical injury);
· the class of persons (primary school aged children);
· the mechanism of the harm (childish activity); and
· the context or circumstances in which the harm occurred, applicable in a wider sense (known to be at a youth disco without a parent or guardian present).
200 I find the risk of harm is physical injury to a primary school-aged child at a youth disco, when it is known the child is engaged in activities of their own design, and does not have a parent or guardian present (“the risk of harm in this case”). Applying this to the particulars of this case, the risk of harm was that Harley would injure himself at a youth disco, when engaged in activities of his own design, without a parent or guardian present.
201 This definition of the risk of harm must be precise. However, when defining the risk, Counsel for the plaintiff submitted that it was not necessary to decide the actual mechanism of injury. It was not necessary to determine whether Harley climbed onto the desk, or whether he slipped and fell. I accept that submission. The expression “engaged in activities of their own design” with respect to a child is sufficiently precise, and easy to understand. It refers to childish activities, including running around and playing tiggy.
202 I turn now to examine each step of s48(1) of the Wrongs Act, which involves the concepts of foreseeability, significance of risk, and the reasonableness of precautions. These concepts must be considered separately and cumulatively.
Foreseeability
203 The foreseeability of risk is assessed prospectively at the time, not in hindsight. Further, it is the nature of the harm that must be foreseeable, not necessarily the precise manner in which the injury occurred.[92]
[92]Chapman v Hearse (1961) 106 CLR 112, Ultra Thoroughbred Racing Pty Ltd v Those Certain Underwriters at Lloyd’s, London & Ors (supra) at [284]
204 I find the risk of harm in this case was foreseeable. It was a risk that the Council knew was present. This is apparent on the evidence, which shows that–
(a) Council staff knew there was an open invitation to children of all ages to attend the event, with or without a parent or guardian. Mr Liddicoat agreed the event flyer advertised the event as open to all ages, and primary school-aged children were permitted to attend.
(b) The Council knew that young children were at the event. Several witnesses said they saw “young” children at the event.[93]
[93]Mr Metry, Ms Randall, Mr Manly, Mr Kent and Ms Thomson,
(c) Council knew the event would not hold the sustained interest of young children. Mr Liddicoat and Ms Thomson, both senior staff involved in organising the event, conceded that the event would not interest young children. Council ought to have known this as a matter of commonsense.
(d) Council knew that young children in this environment would engage in childish and unsafe activities. Mr Liddicoat conceded that children required protection from themselves. Council ought to have known this as a matter of commonsense.
The risk was “not insignificant”
205 The risk in this case must not be insignificant. The definition of an insignificant risk is contained in s48(3)(a) of the Act to include, but not be limited to, a risk which is far-fetched or fanciful. This definition is of a higher order than the common law test,[94] though perhaps only slightly.
[94]Benic v New South Wales (supra) at [101], cited with approval in Gunnersen & Gunnersen v Henwood & Mornington Peninsula Shire Council (supra) at [362]
206 I find that the risk in this case was not insignificant. As a matter of commonsense, the risk was significant that a primary school child (such as Harley) would injure himself at the youth disco, when it was known that he would be bored, and engaged in childish activities without a parent or guardian present. The evidence from staff at the event was that they considered it a significant risk.[95] The risk was more significant in this case, because the children were repeatedly running around after being told off by staff, and did not have a parent or guardian present.
[95]Mr Liddicoat, Ms Thomson and Ms Randall
Precautions by a reasonable person
207 In view of the risk in this case, a reasonable person in the Council’s position certainly would have taken precautions. The question is what precautions were to be taken.
208 I accept that the Council took precautions to mitigate risk of injury to patrons. However, I find that a reasonable person in the Council’s position would have taken further precautions against a risk of injury to primary school-aged children, over and above what was organised for secondary school children at the event.
209 Counsel for the plaintiff submitted that the proper precaution to take in this case was to provide increased supervision and activities of interest for young children at the event, including Harley. I accept that submission, and will examine it in detail.
210 Pursuant to s48(1)(c) of the Wrongs Act, the Council is not negligent in failing to take precautions against a risk of harm to primary school-aged children at the event, unless a reasonable person in the circumstances would have taken those precautions.
211 In determining whether a reasonable person would have taken precautions against a risk of harm, the considerations in s48(2) are relevant. These involve the probability of harm if care were not taken, the likely seriousness of harm, the burden of taking precautions, and the social utility of the activity that creates the risk of harm. I turn to examine each of these considerations.
The probability that the harm would occur if care were not taken
212 The probability of primary school-aged children injuring themselves by engaging in childish activities at a youth disco was likely, unless appropriate care was taken by the Council in the conduct of the disco. In making this finding, I take into account the following circumstances which increased the probability that the harm would occur, in the absence of additional care by the Council:
(i) There was an open invitation to all ages, and young children attended the event without a parent or guardian;
(ii) The level of supervision at the event was designed for secondary school students;
(iii) The band/activity at the event was not reasonably likely to sustain the interest of young children. There was no other activity to divert the attention of young children;
(iv) Young children were free to roam the sizeable event space, and were not confined to a designated area;
(v) There was no clear chain of command among staff to manage unsafe activities, particularly when the children failed to cease their activities after being reprimanded.
213 I find that these factors make it probable that a young child, such as Harley, would injure himself or herself at a youth disco, unless additional care was taken by the Council.
214 Evidence was led from Mr Barker, Club Secretary, regarding events held at the venue in the past, and the frequency of injuries to children. I found this evidence to be of nominal, or no assistance. No log books or other records were produced to show the circumstances or frequency of injuries at similar events. The evidence was that parents attended at past events.
215 I am satisfied that the probability that the harm would occur is a consideration that weighs in favour of further precautions being taken.
The likely seriousness of harm
216 Physical injury to a child is a serious harm. The likely seriousness of that harm increases when it is known that a child will be bored at a youth disco and will engage in activities of their own design. The potential seriousness increases further again when it is known that a parent or guardian will not be present. I am satisfied that the likely seriousness of harm is a consideration that weighs in favour of further precautions.
The burden of taking precautions to avoid the risk of harm
217 The defendant submitted that the burden of providing increased supervision for primary school children was too great. However, I do not accept this submission.
218 I take the view that there were several precautions a reasonable person in the Council’s position could have taken, which were not overly burdensome. These precautions are as follows:
(i) A risk assessment that took into account the needs of primary school-aged children in terms of supervision and entertainment;
(ii) A designated area could be set aside for primary school-aged children inside the venue. Mr Liddicoat agreed that a separate space could have been reserved for the young children;
(iii) Targeted supervision could be arranged for primary school-aged children, within a designated area. I do not accept that this was impractical, given the number of staff and teachers. Mr Liddicoat gave evidence that he and other staff could have kept a close watch over the children. Mr Manly, a teacher, said he could have assisted. It was not an unreasonably heavy burden to expect targeted, close supervision for young children at the event, particularly given the probability of the risk and the likely seriousness of harm.;
(iv) A designated chain of command could be set up to manage the children’s unsafe activities. A staff member, such as Mr Liddicoat or Ms Thomson, could have been mandated as the central person to notify of unsafe activities. Mr Liddicoat gave evidence that he would contact a parent to take the children home if the children were disinterested and persisted in their behaviour. Yet, Mr Liddicoat was not aware of the children’s presence until after Harley’s accident. A designated chain of command was not too burdensome for the experienced organisers of this event;
(v) Suitable activities (that is, confined and supervised activities) could have been planned for primary school-aged children at the event. Limited evidence was given as to the suitability of other activities at the event. I accept that an activity such as dodge ball was not appropriate inside the venue, given the requirement to throw a ball over distances. Musical chairs or duck-duck-goose would be appropriate, as these activities could be confined and supervised. I take the view that activities which kept young children engaged and confined to a targeted, supervised area would be appropriate. Mr Liddicoat gave evidence that there were a few spaces that could have been used on the night.[96]
[96]T140, L19-20
The social utility of the activity that creates the risk of harm
219 Mr Liddicoat gave evidence that the social utility of allowing children of all ages to participate in such an event was an important factor to consider. I accept that there is certainly great value in such events for youth in regional areas. However, this does not outweigh the reasonable precautions required for primary school-aged children such as Harley in the circumstances. These precautions would still allow young children to participate in the event, and so would not destroy the social utility of the event.
Section 49 of the Wrongs Act 1958
220 Having dealt with s48(1) and (2), it is relevant to consider s49 of the Act, which sets out:
“In a proceeding relating to liability for negligence—
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”
221 In considering the burden to Council to take precautions of avoiding the risk of harm to a child in this case, I have considered the burden of precautions to avoid similar risks of harm. There is an additional burden on the Council to take precautions for similar risks at other youth discos, where children can attend without a parent or guardian. I take the view that it is an appropriate burden for the Council in such circumstances to undertake. If primary school-aged children are invited to attend a youth disco without a parent or guardian, the requirement of targeted supervision and appropriate activities would cover a multitude of similar risks.
222 Furthermore, I have not considered liability is to be imposed simply because doing something in a different way could have avoided the harm in this case. Rather, there is a clear path of reasoning between the duty of care, the risk of harm, the reasonable precautions expected of the Council, and the harm that befell Harley in this case.
223 There was no evidence of any subsequent action by Council for the purposes of s49(c) of the Wrongs Act.
Causation
224 As to causation, s51 of the Wrongs Act relevantly sets out:
“(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
…
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
225 In Adeels Palace v Moubarak,[97] the High Court determined that the equivalent New South Wales statutory provision as stated in s51(1) was to be determined by the “but for test”. Adopting the “but for test”, I accept that the Council’s breach of its duty of care was causative of the harm that befell Harley.
[97](2009) 239 CLR 420
226 I accept the breach of the duty of care is jointly composed of the following omissions by Council:
(i) The Council failed in its risk assessment to specifically consider primary school-aged children attending the event, and their need for targeted supervision and activities of interest. The Council took into account the considerations on the Event Item Checklist (exhibit A). The evidence was that the Council designed and planned the event for secondary school students. Yet, from the outset, it was known that younger children were invited to attend without a parent or guardian, that they would probably be bored, and that they needed protection from themselves when engaging in activities of their own design. The risk of harm was clear from the outset. It was not identified in Council’s risk assessment.
(ii) The Council failed to provide suitable activities of interest for primary school-aged children. There were no activities for primary school-aged children at the event. Harley and the children were left by the Council to design their own entertainment, which is what they did;
(iii) The Council failed to provide targeted supervision for primary school-aged children at the event, in a designated space. There was no central chain of command among staff to manage the children’s activities. The level of supervision amounted to chance reprimands on three occasions by three different staff. The children were running around the event, and they probably would have continued further, save for the fact that Harley injured himself.
227 In finding that the negligence was a necessary condition of the occurrence of the harm, I consider the evidence that –
(i) but for the defective risk assessment for primary school-aged children, I am satisfied that the Council would have put in place reasonable precautionary measures. The Council acted positively to mitigate risks that were identified;
(ii) but for the lack of targeted supervision, Harley and his cousins would have listened to instructions. The evidence was that Harley and the children listened to adults who instructed them to settle down. They only disregarded instructions and resumed their activity when they were not under close and watchful supervision;
(iii) but for the lack of suitable activities of interest for primary school-aged children, I am satisfied the children would not have engaged in activities of their own design, such as tiggy. The children gave evidence that they were interested in games and interacting with other children. The game of tiggy was repeated by the children over the course of some 30 minutes, and it probably would have continued further, save for the fact that Harley injured himself. If suitable activities of interest were provided, I am satisfied that Harley and the children would have taken part in those activities.
228 I am satisfied that if the Council had not breached its duty of care, and had undertaken an appropriate risk assessment, and actually provided targeted supervision and activities for young children in a designated space, the harm that befell Harley would not have occurred. “But for” the Council’s negligence in this case, the physical injury to Harley would not have occurred.
229 As to s51(1)(b) of the Wrongs Act, the Explanatory Memorandum to this section of the Wrongs Act states that “whether and why responsibility for the harm should be imposed on the Council is a value judgment”.[98] I find it appropriate to extend the scope of the Council’s liability to the harm in this case. I take into account all the circumstances, including the open invitation issued by the Council, the vulnerable age of the plaintiff, the reasonableness of taking further precautions, and the nature of the harm (bodily injury).
[98]Explanatory Memorandum: Wrongs and Other Acts (Law of Negligence) Bill 2003
230 Having made this finding, it is not necessary for me to enter into an analysis of occupier’s liability.
231 I will now consider the question of damages.
Harley’s medical evidence
Goulburn Valley Health
232 A report dated 10 June 2010 was provided from Dr Bruce Warton, Chief Medical Officer. He confirmed that Harley was seen in the Emergency Department of Goulburn Valley Health on 22 June 2007. The report confirmed that Harley’s left femur was fractured after a desk fell on it. His left leg was placed in a hip spiker to immobilise the fracture.
233 On 29 June 2007, Harley underwent an open reduction and internal fixation procedure which involved a six-hole plate and screws to unite the fracture. Subsequently, Harley was mobilised with physiotherapy and occupational therapy, and was discharged on 2 July 2007. He was reviewed two weeks later, when he was using crutches. It was expected that he would require crutches for a further four weeks.
234 On 21 January 2008, Harley was re-admitted to hospital for the removal of metal from the left femur. He was reviewed one month later.
Mr R Horton
235 In April 2009, Mr Horton, surgeon, confirmed that he reviewed Harley at the request of his general practitioner. Mr Horton confirmed that Harley fractured his left femur in 2007. He was treated by internal fixation of the plate, and the plate was subsequently removed. Harley experienced occasional episodes of discomfort. His mother noticed him limping from time to time. Mr Horton said he seemed to perform perfectly well and was a very active young man. Mr Horton said the sight of his lateral thigh scar is tender to deep palpation. Mr Horton said Harley’s symptoms were of no consequence, unless they persisted and became worse.
Mr Donald R Marshall
236 In April 2010, Mr Marshall, plastic and reconstructive surgeon, examined Harley at the request of his solicitors. Mr Marshall said Harley had been left with an unsightly scar which is both disfiguring and sensitive to injury, and causes him considerable trouble. Harley’s mother confirmed that he keeps the scar covered to avoid the discomfort caused with injury. He plays sport, but wears long shorts below the knee and avoids contact in games such as football. Harley reported the scarring is itchy, and creams are used to maintain softness. Mr Marshall said Harley had lost some muscle bulk in the left leg, which is weaker than the right leg. He is naturally right-footed, but does try to kick a football with his left leg.
237 Mr Marshall said the scarring is permanent. It is unlikely to deteriorate, but will always be more fragile than normal skin, and protection will be necessary, and this will interfere with his sporting activities and possibly his employment. It is possible, with growth, the scar may become tight and some scar revision may be necessary, although unlikely.
Dr Robert Adler
238 In June 2010, Dr Adler, psychiatrist, medically examined Harley at the request of his solicitors. Harley reported that he had been at a disco playing “tiggy” with his cousin. He was running, when he slipped and hit a desk that fell on him, breaking his left femur. Harley reported that he used to play basketball, but after the accident, he had to stop because his leg ached too much. In 2010, he began playing soccer. He reported that he cannot run as well as he did before the accident. Prior to the accident, he came fourth in a cross-country race, but in 2013, was not able to do better than tenth. Harley is still troubled by aching in his leg, which is worse if he plays basketball, or in cold weather. Harley reported the pain level in his leg fluctuated from no pain at all, to moderately severe pain (6 to 7 out of 10) after vigorous sport.
239 Harley reported that he worries about hurting the scar when he is playing sport. Sometimes it becomes itchy. Harley’s mother reported that he gets frustrated when he cannot play sport. He tires more easily and is not as good at sport as he used to be. He tends to protect his leg when playing, and is very conscious of his leg, as he is afraid of breaking it again. Harley’s mother said he complains of aches and pains when he plays sport, his knee tends to swell and his foot is turned outwards. Nevertheless, he is willing to give everything a go.
240 Dr Adler reported that Harley’s mother left school in Year 9 and that she is functionally illiterate. Harley’s mother reported that he is self-conscious of his scar and likes to wear shorts that extend below his knees with thermals underneath them. He is self-conscious of his appearance and of being asked questions about the scar.
241 Dr Adler reported that Harley continues to be self-conscious of the scar on his leg and somewhat fearful of hurting it again. In the past, sport has been one of his major outlets. The injury has led him to give up basketball. Harley believes he is no longer able to run as well as he did in the past. Dr Adler said the most likely impact of the injury will be on Harley’s ability to participate in physical activities, including sport, and the consequent effects on his self-esteem if he is less able to participate in sport.
Mr Peter Kudelka
242 In June 2014, Mr Kudelka, orthopaedic surgeon, medically examined Harley at the request of his solicitors. Harley reported that he had an accidental fall when he fell over and hit a desk, sustaining a fracture of his left femur.
243 Mr Kudelka said Harley was kept under review and, as frequently happens, the left femur was stimulated by the injury in a growing boy and began to lengthen relative to the right. This is usually monitored and if the disparity is considered significant, a procedure is carried out on the growing part of the femur; that is the epiphyseal plate, to stop further growth. This procedure was carried out at the Royal Children’s Hospital in Melbourne in 2013. The aim is to have both legs the same length at maturity.
244 Harley still complained of some aching, discomfort and weakness in the left leg generally. This interferes with his sporting activities. His mother applies liniment and he has hot baths to control the symptoms.
245 Mr Kudelka reported that Harley complains of some aching and weakness in his left leg. There is no measurable wasting of the thigh or calf circumference. His complaints are consistent with the long-term effects of a fractured shaft of the left femur and a subsequent epiphysiodesis to prevent over-growth. Mr Kudelka said it is hoped that by the age of eighteen, both legs will be equal in length; however, this cannot be guaranteed. Mr Kudelka said, from a physical point of view, there will be some long-term difference with sporting and recreational activities. Harley is not particularly susceptible to arthritis of his hip, back or left knee.
246 In a further report in July 2014, Mr Kudelka said Harley should be followed up and assessed annually until he finishes growing, which may be at about twenty years of age. In the intervening period, Harley can carry out self-managed exercises and swimming, but moderate his activities if the muscles in the left leg become painful from time to time. If there is any discrepancy in leg length at maturity, Harley may have to wear a heel raise on the shorter leg, but this cannot be decided until he is fully grown. He may wear slight heel raises until then, to prevent any lateral strain on his lumbosacral spine.
Quantum
247 Harley relied upon a number of medical reports. The defendant did not tender evidence as to the nature and extent of Harley’s injuries.
248 All doctors accepted that Harley suffered a fracture of his left femur. He was treated surgically by internal fixation of a plate. He was mobilised with physiotherapy and occupational therapy. He was discharged from hospital, using crutches, and it was expected that he would need crutches for a further four weeks. The plaintiff’s evidence was that he used crutches and a walking frame, but he was unable to recall the period of their use. When he returned to school, he needed to use a wheelchair and then crutches. He had to stay inside at snack and lunchtimes, which made him sad and angry.
249 In January 2008, Harley was re-admitted to hospital for surgical removal of the plate.
250 The medical evidence is that the left femur was stimulated by the injury and grew longer relative to the right. Harley was monitored by the Royal Children’s Hospital. In 2013, Harley underwent epiphysiodesis surgery to stop overgrowth in the left leg. Mr Kudelka said it is hoped that by the age of eighteen to twenty, both legs will be equal in length; however, this cannot be guaranteed. Mr Kudelka said it should be followed up and assessed annually. If there is any discrepancy in length at maturity, Harley may be required to wear a heel raise on the shorter leg. Mr Kudelka said, in the interim, Harley may wear slight heel raises to prevent any lateral strain on his lumbosacral spine.
251 Mr Marshall, plastic and reconstructive surgeon, described the scarring as “unsightly which is both disfiguring and sensitive to injury and which causes Harley considerable trouble”. Candy confirmed that Harley covers the scarring to avoid discomfort caused with injury. Harley reported wearing long shorts below the knee to avoid contact in games such as football. Mr Marshall said the scarring is permanent. It is unlikely to deteriorate, but will always be more fragile than normal skin and protection will be necessary, which will interfere with sporting activities and possibly his employment. Mr Marshall said it is possible, with growth, that the scar may become tight and some scar revision necessary, although unlikely.
252 Harley was examined by Dr Adler, a psychiatrist. Dr Adler said the most likely impact of the injury on Harley is his ability to participate in physical activities, including sport and the consequential effects on his self-esteem if he is less able to participate in sport.
253 Harley said he returned to playing basketball, but when he jumped, his left knee hurt. He does not have the same confidence playing basketball, cannot play as hard, and has to “pull back” because of the pain in his left knee. He quit basketball last year because of the pain in his leg.
254 Harley attempted to play soccer after his injury, but stopped because he was being hit in the leg during games.
255 Harley said he has scarring, which he tries to hide, because he is ashamed of it. When playing football, he usually wears skins to hide the scarring, and when playing basketball, he wore longer basketball shorts. He said the scarring feels weird; it is smoother and he applies cream to the scarring. He reported this to Mr Marshall, and the fact that he avoids the scarring coming into contact with people or things. Mr Marshall accepted the plaintiff’s complaints.
256 The plaintiff was consistent in reporting his complaints to doctors. All doctors accepted his complaints were reasonable.
257 Harley agreed that he was a bit of a “knock-about sort of kid” who gets in and out of situations and gets injured sometimes, then gets better. He agreed that he participates in activities, but when he gets home afterwards, he suffers “heaps” of pain. He does not see doctors on an ongoing basis, but presently attends the Royal Children’s Hospital every three to six months and applies cream after nearly every game of football.
258 I accept that as a result of the accident, Harley suffered an injury of a significant nature. He suffered a fracture of the left femur, which he said caused “heaps of pain” at the time of injury. He required hospitalisation and surgery by way of open reduction and internal fixation. He underwent rehabilitation and relied on crutches, a wheelchair and walking frame. He underwent a second surgery to remove the plate in January 2008. In 2013, he underwent further surgery at the Royal Children’s Hospital to arrest the growth in the left leg. The current evidence is that there is a two-centimetre discrepancy in the length of the leg. He has a gait problem, which must be monitored until the age of eighteen or twenty, when it is hoped that both legs will be equal in length; however, this cannot be guaranteed. There is a risk that his legs will not be equal in length and, in that event, the options are to undertake further surgery, or a heel raise that he will wear for life. In addition, there is the possibility of lumbar spine problems by reason of the gait.
259 Harley has been active in sport, but has had to modify his sporting activities. He gave up basketball because the pain was too bothersome. He attempted to play soccer, but discontinued that because of the contact with his left leg. He modifies the way he plays football, and when he gets home, suffers pain and has to rub cream on the scar. He walks with his foot out, not in. The left leg is weaker than the right “by heaps”.[99] He cannot run for long periods without aching.[100]
[99]T32
[100]T32–33
260 In addition, the plaintiff has a scar, which is both disfiguring and sensitive to injury; it requires protection. Mr Marshall said it was unlikely to deteriorate, but will always be more fragile than normal skin, and protection will be necessary, which will interfere with Harley’s sporting activities and possibly his employment. Mr Marshall said that with growth, the scar may become tight and there may need to be scar revision, although that is unlikely. Harley told the Court and reported to a number of the medical witnesses that he was self-conscious and embarrassed by the scarring. No medical witness suggested that the plaintiff was not genuine in this complaint.
261 I accept that the effect of the injury may impact on Harley’s ability to participate in physical activities, including sport, and the consequential effects on his self-esteem, if he is less able to participate in sport. I rely upon the evidence of Dr Adler, psychiatrist.
262 The purpose of compensation is to place the plaintiff in the position he would have been in, absent the injury, to the extent that money is able to do so.
263 Counsel for Harley submitted that in view of his young age, the evidence overall, and an assessment of general damages of $175,000, plus specials of $1,000 because of the longevity of it, is fair and reasonable compensation in this case. Counsel for the defendants submitted a figure of between $85,000 to $100,000 was appropriate.
264 I accept that Harley has an active lifestyle and plays a range of sports to a relatively high degree. I reject the submission that the injury has not had a negative impact on his sporting pursuits.
265 Taking all these matters into account, in my view, it is appropriate to assess pain and suffering damages in the sum of One Hundred and Sixty Five Thousand Dollars ($165,000), and agreed special damages of One Thousand Dollars ($1,000), with interest.
266 I will hear the parties on the orders and costs.
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