Herbert v Tamworth City Council (No.3)

[2004] NSWSC 207

CITATION:	Herbert v Tamworth City Council (No.3) [2004] NSWSC 207
HEARING DATE(S):	25 - 27 February 2004 1 - 5 March 2004
JUDGMENT DATE:	25 March 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Sperling J at 1
DECISION:	1. Judgment for the Plaintiff against the Defendant with costs for damages to be assessed; 2. Judgment for the Cross-Defendant against the Defendant with costs.
CATCHWORDS:	Torts - negligence - occupier's liability - no question of principle
CASES CITED:	Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES :	Maddy Herbert by her tutor Teresa Lee Meehan Tamworth City Council Matthew William Keam
FILE NUMBER(S):	SC 20187/02
COUNSEL:	Mr R V Letherbarrow SC with Mr R Taylor for the Plaintiff Mr M T McCulloch for the Defendant / Cross-Claimant Mr G Niven for the Cross-Defendant
SOLICITORS:	McCabe Partners Lawyers for the Plaintiff Phillips Fox for the Defendant / Cross-Claimant Rhodes Kildea Solicitors for the Cross-Defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Sperling J

Thursday, 25 March 2004

20187/02 Maddy Herbert by her tutor Teresa Meehan v Tamworth City Council

Judgment (No.3)

1 His Honour: On 25 October 1999 the plaintiff, Maddy Herbert, was living with her mother Teresa Lee Meehan at 189 Carthage Street, Tamworth. Powerhouse Park is about 100 metres away, bordered on two sides by Carthage Street and Kitchener Street. At all relevant times, the park has been under the occupation, care and control of Tamworth City Council.

2 At the time of the accident there was – and still is – a drainage channel in the park, commencing at the northern (Carthage Street) frontage of the park and running south to a point within the park where it feeds into a pipe installed below ground level. There is a head wall at the pipe inlet into which the end of the pipe is set. The surface of the drainage channel is concreted and river stones have been set into the concreted surface of the channel. The pit formed by the drainage channel at the head wall is 1.6m deep. At a point about 1.5m from the head wall, the pit is 1.4m deep. At the three sides of the pit (formed by the head wall and the adjacent sides of the channel) the ground slopes down to the edge of the pit formed by the head wall and the concreted sides of the channel.

3 In the previous paragraph I have treated Carthage Street as running east-west and the park as lying to the south of it. I will continue to do so, notwithstanding that this is not quite accurate. (Carthage Street in fact runs northwest – southeast.)

4 Late in the afternoon of 25 October 1999, Matthew William Keam, who was boarding with Mrs Meehan, took the plaintiff to the park to practice riding her bicycle. While riding the bicycle in the park, the plaintiff rode into the pit which I have described.

5 Proceedings have been brought against Tamworth City Council on behalf of the plaintiff by Mrs Meehan as her tutor. The Council has joined Mr Keam as a cross-defendant. The trial before me was limited to liability, the assessment of damages (should that arise) being postponed.

6 The bicycle was second-hand, but in good condition. The plaintiff had had it for only a short time.

7 Mrs Meehan’s recollection is that the plaintiff had, prior to 25 October, learned to ride the bicycle. Mr Keam’s recollection – and I accept it was his understanding at the time – was that the plaintiff had not yet learned to retain her balance on the bicycle satisfactorily when he took her to the park. This difference in recollection is not material and may have more to do with assessment than objective fact.

8 I refer to Exhibit F, a sketch plan of the park drawn by Mr Keam. It is not to scale. It shows the location of the park referable to Carthage Street and Kitchener Street, a playground area, a toilet block, the drainage channel (which terminated at the head wall as I have described), two bridges, a picnic table, a shrub and two trees.

9 I accept Mr Keam’s evidence as being his honest recollection of what occurred. One has, however, to make allowances for the likelihood that his recollection may be affected by his association with the episode and that he may now believe that he took note of things which he might not in fact have noticed at the time. It is impossible for a person, in circumstances such as this, to distinguish subconscious confabulation from true recollection.

10 I can best summarise Mr Keam’s evidence of what occurred on 25 October by reference to Exhibit F. He said the plaintiff was not wearing a protective helmet. His understanding was that she did not have one. He and the plaintiff walked to the park, he wheeling the bicycle. Mr Keam had not previously been in the park. They entered the park near the corner of Carthage and Kitchener Streets at a point marked with a cross. They then walked along the dotted line to the shrub (so designated on the plan). At a point marked “A” on the plan, Mr Keam noticed the more northerly of the two bridges. He was looking for an open grassy space. Arriving at the shrub, the area to the south appeared to him to be suitable. He said it looked to him to be a grassy area that went all the way the far boundary of the park.

11 Up to this point, the plaintiff had not been on the bicycle during the outing. According to Mr Keam, the plaintiff now undertook three rides from the shrub to a point a short distance to the east of the picnic table. On each occasion, Mr Keam ran beside her, on her right hand side, holding the handlebars with his left hand. On each occasion, he let go about halfway and the plaintiff brought the bicycle to a stop to the east of the picnic table. After each ride, Mr Keam walked the bicycle back to the shrub.

12 On the fourth ride (which terminated in the casualty), Mr Keam said he ran ahead of the plaintiff, jogging backwards in front of the bicycle until he reached a point near one of the trees which he marked with another “X”. He then noticed the front wheel of the bicycle turn to the right consistently with the wheel having hit a bump in the ground. The plaintiff appeared to lose control of the bicycle at this point. The bicycle veered off to the plaintiff’s right and Mr Keam’s left. Mr Keam called out to the plaintiff to put on the brake. To Mr Keam’s eye, the plaintiff then just disappeared. He ran towards the point where she was last seen. He said that, when he arrived at a point which he marked “V”, the drainage channel came into view for the first time and, on arriving at the channel, he saw the plaintiff sitting beside her bicycle at the bottom of the channel close to the head wall with blood on her face.

13 Mr Keam said that during the time that the plaintiff was riding her bicycle on the four rides to which I have referred, he did not at any stage look to the west towards the drainage channel.

14 Mr Keam returned to the scene next day and saw a blood stain on one of the rocks at the bottom of the pit close to the head wall.

15 I had a view of the park before addresses by counsel. My observations became Exhibit Y in the proceedings. I quote them:

Observations on view 4 March 2004
For most of its length the drain is shallow, with gently sloping sides, ie, having a shallow curved cross-section.
At the southern end of the drain, there is a much deeper section, 5m in length or thereabouts, which is marked at its northern end by a concrete step and at its southern end by a head wall into which an outlet pipe is set.
The deepest part of that section of the drain is close to the head wall. The concrete walls of this section are very steep. The vertical distance from the top of the head wall to the concrete surface of the channel immediately below is about 1.7m. (Having regard to the depth of the drain at that point, the vertical end wall and the steep sides of the drain adjacent to it, the section of the drain within 3m or so of the head wall can fairly be described as a pit and I will refer to it as such.)
The grassed surface of the park abuts the concrete lip of the pit at the head wall and on either side. On those three sides of the pit, the grassed surface slopes steeply down to the lip of the pit. The fall on the eastern side is about 1m in a horizontal distance of about 3m. On the opposite side and at the head wall, the fall to the concrete lip of the pit is steeper still.
The bottom and sides of the pit are made of or surfaced with concrete. There are stones set into the concrete surface, mostly rounded river stones but some with broken, sharp surfaces.
The drain runs across the park roughly north to south, the pit being at the southern end of the drain.
The park as a whole slopes moderately from Carthage Street on its northernmost boundary. The slope is generally in a south-easterly direction. There is a playground area in the north-western corner of the park. The slope of the ground is generally downhill from there to the opposite corner of the park. However, throughout the park, the surface undulates considerably with depressions between associated mounds or banks. The configuration of such depressions is concealed in several places by the associated mounds or banks.
Because of the falling ground adjacent to the three sides of the pit, to which I have referred, neither the pit itself or any part of the concreted lip of it can be seen from something in the order of 90 per cent of the park area. The pit, or at least part of the lip of it, can be seen from positions on or close to the channel to the north or close to one of the three sides of the pit formed by the head wall and the adjacent concrete surfaces. Otherwise, the area occupied by the pit has the same appearance as the grassed depressions seen elsewhere in the park.
By way of illustration, from the playground area, the place where the pit is situated has the appearance of a moderately undulating but relatively flat grassed area. At this distance, the depression is not readily distinguishable from the crest of the grassy bank which obscures a view of the pit itself. Approaching the pit from the playground area, even at 20m from the pit, no part of the structure is visible and the depression in which it is located looks no different from other depressions in the park. The same is generally true of other approaches to the pit except an approach along or close to the upper section of the channel.
There are two bridges over the channel to the north of the pit, the more southerly one being about 10m north of the head wall of the pit. One at least of the bridges is readily visible from virtually anywhere in the park. Mostly, both bridges can be seen.
From a good deal of the park, one can see the part of the channel situated to the north of the southern bridge, or at least one or both of the concreted lips of that part of the channel. It is, accordingly, apparent from a good deal of the park that there is a channel running north to south across the park, down to the southern bridge or thereabouts. But, because of the depression in which the pit is located, unless one is in close proximity to the pit, or has a view along the channel from further north, one cannot see whether the channel runs beyond the southern bridge.

Further observations on view 4 March 2004

There are two conifers on what appears to have been the route taken by the plaintiff and Mr Keam before the first bicycle ride. The first of them is about 55m from the picnic table. The second was calculated by Mr Healy to be in the order of 23m from the picnic table. I presently understand that the four bicycle rides were from the second conifer.

The view from the first conifer (the one further from the accident site) takes in the two bridges. The far lip of the upper part of the drain is visible. The lower part of the drain beyond the southernmost bridge has the appearance of a grassy depression similar to other depressions in the park.

From halfway between the two conifers, the view is similar but the lip of the upper part of the drain on both sides is visible. The drain below the southern bridge now appears to be quite deep but still has the appearance of a grassed depression.

The view from the second conifer is much the same.

About one quarter of the way to the picnic table from the southern conifer, one can see the rim of one lip of the channel below the southern bridge.

About halfway between the southern conifer and the picnic table, one can see both lips of the channel below the southern bridge.

At about three quarters of the way between the southern conifer and the picnic table one can see the top section of the end wall with the top of the pipe visible.

From the picnic table, about one half of the pipe is visible. It is also clear that the ground falls away sharply on both sides of the channel near the end wall.

From about halfway between the table and the tree further to the south, the configuration of the pit is clearly apparent.

16 In the course of addresses, it was confirmed that the second of the two conifers referred to in my observations was the “shrub” referred to by Mr Keam.

17 Mr Keam would in fact have been able to see a good deal of the pit from where he was during the bike riding activity but, with his attention focussed on the plaintiff, it is entirely plausible that he did not take in the background as the plaintiff veered away and disappeared from view. It is also entirely plausible that, with his attention on the plaintiff up to that point in time, he did not notice the drain to the south of the southern bridge or the top of the pit at the end of it, as he would have done if he had looked. It is, however, inherently unlikely that he would have selected the place he did or continued to use it as he did if he had been aware of the existence of the pit or indeed of a concrete drain below the southern bridge. I am satisfied he did not look and was not so aware.

18 Apart from that finding, for the reasons I have mentioned, I give no weight to his evidence, either in chief or in cross-examination, concerning what he noticed and did not notice about the topography of the park (including the bridges and the upper part of the drain) or concerning what he made of what he saw. I intend no criticism of Mr Keam in this regard.

19 Duty of care being conceded by the defendant in the present case, the whole of the relevant law is stated by Mason CJ in The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40, at 47-48:

A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone [1951] A.C. 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.

20 Expert evidence is unnecessary to establish the physical practicability of installing a fence on the three sides of the pit. The expert evidence is there, but a review would serve no purpose. Mr P Glass, a landscape architect, estimated the cost of pool-style fencing 20m in length, being 5m at the head wall and 7.5m on each side, at approximately $2,000. A fence of that type and that length would have avoided the risk of a child running, riding or toppling into the pit. The risk of injury from collision with the fence would have been negligible compared with the risk of a fall of about one and a half metres onto a rocky surface.

21 It would also have been practicable, on Mr Glass’ evidence (which I accept), to plant low maintenance shrubs on the three sides of the pit for $2,000 or thereabouts, forming an impact absorbing barrier. Shrubs of that kind could have been planted outside a pool-style fence to prevent collision with it if that were warranted. The total cost would then have been about $4,000.

22 A suitable fence would have prevented accidents of the kind that occurred, with insignificant risk of other serious injury, at a cost of about $2,000. Planting for a further $2,000 would have obviated the risk (such as it was) of injury from collision with the fence.

23 Mr B J Logan, an employee of the defendant, had managerial responsibility for the defendant’s drainage installations at the relevant time. Fencing of the kind mentioned above was a capital expense. Under the defendant’s internal financial arrangements, capital works could not be carried out at all unless specifically provided for as a capital works project in the budget for the financial year. That was the situation technically. However, Mr Logan had a discretion to draw on the lump sum budgeted for drainage maintenance if a small capital works project was considered necessary during the financial year. He considered that he had such a discretion for capital expenditures of up to $5,000. A third possibility was a submission to council itself to authorise expenditure out of some other budget line.

24 The defendant argued that there was not a substantial risk of injury arising from the unfenced pit because it was reasonable to assume that an adult with care of a child would be alerted to the existence of a potentially dangerous situation south of the southern bridge by the upper part of the channel and the bridges, and would keep a child away.

25 I do not agree. Adults entering the park with children would assume it to be safe for children to run and ride about in freely. At most, the upper part of the channel and the bridges suggested no more than a continuance of a shallow drain on the other side of the southern bridge. The risk of a child falling into the pit and sustaining very serious injury was substantial. The fact that there had apparently been no previous similar accident was relevant but remarkable. The pit constituted an extremely dangerous hazard. It was hidden from view and there was nothing which could reasonably be relied upon to warn of its existence. To borrow from the language of the old law concerning an occupier’s duty to entrants, it was a trap.

26 It was also submitted on behalf of the defendant that there were other hazards of comparable risk. Those nominated were other drainage installations in the council district and other sections of the park drain itself, including a step in the bed of the drain part-way along its length, the open balustrades of the bridges over the drain and a culvert at the northern end of the drain. The whole of the park drain was also said to give rise to a comparable hazard. Accordingly, it was said, there was no more reason to fence the pit at the southern end of the drain than there was to fence other hazards, with a much higher cost to fence all such comparable hazards than just the pit; and, as to fencing the whole length of the park channel, there was said to be the additional consideration of interference with the aesthetics and enjoyment of the park.

27 Whatever the implications in legal principle, this argument fails on the facts. None of the other hazards referred to were comparable. There was no evidence of a comparable hazard outside of the park to which the public had access. The step in the channel was in the order of 20 to 25cm in height, and there was not the same prospect of a child riding or running over it or toppling off it from adjacent sloping ground. The balustrade on the bridges would not have prevented a child from clambering through the gaps and falling to the concrete floor of the channel, but the greater risk of a child riding, running or toppling from a one and a half metre drop, as in the case of the pit, did not arise. The culvert at the northern end of the drain was fenced across the head wall and was set into an embankment so that an approach from either side was unlikely. The length of drain to the north of the pit was very much shallower than the pit.

28 None of these sites presented anything like the same risk of serious injury as did the unfenced pit.

29 Relative to the defendant’s aggregate annual expenditure, or even to its annual drainage expenditure, $2,000 for the fence (or $4,000 with planting) was a pittance. If fencing the pit had been thought necessary, I do not doubt that the money would have been procurable and would have been procured one way or another. The reality is that the defendant had given no thought to the safety implications of the unfenced pit in this park. It was that lack of consideration, not the cost, nor any other consideration, which is the only true reason for the work not having been done.

30 Mr Keam did not fail to take reasonable care for the plaintiff’s safety. As I have said, a person in his position would be likely to enter the park with the expectation that it was safe for a six year old child to run or ride about in. It can be assumed that Mr Keam had that expectation. There was then nothing in what was to be seen by him up to the point where the riding began to displace that expectation. From the point he selected to commence the bicycle riding activity, the area looked like a grassy expanse going to the boundary of the park, as he said, and the depression to one side of that area, in which the lower part of the drain and the pit were situated, would have looked the same to him as other grassy depressions in the park. The shallow upper part of the channel and the bridges over it, to the extent that Mr Keam is likely to have noticed them, did not indicate the existence of a hazardous, unfenced pit below the southern bridge or that there might be any other seriously hazardous condition there.

31 If Mr Keam had looked to the west, during the bike riding activity and before the accident occurred, he would have seen enough to put him on guard, but, as I have said, I am not satisfied that he did look to the west once the bike riding began until the plaintiff veered off towards the pit. And he had no reason to do so.

32 In summary, so far as concerns the plaintiff’s claim against the defendant, duty of care and foreseeability of injury are properly conceded. A physically practicable means of avoiding the risk of injury was available by fencing the pit area on three sides. It was unreasonable to have failed to do so having regard to the likelihood of injury, the likely severity of injury if that occurred and the miniscule cost of avoiding the risk. The plaintiff’s injuries were caused by the defendant’s negligence in that regard.

33 As for the cross-claim, Mr Keam is entitled to this court’s exoneration from any semblance of blame. He has it.

34 There will be judgment for the plaintiff for damages to be assessed with costs. There will be judgment for the cross-defendant with costs on the cross-claim.

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Last Modified: 03/26/2004