Hetherington v Belyando Shire Council

In Hetherington v Belyando Shire Council, the appellant, a young child, suffered an injury when their thumb was crushed between a gate and a post while playing near a sporting field. The respondent, Belyando Shire Council, acknowledged their duty of care towards lawful entrants and the foreseeability of harm to a child from the gate. The case revolved around whether the Council had breached this duty by leaving the gate open to facilitate deliveries to the canteen on sports days. The mother of the child was supervising the child at the time of the incident. The primary judge concluded that the Council had not breached its duty of care, as they were entitled to rely on parental supervision to protect the child from harm. The judge held that a reasonable person in the Council’s position would have avoided the risk of injury from the unlocked gate by locking it immediately after vehicles entered the sporting grounds, or at least ensuring it was locked when it would not be expected that children were being supervised by their parents or another responsible adult.

The court was required to determine whether the trial judge had correctly articulated the duty of care owed by the Council as the occupier. The court also needed to decide if the trial judge was correct in concluding that the Council’s reliance on parental supervision was sufficient to avoid a breach of its duty of care. The central issue was whether the Council's actions, or lack thereof, in managing the gate constituted a breach of their duty of care to the child, and if the Council could reasonably rely on the mother’s supervision to prevent injury.

The court held that the primary judge had accurately described the duty of care owed by the respondent in her alternative formulations of it. The court found that the trial judge was correct in concluding that the respondent’s reliance on parental supervision of children was sufficient to avoid breaching its duty of care. The court reasoned that the Council had taken reasonable steps to manage the gate by leaving it open for deliveries and that this action was not unreasonable in the circumstances. The court further noted that the mother's supervision provided an additional layer of protection, and the Council could reasonably rely on this supervision to prevent harm to the child. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of and incidental to the appeal, assessed on the standard basis.