Holroyd City Council v Zaiter

Case [2014] NSWCA 109

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Appeal

New South Wales
Case Title: Holroyd City Council v Zaiter
Medium Neutral Citation: [2014] NSWCA 109
Hearing Date(s): 07.03.2014
Decision Date: 08 April 2014
Before: Hoeben JA at [1]
Emmett JA at [102]
Gleeson JA at [117]
Decision:

Appeal dismissed.
Appellant to pay the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - negligence - 9 year old child injured when rode bicycle into an unfenced concrete drainage channel - drainage channel and surrounding grassed slope under care and control of appellant - presence of drainage channel not obvious from adjacent cycleway - appellant aware of risk of injury to children from unfenced drainage channel - expert report of engineer admitted without objection - whether trial judge bound to accept expert opinion - extent to which precise sequence of events leading to accident needed to be foreseen - application of sections 5B and 5C of Civil Liability Act 2002 - whether child engaged in a "dangerous recreational activity" at time of injury - s5L Civil Liability Act 2002 - application of s42 Civil Liability Act 2002 - whether resources of appellant sufficient to construct fence - ambiguity of evidence - defence not made out.
Legislation Cited: Civil Liability Act 2002
Cases Cited: Chapman v Hearse [1961] HCA 46;106 CLR 112
Edwards v Consolidated Broken Hill Ltd [2005] NSWSC 301
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360
Romeo v Conservation Commission (NT) [1998] HCA 5; 192 CLR 431
Shaw v Thomas [2010] NSWCA 169
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
Category: Principal judgment
Parties: Holroyd City Council - Appellant
Joey Zaiter bht Michael Zaiter - Respondent
Representation
- Counsel: Counsel:
Mr RS Sheldon SC - Appellant
Mr LT Grey/Ms CM Spain - Respondent
- Solicitors: Solicitors:
DLA Piper Australia - Appellant
Carroll & O'Dea - Respondent
File Number(s): 2013/111066
Decision Under Appeal
- Before: Kearns DCJ
- Date of Decision:  14 March 2013
- Court File Number(s): 2011/077475

JUDGMENT

  1. HOEBEN JA:

    Nature of proceedings
    The respondent, who had just turned 9 at the time, suffered personal injury on 16 March 2008 when he rode a bicycle down a grassed slope and into a concrete drainage channel. The accident occurred at the Holroyd Sports Ground when he was accompanied by his older sister and an unrelated friend, Naiden.

  2. The matter was heard in the…

Details
AGLC
Holroyd City Council v Zaiter [2014] NSWCA 109
Case
[2014] NSWCA 109
Decision Date

CaseChat Overview and Summary

The appellant, Holroyd City Council, appealed a finding of negligence against it. The respondent, a nine-year-old child, suffered a brain injury when he rode his bicycle into an unfenced concrete drainage channel within the Holroyd Sports Ground, an area under the council's care and control. The presence of the drainage channel was not obvious from the adjacent cycleway, and the council was aware of the risk of injury to children from the unfenced channel.

The court was required to determine whether the trial judge erred in finding the appellant negligent, specifically considering the application of sections 5B and 5C of the Civil Liability Act 2002 (CLA). Key issues included whether the risk of harm was foreseeable and not insignificant, whether a reasonable person in the council's position would have taken precautions, and the extent to which the council's resources and the general allocation of those resources were relevant under section 42 of the CLA. The court also considered whether the respondent was engaged in a "dangerous recreational activity" for the purposes of section 5L of the CLA, and whether the precise sequence of events leading to the accident needed to be foreseen.

The court reasoned that the council's awareness of the specific risk at that location distinguished it from cases involving extensive coastlines where identifying specific dangers was more challenging. The court found that the council's area of responsibility was sufficiently contained to make identifying and addressing unfenced channels a reasonable and not unduly burdensome task. Furthermore, the court was not persuaded that riding a bicycle down a grass slope, even on an unfamiliar bike, constituted a "dangerous recreational activity" as defined by the CLA, nor that the risk of falling into the channel was an obvious risk of such an activity. The court also noted that the fall into the unfenced channel was a necessary condition for the harm suffered.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed.

Appellant to pay the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

The appellant has appealed against the finding that it was negligent.Factual background The respondent turned 9 years of age approximately a week before the date of the accident. He received a bike and a helmet for his birthday. On 16 March 2008 he and his sister, Linda (who was 14 months older, i.e. 10 years and 2 months), and a friend, Naiden (whose age is unknown), rode bikes to the Holroyd Sports Ground. The respondent had been riding a bicycle since the age of 5. The respondent, who suffered brain injury as a result of the accident, had no recollection of how the accident occurred. He agreed in cross-examination that he had been told by his parents to wear a helmet when riding his bike and that he understood that the reason he should wear a helmet was because it would protect his head if he fell off his bike. The respondent said that he had ridden his new bike every day since his birthday. It had brakes which were applied by squeezing a lever on the handlebars. He said that he had ridden Naiden's bike before the day of the accident on two or three occasions "because it was big". The brake on Naiden's bike was operated by pushing backwards on the back pedal. Holroyd Sports Ground is about 5 hectares. It is roughly triangular in shape. Its length lies roughly in an east-west direction. The east end of it has a narrow point and it gradually broadens out as one proceeds west. It slopes roughly in a south-east direction. That slope is towards a concrete channel. The steepness of the slope varies. It is at its steepest at the eastern end. The children entered the sports ground at its eastern end on a cycleway. There, Linda and Naiden got off their bikes and walked. The respondent continued to ride his bike. The children proceeded in a southerly direction down a slope towards the concrete channel. Linda gave evidence as to how the accident occurred. When asked whether she remembered the day of the accident she said "only a bit". She said that she got off her bike because she thought the slope was dangerous and too steep. She said that the respondent rode down the slope on Naiden's bike. She described the accident as follows:"I don't know, he was going like, too fast and then he - when he came to the bottom he turned - he tried to turn to stop and then he just flipped over." (Black 23H)"... Q. How far down the hill was he when you thought he was going too fast?A. Probably in the middle." (Black 29C)She said that the respondent fell over the edge of the channel and ended at the bottom. She said that she could not see the channel from the cycleway by which the children entered the sports ground, but she could see it when she was about half way down the hill. (Black 27V) In cross-examination she was asked:"Q. Did you see him try to apply the brakes?A. Yeah." (Black 28V) From the eastern end of the sports ground where the children entered, the distance between the cycleway and the channel was about 34 metres. It was common ground that this distance was made up of four sections. The first section was 6 metres across and had a gentle slope down of about 4 degrees towards the channel. The second section was about 8 metres across and was "gradually" steeper. The third section was about 12 metres with a slope of about 33 degrees. The fourth section flattened out for about 8 metres towards the channel. Where the grassy section met the channel, there was a slight lip as the level of the wall of the channel was slightly higher than the level of the grass.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There was on the sports ground a pole with an advertising sign on it. That advertising sign was a source of revenue for the appellant.The judgment At trial, evidence was called by the respondent from Mr Kiernan, a consulting engineer. Mr Kiernan had 18 years' experience working in local government. In order to prepare a report and to give evidence, he visited the site of the accident on three occasions. In his evidence-in-chief he said that it was quite unusual that the channel had not been fenced and that this should have been done when the channel was constructed. He said that the cost of the fence was very small, compared to the cost of constructing the channel, i.e. $15,000 - $20,000. In cross-examination Mr Kiernan gave the following evidence:"Q. In looking at what happened to Mr Zaiter, would you agree that on the assumptions you made about the events leading up to his accident, there was a coincidence of incidents that were themselves unlikely?A. Yes, it's a rare event.Q. But each of the images that produced the ultimate event, were themselves unlikely to occur?A. Yes, I think that's reasonable.Q. And for instance, you had to have - well perhaps I should deal with what you understood the assumptions to be first. One of the assumptions you were asked to make was, that Mr Zaiter attempted to stop the bike, is that right? A. Yes.Q. Now you also I think made an assumption that the bike he was riding was one that had been swapped from one of the other people in the group?A. Yes.Q. Suggesting, does it not, to you that there may have been some unfamiliarity with the controls of that bike?A. That's right.Q. Now the prospect of someone riding a bike down a grassed hill and not being able to use the brakes of that bike which is something which viewed from the point of view of a council engineer would have to be seen as very unlikely to occur, would you agree with that?A. Yes.Q. Would you agree that such a sequence of events is almost incredible viewed from the perspective of a council engineer?A. Yes, I don't know about the word incredible but - I'm happy with the rare event.Q. Well the very rare event, are you happy with that?A. Yes, it's a bit hard to assess very rare and rare but it certainly borders on the very rare.Q. Right. Now that's not the sort of event that you would be turning your mind to in conducting a risk analysis with respect to a channel like this is it? A. No, well I think probably your mind would be focussed on people playing ball and doing all sorts of recreational activities. And if they did them on a steep slope it could be dangerous, but riding bikes I don't think you'd necessarily think of that." (Black 39E-X) It was common ground that the Civil Liability Act 2002 (CLA) applied to this claim. His Honour set out relevant sections of the CLA and then considered their application to the claim. In order to understand the submissions at trial and on appeal, it is necessary to set out the relevant provisions of the CLA."5B 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.5C Other principlesIn proceedings 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....5F Meaning of "obvious risk"(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.(2) Obvious risks include risks that are patent or a matter of common knowledge.(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable....5K DefinitionsIn this Division:dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.obvious risk has the same meaning as it has in Division 4.recreational activity includes:(a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.5L No liability for harm suffered from obvious risks of dangerous recreational activities(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.2) This section applies whether or not the plaintiff was aware of the risk....42 Principles concerning resources, responsibilities etc of public or other authoritiesThe following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,(b) the general allocation of those resources by the authority is not open to challenge,(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate."

Ratio Decidendi

Legal Principle Established

Even if the respondent's unfamiliarity with the bike did contribute towards him losing control of the bike, that finding goes nowhere. What is clear on the issue of factual causation was that the fall into the unfenced channel was also a necessary condition of the occurrence of the harm (s5D(1)(a) CLA). Ground of Appeal 6 has not been made out.Ground 8 - His Honour erred in his consideration of the burden on the appellant and the resources available to the appellant. The purport of this ground of appeal seems to be that if the appropriate response to the foreseeable risk of harm in this case was to erect a fence next to the channel, that would have to be done in respect of every unfenced channel in the municipality and to do so, would impose an unreasonable burden on the appellant. The basis for the submission seems to be by analogy with such cases as Romeo v Conservation Commission (NT) [1998] HCA 5; 192 CLR 431 and Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422. One of the difficulties confronting the plaintiffs in those cases was that both authorities had responsibility for long coastlines and there was no indication that one particular part of the coast might be more dangerous than any other. That is not the situation here. It was not a question of the appellant attempting to anticipate what locations might present a danger to certain classes of the public. Here, the appellant knew of the actual existence of a risk of harm in a particular location. The question of some kind of search and inquiry for other potentially dangerous locations simply did not arise. In formulating this ground of appeal, the appellant has misunderstood s5C(a) CLA. In any event, even if such an inquiry were required of the appellant, it was not one which would be regarded as unduly burdensome for the reasons set out by the primary judge. The appellant's area of responsibility was a small, built up, urban area where photographs, maps and a Google Earth search would go a long way to identifying unfenced channels which were a potential hazard. The appellant's area of responsibility was not a large, undeveloped environment with extensive natural features, such as were considered by the High Court in Romeo and Vairy. Ground 8 has not been made out.Ground 11 - His Honour erred in not finding that the respondent was engaged in a dangerous recreational activity and failed to give adequate reasons in support of the finding he made on this issue. The appellant submitted that on the facts of this case the defence in s5L CLA had been made out in that the harm suffered by the respondent was as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by him. The appellant submitted that riding down a grass slope, on an unfamiliar bike, was a dangerous recreational activity and that the risk of falling into the unfenced channel would have been obvious to a reasonable person in the position of the respondent. Like his Honour, I am not persuaded that riding an unfamiliar bike down a grass slope is properly to be characterised objectively as a dangerous recreational activity. Similarly, as arose in discussion in the course of the appeal, riding a bike down a grass slope without wearing a helmet is of itself not objectively a dangerous recreational activity. One can envisage circumstances when riding a bike without wearing a helmet could constitute a dangerous recreational activity, particularly on a busy road or perhaps in a bicycle race. That was not the situation here.