Howarth v Tweed Shire Council

[2008] NSWSC 901

CITATION:	Howarth v Tweed Shire Council [2008] NSWSC 901
HEARING DATE(S):	26 August 2008
JUDGMENT DATE :	26 August 2008
JUDGMENT OF:	Smart AJ
DECISION:	See paragraphs 18-20
CATCHWORDS:	Child 2 years 4 months sues Council for damages for negligence - unfenced subdivisional area in which there was a pool of water at back of residential lots - child in the care of and in the charge of the father - child slips away and nearly drowns - no arguable duty of care on father in circumstances - duty depends on circumstances not blood relationship - leave to Council to add father as a cross-defendant out of time refused. Separate trial of issues of liability and causation and damages.
LEGISLATION CITED:	Local Government Act 1993 Civil Liability Act 2002
CASES CITED:	St. Marks Orthodox Coptic College v Abraham 2007 NSWCA 185 Hahn v Conley 126CLR 276 McCallion v Dodd 1966 NZLR 710
PARTIES:	Carly Eden Howarth by her tutor Trent Howarth Tweed Shire Council
FILE NUMBER(S):	SC 20231/2007
COUNSEL:	Mr D Baran (P) Mr S Glascott (D)
SOLICITORS:	Attwood Marshall (P) DLA Phillips Fox (D)

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SMART AJ

TUESDAY 26 AUGUST 2008

CARLY EDEN HOWARTH BY HER TUTOR TRENT HOWARTH v TWEED SHIRE COUNCIL

PROGRESSIVE LIST

JUDGMENT

1. Carly Eden Howarth by her tutor has sued Tweed Shire Council for damages for negligence arising out of an accident on 30 March 1998 in which she suffered injuries. On that day she was taken by her father to premises which were under construction at Cabarita. Her grandfather was also with them. Her father and grandfather were laying turf. She was two years, four months old.

2. The statement of claim alleges that a subdivision was approved and then registered. It continues:

“5. A pond was created in the subdivision of works as a drainage reserve, being lot 155 of deposited plan 836305, and the subdivision development was completed during late 1993."

(This was admitted in the defence.)

“6. During and upon completion of the said subdivision works took place involving the placement of piped storm water drains into the pond with associated outlet structures.”

(This was admitted.)
“7. The plaintiff pleads that at all material times the defendant had the care, control and operation of the said storm water outlets, drains and ponds and maintained them as at 30 March 1998."

In its defence the defendant admitted it had powers vested in it with respect to the care, control and operation of the storm water outlets, drains and ponds pursuant to section 59A of the Local Government Act 1993.

3. Paragraph 8 of the statement of claim reads:

“At all material times the defendant owed a class of persons, namely, children, of which the plaintiff was a member, a duty of care to ensure that the ponds, exposed areas of water, storm water drains and pools were adequately secluded by fences or other effective barriers to ensure that children could not enter such areas with the foreseeable consequence that they would suffer injury or drown."


The defendant did not admit this paragraph.

Paragraph 9 of the statement of claim reads:

“On or about 30 March 1998 the plaintiff was present on premises situated at 102 Cabarita Road, Cabarita, which were under construction, with her father and grandfather, who were laying turf.”

The defendant admitted this paragraph, subject to the plaintiff amending the statement of claim to delete the words, "102 Cabarita Road, Cabarita" and replacing them with "2 Penda Court".

4. Paragraph 10 of the statement of claim reads:

“At a time estimated at approximately 4pm to 5pm in the afternoon the plaintiff was found face down in one of the water courses or dams that backed on to the said property over which the defendant had the care, control and maintenance, wherein the plaintiff sustained substantial injury, loss and damage."

(That paragraph was admitted.)

5. Paragraphs 11 and 12 of the statement of claim read as follows:

“11. The said serious injury, loss and damage was due to the negligence of the defendant, its servants or agents.

12. Particulars of Negligence.
(a) Failing to erect a fence or adequate barrier in the land that lay between lots of privately owned land and the drainage reserve areas containing bodies of water, storm water drains, storm water outlets, pools of water and other areas where a child may fall and drown.
(b) Failing to erect signs in the area clearly stating the presence of the water course, some water drains, outlets and bodies of water, their location, the fact they were not fenced and accessible to young children, and
(c) Res ipsa loquitur.”

6. In its notice of grounds of defence filed on 21 November 2007, in addition to the admissions, the Council denied negligence and each particular of negligence. The Council also relied on sections 5F, 5G and 5H of the Civil Liability Act 2002 (NSW). These provisions read:

(a) If the plaintiff's accident occurred, as alleged, then the risk of injury of the plaintiff drowning or near drowning, was an obvious risk as defined by section 5F of the Civil Liability Act 2002 NSW

(b) The plaintiff and/or those who were responsible for her supervision at the relevant times are presumed to have been aware of this obvious risk pursuant to section 5G of the Civil Liability Act 2002 NSW

(c) It did not owe a duty of care to warn of an obvious risk pursuant to section 5H of the Civil Liability Act 2002 NSW, and

(d) That, accordingly, it is not liable to the plaintiff."

7. By its motion of 18 August 2008 the defendant sought leave to file and serve a cross-claim against Derek Howarth, the father of the plaintiff. It was many months out of time but the delay has been explained. The Council’s solicitor detailed the progress of the matter through the court system in her affidavit. On 19 October 2007 she received the plaintiff's reply to the request for further and better particulars and the plaintiff's evidentiary statement. She stated, further,

“10. On 29 May 2008 the plaintiff served a liability report prepared by The InterSafe group dated 7 July 2005. Until receipt of that report the plaintiff had served no evidence in relation to liability against the Defendant.
11. When I received that report and the full circumstances surrounding the accident became clearer I considered the adult person responsible for the supervision of the plaintiff was potentially liable.

12. I formed the view there were reasonable prospects that the plaintiff's father, as the adult person with apparent care and responsibility to the plaintiff at the relevant time was potentially liable in negligence in relation to the circumstances of the accident as I understood them."

Annexed to her affidavit were copies of the ambulance report and the evidentiary statement served on behalf of the plaintiff. She deposed that she understood that the prospective cross-defendant was the registered proprietor of the premises at which she was in attendance with the plaintiff at the time of the accident. A draft of the proposed cross-claim was annexed to the solicitor's affidavit.

8. Mr Baran told me that he appeared for the plaintiff and for the putative cross-defendant, her father, as there was there was no conflict of interest at this stage. He submitted that the defendant should not be granted leave to file a cross-claim as it would be futile. He submitted that in the circumstances disclosed the law did not impose a duty of care on the father. At the most the materials disclosed a momentary lack of supervision on the part of the father.

9. Mr Glasscott, for the council, submitted correctly, that to establish futility the plaintiff and the putative cross-defendant had to demonstrate that there was no arguable duty of care which rested on the father in the circumstances. To establish that arguable duty of care the council relied upon:

(a) The infant being under the care and in the charge of the father; and
(b) The father was the owner and occupier of the premises under construction.

10. Mr Glasscott also told me that the council anticipated being able to show that the father had a degree of familiarity with the area and that he knew of

(a) the pool at the back of the premises on which he was working; and,

(b) the plaintiff not being able to swim.

11. The plaintiff submitted that the defendant had to allege, before a duty of care could be imposed on a father, a positive act on his part which had the effect of placing the child into danger. In St Marks Orthodox Coptic College v Abraham 2007 NSWCA 185 at 32 Ipp JA, with whom Basten JA and Young CJ in Eq agreed, did not favour liability being dependent upon distinctions between omissions and commissions. Considerable attention was devoted in argument to the reasons of Ipp JA in paragraphs 26 to 31 of Abraham.

12. In Hahn v Conley 126 CLR 276, Barwick CJ, at 283 to 284, said:

“I think that the view for which there is most judicial support and the view which commends itself to me is that the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected. Further, I think that the predominant judicial view to be extracted from those cases, and again a view which commends itself to me as correct, is that whilst in particular situations and because of their nature or elements, there will be a duty on the person into whose care the child has been placed and accepted to take reasonable care to protect the child against foreseeable danger, there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship. Also parents, like strangers, may become liable to the child if the child is led into danger by their actions. As a matter of principle I find the view expressed by McCarthy J in McCallion v Dodd acceptable. Though it may not provide a formula for solving all the problems which may arise out of parent-child relationships it does seem to me to afford a sound general approach. In the case of the parent, as in the case of a stranger, it seems to me that the duty of care springs out of the particular situation: the extent and nature of the steps which it may be necessary to take to discharge the duty may well be influenced by the fact of parenthood, though parenthood is not itself the source of the duty.

13. McTiernan J said, at page 287:

“As defacto custodian of the child in his home there will be circumstances which would raise a duty of care on his part towards her.”

McTiernan J held that if there was a duty there was no breach of it. Windeyer J thought that the grandfather owed a duty of care but had not been shown to have been in breach of that duty. At 294 Windeyer J said:

“A duty of care for a child is an obligation to take reasonable care in the existing circumstances. It is not an obligation to ensure the child's safety in any particular circumstances. In the present case a need or duty of care on the part of the appellant arose not from blood relationship or from his position in the household but from the particular situation. It was the relationship of `proximity,' the facts of the occasion, which made the appellant's little granddaughter his `neighbour'. Prominent among those facts was that he was not merely an onlooker as, for example, was the man with whom he was conversing. He was known to the plaintiff as the grandfather and as the man who had called her. He was aware of her presence and he knew she was aware of his."

14. Menzies J, with whom Walsh J agreed, thought that the appeal was concerned solely with questions of fact. He thought that there was both a duty of care and a breach. I do not take Menzies J to be disagreeing with the Chief Justice's statement of principles.

15. I add that in McCallion v Dodd 1966 NZLR 710 at 729 McCarthy J said

The duties which that relationship cast on the father to care for and protect the child are moral duties not enforceable by action in tort. The occasions when a child can sue his parent in tort are the result of specific situations in which the parties find themselves. In those situations the fact that the defendant is a parent may, as a matter of fact, be very material, but the relationship is not the foundation of the right of action. It is the situation which creates the enforceable duty.

16. Turning again to the suggested cross-claim:

(a) It repeats the allegations in paragraphs 3, 5, 9 and 10 of the statement of claim.

(b) It alleges:
(i) the plaintiff attended the residential premises with her father and was under his care and charge.
(ii) Her father was the owner and occupier of the residential premises.
(c) Asserts that in the circumstances the father owed her a duty of care. (I interpose that the description of the circumstances is sparse.)
(d) Then sets out particulars of negligence in which the emphasis is on a lack of supervision and preventive action on the part of the father. The allegations as to failing to warn and erect warning signs seem a little out of place in respect of a child aged two years and four months. Her age at the time of the accident has been admitted.

17. In my opinion, on an arguable basis, the circumstances of the particular situation in the present case as pleaded, including those foreshadowed, do not give rise to an arguable enforceable duty of care on the part of the father. The most that emerges, even on the ambulance report, is a short period of lack of supervision when the child took herself off. I do not consider any useful purpose would be served by allowing the facts to be more fully investigated as the essential facts seem tolerably clear.

18. I dismiss the motion of the defendant to add the father as a cross-defendant.

19. The second motion was that of the plaintiff seeking separate trials on the issue of liability and damages. Since that motion was filed difficult questions of causation have arisen, it being suggested that some of the disability of the plaintiff may be due to genetic reasons rather than the accident. It is expected that it may be some years before her condition finally settles. There was no opposition to an order that there be a separate trial as to issues of liability and causation. I was alerted to the fact there could be some delay in obtaining evidence from a geneticist.

20. As to costs; there was no real contest as to the orders which should be made, namely, that in respect of the motion for a separate trial each party bear its own costs, and in respect of the motion to add a cross-claim against the father, that the defendant pay the costs of the plaintiff of that motion. I so order.

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