Lake Macquarie City Council v McKellar

NEW SOUTH WALES COURT OF APPEAL

CITATION: Lake Macquarie City Council v McKellar [2002] NSWCA 90

FILE NUMBER(S):
40386/01

HEARING DATE(S): 19 March 2002

JUDGMENT DATE: 02/04/2002

PARTIES:
Lake Macquarie City Council (Appellant)
Paul Edward McKellar (Respondent)

JUDGMENT OF: Handley JA Heydon JA Ipp AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 597/00

LOWER COURT JUDICIAL OFFICER: Sidis DCJ

COUNSEL:
Mr J E Maconachie QC/Mr R J Cheney (Appellant)
Mr J Rowe (Respondent)

SOLICITORS:
Crameri Lawyers (Appellant)
Stacks - The Law Firm (Respondent)

CATCHWORDS:
Tort - negligence - personal injury - District Court appeal - liability
Practice and procedure - written and oral submissions - oral argument lacking adequate basis in written submissions - necessity of compliance with procedure by counsel for efficient functioning of courts - D

LEGISLATION CITED:

DECISION:
Appeal dismissed
appellant to pay respondent's costs of the appeal

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40386/01
DC 597/00
HANDLEY JA
HEYDON JA
IPP AJA
2 April 2002

LAKE MACQUARIE CITY COUNCIL v McKELLAR

Judgment

HANDLEY JA: I agree with Ipp AJA.
HEYDON JA: This is an appeal against a verdict and judgment given by Sidis DCJ in the sum of $177,586.80 in favour of the plaintiff below against the defendant. The trial took place on 9 May 2001 and judgment was delivered on 10 May 2001. The grounds of appeal are limited to liability.
The pleadings
The Ordinary Statement of Claim alleged:
“At all material times the Defendant was responsible for, and had the care, control and management of the basketball courts in the Kane Bruce Memorial Park in Main Road Edgeworth (herein after referred to as ‘the Courts’).
At or approximately 11.00 am on 28 June 1997 the Plaintiff in the company of three friends entered the Courts for the purpose of playing a friendly game of ‘two on two’ basketball.
During the course of the same game the Plaintiff stepped backwards on the Courts and his right foot became caught by a nail-rivet in the concrete surface of the Courts and, as a result fell back landing heavily onto both palms.
The said accident was caused by the negligence of the Defendant, by its servants and agents.
Particulars of Negligence
The defendant, by its servants and agents, was negligent in that it, inter alia:-
(a)Failed to remove the said nail from the concrete Courts on completion of construction of the Courts;
(b)Failed to carry out proper inspection of the said Courts prior to allowing members of the public to use the Courts;
(c)Placed the Plaintiff in a position of danger which could have been easily avoided by reasonable care on its part;
(d)Failed to warn the Plaintiff of the danger of the protruding nail by erecting a barrier or sign indicating the danger;
(e)Exposed the Plaintiff to risk of injury which could have been avoided by reasonable care on its part;
(f)Failed to take any, or any adequate care, for the safety of the Plaintiff.
(g)Failed to properly maintain the Courts;
(h)Failed to have any, or any proper, regard for the safety of the Plaintiff.”
The Defence admitted paragraph 2 and put paragraphs 3-6 in issue.
At the time of the events in issue the plaintiff was 22. The court in question was an open air court surfaced with smooth cement or concrete. It had been constructed a few months before the accident. It was not strictly speaking a basketball court, but an area corresponding to the goal area of a basketball court in which people could practise basketball, netball and like games, and in which people could play “two on two” basketball of the kind the plaintiff was playing when he was injured.
The trial judge’s findings
The trial judge said:
[The plaintiff] said he was defending with his back to the basket and travelling backwards when he felt something against the back of his right boot and he fell backwards. He put his hands out to break his fall. He suffered fractures to both of his wrists as a result of which he was admitted to the John Hunter Hospital.
He returned to the basketball court one week later and saw a protruding nail which appeared to be rusting. He took photographs of the nail whilst he was at the court. Those photographs are in evidence as exhibits L1 to L5 inclusive.
The nail was removed by Mr Bull, a carpenter employed by the defendant, in March 1999 after the council had been given notice of the plaintiff’s claim. The nail in question is exhibit 2 in the proceedings.”
The trial judge then considered certain evidence of Mr Caldwell (the builder of the basketball court), Mr Nolan (the defendant’s principal urban designer) and Mr Bull:
“Mr Caldwell said he subcontracted the work of laying the concrete slab. Mr Nolan was the designer and project manager of those works.
It was said on behalf of the defendant that their evidence was such that I could not be satisfied that the defendant or its builder were responsible for the presence of the nail in the surface of the basketball court. Mr Caldwell said that he did not use nails of the type which is exhibit 2. He said that he had been personally involved with his employees in laying masking tape and painting the line markings on the courts as part of his contract with the council and he had not seen the nail in the position claimed by the plaintiff as confirmed by Mr Bull.
Mr Bull, who pulled out the nail, is a carpenter. He said that the nail is of a type used by concreters for the purpose of holding expansion joints in the course of laying concrete slabs. He said the nail had not been driven fully into the concrete and he removed it easily with a claw hammer.
Both Mr Caldwell and Mr Nolan said that the slab had been inspected prior to practical completion of Mr Caldwell’s contract. Mr Caldwell said this inspection took place in October 1996. Mr Nolan said the inspection took place in February 1997. There was no record of any final inspection of the slab in Mr Nolan’s diary. He said he did not record inspections of items of the work if there were no defects in those items. This statement is not in fact borne out by his diary, which is exhibit 5B, or the summary contained in exhibit 5A. Those entries record inspections and the progress of works, not always in the context of defects. There is a record of the inspection in February 1997 which is clearly directed at the inspection of landscaping at the site at Edgeworth and another site at Barnsley. The fact that the landscaping was the centre of attention in February 1997 is consistent with the evidence given by Mr Caldwell. Thus there is no record of any final detailed inspection of the slab.
Having regard to the inconsistencies of the evidence of Mr Caldwell and Mr Bull, and Mr Caldwell and Mr Nolan, I have to approach their evidence with some circumspection. Having said this however, the fact is that the position of the nail as shown in the photographic evidence is such that it was not placed in an expansion joint or a saw cut and there is therefore no explanation as to why the nail should have been in the position shown on the evidence.
Another relevant factor to be taken into account is that it was known to Mr Caldwell and Mr Nolan that vandalism was rife during the construction period. The vandalism was such that additional reinforcement was necessary for the shelter provided at the facility; the water bubbler that had been provided was damaged so frequently that it was ultimately capped off; the netball posts were removed with such frequency that they were ultimately replaced with a second basketball post. They were aware that the courts and the area around the courts was frequently covered with broken glass and bottles.
The plaintiff’s evidence was that on the day of his accident and on other days prior to this date when he had played at the courts, the area had been unkempt, the grass had not been mown, there was rubbish and debris including broken glass and bottles on the courts and in the area of the courts.
The defendant presented no evidence to me of any system of cleaning, maintaining or regulation of the use of the courts or the park.”
The trial judge then said:
“The council’s case proceeded on what appeared to be a misapprehension that it was necessary for the plaintiff to establish that it, as the defendant, was responsible for the placement of the nail in the course of the construction process. It may well, as submitted, be possible to draw an inference that the nail was left by the concrete subcontractor following the laying of the slab in the course of construction of the courts.
However, the plaintiff has also pleaded that the defendant had the care, control and management of the basketball courts. It is evident that the courts comprised a facility provided by the defendant and made available for public recreation. As such the defendant has obligations at common law to those members of the public who elect to use that facility.
The extent of the obligations of public authorities has been dealt with in a number of decisions amongst the most recent of which is the decision of the High Court in Romeo v Conservation Commission of Northern Territory (1998) 72 ALJR 208, notably in the decision of Brennan CJ in which he stated that:
‘A public authority charged with management and control of premises upon which the public may enter as a right is given those powers for the purpose inter alia of protecting the person of those who enter. The public authority is obliged to exercise those powers reasonably to fulfil that purpose unless there is some contrary statutory direction.’
He did note that in the absence of any special situation a member of the public is not entitled to expect any higher standard of care from the public authority than that which is reasonably required to safeguard the public at large or that section of the public entitled to enter the premises.
As to the obligations of the occupier of premises to which the public at large are entitled to have access, the Court of Appeal in Drotem Pty Limited v Manning, CA40784/99, 16 November 2000, stated that:
‘The occupier of commercial premises to which the public had access owes a duty to those members of the public to take reasonable care to avoid injury to persons using the premises and to have in place a system for the cleaning of those premises for removing rubbish and for the periodic inspection of the premises to establish whether there has been any deterioration in the premises and to take reasonable steps to rectify that deterioration.’
I see no reason to depart from those principles in this case, particularly given the evidence of the defendant’s knowledge of the vandalism and the extent to which the courts had been neglected in terms of regular attention to landscaping and grass cutting and affected by debris, glass and bottles.
It was put on behalf of the defendant that there was no evidence as to how long the nail had been present on the surface of the basketball court and thus I could not be satisfied that any system of regular maintenance or inspection would have prevented the plaintiff’s accident. This again is not a tenable position for the defendant to have taken, having regard to the many decisions of the Court of Appeal concerning the obligations of occupiers of premises to have some system in place. If there had been a system of regular maintenance adopted by the defendant as far as these courts were concerned, that argument may have assisted it.
In conclusion, on the facts I am able to draw a reasonable inference that the nail, which is exhibit 2, was on the site of the basketball court as a result of the construction of that court. It was in the position shown on the evidence for some reason during the course of construction or as a result of some positive act of vandalism following completion of construction. The nail was readily detectable. It was easily found by Mr Bull when he was sent to locate it. It is evidence that because of the vandalism and spreading of rubbish around the courts that there was a need for regular attention to the courts. I have come to the conclusion and the finding that if there had been a system of regular inspection then it is probable that this nail would have been located by the defendant and removed.
The question was also raised as to whether the nail was in fact the cause of the plaintiff’s fall, it being said that the first evidence concerning the presence of the nail was that obtained by the plaintiff when he returned to the basketball court one week after his accident. This submission was based upon the fact that the plaintiff initially stated in his evidence-in-chief that he fell about one metre within the circle drawn on the court but that in cross-examination he stated that he could have fallen one metre either side of that line. The position of the nail appeared on the evidence to be about one metre outside the line marking.
Having regard to the plaintiff’s evidence that he was moving backwards within the area of the circle and that he felt his right boot come into contact with some object which caused him to fall, I am satisfied that the nail was the most probable cause of the plaintiff’s fall.
The friends with whom the plaintiff was playing at the time of his fall were not called as witnesses. The plaintiff said he had lost contact with them. I have some doubt as to the use of the term ‘friends’ in relation to these persons since apparently they continued to play basketball after he had had his accident when his left hand was in a dislocated position and he had to make his own arrangements to get himself to hospital. In the circumstances I make no adverse finding concerning the fact that the plaintiff has not called those witnesses.
On the issue of liability, it is clear therefore that I find for the plaintiff on the basis that the defendant was negligent in its care, control and management of the basketball court and that had it undertaken its obligations of care, control and management to the appropriate standard it is probable that the nail which tripped the plaintiff and caused him to fall would have been located and removed and this would have prevented his accident.”
The grounds of appeal
The grounds of appeal are:
“1.         Her Honour’s findings that the nail was the most probable cause of the Respondent’s fall (judgment 7.3) was wrong.
2.            There was no evidence upon which Her Honour could find objective facts from which to infer, as opposed to speculate upon, the causative potency of the nail.
3.             Her Honour erred in applying a standard of care (judgment 5.4) which was too high in the circumstances.
4.            There was no evidence upon which Her Honour could find, in the circumstances of this case, that a failure to inspect the sporting facility amounted to a breach of duty to the Respondent.”
The oral argument of the appellant in support of these grounds was divisible into three parts. First, it was submitted that the plaintiff had not proved that the nail was on the court at the time of the accident. Secondly, it was submitted that even if it was, and assuming that the plaintiff tripped on it, the plaintiff had not shown that any reasonable system would have detected and removed it. Thirdly, even if the nail was there and even if a reasonable system would have detected and removed it, the plaintiff had not proved that he tripped on it.
As Ipp AJA explains, the appellant accepted that if the nail were on the site at the time construction work ended, the defendant was in breach of duty. I agree with Ipp AJA’s reasons for concluding that the nail was there when the construction work ended.
The principal outstanding issue thus relates to whether the plaintiff tripped on the nail or tripped for some other reason. That issue arises in relation to Grounds 1 and 2. Some of the argument on this issue was presented in writing and some orally. Another issue was whether the plaintiff took reasonable care for his own safety; it arises in relation to Grounds 3 and 4. Argument on this issue was entirely written.
Grounds 1 and 2: causation
The defendant’s written submissions state:
“The Respondent could not, and did not, say that he tripped on or came into contact with the nail. Nor did any other witness say this.
The Respondent was unaware whether the nail was even present on the day of the accident. No other witness deposed to its presence on the day.
The Respondent had not seen the nail in prior visits to the court: T5.50-6.10. No other witness deposed to its presence prior to the day of the accident.”
The “prior visits to the court” numbered “a few times”. He did not play basketball on all these occasions.
The defendant’s written submissions continued:
“The first occasion on which the Respondent saw the nail was about a week after the fall when he returned to the site: T7.22. He did so ‘to find out what it was [he] tripped over’: T7.58. He said that the nail had ‘started rusting’: T7.37.
The Respondent said he ‘was playing against [his associates] and … was defending against [one associate] … and … stepped back and felt something catch the back of my boot …’. T6.55
There was therefore no evidence which permitted her Honour to draw an inference that the Respondent tripped on the nail.
In Jones v Dunkel (1959) 101 CLR 298 Kitto J said (at page 305):
‘… I agree that no ground for an inference is to be found in general considerations as to the likelihood of negligent conduct occurring in the condition which existed at the time and place of the collision. One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say it provides a reason, special to the case under consideration, for thinking it likely that in that actual case a specific event happened or a specified state of affairs existed.’
In the same case, Dixon CJ said (at page 305) that the balance of probabilities test:
‘ … does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.’
Both passages were applied by Spigelman CJ in Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 262 at [97] and [168].
The evidence was insufficient to permit the Court to infer, as opposed to speculate, as to the object, if any, upon which it was that the Respondent’s heel caught.
If, contrary to the previous paragraph, her Honour was entitled to draw any inference as to causation, the evidence permitted only a finding that the Respondent fell on broken glass. The Respondent saw broken glass on the court before he was injured: T7.10.
There were no ‘positive proved facts from which the inference (that it was the nail rather than some broken glass, or any other hazard) can be made …’ and therefore ‘ … the method of inference fails and what is left is mere speculation or conjecture’: Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152 at 169-170 cited by Spigelman CJ in Seltsam at [87].”
The plaintiff submitted:
“It is submitted that it was clearly open to the trial judge to find that the respondent tripped upon the nail and the presence of the nail was the cause of [the] respondent’s fall. This finding was open to her Honour based upon the following facts:
(i)The respondent tripped on something which caused him to fall.
(ii)The respondent returned to the area of his fall shortly after the fall and observed the nail in the ground.
(iii)The nail was rusty and in the circumstances a reasonable inference to be drawn was that the nail had been present in the ground for some time.
(iv)The nail was in the immediate area where the respondent fell.
(v)It was never suggested to the respondent that he tripped on anything else other than the nail.
In the circumstances, it is submitted that her Honour was entitled to find, on the balance of probabilities, that the presence of the nail in the surface of the basketball court was the cause of the respondent’s fall.”

The defendant presented further arguments orally. It submitted in essence that the nail was only one of three possible causes of the fall, the others being that the plaintiff tripped on broken glass and that the plaintiff tripped over his own feet. It submitted that these three possibilities were of equal probability, so that the nail had not been shown to be the cause of the accident more probably than not.
The plaintiff in chief denied that he had tripped over his own feet. In chief and in cross-examination he repeatedly said that he had a sensation of tripping over something which caught in his footwear. As the trial judge found, about a week after the accident the plaintiff revisited the site: he found and photographed a nail protruding above the surface of the court. On 1 March 1999 he and Mr Burn, a consulting engineer, met at the site. The plaintiff pointed out the nail and further photographs were taken. At about that time the plaintiff reported the existence of the nail to the defendant, and Mr Bull was sent there to remove it, which he did.
The plaintiff was not cross-examined to suggest that he had no injuries, or that they were not connected with the defendant’s basketball court, or that they were not caused by a fall, or that he had not fallen. He accepted in cross-examination that the nail shown him (Exhibit 2), which Mr Bull extracted from the court nearly two years later, was pretty close in appearance to that which he saw a week after the accident. Hence it is beyond controversy that there was a nail. As Ipp AJA demonstrates, it had been there for months. Mr Bull said it was not difficult to pull out, and he pulled it out with a claw hammer. Photographs taken by both the plaintiff and Mr Bull show the nail protruding above ground level. The plaintiff said that the nail had a flange which was flush with the concrete, leaving the head sticking above the surface of the concrete. Mr Bull said that the nail had a washer on it, no doubt bringing about the same effect. The photographs reveal a feature corresponding with their description.
There was some confusion in the plaintiff’s evidence as to where the nail was located, and the photographs he took do not clear it up. But it seems clear from Mr Bull’s evidence and Mr Burns’ evidence that the nail was just outside the shooting circle, in the general vicinity of where the plaintiff said the accident happened. It is understandable that the plaintiff might have had difficulty in identifying or recollecting precisely where he fell in view of the fact that he was moving backwards, excited by the game, until he suffered the sudden pain of his wrist injuries experienced while breaking his fall.
Counsel for the defendant suggested in cross-examination that the plaintiff had exaggerated his injuries, but it was never suggested to the plaintiff that he had fallen by tripping over his own feet or that he had fallen on something other than the nail. The only other thing he could have fallen on was broken glass. So far as the defendant suggests that the plaintiff could have fallen on “a bit of broken glass”, to use the plaintiff’s description of what he noticed in the area, that does not correspond with how the plaintiff described what happened, for example: “I’ve stepped back and felt something catch the back of my boot”; “I had a sensation of something catching [my] boot”; “I tripped over it”; “I didn’t see it the first time I tripped over it, caught the back of my boot”; “[I] tripped over something while I was playing, otherwise it wouldn’t have caught the back of my foot”. That style of description is one which the plaintiff is recorded as having used in his accounts of the accident to his expert, Mr Burn, and to medical practitioners. The plaintiff’s language suggests that his foot came into contact with an immovable object like the nail, not a moveable and light object like a piece of broken glass. In cross-examination the plaintiff said that when he went back to the scene of the accident a few days after it had taken place, he “just about tripped over [the nail] again”. Further, in cross-examination the plaintiff said the area on which he played was clean enough to play on, and if it had not been he would not have played there. This points against the presence of broken glass large enough, or with edges jagged enough to catch on the surface, to explain the accident.
While the trial judge was not bound to accept the plaintiff’s evidence in chief (repeated as it was several times in cross-examination), even though it was neither contradicted nor cross-examined on, to refuse to have done so would have been an unusual course. The defendant in this respect did not suggest any reason in the circumstances of this case why she should have taken that unusual course. The plaintiff’s evidence that he did not trip over his own feet having been implicitly accepted, no suggestion that he could have tripped over broken glass having been made (that being improbable anyway), and there being no other possible cause of the trip beyond the nail, it was open to the trial judge to conclude that it was more probable than not that the plaintiff had tripped on the nail. She did not rely only on “general considerations as to the likelihood of negligent conduct occurring”. She did not stay in the “realm of conjecture”, but reasoned by a process of inference. There were circumstances special to the case for finding that the nail was the cause, namely that the plaintiff excluded the only other possible causes of the “sensation of something catching” his footwear of which he testified, and he fell in the vicinity of a protruding nail capable of generating that sensation. If the plaintiff had been found dead near the nail and there were no witnesses to what happened, a conclusion that he fell because of having tripped on the nail might be capable of stigmatisation as mere conjecture. But it cannot be mere conjecture to accept positive evidence from which the relevant inference could be drawn. Similarly, the trial judge did not choose between guesses. Once the trial judge accepted that the plaintiff had a sensation of something catching his footwear, there was no need to choose between two possibilities, because there was only one possibility. The plaintiff’s evidence did create a reasonable basis for a definite conclusion that the plaintiff tripped on the nail, and the trial judge’s satisfaction about the correctness of that conclusion was reasonable.
Grounds 3-4: standard of care and breach
The defendant submitted:
“Her Honour determined that the standard of care to be expected of a Council with respect to a public facility was the equivalent of that demanded of the occupier of commercial premises to which the public has access: Judgment 5.4.
In so doing, her Honour imposed a standard of care that was too high in the circumstances.
That the standard of care to be expected of a duty-ower depends very much on the circumstances of the particular case has been acknowledged recently by this Court: David Jones Limited v Bates [2001] NSWCA 233 per Davies AJA at [15].
In the present case, the circumstances were that a relatively innocuous playing court did not require the same level of supervision, inspection and care by a public authority as might more high risk facilities such as swimming pools, or children’s playgrounds, or the like.
Nor was there any evidence of any particular feature or ‘special situation’ of the type referred to by Brennan CJ in Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208, to which her Honour referred (judgment p4-5), such as would heighten the duty on the Council.
In Bates the Court of Appeal (at [16]) noted that the duty of care will be conditioned on users ‘taking reasonable care for their own safety’. Here the Respondent did not take reasonable care for his own safety in that he did not:
(i)refuse to play on a court where there was, to his knowledge, broken glass; or
(ii)remove the broken glass off the court before playing.
Had the Respondent done the former there would have been no accident; had he done the latter, in all probability he would have discovered the nail if it was there to be seen. He did not do the latter because he regarded it as someone else’s responsibility: T22.42.”
While in oral argument to this Court the defendant appeared to withdraw any contention that the trial judge applied the wrong standard of care in any way that mattered, let it be assumed, without deciding, that, as the defendant submitted in writing, the trial judge was wrong to apply the test stated in Drotem Pty Ltd v Manning [2000] NSWCA 320 to these facts. There cannot be any quarrel with the test stated by Dixon J in Aiken v Kingborough Corporation (1939) 62 CLR 179 at 210, to which Brennan CJ made favourable reference in Romeo’s case (1998) 192 CLR 431 at [17]. The law does not know any test more favourable to the defendant:
“What then is the reasonable measure of precaution for the safety of the users of premises, such as a wharf, who come there as of common right? I think the public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care.”
The presence of the nail was, according to the plaintiff, not apparent. He was not cross-examined to suggest that it was apparent. Mr Bull had no trouble finding it, but he knew where to look. Further, one of the purposes of the court was to play “two on two” basketball. The plaintiff was using it for that purpose. That activity is one in which players are often moving backwards and sideways. It is an activity the speed and nature of which are such that even if players are looking forwards, they are concentrating on the ball and the position of other players, not on the condition of the surface. They are not to be compared to pedestrians moving relatively slowly through the streets with the opportunity to keep their eyes on the ground. As Mr Burn, the consulting engineer whose reports were tendered by the plaintiff and admitted without objection, said, the area was “specifically designed for games where the ball has to be handled quickly and accurately and the pedestrian surface must therefore be able to be relied upon without visual reference”. The photographs of this court which were in evidence demonstrate that the surface was smooth apart from the nail, and this must have tended to build up a reasonable expectation that the surface would be wholly smooth. Further, since the court was made of cement or concrete as distinct from wood, users would be unlikely to expect that any nails would be in it at all, let alone nails protruding 5 mm above the surface. The presence in a court of this kind of nail is not something which users would be seeking to detect, and users employing reasonable care would not be likely to have detected the nail. Indeed, as will be seen, the trial judge made a finding, not challenged in terms, that the nail “is a very small nail [and] is not something that would have … exercised the attention of persons playing on the court … .” The court may have seemed, as the defendant submits, “relatively innocuous”, but the existence of the nail called for at least sufficient inspection to detect and remove it. The court, in view of its hard surface, did carry a significant risk of injury to users to the extent that it rendered them likely to fall.
Another approach is to apply what Deane J said in Hackshaw v Shaw (1984) 155 CLR 614 at 662-3 as to the modern approach to occupier’s liability cases. In Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488 the majority approved that approach and said, in words applicable to the present case: “the fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent.”
Here there was reasonable foreseeability of a real risk of injury to persons in the position of the plaintiff, and the contrary is not contended. Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 requires that the estimation of a reasonable man’s response to that risk, which defines the standard of care to be attained, be arrived at by considering various factors. Though there is no evidence that a risk of injury materialised over the two years in which the nail was there except to the plaintiff, there was some probability of its occurrence. Though the risk of serious injury may not have been great, it was real. The plaintiff’s injuries were serious, and they could have been much worse. Alleviating action in the form of detecting the nail by inspection and pulling it out was not shown to be other than cheap and easy. The defendant pointed to no other competing responsibilities. This reasoning suggests that the defendant was in breach of the standard of care created by the duty which it admittedly owed. Indeed in oral argument to this Court the defendant conceded that if the nail were on the site when construction concluded it was in breach of duty, and for the reasons given by Ipp AJA, the nail was on the site at that time.
The defendant’s contention that the plaintiff did not take reasonable care for his own safety must be evaluated against the following background.
The defendant pleaded contributory negligence in the following terms:
“In the alternative, the Defendant says that the Plaintiff’s injury, loss and damage was caused, or materially contributed to, by his own negligence.
Particulars of contributory negligence
Failing to keep a proper lookout;
Failing to inspect the court prior to its use;
Failing to take reasonable care for his own safety.”
The trial judge rejected that defence in the following terms:
“In this matter I am reminded that the defendant raised the issue of contributory negligence in its defence and it is put to me this morning that the basis for the argument is that the nail, according to Mr Bull, was readily visible and ought to have been readily visible to the plaintiff before he started to play on the basketball court. It is apparent that the nail, exhibit 2, is a very small nail. It is not something that would have, I think, exercised the attention of persons playing on the court and it is apparent that it remained in its position at least from June 1997 until March 1999 without detection, except when the plaintiff tripped on it. In those circumstances I make no finding of contributory negligence against the plaintiff.”
There is no ground of appeal challenging that reasoning. Yet if the argument under consideration was correct, one would have been expected.
The argument based on the presence of broken glass is not recorded in the reasons for judgment of the learned trial judge as having been put. Let that be laid on one side. The argument overlooks the plaintiff’s evidence to the following effect. In chief he said:
“Q. You fell over and we know now the injuries that you sustained. Did you notice anything on the ground in the area where you fell?
A. Probably a bit of broken glass here and there.”
In cross-examination the following evidence was given:
“Q. And of course, with all this glass and other rubbish that might have been in the area, it’s necessary before you can play two-on-two-type basketball to make sure that you’ve got the glass and debris removed from all around the area, particularly in the circle surrounding the hoop, is that right?
A. Yep.
Q. Was that the situation that existed at the time that you had your accident?
A. No. Most of the glass was over the other side of the court, it was like two, two keys there, like two basketball hoops.
Q. Right?
A. And we just used the one closest --
Q. Did you have to clean any debris off the court?
A. No I don’t believe why I should have.
Q. Mm?
A. I didn’t and I didn’t think why I should have. Council was supposed to look after it.
Q. I’m not criticising you, I’m just asking you whether there was any debris when you got there that you had to clean off in the vicinity of the basketball hoop so that you could play the game?
A. No, I never cleaned it.
Q. You didn’t clean it?
A. No.
Q. Were other people playing there at the time that you arrived or not?
A. We more or less got there at the same time on the day of the accident.
Q. Had you arranged with your friends to go there?
A. Yeah.
Q. When you arrived there is this the situation that the area in the front of the hoop, which is bounded by the circle, or the half circle, was clean enough for you to play --
A. Yeah, otherwise we wouldn’t have played and it was.
Q. Well you would have cleaned it off I take [it] if it wasn’t clean?
A. Wouldn’t of played there at all.”
In short, the plaintiff’s perception was that in the specific area in which the game was played, the surface was clean enough to play on. To the limited extent that any attempt was made to shake the genuineness and reasonableness of that perception, that attempt failed. Failure either to refuse to play the game or to clean the court was thus not evidence of a failure by the plaintiff to take reasonable care for his own safety.
Disparity between written and oral submissions
I agree with the observations of Ipp AJA about the disparity between the defendant’s written submissions and its oral argument. The present appeal is far from being the only appeal in which a disparity of that kind is evident. In some future case it may be necessary for this Court to take the extreme step of declining to hear oral arguments which are outside the parameters of the written argument unless there has been some good explanation for why the disparity exists.
Orders
The following orders are proposed:
1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.
IPP AJA: I have had the benefit of reading the reasons to be published by Heydon JA. I agree with his Honour, but for different reasons, that the appeal should be dismissed.
The appellant caused basketball courts for the general use of the public to be constructed in Edgeworth. The courts were under the appellant’s care, control and management.
The courts were constructed from September 1996 to February 1997. In October 1996 the concreting was completed. On 12 February 1997 the completed courts were handed over by the contractor to the appellant and on that date the surfaces were inspected on the appellant’s behalf.
Some six months later, on 28 June 1997, the respondent was injured when he fell while playing basketball on one of the courts. While moving backwards he tripped over a small nail that had been hammered into the concrete slab of the court and which protruded about 5 millimetres above the surface.
The appellant contended that the trial judge had erred in finding that the respondent had tripped over the nail. I agree with Heydon JA, for the reasons given by him, that there was evidence that justified the trial judge’s findings in this respect.
Mr Maconachie QC, senior counsel for the appellant, did not dispute that the appellant owed the respondent a duty of care. The duty of care owed by the appellant was to take reasonable care to avoid injury to persons playing basketball on the courts: cf Canterbury Municipal Council v Taylor [2002] NSWCA 24 at [112] to [113].
Mr Nolan, who at the relevant time was employed by the appellant as “the senior landscape architect”, said that in February 1997 he carried out a final inspection of the concrete slabs that formed the bases of the courts. Mr Caldwell, the contractor, said that the final inspection of the slabs occurred in October 1996. Sidis DCJ said that she had to regard the evidence of Mr Nolan and Mr Caldwell with circumspection as there were inconsistencies in their evidence. In my view, however, Mr Nolan’s testimony that he inspected the slabs in February 1997 should be regarded as an admission to that effect by the appellant and should be accepted. Mr Machonachie argued the matter on the basis that there had been a final inspection in February 1997.

Mr Nolan said that during the final inspection in February 1997 he and Mr Caldwell walked over the site a number of times when inspecting the surface of the concrete slabs. He said that the concrete was then “quite white” and if a nail had been protruding “it would have been relatively obvious”. The inference is that - if the nail was then in the concrete - the inspection was inadequate.
Sidis DCJ inferred that the nail was “on the site of the basketball court as a result of the construction of that court”. On the basis that this finding meant only that the nail was brought on to the site while the court was being constructed, and for some reason connected with its construction, it was not challenged. The appeal proceeded on the basis that this finding did not mean that the nail was inserted in the concrete “as a result of” or during the construction of the court. These were matters in dispute.
Sidis DCJ found that the nail had been inserted in the concrete “for some reason during the course of construction or as a result of some positive act of vandalism following completion of construction”. That is to say, she found that there were only two possible ways in which the nail came to be inserted in the concrete. One was by some person during the course of construction of the court. The other was by a third party after the construction had been completed (presumably on the basis that the third party in question had found the nail lying on the site).
Sidis DCJ did not decide which of the two ways in question was the more probable. In her Honour’s view, that was not material. She found that had the appellant implemented a reasonable system of maintenance and inspection it would have detected the nail before the respondent was injured. She held that the appellant was negligent in failing to have such a system in place.
Mr Maconachie contended that Sidis DCJ erred in finding that a reasonable system of maintenance and inspection would have prevented the injury as, firstly, there was no evidence as to what would constitute such a reasonable system, secondly, there was no evidence that established when inspections pursuant to such a system would occur, and, thirdly, there was no evidence that negated the possibility that the nail was inserted at a time after inspection of the court would have occurred (in accordance with a notional reasonable system) and before the injury was sustained.
Mr Maconachie conceded during the course of argument, however, that, if the nail had been inserted in the concrete prior to Mr Nolan’s final inspection in February 1997, the appellant had breached its duty of care by failing to observe the nail and remove it.
In my opinion, that concession was correctly made. At the stage of the final inspection, and before the court was made available for use by the public, the appellant, as part of its duty of care, should have taken reasonable care to ensure that the surface was smooth and free of obstruction. The exercise of reasonable care during that inspection would have led to the discovery of the nail.
In my opinion, the appeal falls to be resolved on the basis that, on a balance of probabilities, the nail was indeed inserted in the concrete in the course of the construction of the slab, and not by a third party (presumably a vandal) thereafter. That finding leads inevitably to a conclusion that, at the final inspection in February 1997, the appellant breached its duty of care by failing to observe the nail and remove it. I set out below my reasons for my finding that the nail was inserted in the concrete in the course of the construction of the slab.
The nail was of a singular kind. It was made of hardened steel. It was small, being only 20 millimetres in length (less than an inch). It had a small circular head about three millimetres in diameter. About five millimetres below the head there was a washer or flange about eight millimetres in diameter that appears to have been welded or at least permanently affixed in position. There were signs of rust on the upper surface of the flange.
Mr Maconachie’s principal submission was that, as a matter of probability, it could not be said that the nail was embedded in the concrete by the time of Mr Nolan’s inspection in February 1997. He said that it was equally (or more) likely that the nail had been hammered into the concrete by a vandal.
Mr Maconachie relied on two matters that he submitted supported his submission. The first was the evidence of Mr Caldwell, who was asked whether at any stage during the construction of the overall complex he saw any such nails driven into the concrete. He replied in the negative, saying that there was “no necessity for it”. Mr Caldwell said further that he had personally been involved with his employees in laying masking tape and painting line markings on the court and he had not seen the nail embedded in the concrete. The second matter relied on by Mr Machonachie was the history of vandalism on the site.
I shall deal firstly with the significance of Mr Caldwell’s evidence. That evidence has to be seen in context. The context includes the nature and purpose of the nail, how the nail came to be on the site, how it was inserted in the concrete and how it could possibly have been used in the course of construction.
I have described the singular nature of the nail. It was not a nail in ordinary domestic use. It was a highly specialised nail, intended for specialised and limited functions. Its size meant that it was not per se threatening. Indeed, the immediate impression on examining it is that it is an entirely insignificant object.
Mr Caldwell had seen the type of nail in question on building sites. He had not seen such a nail inserted in concrete and did not think it was “structurally strong enough” for this purpose. He appears to have been wrong in this regard. There was undisputed evidence that the nail was made of hardened steel and was specifically designed to be inserted in concrete.
Mr Caldwell said that he had seen the nail inserted “in mortar between brickwork”. He said that bricklayers would use the nail “to attach a string line into cement mortar in brickwork”. He, personally, would use the nail in mortar as a mark or as a string line attachment. He was not prepared to say that this was the only use for the nail.
There were bricklayers on the site in the course of construction. They were involved in putting up a wall within metres of the court. They might have brought nails of the kind in question on to the site but it is unlikely that any of them would have inserted the nail in the concrete slab as they did not work on the slab. There were, in addition, other tradesmen not under Mr Caldwell’s control working in and around the site. They, too, might have brought such nails on to the site but, for the same reason, it is unlikely that any of them would have inserted the nail in the slab.
Mr Bull, a carpenter employed by the appellant, gave evidence on its behalf. His testimony regarding the nature and function of the nail differed from that of Mr Caldwell. In particular, he said that he had used nails of that kind in the course of laying concrete slabs. When asked how they were put into the concrete he replied that they were nailed in with a hammer (White Book 79K-T). He said that while “you might bend a few … you eventually get them in.”
Mr Bull said he used such nails in the course of inserting expansion joints in concrete slabs. There were expansion joints in the court on which the respondent was injured.
The report of Mr Burn, a consulting engineer, was tendered in evidence by the respondent. Mr Burn was not cross-examined. Mr Burn stated in his report that the nail was “a hand driven concrete nail used for fixing sheet metal or plastic flags or tags or markers on concrete surfaces”. In other words, his evidence, like that of Mr Bull, was that the nail was designed to be inserted into concrete. His description of the use for which the nails were intended was significant as there were lines on the basketball court and there would have been a need to use some mechanism to ensure that the lines were correctly marked.
Mr Bull found the nail embedded in the concrete about a metre “outside the markings for the [basketball] hoop”. He remembered that there were “two lines coming from the baseline” which ended up in a circle shape, and the nail was near these lines. The position of the nail when found was not inconsistent with it having been used for marking lines on the court.
Significantly, the unchallenged finding by Sidis DCJ that the nail was on the site “as a result of” the construction of the court means, implicitly, that the nail was brought on to the site for some reason connected with its construction. In any event, once it is accepted that the nail was brought on to the site while the courts were being constructed, the strong inference arises that it was brought there by a worker for the purpose for which the nail was designed.
In my view - despite Mr Caldwell’s testimony that there was no need for nails of the kind in question to be used on the site - it would be reasonable to expect that those persons who brought such nails on to the site would use them for such a purpose, namely, for inserting expansion joints or erecting plastic flags or tags or markers in the course of painting lines on the court.
Photographs tendered in evidence showed that the nail was hammered neatly in to the concrete right up to the level of the flange. Mr Bull said that the flange had not been driven down to the top of the concrete, but this evidence is contrary to what is plainly visible in the photographs. That being so, the nail protruded above the surface by no more than about 5 millimetres. Evidence to the effect that the nail protruded by some 15 millimetres must be rejected. Rather, the nail was inserted into the concrete to a depth of about 15 millimetres.
Accordingly, it would have been difficult for a person not knowing of the nail’s existence in the concrete, and not making a careful examination of the surface of the slab, to see and notice the nail. The respondent left the nail in the concrete after his fall and some 21 months passed before Mr Bull, on instructions, went to the court to look for the nail and found it embedded there. In this lengthy period the nail appears to have gone unnoticed by any person. In my view, therefore, it does not follow from the failure by Mr Caldwell and his men to observe the nail when they were working on the slab that it was not there.
It is also to be observed that Mr Caldwell said that he was on site every day of the job, but was not there all the time. It follows that the nail may have been inserted in the concrete in his absence.
In the circumstances, I do not regard Mr Caldwell’s testimony as persuasively refuting the proposition that the nail was inserted in the concrete during the course of construction.
I now turn to the inference to be drawn from the vandalism at the site at the time in question.
According to a report by Mr Nolan dated 8 August 2000:
“Vandalism on the Edgeworth site was worst of all three sites. The netball post was removed twice, and finally replaced by a basketball post to placate local male youths. The picnic table was removed and thrown in the creek. Litter was regularly strewn around site. Handball wall and shelter were extensively grafittied. Broken glass was spread over court, but basketball key was swept by youths so they could play. Tap and bubbler vandalised repeatedly and finally disconnected.”
Mr Nolan’s oral testimony was to the same effect. He said:
“[T]here was vandalism to not so much the court surface but the wall and shelter, there was a lot of broken glass. In one, one instance when I was out there, the court surface was, was covered with broken glass except for the actual key area of the basketball court”.
Mr Nolan explained that the “key area” was the semi-circular area on the court where people using the court “could shoot … baskets”.
Mr Caldwell described the vandalism as follows:
“The concrete path I mentioned we had to put in, we had to put traffic barriers in, dig holes and concrete the traffic barriers into the ground. We did that one afternoon. We came to work the next morning and they’d been just ripped out of the ground. The actual netball post had been dislodged and thrown in the stormwater drain down behind the bowling club”.
In addition:
“[T]hey did unbolt the seating of the table from underneath the shelter. That was unbolted and actually thrown down in the park. They actually tried to destroy the actual four posted shelter. They just rocked it backwards and forwards till it was – we had to put in extra additional bracing to try and remedy that”.
Other damage was caused. Mr Caldwell referred to vandals breaking certain timber and mentioned a fire that had been started in a garbage bin. He said that “the traffic barrier posts were ripped out, these were replaced and they had been ‘cut off’.” Eventually a basketball post was installed instead of a netball post. This seems to have reduced the incidence of vandalism.
Nevertheless, when Mr Caldwell returned for the final handover there were rocks and broken glass “and stuff like that” on the surface of the court. In cross-examination he said that there were rocks and broken glass on the surface “just about every time he went there”.
The vandalism that took place at the site was overt, violent, apparently spontaneous and aimed at property or at preventing the court from being used. The knocking in of the nail up to the level of the flange was conduct of a different character. It differed from smashing a shelter, breaking down basketball posts, throwing glass and other debris onto the court and burning garbage bins. None of the vandalism involved the deliberate and careful creation of a concealed trap that might harm some unsuspecting basketball player (such as inserting a nail so that it protruded only some five millimetres above the surface of the concrete).
Moreover, the theory that a vandal knocked this single, specialised, seemingly insignificant nail into the concrete is based on a number of unlikely assumptions.
The vandal would have had to find the nail lying around on the site. While this is possible, the person in question would have had to have been equipped with a hammer to knock the nail in. This, immediately, reduces the likelihood of the hypothesis. Why should such a person come to the site armed with a hammer? There was no evidence that the damage that was inflicted on the site was caused by a hammer. That such a person would bring a hammer (but not nails) to the site and then look about for nails to knock into the court, cannot be regarded as probable conduct.
Then why knock in such a small nail? That conduct would not be an immediately obvious and destructively anti-social gesture of the kind that the vandals did indulge in. The nail protruded by so small an extent above the surface that it might never have caused anyone to fall, even if a basketball player stood on or against it. One would expect that if vandals wished to cause injury to persons or damage to the court by knocking hardened nails into the concrete they would have used far longer nails than the one in question.
Next, why knock in only one nail? After all, the theory assumes that the individual brought a hammer with him or her for the purpose of knocking nails in to the court. The idea that such a person would deliberately bring a hammer but not several nails, and knock in only a single nail found on site, cannot be regarded as likely.
Further, I take into account the fact that from the photographs the nail looks as if it was hammered into the contract neatly and professionally. There was no damage to the concrete in the vicinity of the nail and it looks as if the flange fits snugly against the surface. The nail does not look as if it was inserted by a casual act of vandalism.
In my opinion, having regard to all the relevant circumstances, it is probable that a person involved in the construction of the court inserted the nail in the concrete. In my view, this scenario is far more likely than the vandal theory advanced by Mr Machonachie. I regard the latter as mere speculation; unlike the first scenario, it is not based on conduct to be expected in the ordinary course of human behaviour.
I stress that the trial judge found and Mr Maconachie accepted that the nail was inserted under one of only two possible circumstances. Firstly, during the construction of the court. Secondly, by some third party, after construction had been completed. I am satisfied that the finding was correct and the concession was correctly made. There is no third possibility.
The probability of the first scenario occurring is far greater than the second. Accordingly, I would hold that a person employed in the construction of the court inserted the nail in the concrete before the completion of the court in February 1997.
I therefore conclude that those persons who participated in the inspection of the court in February 1997 failed to find the nail because they did not carry out the inspection properly and with due care.
I would dismiss the appeal with costs.
There is one further aspect of the case that needs to be addressed.
The written submissions filed on behalf of the appellant bore very little relationship to the full and detailed argument advanced orally by Mr Maconachie. Mr Maconachie candidly informed the Court that he had been briefed a considerable period before argument took place but did not supplement the written argument which, it seems, had been prepared by someone else. Mr Maconachie had earlier informed Mr Rowe for the respondent of the gist of the argument he was to present and Mr Rowe was not taken by surprise by the departure from the written submissions. This, however, was of no assistance to the Court.
The Court has a heavy burden of cases and if judgments are to be delivered within a reasonable time it is desirable that judgments in more straightforward cases be delivered at the conclusion of oral argument. Otherwise the period between argument and the delivery of judgment will grow to an inordinate degree. This process however will be prevented if the oral argument differs in substance from the written submissions.
In Whyte v Brosch (1998) 45 NSWLR 354 Spigelman CJ said (at 355):
“The ability to deliver ex tempore reasons in cases of this character is a matter of considerable significance for the efficient use of judicial resources. Accordingly, compliance by the parties of Pt 51 r 47 is of importance for the efficient use of judicial resources in the administration of justice in this State”.
And (at 355 to 356):
“In a case where the opposing party seeks an adjournment of proceedings by reason of the late filing of submissions, if the Court grants the adjournment in accordance with its usual approach, the profession ought to be aware that the Court can order that costs thrown away by any adjournment should be paid by the legal practitioner responsible for the failure.
Other possible sanctions include a reference to one of the professional associations to investigate whether any breach of professional obligations has occurred”.
In Lorbergs v State of New South Wales (1999) NSWCA 54 Mason P said:
“The Court of Appeal is an extremely busy court. Judges read the submissions in advance of the hearing. Sometimes the convenient time to do this is the weekend prior to the week in which the matter is fixed for hearing. It is important to have this facility so that the argument can proceed with proper despatch and so that in a proper case ex tempore reasons can be delivered”.
Mason P reminded the profession about the warning issued by Spigelman CJ in Whyte v Brosch, referred to the pervasive “climate of complacency” and said:
“Without suggesting this remark is applicable to any of the present cases, I should say that these attitudes are indicative of contempt in both its technical and lay senses”.

Everything said in Whyte v Brosch and Lorbergs v State ofNew South Wales in regard to the need to file written submissions in time applies equally to the need to file written submissions that adequately reflect the arguments that the parties intend to develop orally at the hearing of the appeal. Otherwise, the entire purpose of the rule relating to the filing of written submissions will be frustrated.
Where, after written submissions have been filed, new counsel is briefed who wishes to present different arguments, the new counsel is duty bound to ensure that amended written submissions, properly reflecting the new arguments, are filed in good time.
Mr Maconachie apologised to the court for his omission in filing adequate submissions in good time. His apology was accepted and in the circumstances of this case I do not suggest that any sanction be imposed.
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LAST UPDATED: 02/04/2002

[2002] NSWCA 90

2 April 2002

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Legal Concepts

Appeal

Costs

Duty of Care

Negligence

Procedural Fairness