Marrickville Municipal Council v Moustafa

NEW SOUTH WALES COURT OF APPEAL

CITATION: Marrickville Municipal Council v Moustafa [2001] NSWCA 372

FILE NUMBER(S):
40526/99

HEARING DATE(S): 11 July 2001

JUDGMENT DATE: 24/10/2001

PARTIES:
Marrickville Municipal Council (Appellant)
Yousef Moustafa (by his tutor Albert Moustafa) (Respondent)

JUDGMENT OF: Priestley JA Powell JA Heydon JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 8757/97

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

COUNSEL:
Mr J E Machonachie QC/Mr D B McGovern (Appellant)
Mr J D Hislop QC/Mr P A Regattieri (Respondent)

SOLICITORS:
Phillips Fox (Appellant)
Jones Staff & Co (Respondent)

CATCHWORDS:
Torts - Negligence - Occupier's liability - Duty - Breach - Causation - Whether duty, breach and causation established - Role of foreseeability in duty question - Where eleven-year-old boy discovered object buried in public park by pulling piece of string - Where boy created an explosion by placing object into a bottle with petrol and paper and setting paper alight - D

LEGISLATION CITED:

DECISION:
See paragraph 62

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40526/99
  DC 8757/97
PRIESTLEY JA
  POWELL JA
  HEYDON JA
24 October 2001

MARRICKVILLE MUNICIPAL COUNCIL v MOUSTAFA

Torts – Negligence – Occupier’s liability – Duty – Breach - Causation – Whether duty, breach and causation established – Role of foreseeability in duty question – Where eleven-year-old boy discovered object buried in public park by pulling piece of string – Where boy created an explosion by placing object into a bottle with petrol and paper and setting paper alight

An eleven-year-old boy (“the plaintiff”) went with a friend to Marrickville Park. As they were leaving the park the plaintiff saw a piece of string on the ground near a children’s playground. The plaintiff pulled the string and unearthed an object attached to the string, which had been buried under the soil. The plaintiff and his friend then obtained a Coke bottle and some petrol. They put the object, the petrol and some paper into the bottle, and then lit the paper. They ran away, but when the bottle failed to explode they re-approached it, at which time it exploded. The plaintiff suffered physical injuries and successfully sued Marrickville Municipal Council (“the Council”) for damages. After a 40% reduction for contributory negligence, the trial judge awarded the plaintiff $81,040 in damages. The Council appealed.

Held by Priestley JA (Powell and Heydon JJA concurring), allowing the appeal:

The trial judge erred in holding that the Council owed a relevant duty of care to the plaintiff.

a. The plaintiff did not establish that the Council was bound to have a system of inspection of the park near the playground which would ensure that pieces of string were promptly removed.

b. In considering the duty question, it is necessary (but not sufficient) to assess whether it was reasonably foreseeable to the defendant that the particular conduct or omission would be likely to cause harm to the plaintiff or a person in the same position.

Australian Safeway Stores Limited v Zaluzna (1987) 162 CLR 479, applied.
There was no foreseeable risk of the kind of accident which occurred to the plaintiff occurring to him or to persons of the class to which he belonged. Also, the piece of string was not in itself an object that was foreseeably dangerous to infants or young children.

The trial judge erred in holding that the Council had breached any duty of care owed to the plaintiff.

a. Even if the piece of string lying on the ground near the playground was foreseeably dangerous to children and infants, so that the Council owed a duty of care to ensure the string was not present, the plaintiff cannot rely on the breach of duty to a class of entrant of which he was not a member.

Ashrafi Persian Trading Co Pty Limited v Ashrafinia [2001] NSWCA 243, referred to.

The trial judge erred in holding that the Council had caused the plaintiff’s injury.

a.The question whether the necessary causal connection existed involves an evaluative and policy element in addition to the factual inquiry.
March v Stramare (E. & M.H.) Limited (1991) 171 CLR 506, applied.

b.The Council should not be regarded as having caused the plaintiff’s injuries. There was no evidence that the Council knew of the string’s presence and the Council had no part in the plaintiff’s decisions to leave the park with the object, to make a dangerous device, and to set it alight.

ORDERS

Appeal upheld.
Judgment below set aside.
In lieu of that judgment there should be judgment for the defendant.
The plaintiff should bear the defendant’s costs of the trial and the appeal.
The plaintiff should have a Suitors Fund Act certificate.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40526/99
DC 8757/97

PRIESTLEY JA
POWELL JA
HEYDON JA
24 October 2001

MARRICKVILLE MUNICIPAL COUNCIL v MOUSTAFA

PRIESTLEY JA:
Introduction
Unfortunately for the luckless plaintiff, who succeeded in obtaining judgment in the District Court against the appellant Marrickville Municipal Council, I think that this appeal by the Council against that judgment must succeed.
The plaintiff’s claim against the Council was that the Council had owed a duty to him which, summarily stated, was to keep Marrickville Park free of dangerous material by properly cleaning, maintaining and supervising the park, that in breach of that duty it had failed to remove dangerous material from the park and that as a result of that breach he had suffered physical injury. His Honour Judge Hosking QC accepted the plaintiff’s case and assessed his damages at $135,000. Judge Hosking attributed 40% of the fault for the plaintiff’s injuries to the plaintiff’s contributory negligence and accordingly entered judgment against the Council for $81,040.
The plaintiff’s case
The plaintiff was born on 31 March 1981. He was injured on 15 February 1993. That day was a Monday, and, for the plaintiff, a school day. In his evidence in chief the plaintiff said that after school he and his friend Sam Dibb went to Marrickville Park and played touch football there; after their game they began to walk home; near a children’s playground in the park they “found this string just lying down”. Asked where the string went he said “it was like under the ground kind of thing ... [I] pulled it out when I saw it ... I had to like really give it a tug ... it was dirty and had a bit of rust on it, it was like a bronzy colour”. When asked “What had a bit of rust on it?” he said “The metal piece”. He said the metal piece had been about half an inch under the soil, which had been wet and that the string was probably a metre and a half to two metres long; the place where he and his friend found the string was about twenty to twenty-five metres from the children’s playground; the metal piece was about an inch and a half in size, “it was shaped like a carrot, it was like thin and it came thick” going down to a point; “I thought the object was a fire cracker”; he and his friend then got a Coke bottle from a bin, some petrol from Sam’s home, which was about five minutes walk from the park, put the petrol in the bottle, put some paper in the neck of the bottle, and then, in Bishop Street, “...we lit it, then we ran, then we waited until it exploded. It wouldn’t explode, so we went closer to see what was happening, then it went off”.
The plaintiff was injured and was taken to the Children’s Hospital at Camperdown, and on the following day to the Sydney Hospital. The hospital’s records described his wounds as shrapnel wounds. He suffered a permanent loss of 77.5% of vision in his right eye.
The plaintiff’s counsel had asked him some questions which assumed that the object he and his friend had found was a detonator and the plaintiff had answered the questions on that basis. When asked by the cross-examiner why he described the object that way, he said it was because when he went to the hospital one of the doctors had said it was a detonator. He agreed that apart from the doctor having told him it was a detonator he did not himself know if it was a detonator. He said the bottle that had been used was a Coke bottle, one of the “little ... curvy” ones. It had been about a quarter filled with the petrol. He had put some paper in the neck of the bottle after dropping the object into it. Then they lit the paper. The plaintiff said of the metal object that “ we thought it was only sparkle and stuff like a fire cracker”.
The injury to his right eye was the most serious of the plaintiff’s injuries. It was operated on at the Children’s Hospital soon after his admission. That hospital’s records show the primary diagnosis as “shrapnel injury plus penetrating right eye injury”.
Next day at the Sydney Hospital the eye was further operated on.
The plaintiff’s less serious injuries were to both legs and arms, his chest, face and shoulder. The records from both hospitals refer to all these as shrapnel injuries. In a record of the operation at the Children’s Hospital, in the “Specimen Sent to Pathology” section it was noted that two pieces of shrapnel were retrieved.
The origin of the shrapnel is differently described in different hospital records. In one place it is noted that “cartridge pellets” were removed (Blue AB 31), elsewhere the pellets are attributed to “exploding shotgun cartridge” (Blue AB 20, 92), in other places a “bullet” and “pieces of bullet” are referred to (Blue AB 49, 92), “shotgun cartridge” (Blue AB 88), “gun shot wound “and “shotgun” (Blue AB 95, 121), and “gun wound” (Blue AB 107). In what seems to be one of the earliest records made after the admission of the plaintiff to the Children’s Hospital it was noted that he was admitted to casualty “following explosion of ? shotgun pellets” (Blue AB 28).
The trial judge’s reasons for finding the Council liable.
The trial judge stated the facts much as they had been given in the plaintiff’s evidence. Although questions in cross-examination had put in issue the plaintiff’s apparent case that the metal object was a detonator, in his statement of the facts the trial judge referred to it as a detonator, without comment or any discussion of the difficulties involved in accepting that as the fact.
The trial judge said:
“The condition of the detonator supports the plaintiff’s contention that it had been buried in the ground for some time and I draw that inference.
.....
According to the plaintiff the string was off white in colour. It was ‘dirty’ when the plaintiff first saw it from about 4½ metres away. If accepted, and I do, that evidence establishes that the detonator was visible on a less than rigorous observation.”
The statement that the evidence established “that the detonator was visible on a less than rigorous observation”, taken literally, is hard to understand, in view of the trial judge’s apparent acceptance of the plaintiff’s contention that it had been buried. It would make better sense, and be perfectly understandable if the reference was to “the string” rather than “the detonator”. It seems likely to me that that is what the judge intended. So understood the finding is based exactly on the evidence. Read literally it is not. The trial judge had also earlier found that “the detonator had been embedded ... for some time in the ground”. I therefore take the finding of fact to be that it was the string that was readily visible.
The trial judge did not accept everything the plaintiff said:
“I did not find convincing his denial under cross-examination that he intended to cause an explosion. The addition of the petrol, and his repeated answers ‘I was just a kid at the time’, to me, lacked conviction.
The boys went to Bishop Street, a 2 minute walk away to light the bottle.
The plaintiff said they left the park because there were people there and they did not want to do it there. This admission is clearly suggestive of an apprehension of danger and his evidence that he and Dibb ran away after lighting it fortifies me in that view.”
In his statement of claim (par 4) the plaintiff alleged that the council
“... at all material times owed a duty of care to ensure that the premises were kept as safe as reasonable care and skill could make them and that the park, and in particular, the area immediately adjacent to the children’s playground, was kept free of dangerous material and that the said area of the part be properly cleaned, maintained and supervised.”
The trial judge’s reasoning on the issue of the Council’s liability to the plaintiff began with consideration of the duty question and I understand it went by the following steps.
The park where the plaintiff found the metal object was controlled, occupied and maintained by the Council. Embedded in the park was a detonator to which a piece of string was attached which was seen by the plaintiff. There was a children’s playground close to where the metal object was found by the plaintiff. As already mentioned the string was visible on a less than rigorous observation. The judge inferred it had been there for some time. He then noted that a civil engineer had given evidence in the plaintiff’s case of what the proper level of inspection of the park should have been, namely, that a children’s playground required a higher level of inspection, and after weekends a timely clean-up was needed. The trial judge thought that the cross-examination of this witness undermined his conclusions to some extent but did not make explicit to what extent he accepted or relied on this witness’s evidence. The trial judge however did emphasise that “There was no evidence as to the nature or efficiency, diligence or intensity of the inspection of the park by Council employees”. He referred to the fact that the Council elected to call no evidence on liability but added that that tactical decision did not fill in any imperfections in the plaintiff’s case. He then noted that the plaintiff bore the onus of proof and that there was prima facie if not overwhelming evidence of a duty of care, and here he also referred to breach of that duty and found prima facie evidence of that also.
He then found affirmatively that a duty of care was owed by the Council to the plaintiff. (This was all that was said by the trial judge concerning the duty of care. He did note however that the content of that duty remained a live issue at the trial.) I gather from the overall context of his reasons that at this point the trial judge must have been of the view that at least the Council had a duty to make reasonably frequent and efficient inspections of the park and that it had been in breach of this duty.
The trial judge made one observation which I infer was intended to indicate what he thought was the content of the duty. When he had mentioned his view that there was prima facie evidence of a duty of care, he had gone on to say that if he were correct in that, evidence of the system of inspection of the park at the relevant time could have been helpful but was not forthcoming. He then referred to the following question in a request for particulars made by the Council (in a letter dated 16 September 1994 which became Exhibit 5).
“12. Please specify, with particularity, what will be alleged to have been the proper supervision of the playground and parkland.”
The answer, quoted by the trial judge, was:
“12. Supervision that brought about proper inspection of the playground and its surrounds to ensure that no dangerous objects were left that could cause injury to children and a twice daily inspection of the playgrounds and park-grounds as well as a twice daily removal of rubbish and potential dangers therefrom.”
Although the trial judge did not explain what he had in mind in referring to and setting out this answer, I think the inference must be, in light of the whole of his reasons, that he accepted it as substantially stating the content of the duty.
In the separate following section of his reasons the trial judge dealt specifically with “Negligence”. He referred to the six questions which, he said, Kirby J had posed in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, which he (the trial judge) took to be “the six questions which judges should answer in trials such as this”. He set out each question and answered it. The passage from Kirby J’s reasons the trial judge was thus referring to commences in 192 CLR at 475 and is as follows:
“Unless particular issues are conceded, it is highly desirable that trial courts should approach such disputes by considering, in turn, the standard questions:
1. Is a duty of care established? (The duty of care issue.)
2.If so, what is the measure or scope of that duty in the circumstances? (The scope of duty issue.)
3.Has it been proved that the defendant is in breach of the duty so defined? (The breach issue.)
4.If so, was the breach the cause of the plaintiff’s damage? (The causation issue.)
5.(where relevant.) Were the defaults alleged on the part of the public authority within the area of the authority’s legitimate discretion on questions of policy and allocation of resources so that there was no duty of care owed to the plaintiff? Or was any suggested breach a matter left by law to the authority whose decision the courts would respect and uphold against the plaintiff’s complaints? (The policy/operations issue.)
6.(where relevant.) Has contributory negligence on the part of the plaintiff been proved and, if so, with what consequence? (The contributory negligence issue.)”
The trial judge’s answers were:
1.            “Yes.”
2.“A proper system to remove all items of danger within park and in particular close to children’s playground. To ensure a system operated properly.”
3.“Yes. On the probabilities the defendant’s negligence in cleaning the park allowed the detonator to get into the hands of the plaintiff.”
4.            “Yes.”
5.“At p 479 (par 127 in Romeo) Kirby J enunciated the test of the reasonableness of (the) defendant’s actions or inactions and at p 480 (par 129) ‘expense’ and resources. These are matters of degree.”
“Yes.” (I think this must be a misprint for No.)
6.            “Yes. Forty per cent.”
The trial judge did not refer to the passage in Kirby J’s reasons, immediately following the statement of his standard questions, in which he expressed his view about the way in which a judge should go about answering the first of the questions, namely whether a duty of care exists. Kirby J there said three considerations were involved, which he listed as follows:
“1.         Whether it was reasonably foreseeable to the alleged wrongdoer that particular conduct or an omission on its part would be likely to cause harm to the person who has suffered damage or a person in the same position;
2.            Whether there exists between the alleged wrong-doer and such person a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’; and
3.            Whether it is fair, just and reasonable that the law should impose a duty of a given scope on the alleged wrong-doer for the benefit of such person.” (at 476, footnotes omitted)
Perhaps this was not mentioned by the trial judge because this particular formulation has not been accepted by a majority in the High Court. The situation in this respect appears still to be the same as I sought to summarise in 1998 in Avenhouse v Council of the Shire of Hornsby (1998) 44 NSWLR 1 at 5-9; and see now, the joint reasons, delivered since judgment was reserved in the present case, of Gleeson CJ, Gaudron, McHugh and Callinan JJ, in Sullivan v Moody [2001] HCA 59. Nevertheless, the first consideration mentioned by Kirby J seems to be accepted in the High Court as a necessary but not sufficient condition for the existence of a duty.
The Council’s submissions on appeal.
In extensive written submissions the Council argued that:
1.some of the trial judge’s findings of fact could not be justified;
2.he had been wrong in finding that a duty of care existed;
3.he had been wrong in holding that the Council was in breach of any duty of care to the plaintiff;
4.he was wrong in finding any relevant causal connection between the acts and/or omissions of the Council and the injury suffered by the plaintiff;
5.the trial judge was wrong in his apportionment of fault; and, finally,
6.his assessment of the plaintiff’s damages was unjustifiably high.

1. Challenges to fact finding. Although my opinion of this case does not make it necessary for me to come to any firm conclusion about the claimed errors of fact made by the trial judge, I will mention them briefly.
The main factual matters argued for the Council were whether the judge was right in finding (or assuming) that the piece of metal was a detonator, in inferring that the detonator had been embedded in the ground for some time and in accepting that the detonator was visible on a less than rigorous observation.
On one view of the case, the first of these questions might be of some importance. If the piece of metal was something itself designed to explode then, among other things, the plaintiff’s case in its causal aspects would be advanced by one step. If on the other hand it was an object which exploded not because it was designed to do so but because of the force of the petrol explosion, then the Council is one step further away from the plaintiff so far as causal connection is concerned.
There was no expert evidence from either side to help the court in forming an opinion whether it was more likely than not that the metal pellets which injured the plaintiff came from the shattering of an explosive as distinct from a non-explosive object. The description of the object itself by the plaintiff (the only eye-witness who became a court witness) gives little help in deciding this question. The varying statements in the hospitals’ records for the couple of days after the accident show that there was no fixed view amongst the various record makers of what it was that had exploded. There is no evidence whether the doctor who told the plaintiff it was a detonator had any factual knowledge about the object, or technical expertise, which might lend some weight to his statement.
On the materials before the court, it may possibly be legitimate to infer that it is (barely) more likely than not that the metal object was itself some form of explosive object, whether detonator, shot gun cartridge or some other device. However, I have not formed any firm view on this matter.
As to the length of time it had been in the ground, I think there was probably sufficient material to enable the trial judge to make the challenged finding.
On the question whether the object itself was visible on less than rigorous observation, I earlier said why I think in the relevant sentence, “detonator” was a slip for “string”. If it was not, then I think the judge was in error.
2. Duty of care. I began these reasons by saying that I think this appeal must succeed. The reasons for this could be explained in a number of different ways. Dealing with the case in the way in which the Council formulated its submissions, it seems probable to me that the appeal could properly be upheld for each of the reasons relied on by the Council, set out in par 24 above and numbered 2, 3 and 4, that is, that the plaintiff did not establish a relevant duty of care, or any breach if there was a duty of care or any causal connection between the Council’s actions/omissions and the plaintiff’s injury, if there were both duty and breach.
The ideas behind the Council’s duty, breach and causality arguments overlap. There is an ever growing mass of materials, both judicial and academic, attempting to explain the different ideas which are thought to lie behind the three branches of the conventional trio. I will not embark on yet another essay in the field, but will confine myself to stating summarily my reasons for thinking there are two ways by which, in the present case, the duty of care aspect could be approached, each leading to the same result. After doing this I will also deal with the duty question directly by reference to foreseeability.
In passing I note that for judges in Australia in the hierarchy of authority headed by the High Court who want to gain a reasonably quick appreciation of what is involved in the duty of care question, it is sufficient to read what is said about it in the Law of Torts, Fleming, 9th edn, 1998, Romeo (see par 20 above) and the series of subsequent High Court decisions on negligence, together with the opinion of Mahoney P in Trustees of the Roman Catholic Church for the Dioceses of Bathurst v Koffman (1996) Aust Torts R 81-399 at pp 63587-63591. Mahoney P’s opinion in Koffman is particularly helpful on the aspect of the duty of care I am concerned with here. (I confine the reading list in this way because of constraints of authority and of time, and I intend no criticism of the wealth of other excellent material that exists, much of it very recent. In particular, the Symposium on the “Third Restatement of Torts” published in Number 3 of vol 54 of the “Vanderbilt Law Review” pp 639-1465 contains exhaustive discussion of problems in negligence and duty of care theory.)
I noted earlier that although the trial judge went through the six standard questions advocated by Kirby J in Romeo, the first of which was “Is a duty of care established?” he did not refer to what Kirby J mentioned a little later in his reasons in Romeo as three matters necessary for consideration in answering the question whether a duty of care was established. The first of those matters was foreseeability. I also noted earlier that although there has not been acceptance by a majority of the High Court of all three matters listed by Kirby J, there does not seem to be any controversy about the first one which, by footnote 189 at 192 CLR 476, he indicated was based on what a majority of the High Court (Mason, Wilson, Deane and Dawson JJ) said in Australian Safeway Stores Limited v Zaluzna (1987) 162 CLR 479. Brennan J, the fifth judge in the case, dissented.
That case has two particular features relevant to the present appeal. One is the foreseeability point just mentioned; the other its decision about the nature of the duty of care in negligence cases against occupiers.
In Australian Safeway, the majority judges, after discussing the question whether an occupier’s duty to entrants was a special duty different from the ordinary duty of care, concluded that it should not be so regarded, saying:
“We think it is wholly consistent with the trend of recent decisions of this Court touching the law of negligence, both in this area of an occupier’s liability towards entrants on his land and in the areas which were the subject of consideration in San Sebastian Pty Ltd v The Minister and Cook v Cook, to simplify the operation of the law to accord with the statement of Deane J in Hackshaw
‘... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.’
In the circumstances of 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 [occupier] to take reasonable care to avoid a foreseeable risk of injury to the [entrant]” (at 488)
With the help of the computer searches which are now available I have tried to check High Court decisions since Australian Safeway to see if there has been any departure from the chief holding in that case that the ordinary general duty of care is as appropriate in a negligence action against an occupier as in any other negligence action. So far as I have been able to see, that proposition remains fully accepted and acted on in the High Court and is accordingly binding on all Australian courts. The need to be careful about this is the presence in the passage from Australian Safeway cited in the preceding paragraph of an endorsement of what Deane J had said in Hackshaw, namely that a prerequisite of the ordinary duty of care was that there be the necessary degree of proximity of relationship. Since Australian Safeway was decided, the High Court has turned away from proximity as a criterion in the way used by Deane J. The passage cited must therefore be read subject to what the High Court has subsequently said concerning proximity. That qualification however does not affect the continuing authority of the main proposition established by Australian Safeway that there is no special duty of care owed by occupiers.
Since Australian Safeway, a variation in approach has become apparent in the way questions concerning the duty of care and the standard of care are pleaded, argued and decided. In some cases the duty of care is stated as very general, as when the majority in Australian Safeway itself, in the passage cited in par 37 above said the duty was “to take reasonable care to avoid a foreseeable risk of injury to the [entrant]”. In the cases where duty is alleged in this general way, and an issue develops about it, it becomes necessary to deal with the standard of care required by the defendant to fulfil the duty, bearing in mind the particular circumstances of the plaintiff and of the way the plaintiff suffered injury. By contrast, in some other cases the duty is alleged with much more particularity, and the statement of the standard of care (sometimes called the scope or content of the duty of care) is subsumed within the allegation of the duty in the particular case.
In Koffman Mahoney P gave a helpful overview of the history of the duty of care concept and also an insightful (if I may respectfully say so) description of the approach which adopts a general statement of the duty of care the content of which is then supplied for the particular case by the standard of care (which he referred to as “the obligation to do or not do particular things” (at 63588)).
The different ways of approach I have described appear in Hayne J’s discussion of the topic in Modbury Shopping Centre v Anzil (2000) 75 ALJR 164 at 182-3 under the heading “The scope of a duty of care”. After referring to what McHugh J had said in Perre v Apand Pty Limited (1999) 198 CLR 180 to the effect that in deciding negligence cases, general ideas of justice and morality should not be used unless more concrete reasons, rules or principles failed to provide a persuasive answer, Hayne J continued:
“[101] ... The present case is one in which resort to more concrete reasons, rules and principles helps to resolve the problems it presents. The rules and principles to which reference must be made concern the liability of occupiers to entrants upon their premises and the obligations of a person to control the conduct of another.
[102] Noting that the appellant and first respondent could, respectively, be described as the occupier of land and an entrant upon that land does not wholly resolve the duty of care issue. There can be no dispute that an occupier of land owes some duty of care to those who enter it. But detecting that the parties stood in a relationship where one owed some duty of care to the other by no means exhausts the first in the traditional trilogy of issues in an action for damages for negligence: duty, breach and damage. The relevant question in the present case is not whether an occupier owes some duty of care to an entrant. The question is what is the extent of the duty which the occupier owes.
[103] Because the extent of a duty falls for decision in relation to ‘’concrete facts arising from real life activities’ (Perre (1999) 198 CLR 180 at 211 [80], per McHugh J) it will not always be useful to begin by examining the extent of a defendant’s duty of care separately from the facts which give rise to a claim. That may be possible, and useful, in a simple case (like motorist and injured road user) where the duty of care and its content are well established. In other cases, however, it may lead to an insufficiently precise formulation of the duty which obscures the issues that require consideration. That lack of precision may lie in formulating the duty too narrowly: for example, by asking did the defendant owe a duty of care to fence the part of the cliffs in its reserve from which the plaintiff fell? It may also, as in this case, lie in formulating the duty too broadly: for example, by asking did the defendant owe any duty of care to the plaintiff
[104] ... Ordinarily it may be expected that it will be sufficient to state the duty of care by reference to these two matters: the kind of damage suffered and the class of which the plaintiff is a member. Even that, however, may not suffice in some cases.
[105] In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by the want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff’s allegations of breach and damage must depend.”
Adopting this approach, it may not matter if the duty is stated generally and its content treated separately, or if the duty is stated with particularity; the substance of the plaintiff’s argument will be the same; the only difference may be that the former approach will focus on the breach element of the tort and the latter on the duty element.
If in the present case the approach is adopted of stating the duty with particularity, which is more or less what the plaintiff did, see par 14 above, (it was further elaborated in particulars later), the plaintiff’s argument would have to be that the Council was bound to have a system of inspection of the area of the park close to the playground which would ensure that pieces of string were promptly removed. In my opinion this argument would fail. It was not shown that the Council knew of the presence of the piece of string on the ground. It was not shown that the existence of the piece of string on the ground would have led anybody to suspect that attached to it underground was a possibly dangerous object. I do not think (and this is a matter of evaluation) that it can reasonably be said that the Council ought to have known of the existence of the piece of string near the playground. Thus, on this approach I do not think that the plaintiff showed that the Council was subject to the particular duty which, in the circumstances, the plaintiff had to allege in order to succeed.
On this approach, the plaintiff fails to show the first conventional requirement necessary to establish his cause of action and questions of breach and causation do not arise.
If the approach is taken of stating a general duty, which the Council undoubtedly owed to the plaintiff, then the standard of care which the plaintiff would have to allege as giving content to the duty would be in substance the same as that which I described in par 43 when dealing with the particular duty approach. The plaintiff would then fail, for the same substantial reasons as given when dealing with the particular duty approach, to show breach of the general duty because he would fail to show that the Council was required to exercise a standard of care of the level which the plaintiff had to assert in the circumstances.
I return to direct consideration of the question of foreseeability. The trial judge early in his reasons stated that the existence of a duty of care was in issue and that “[o]ther issues were was the risk foreseeable and causation and breach of the duty of care”. However, he never explicitly returned to the question of foreseeability. In answering Kirby J’s first question, he simply said yes, there was a duty of care, without reference to foreseeability.
On the facts of this case, I do not think it can be said that there was a foreseeable risk of the kind of thing happening to persons of the class which included the plaintiff which in fact happened to him. It is in my view outside either ordinary or foreseeable experience either that there will be detonators below the surface of the ground attached to pieces of string in suburban parks or that there will be dangerous objects below such surfaces attached to harmless visible objects.
In the appeal it was argued for the plaintiff that the piece of string was in itself an object foreseeably dangerous to infants and that this was enough to create a duty in the Council to see to the removal of the object; it was then submitted that its being close to a children’s playground where infants went meant that the Council was in breach of its duty to that class of entrant and that the plaintiff was entitled to rely on that breach of duty
There are problems with this argument both at the duty stage and the breach stage. The problem at the duty stage is that it does not seem to me accurate to class a piece of string as falling into the category of foreseeably dangerous objects to infants or young children. I therefore think this version of the duty argument fails
3. Breach of duty. For reasons earlier given, if the plaintiff established a general duty of care, then in my view, he did not establish a breach of it.
The plaintiff’s first duty argument which I dealt with above was based on the proposition that the piece of string lying in the park near the playground was foreseeably dangerous to infants and young children, so that the Council had a duty to prevent its being there or remove it. In regard to this I have said I do not think the requisite foreseeability existed, but that if it did there was a problem for the plaintiff in persuading the court of breach.
The breach problem was that the plaintiff was relying on the breach of duty to a class of entrant of which he was not a member. High authorities take the view that this is a derivative use of the breach idea which is not available to a person not in the class to whom the duty was owed: see Fleming, (cited above, par 34) at 158-161; see also Ashrafi Persian Trading Co Pty Limited v Ashrafinia [2001] NSWCA 243 at [74] and [76]-[77].
4. Causal connection. The High Court in March v Stramare (E. & M.H.) Limited [1991] 171 CLR 506 laid down the proper approach to questions of causation. The judges in the case were Mason CJ and Deane, Toohey, Gaudron and McHugh JJ. The critical paragraph in Mason CJ’s reasons was as follows:
“Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact – to be determined by the application of the ‘but for’ test – and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing: see Fleming, Law of Torts, 7th ed (1987), pp 172-173; Hart and Honoré, Causation in the Law, 2nd ed (1985), p 110. It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments: see Fleming, p 173. However, this approach to the issue of causation (a) places rather too much weight on the ‘but for’ test to the exclusion of the ‘common sense’ approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn (1954) 91 CLR at p 277 ‘it is all ultimately a matter of common sense’ and ‘[I]n truth the conception in question [ie causation] is not susceptible of reduction to a satisfactory formula’ (1954) 91 CLR at p 278.” (at 515)

Although, arguably, this passage does not make it fully explicit, it seems to me quite clear that Mason CJ was recognising (indeed, insisting) that the question whether the necessary causal connection existed in a particular case involved more than a simply factual inquiry but also necessarily included an evaluative element.
Toohey J agreed generally with Mason CJ’s reasons in the case and made it clear that he understood the passage in the same way as I have, by saying:
“Where negligence is in issue, causation is essentially a question of fact, in the sense explained by the Chief Justice, into which considerations of policy and value judgments necessarily enter.” (at 524)
Gaudron J agreed both with Mason CJ and Deane J (at 525).
Deane J had said:
“For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility whether an identified negligent act or omission of the defendant was so connected with the plaintiff’s loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it …” (at 522)
The use of “should” at the end of this passage makes it clear that Deane J also recognised the evaluative element in deciding questions of causation.
McHugh J also explained, in some detail, (at 530-531 and throughout his reasons) that a policy choice was involved in deciding questions of causation.
On the version of the facts in the present case most favourable to the plaintiff, it seems to me that the approach to the question of causation explained by the High Court in March leads quite clearly to the conclusion that the Council should not be regarded as having caused, in any sense relevant to the plaintiff’s cause of action, the damage that he suffered when the Coke bottle exploded. He had left the park taking with him an object he had found there of which there was no evidence the Council had any knowledge or any reason to have knowledge. He and his friend had made this object part of a device obviously dangerous, even if the object found in the park had not been put in it, by using some materials that had no connection with the park or the Council.
In my opinion any connection between the Council and what happened to the plaintiff was so slight that it could not justify the court saying that the Council materially contributed to the plaintiff’s injuries. In my opinion, sad though it is for the plaintiff, the only persons at fault for his injuries were himself and his friend. The decision to light the piece of paper had nothing to do with the Council, except in some philosophical or scientific sense of “cause” which is not the sense of “cause” used in cases such as this.
Conclusion.
In my opinion the following orders should be made:
1. Appeal upheld.
2. Judgment below set aside.
3.In lieu of that judgment there should be judgment for the defendant.
4.The plaintiff should bear the defendant’s costs of the trial and the appeal.
5.The plaintiff should have a Suitors Fund Act certificate.
POWELL JA: I agree with Priestley JA.
HEYDON JA: I agree with Priestley JA.

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LAST UPDATED: 24/10/2001

[2001] NSWCA 372

24 October 2001

Key Legal Topics

Areas of Law

Negligence & Tort

Legal Concepts

Duty of Care

Breach

Causation

Appeal

Costs