Nathaniel Corbett by his Next Friend Debra Todd v Town of Port Hedland

[2021] WADC 55

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   NATHANIEL CORBETT by his Next Friend DEBRA TODD -v- TOWN OF PORT HEDLAND [2021] WADC 55

CORAM:   GETHING DCJ

HEARD:   20-21 May 2021

DELIVERED          :   14 JUNE 2021

FILE NO/S:   CIV 2804 of 2019

BETWEEN:   NATHANIEL CORBETT by his Next Friend DEBRA TODD

Plaintiff

AND

TOWN OF PORT HEDLAND

Defendant

Catchwords:

Torts - Negligence - Occupiers liability - Child injured playing next to a gate - Whether defendant ought to have known of the risk - Whether the risk of harm was not insignificant - Whether defendant can rely on responsibility of parents to supervise their children - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), s 5B, s 5C

Result:

Action dismissed

Representation:

Counsel:

Plaintiff	:	Mr J L Cameron
Defendant	:	Mr S Vandongen SC

Solicitors:

Plaintiff	:	CLP Legal Pty Ltd (East Fremantle)
Defendant	:	Jackson McDonald

Case(s) referred to in decision(s):

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420

Allied Pumps Pty Ltd v Hooker [2020] WASCA 72

Apostolic Church Australia Limited v Dixon [2018] WASCA 146

Brian Gardner Motors Pty Ltd v Bembridge [2000] WASCA 400

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

CGU Insurance Ltd Limited v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112

Coffs Harbour City Council v Polglase [2020] NSWCA 265

Cox v Fellows [2013] NSWCA 206

David Jones (Canberra) Pty Ltd v Stone [1970] HCA 28; (1970) 123 CLR 185

Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217

East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147

Fazio v Fazio [2012] WASCA 72

G J Coles & Co Ltd v Goldsworthy [1985] WAR 183

Garzo v Liverpool/Campbelltown Christian School Limited [2011] NSWSC 292

Gregory Spencer Ward t/a Ward's Stock Transport v Watson [2021] WASCA 44

Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121

Hetherington v Belyando Shire Council [2006] QCA 209

Hirst v Sydney South West Area Health Service [2011] NSWSC 664

J-Corp Pty Ltd v Thompson [2019] WASCA 173

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Keven Gors by his Plenary Administrator Janet Christine Gors v Tomlinson [2020] WASCA 164

Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352

Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1

Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319

Munnings v Hydro-Electric Commission [1971] HCA 27; (1971) 125 CLR 1

Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341; 222 ALR 631

Peter Steven Benic v State of New South Wales [2010] NSWSC 1039

Phipps v Rochester Corporation [1955] 1 QB 450

Rabbitt v Roberts (1996) 67 SASR 358

Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330

Robinson v The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2017] WASCA 190

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

Shaw v Thomas [2010] NSWCA 169

Shire of Manjimup v Cheetham [2010] WASCA 225

St George Club Ltd v Hines (1961) 35 ALJR 106

Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182

Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173

Taylor v Fisher [2018] WASCA 126

Tesco Supermarkets Ltd v Nattrass [1972] AC 153

Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234

Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720

Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62

Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375

Warnock v The State of Victoria [2006] VSCA 205

GETHING DCJ:

1. Introduction

1. On 28 August 2015 Nathaniel Corbett, the plaintiff, then aged 2 years and 10 months, was playing with a number of other children adjacent to a building situated on the Port Hedland racecourse (Premises).[1]  In the course of this play, Nathaniel suffered an injury to his left hand which ultimately required the amputation of the fingers of that hand leaving him with only his thumb (Accident).[2]  The plaintiff's case is that his hand was crushed in-between a metal gate (Gate) and the steel post to which it was attached.

   [1] Where I am referring to actions of Nathaniel personally I will do so by name, otherwise I will refer to 'the plaintiff'.

   [2] Exhibit Y, admission 1.

2. In July 2019 Nathaniel, by his grandmother Debra Todd as next friend, sued the Town of Port Hedland, the defendant, for damages for personal injuries said to arise from the Accident.  The plaintiff asserts that the injuries he suffered were as the result of the defendant, as occupier of the Premises, breaching its duties at common law and under the Occupiers Liability Act 1985 (WA) (OLA).

3. The defendant admits that at all material times it occupied and/or controlled the Premises within the meaning of OLA s 2 giving rise to a duty of care to entrants including the plaintiff.[3]  So it is not in issue that the OLA applies to the plaintiff's claim.  The defendant also admits that it owed the plaintiff a duty to take reasonable precautions against reasonably foreseeable risks to persons such as the plaintiff arising out of the state of the Premises.[4]  The defendant's case is that it did not breach this duty of care in the manner identified by the plaintiff or at all.

4. Only the issues of liability and causation were tried before me.

5. For the reasons which follow, the plaintiff has not proven on the balance of probabilities that his injuries were caused by the negligence of the defendant.  Accordingly, the action should be dismissed.

1. What issues arise for determination?

   [3] Statement of claim, par 4; defence, par 4.

   [4] Defence, par 17.

1. The plaintiff asserts that the defendant owed him a duty of care both at common law and under the OLA.  It is as yet undecided as to whether the effect of the OLA is to cover the field as to the duty of care owed by an occupier to an entrant or whether there is a concurrent liability at common law with the OLA prescribing the standard of care required to discharge both the duty at common law and under the OLA.[5]  For the purposes of this trial, it is sufficient for me to determine the claim under the OLA and only if there is no liability consider whether the application of the common law would lead to a different outcome.

   [5] See generally: Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 41 WAR 217 [19] - [20] (Pullin JA with whom Newnes JA agreed), [62] - [63] (Buss JA) (Smith).

2. The following issues thus arise for determination:

   •What happened on 28 August 2015?

   •What is the scope of the duty of care owed by defendant under the OLA?

   •Did the defendant breach the duty of care it owed the plaintiff under the OLA?

   •Would the position be any different at common law?

   •If there is a breach, what, if any, injuries did the plaintiff sustain as a result of the breach?

   •What final orders are appropriate?

3. The plaintiff called three witnesses:

   •Kelly Corbett, Nathaniel's mother.

   •Tanya Kickett, Nathaniel's aunt and Ms Corbett's older sister.

   •Arjay Walters, a cousin of Nathaniel, whose mother is another sister of Ms Corbett and Ms Kickett.

   The plaintiff also filed an affidavit by Ms Todd which I ruled could stand as her evidence-in-chief.  Ms Todd is the mother of Ms Corbett and Ms Kickett and thus the grandmother of their children, including Nathaniel.

4. The defendant called one witness Grant Voss.  Mr Voss has been a resident of Port Hedland/South Hedland since 2008, having worked there on a fly in/fly out basis for a couple of years prior to that.  He is currently the manager of infrastructure operations for the defendant having held that position for four and a half years.  In that position he supervises four coordinators, being workshop, property management, parks and gardens, and engineering.  Previously, he had been the coordinator of parks and gardens and the coordinator of engineering, and was in one of those positions in August 2015.  In both roles, he was heavily involved in the management of parks and gardens, including operational maintenance, mowing and generally keeping up the standard of the public open spaces managed by the defendant.  One aspect of his role was to coordinate the maintenance of the Premises.  

5. I have no hesitation in finding Mr Voss' evidence to be honest, accurate and reliable.

6. It was not in issue that Mr Voss was an appropriately senior and knowledgeable officer of the defendant for his knowledge to be attributable to the defendant.[6] 

   [6] Tesco Supermarkets Ltd v Nattrass [1972] AC 153, 170 - 171 (Lord Reid); Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121, 127 (judgment of the court); G J Coles & Co Ltd v Goldsworthy [1985] WAR 183, 188 (Burt CJ), 191 (Brinsden J), 193 (Smith J); Brian Gardner Motors Pty Ltd vBembridge [2000] WASCA 400 [41] - [45] (Hasluck J).

1. What happened on 28 August 2015?

3.1     The Premises

1. The defendant admits the following facts in relation to the Premises, and I so find:[7]

   (a)there was a racecourse situated within the Town of Port Hedland on Lot 1 on deposited plan 134051;

   (b)the racecourse on Lot 1 on deposited plan 134051 comprised, relevantly, a horse running track, including a fence that surrounded the track;

   (c)Lot 1 on deposited plan 134051 was part of Crown reserve 8214; and

   (d)the defendant had care, order and management of part of reserve 8214 (the part comprising the racecourse and the barrier) pursuant to management orders issued under the Land Administration Act 1997 (WA).

   [7] Exhibit Y, admission 4.

2. There are a number of photographs of the Premises and the Gate in evidence, being from three sources:

   (a)Ms Todd, who went back to the Premises on the morning of 29 August 2015 to take some photographs;[8]

   (b)an investigator, who took some photographs of the Gate on 9 September 2016; [9] and

   (c)aerial photographs.[10]

   A number of these photographs are annexed to these reasons. 

   [8] Exhibits A - H.

   [9] Exhibits I - P.

   [10] Exhibits Q, R and AA.

3. The following findings as to the Premises is taken from a combination of the information apparent on the photographs and the evidence of Mr Voss (save where I have noted an alternate source).

4. The Premises primarily comprise a racecourse, as is evident from the aerial photograph which is Annexure 1.  The racecourse is used by the Port Hedland Turf Club for horse racing for around six to eight race meetings a year, between May and October. 

5. There is a perimeter fence made of chain mesh around the entire Premises.  One gate in the fence is marked 'Gate C Location' on Annexure 1.  This gate is generally left open.

6. There is a barrier on both the inside and the outside of the racecourse.  This is evident in Annexures 3 and 4.  This barrier is made of tubular metal with a white strip on the top, facing into the racecourse.

7. The Gate with which these proceedings are concerned is in the outer barrier of the racecourse, marked 'Gate B Location' on Annexures 1 and 2.  Annexures 5 and 6 are close up photographs of the Gate taken on 29 August 2015.  The Gate, like the barrier, is made from tubular metal.  It is connected to the barrier at a metal post by two hinges on the left hand side (looking into the racecourse).  Annexure 7 is a close up photograph of the hinge point.  The Gate is able to be locked, as is evident from Annexures 8 and 9.

8. The purpose of the Gate is to restrict access by members of the public to the racecourse area. 

9. The Gate was usually secured with a padlock to prevent cars from driving through the opening in the fence and onto the horse running track.[11]

   [11] Exhibit Y, admission 10.

10. However, on the morning of 29 August 2015 the Gate was not locked and could swing both ways, backwards and forwards.[12]  Also, when the photographs which are Annexures 3 and 10 were taken on 9 September 2016 the Gate was off its hinges.

    [12] Exhibit X, par 13.

11. On the Premises there is a hall, called the Jim Caffey Hall (Hall).  It is marked on both Annexure 1 and Annexure 2.  The Hall is leased to a martial arts studio. 

12. To get to the Hall, one enters the Premises at McGregor Street, goes through the gate marked 'Gate C Location' and then turns left along the vehicle track which is apparent in the aerial photographs.  The car park is a light shaded area on the 'Gate C Location' side of the Hall.  

13. There are two external lights at the Hall.  There is a fluro light on the wall of the Hall, facing the carpark, shining down and a flood light on the right hand side (inside, closest to the racetrack) which points back over the carpark towards a shopping centre which is on the opposite side of the road.  

14. The distance from the Hall to the Gate is 80 m, indicated by the yellow line on Annexures 1 and 2.  Annexure 10 is a photograph taken from the Gate looking back to the Hall, more or less along the yellow line on Annexures 1 and 2.

3.2     The Accident

1. Ms Todd's evidence was received by way of an affidavit, with the defendant dispensing with cross-examination.  So I accept her evidence as being honest, accurate and reliable.

2. Each of Ms Corbett, Ms Kickett and Arjay did their best to recall the events of 28 August 2018.  I have no hesitation in finding each to be an honest witness.

3. On some points, what Ms Corbett said in evidence-in-chief was inconsistent with what she said in a signed statement taken by an investigator in October 2016.  She was cross-examined on these statements.  It was evident during the course of her evidence that Ms Corbett had difficultly reading.[13]  So I do not put as much weight on any prior inconsistent statement as would be the case with a witness would could read for themselves and understand a written statement.  I have made particular findings where Ms Corbett's evidence changed from her initial recollection as set out in the statement. 

   [13] ts 40.

4. Arjay was clearly overwhelmed by the process of giving evidence, but I am satisfied that what he did end up saying was an accurate recollection. 

5. Piecing together the evidence of Ms Todd, Ms Corbett, Ms Kickett and Arjay, I find the following facts.

6. On the afternoon of 28 August 2015 Ms Corbett drove from Marble Bar where she lived to Port Hedland.  In the car with her were her niece (Charmaine Jones), her nephew Arjay (then aged 10)[14] and her children, Nathaniel (who was then aged 2 years and 10 months), Regan (then aged 4 to 5 months), Joshua (then aged 8) and Ruthie (then aged 11).  The purpose of the trip was for Ms Corbett to do some shopping.  Also, Arjay and Ruthie were going on a school camp, which Ms Todd was also to attend as she was an aide at the school. 

   [14] Which was not what Ms Corbett said in evidence-in-chief (ts 22), but something she accepted in cross‑examination once an earlier statement was put to her (ts 44).

7. That evening Ms Kickett was attending a martial arts class in the Hall at the Premises.  The class ran from 7.00 pm to 8.00 pm.  Ms Kickett asked her mother, Ms Todd, to look after her children whilst she attended this class.  Ms Todd also lived in Marble Bar, and had driven to Port Hedland that day.  On arriving in Port Hedland she went straight to the Hall.

8. It is somewhat unclear how many of Ms Kickett's children were at the Hall that evening.  Ms Todd says four, aged between 5 and 11, but does not name them.[15]  Ms Corbett says is was Gemma (then aged 9), Lamad (then aged 3) and Daniel (then aged 4).[16]  Ms Kickett says it was Gemma (then aged 11) and possibly Daniel (described by Ms Kickett as being 'really young'), and that Lamad had not been born at the time of the Accident.[17]  Ms Corbett's description 'when our kids usually see each other they get that excited and they are going to run around playing with each other' suggests Daniel was there, as does the fact that she was preparing her car to transport 'the other kids'.[18]  I find that Gemma (then aged 11) and Daniel (then aged around 4) were at the Hall on the evening in question.  

   [15] Exhibit X, par 5.

   [16] ts 26 - ts 27.

   [17] ts 63 - ts 67.

   [18] ts 24.

9. Ms Corbett arrived in Port Hedland around 7.00 pm.   On arriving in Port Hedland, Ms Corbett was initially going to go to South Hedland.  However, she received a telephone call from her mother, Ms Todd.  Ms Todd asked her to go to the Hall, which is in Port Hedland,  to help her look after Ms Kickett's children and to take them home to their father. 

10. On arriving at the Premises, Ms Corbett parked her car outside of the Hall, in front of the fence facing the racetrack.  The position where she parked is marked with an 'X' on the photograph which is Annexure 11.  By then it was dark, so she had her car lights on.  There were two lights outside the Hall but, in Ms Kickett's words, 'it was just all darkness, couldn't see nothing'.[19]  Ms Corbett had not been there before.

    [19] ts 64.

11. While the engine on the car was still running, Nathaniel and the other children in the car 'got out really quick' out and went off running.[20]  The children with her were excited to see their cousins, and went to run around and play with each other.  Ms Corbett 'sang out' to Nathaniel saying 'Stop, don't go too far, stay next to us'.[21]  She was concerned about them going too far on their own, particularly the little ones.

    [20] ts 34.

    [21] ts 24.

12. Nathaniel was the youngest of the children who ran off to play, and Gemma was the oldest.  Regan stayed in the car.  Ruthie stayed with Ms Corbett, next to the fence sitting talking to her auntie.  So the children playing were Nathaniel (aged 2), Joshua (aged 8), Arjay (aged 10), Gemma (aged 11) and Daniel (around 4 years).

13. Ms Corbett saw the children run off towards the fence that surrounds the actual racecourse, though she never saw a gate.

14. Ms Corbett then turned off the car engine and began sorting out the seats in the car so that there would be room for the other children.

15. As soon as Ms Corbett arrived, Ms Todd went to the shops across the road from the Premises to buy some food for the children as it was getting late.

16. Ms Todd says that this left four adults looking after the children.[22]  However, at the time the Accident occurred, Ms Kickett was still in the Hall.[23]  So I find that when Ms Todd went over road, there were three adults present looking after the children outside the Hall, being Ms Corbett, Ms Jones and Miranda (a cousin of Ms Corbett). 

    [22] Exhibit X, par 9.

    [23] ts 62 - ts 63.

17. In cross-examination, Ms Corbett accepted that the children who went with Nathaniel were not old enough to look after him in the way an adult would.[24]

    [24] ts 36 - ts 37.

18. At one point, Ms Corbett saw the children lining each other up and having a race.

19. Ms Corbett initially gave evidence that while the children were playing, it was dark and she could not see them.[25]  In cross examination, it was put to her that in a statement which she signed in October 2016 she said: 'The kids were always in our sight'.[26]  She accepted that this was the truth, though adding that it was dark.[27]  So I find that the children were always in the sight of Ms Corbett.  However, consistent with the other evidence, I also find that it was dark, and that the children ended up playing at the Gate, some 80 m away from the Hall, which would have impeded the extent to which Ms Corbett could see what they were doing in any detail.  There is no evidence that Ms Corbett saw any of the children playing on or around the Gate, and this assertion was not put to her in cross-examination.  I find that she did not see the children playing on or around the Gate.

    [25] ts 36 - ts 38.  

    [26] ts 40.

    [27] ts 43.

20. The children ended up playing on the fence surrounding the racetrack.  It was dark where they were playing.  They started playing on the fence, jumping on it, and on the Gate.  The Gate was unlocked and the children, including Arjay, were swinging it backwards and forwards.  When Arjay was swinging the Gate backwards and forwards, he could not see Nathaniel.

1. Around 5 to 10 minutes after the children went off, Ms Corbett called out to the children and said something like: 'We'll have to go now because it's getting late'.[28]

   [28] ts 25, ts 34 and ts 37.

2. Arjay did not see Nathaniel hurt himself.  Rather, he heard Nathaniel cry.  When Arjay first heard Nathaniel cry and turned to see him, Nathaniel was standing next to the fence, on the other side from where Arjay was, closer to the track.

3. Arjay then started shouting which Ms Corbett could hear.  She had to turn around to see him, and said: 'Can you just bring him to me?'.[29]  Arjay ran over to Ms Corbett carrying Nathaniel, who was crying. 

   [29] ts 25.

4. Ms Corbett did not see Nathaniel being injured.

5. Ms Corbett knew that Nathaniel's hand was injured, but did not look at it, instead wrapping it in a shirt. 

6. Ms Corbett then immediately took Nathaniel to the emergency department at Port Hedland Hospital.

7. The records of Port Hedland Hospital show that Ms Corbett and Nathaniel arrived at 8.18 pm, and he was immediately seen by a triage nurse.[30]

   [30] Exhibit W.

8. Nathaniel was subsequently transferred to Perth Children's Hospital.

9. Ultimately the injury which Nathaniel suffered to his left hand required the amputation of the fingers of that hand leaving him with only his thumb.[31]

3.3     The cause

[31] Exhibit Y, admission 1.

1. As to how Nathaniel injured his hand, the statement of claim provides:[32]

   Unnoticed by the other children, Nathaniel placed his hand in the gap between the upright of the post and upright of the barrier causing it to be crushed when the upright of the barrier approached the post at the end of the arc through which the children were causing the barrier to swing …

   [32] Statement of claim, par 12.

2. The defendant only admits that:[33]

   On Friday, 28 August 2015 the plaintiff, then aged two years old, suffered an injury to his left hand that later required the amputation of the fingers of that hand leaving him with only his thumb.

   The defendant does not admit the mechanism of injury.

   [33] Exhibit Y, admission 1.

3. No witness saw how Nathaniel injured his hand.

4. I have so far found the following facts:

   (a)Nathaniel was playing in the vicinity of the Gate around the time the accident occurred;

   (b)on the morning of 29 August 2015 the Gate was not locked and could swing both ways, backwards and forwards, which I further find to be the case the evening before;

   (c)Arjay and the other children were swinging the Gate backwards and forwards;

   (d)when Arjay was swinging the Gate backwards and forwards, he could not see Nathaniel; and

   (e)when Arjay first heard Nathaniel cry and turned to see him, Nathaniel was standing next to the fence, on the other side from where Arjay was, closer to the track.

5. As a matter of common experience, the leverage evident in the length of the Gate has the potential to generate significant force at the fulcrum point, where the Gate meets the post securing it.

6. From the medical records, it is apparent that the injury to Nathaniel's hand ran across the width of his palm and is described as a deep laceration.  This is consistent with his hand being crushed between the Gate and the post securing it. 

7. I am able to make a finding as to how Nathaniel's injuries were sustained by inference.  Inferences 'from actual facts that are proved are just as much part of the evidence as those facts themselves'.[34]  I must, however, make a finding on the evidence and not assume the existence of a fact.[35]  The evidence must go beyond guesses and speculation,[36] or possibilities.[37]  I am required to be actually persuaded as to the probability of a fact being true.[38]  This involves an assessment of what is human experience, rather than a mathematical or scientific calculation.[39] 

   [34] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 309 (Menzies J) (Jones v Dunkel).

   [35] Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173 [153] (Allanson J).

   [36] Hirst v Sydney South West Area Health Service [2011] NSWSC 664 [114] (Davies J).

   [37] St George Club Ltd v Hines (1961) 35 ALJR 106, 107 (Dixon CJ, Kitto, Taylor, Menzies, Windeyer JJ); Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, 724 (Mason J, with whom Barwick CJ & Gibbs J agreed) (Tubemakers); Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 [80] (Spigelman CJ), [201] (Stein JA).

   [38] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 343 (Latham CJ).

   [39] Fazio v Fazio [2012] WASCA 72 [46] (Murphy JA, with whom Pullin & Newnes JJA agreed) (Fazio).

8. In the present case, the facts at [58] ‑ [60] form a 'reasonable basis for a definite conclusion affirmatively drawn' that Nathaniel's injury was sustained when his hand was crushed between the Gate and the metal post securing it.[40]  The sequence of events strongly supports this conclusion.[41]  There is no other conflicting inference of equal probability.[42]  Indeed there is no competing inference at all.  I find that it is evident from the photographs annexed to these reasons that the Gate is surrounded by grass and, aside from the barrier of which it forms a part, there is nothing else in the vicinity which could possibly give rise to a risk of the kind of injury which Nathaniel sustained.  This is a significant circumstance in favour of drawing the inference contended for by the plaintiff.[43]

   [40] Jones v Dunkel (305) (Dixon CJ).

   [41] Tubemakers (725).

   [42] Luxton v Vines[1952] HCA 19; (1952) 85 CLR 352, 360 (Dixon, Fullagar & Kitto JJ) (Luxton v Vines); Jones v Dunkel (304); Fazio [48].

   [43] Tubemakers (724); Fazio [46].

9. I am satisfied that the circumstances raise a more probable inference in favour of what is alleged by the plaintiff.  The 'circumstances appearing in evidence give rise to a reasonable and definite inference' that Nathaniel's hand was injured when it was crushed between the Gate and the metal post securing it as the other children were swinging it backwards and forwards.[44] 

3.4     The risks

[44] Luxton v Vines (358); Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 536 (Gibbs CJ & Mason J); Robinson v The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2017] WASCA 190 [47] (reasons of the court); Fazio [48].

1. The following findings of fact as to the risks involving the Gate are drawn from the evidence of Mr Voss unless I have otherwise noted.  As I have found ([11]), the knowledge of Mr Voss can be attributed to the defendant.

2. The defendant has around 50 public open spaces throughout Port Hedland and South Hedland.  They range from 'active open space to neighbourhood parks all the way down to just the general bit of grass'.[45]  These are areas to which the members of the public have access.  They are maintained to different standards.  One of those public open spaces is the Premises.

   [45] ts 71.

3. The defendant first became aware of the Accident in late 2018.

4. Prior to 2018, the defendant had not been informed of any other incidents involving a person, whether it be a child or otherwise, being injured whilst being on or around that Gate.

5. Prior to 2018, there was no occasion on which any person had made any complaints to the defendant about the state of the Gate or it being dangerous or anything of that nature.

6. Prior to 2018, no person had brought to the attention of the defendant anything concerning the state of the Gate.

7. Prior to 2018, the defendant was not aware that children might be swinging on the Gate. 

8. In summary, there is no evidence of any other occasions on which children had been seen swinging on the Gate (or any gate on the Premises) or playing near the Gate or doing anything of that nature, and certainly no evidence attributing such knowledge to the defendant prior to 2018.

9. The defendant has a security lock system which it uses to restrict access to the public open spaces it controls.  All the padlocks have the same key, which is a security key with restrictions on where it can be cut.  The defendant spends around $5,000 a year replacing missing and damaged padlocks.  Each individual padlock costs around $60 to $80.

10. The Premises are not a heavily used public open space and, as is evident from the aerial photographs, is maintained to a low standard.  The Premises were mowed by staff of the defendant at least once a fortnight.  Otherwise, no other staff of the defendant would routinely attend the Premises.

11. As to access to the Premises, in around 2015, to the knowledge of the defendant, aside from when it was being used as a racecourse, use of the Hall and use of the cricket pitch in the oval, the predominant users of the Premises were people walking their dogs around the oval in the middle of the racecourse. 

12. To the defendant's knowledge, aside from the Hall area which is used for martial arts, the Premises is not a place frequented by children or in which children are generally seen.  Mr Voss gave evidence that you would not see children under five at the Premises.[46]  Rather, the defendant provided facilities for children elsewhere, in particular, 17 playgrounds.  This includes seven playgrounds at the beach which is a 500 m walk from the Premises. 

    [46] ts 91.

13. There is an indigenous community on the other side of the Premises to the Gate C as shown in Annexures 1 and 2.  Across the road from Gate C is the only shopping mall in Port Hedland.  People from this community may well take a shortcut across the Premises to the shopping centre.

1. What is the scope of the duty of care owed by defendant under the OLA?

1. The plaintiff pleads that the defendant owed children such as him a duty of care pursuant to the OLA.[47]

   [47] Statement of claim, par 17.

2. As I have indicated, it was not in issue that the OLA applies to the plaintiff's claim.

3. The defendant accepted that it owed the plaintiff a duty 'to take reasonable precautions against reasonably foreseeable risks to persons such as the plaintiff arising out of the state of the premises'.[48]  The defendant did not assert that the plaintiff was a trespasser on the Premises.[49]

   [48] Defence, par 17.

   [49] Defence opening submissions, par 18.

4. Subject to exceptions and qualifications which are not relevant, by OLA s 5(1):

   [T]he care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premise or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall … be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.

5. The juridical basis of an occupier's duty of care following the enactment of the OLA has not been settled.[50]  I proceed on the basis that the OLA both creates and defines the duty of care.  If I am wrong, I also find that the duty of care owed at common law is in exactly the same terms as that owed under the OLA (see part 6 below).

   [50] Shire of Manjimup v Cheetham [2010] WASCA 225 [13] (Buss JA, with whom Mazza JA agreed) (Shire of Manjimup).

6. Accordingly, I find under the OLA that the defendant owed the plaintiff a duty to take such care as was reasonable in all the circumstances of the case to see that the plaintiff did not suffer injury or damage by reason of a danger which is due to the state of the Premises or to anything done or omitted to be done on the Premises.  I do not consider that this is inconsistent with the defendant's position.  Rather, the notion of taking 'reasonable precautions against reasonably foreseeable risks' goes towards informing what is 'such care as was reasonable in all the circumstances of the case', and is central to the analysis of breach.

1. Did the defendant breach the duty of care it owed the plaintiff?

5.1     Relevant law

1. The onus is on the plaintiff to prove a breach of duty of care.[51]

   [51] Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1 [717] (Newnes & Murphy JJA) (Marsh).

2. By OLA s 4, relevantly, OLA s 5 has effect in place of the rules of common law for the purpose of determining the standard of care applicable to an occupier of premises.[52]

   [52] Smith [84].

3. The OLA by s 5(4) specifies a number of factors which must be taken into account in determining whether an occupier of premises has discharged its duty of care:

   (4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -

   (a) the gravity and likelihood of the probable injury; and 

   (b) the circumstances of the entry onto the premises; and

   (c) the nature of the premises; and

   (d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and  

   (e) the age of the person entering the premises; and

   (f) the ability of the person entering the premises to appreciate the danger; and

   (g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

4. The criteria in OLA s 5(1) and (4) must be read with Civil Liability Act 2002 (WA) (CLA) s 5B.[53]  In the circumstances of this case there is no relevant inconsistency between the two sets of criteria.[54]

   [53] Smith [85].

   [54] Keven Gors by his Plenary Administrator Janet Christine Gors v Tomlinson [2020] WASCA 164 [24] (judgment of the court); Smith [85].

5. CLA s 5B(1) provides that a defendant will not be liable for harm caused by its fault in failing to take precautions against a risk of harm unless three elements are found:

   (a)the risk was foreseeable (that is, it is a risk of which the defendant knew or ought to have known);

   (b)the risk was not insignificant; and

   (c)in the circumstances, a reasonable person in the position of the defendant would have taken those precautions.

6. The CLA does not define when a duty of care is owed.  Specifically, it does not provide that a person is liable for harm caused by that person's fault in failing to take precautions against a risk of harm.  Rather, it modifies the common law as to breach of duty of care by, among other provisions, articulating situations in which a person is not liable for harm.[55]

   [55] Marsh [717]; CGU Insurance Ltd v Coote(by his Next Friend Stephen Desmond Coote) [2018] WASCA 117 [77] (judgment of the court) (CGU Insurance); Smith [70] - [83].

7. CLA s 5B(1)(c) requires identification of what precautions a reasonable person in the position of the defendant would have taken by way of response to a foreseeable, not insignificant, risk. In undertaking this inquiry, some principles are well settled:

   (a)the issue is to be determined objectively;[56]

   [56] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [70] (Gummow J); Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 [33] (Buss P & Vaughan JA); [116] (Murphy JA) (Allied Pumps).

   (b)the issue is also to be determined prospectively, not with the wisdom of hindsight;[57]

   (c)it is only through correct identification of the risk that one can assess what a reasonable response to that risk would be;[58]

   (d)the response to a foreseeable risk is to be judged by the criterion of reasonableness, not some more stringent requirement of prevention, meaning the court does not look backward to identify what would have avoided the injury to the plaintiff;[59]

   (e)a failure to eliminate a reasonably foreseeable risk does not establish negligence;[60]

   (f)the determination of what, if anything, a reasonable person in the occupier's position would have done involves an assessment of what would have been reasonable and practicable for the occupier to have done;[61]

   (g)contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case; [62]

   (h)in some circumstances, a reasonable person's reaction to a risk of harm may take account of the possibility of thoughtlessness, inadvertence or carelessness on the part of persons to whom a duty is owed;[63] 

   (i)reasonableness may require no response to a foreseeable risk that is not insignificant; [64]  

   (j)the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness; [65] and

   (k)the answer to this question involves a factual judgment turning on the facts of the case as they are proved in evidence.[66]

   [57] J-Corp Pty Ltd v Thompson [2019] WASCA 173 [33] - [38] (judgment of the court) (J-Corp); Taylor v Fisher [2018] WASCA 126 [58] (Martin CJ), [105] (Murphy & Beech JJA) (Taylor); CGU Insurance [78]; Allied Pumps [12], [33] and [120]; Smith [87].

   [58] J-Corp [37] - [38].

   [59] J-Corp [33] - [38]; CGU Insurance [78]; Allied Pumps [12].

   [60] Taylor [105].

   [61] Taylor [58]; Smith [87].

   [62] Taylor [58]; Smith [87].

   [63] CGU Insurance [91].

   [64] Taylor [58]; Smith [87].

   [65] Taylor [58]; Smith [87].

   [66] Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420[40] (judgment of the court); Allied Pumps [15] and [122].

8. By CLA s 5B(2), in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

   (a)the probability that the harm would occur if care were not taken;

   (b)the likely seriousness of the harm;

   (c)the burden of taking precautions to avoid the risk of harm; and

   (d)the social utility of the activity that creates the risk of harm.

5.2     What is the relevant risk of harm?

1. The starting point in the analysis in CLA s 5B(1) is to identify the relevant 'risk of harm', which in the present case is the relevant risk of personal injury.[67] 

   [67] CLA s 3 (definition of 'harm'); Allied Pumps [12], [19] ‑ [22], [123]. 

2. Counsel for the defendant suggested a somewhat narrow definition of the risk, in essence being a risk of a crush injury arising from the hinge point where the Gate meets the fence.  However, as the majority observed in Allied Pumps: [68]

   In assessing whether a risk of injury is foreseeable, it is sufficient if the kind of injury is foreseen as a possible consequence of particular conduct.  It is not necessary to be able to foresee the particular injury.  Nor is it necessary that the precise sequence of events leading to injury be foreseen.  In short, it is not necessary that an injury of any particular severity, or the particular mechanism of any such injury, be foreseeable.

   [68] Allied Pumps [8]. See also: Rosenberg v Percival[2001] HCA 18; (2001) 205 CLR 434 [64] (Gummow J); Chapman v Hearse[1961] HCA 46;(1961) 106 CLR 112, 120 - 121 (judgment of the court); Shaw v Thomas [2010] NSWCA 169 [43] (Macfarlan JA, with whom Beazley & Tobias JJA agreed) (Shaw). 

3. Hence, CLA s 5B(1) refers to 'a risk of harm' and not 'the risk of harm'.

4. In my view, the relevant risk is that suggested by counsel for the plaintiff, being a risk of harm from children using the Gate as a swing, which includes injuries sustained by swinging on it, standing close to it or exploring it with fingers while it was being swung.

5.3     Was the risk of harm foreseeable?

1. The first element of CLA s 5B(1) is whether the risk was foreseeable, that is, it is a risk of which the defendant knew or ought to have known.[69] 

   [69] CLA s 5B(1)(a).

2. As to the defendant's actual knowledge, as set out at [67] - [71] there is no evidence that the defendant actually knew that there was a risk of harm from children using the Gate as a swing.[70]

   [70] Contrast: Coffs Harbour City Council v Polglase [2020] NSWCA 265 [11] - [15] (Leeming JA, with whom Basten and Macfarlan JJA agreed) (Coffs Harbour).

3. The second limb of CLA s 5B(1) looks what the defendant 'ought to have known'. As to this inquiry, the following observations of Garling J in Garzo v Liverpool/Campbelltown Christian School Limited on the equivalent provision in the Civil Liability Act 2002 (NSW) are apposite:[71]

   The establishment, by a plaintiff, of constructive knowledge in the defendant of the risk of harm necessarily depends upon all of the facts, matters and circumstances which were known to it or else ought to have been known to it.  In addition to the particular facts and circumstances of this case, other matters which may impact upon the drawing of an inference as to knowledge may include such things as the common knowledge and experience of others in similar positions to the defendants, public notoriety of a particular risk of harm, publications containing academic exposition of risk which might be expected to be read by people in the position of the defendant, and as well, the obviousness or likelihood of an event happening when applying common sense.  It is important to emphasise however that knowledge, whether actual or constructive, must be judged as at the date of the alleged negligence and not at a later date; that is, without the benefit of hindsight and ignoring subsequent increases in knowledge about the risk and its consequences.

   [71] Garzo v Liverpool/Campbelltown Christian School Limited [2011] NSWSC 292 [70] (Garling J).

1. As to whether the risk was one which the defendant 'ought to have known', as set out at [73] - [75], there is no evidence that children were ever ordinarily in the vicinity of the Gate.  There was no evidence to the effect that children routinely, or indeed ever, played on or around the Gate.  I have found ([75]) that, to the defendant's knowledge, aside from the Hall area which is used for martial arts (some 80 m from the Gate), the Premises are not a place frequented by children or in which children are generally seen, certainly not children under five years.  I do not accept the plaintiff's submission that the Gate was 'alluring' to children.  There is nothing in its 'very nature' that would make it alluring to a child.[72]  It is just a gate.  There was nothing in the evidence which singled out this particular gate as being something children may play on over and above any of the other gates and fences maintained in the 50 or so other public spaces managed by the defendant.[73]

   [72] Munnings v Hydro-Electric Commission[1971] HCA 27; (1971) 125 CLR 1, 35 (Windeyer J); Warnock v The State of Victoria [2006] VSCA 205 [27] - [28] (Buchanan JA, with whom Callaway & Eames JJA agreed).

   [73] See generally: Vairy v Wyong Shire Council(2005) 223 CLR 422; [2005] HCA 62 [80] (Gummow J), [149] (Hayne J) and [218] (Callinan & Heydon JJ) (Vairy).  And contrast: Coffs Harbour [109].

2. Moreover, I have found ([20]) that the Gate was usually secured with a padlock to prevent cars from driving through the opening in the fence and onto the horse running track.  If locked, it could not be used by a child as a swing.

3. In these circumstances, the plaintiff has not proven on the balance of probabilities that the risk of harm from children using the Gate as a swing is one which the defendant 'ought to have known'; there is simply no evidence from which that conclusion could be drawn.

4. However, in case I am wrong in this conclusion, I proceed with the remainder of the analysis, assuming that the risk was one which the defendant ought to have known.

5.4     Was the risk of harm not insignificant?

1. The second element of CLA s 5B(1) is whether the risk was 'not insignificant'.[74]  This requirement imposes a slightly more demanding standard than the common law test.[75]  However, it is still 'not particularly high'.[76]  The focus is on the degree of probability of the risk occurring.[77]

   [74] CLA s 5B(1)(b).

   [75] Marsh [714].

   [76]     Cox v Fellows [2013] NSWCA 206 [145] (Gleeson JA, with whom Basten & Ward JJA agreed).

   [77] Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319, 26 (Fraser JA, with whom White JA & Mullins J agreed); Peter Steven Benic v State of New South Wales [2010] NSWSC 1039 [101] (Garling J).

2. This element has two components.  The first is the probability of children playing in the vicinity of the Gate, using it as a swing.  Based on the facts set out at [98] and [99], I find this probability to be very low.

3. The second component is the probability of a child who was using the Gate as a swing, or playing with other children who were, suffering harm in the course of this activity.  The probability of this occurring is much higher.  Children have a natural tendency to play on things that swing.  There is always a risk of injury when they do so.[78]  The risk of harm from using the Gate as a swing, even a crush injury at the hinge point, cannot be characterised as unique or obtuse.  Against that, the Gate was usually secured with a padlock, which would have prevented its use as a swing.

   [78] See the similar reasoning in Shaw [45].

4. Bringing the two components together, the plaintiff has not satisfied me on the balance of probabilities that the risk of children using the Gate as a swing and in the course of doing so a child suffering harm is 'not insignificant'.  The fact that the Gate was usually secured by a padlock coupled with the low probability of children even being in the vicinity of the Gate drives this conclusion.

5. Again, in case I am wrong in this conclusion, I proceed with the remainder of the analysis, assuming that the risk was one which could be characterised as 'not insignificant'. 

5.5     What are the relevant circumstances?

1. The third element of CLA s 5B(1) is whether, 'in all the circumstances, a reasonable person in the person's position would have taken' the precautions which the plaintiff has asserted the defendant did not take. It is instructive to first identify the relevant 'circumstances' and then the 'position' of the defendant, before looking at the response of the reasonable person.

2. The factors in OLA s 5(4) are a convenient framework within which to identify the relevant 'circumstances'. 

3. As to the 'gravity of the probable injury',[79] in my view, there is no particular type of injury which is 'probable'.  This is in contrast to the facts in Coffs Harbour (considered in detail below [152] - [158]), in which the risk was a child falling between railings on a jetty which was some 4 m above the ground.  In that scenario, serious injury from falling was probable.  In the present case, one can hypothesise a range of injuries.  The injury sustained by the plaintiff is at the more serious end. A similar type of injury to the hand could have been sustained if a child caught his or her hand in between the Gate and the latch, as occurred in Hetherington v Belyando Shire Council[80] (see [144] ‑ [147] below). Another type of serious injury would be if a child was hit by the Gate as it was being swung, the Gate being about head height for a small child. Lesser injuries can also be imagined such as a child injuring their arm or leg by falling off the gate, which injuries could range from a graze to a broken bone. I regard the injury which the plaintiff suffered as being well towards the upper end of gravity or seriousness of the range of injuries that would be possible from children using the Gate as a swing. This analysis also addresses 'the likely seriousness of the harm', as required by CLA s 5B(2)(b).

   [79] OLA s 5(4)(a).

   [80] Hetherington v Belyando Shire Council [2006] QCA 209 [12] (Hetherington).

4. As to the 'likelihood of the probable injury'[81] - harm from children using the Gate as a swing - I assess this as being low. The Gate is not something which is inherently dangerous. There is no evidence that it was defective. The area around it is clear and flat. It was not in an area specifically designed for children to play, such as a playground. This analysis also addresses the factor in CLA s 5B(2)(a) - 'the probability that the harm would occur if care were not taken'.

   [81] OLA s 5(4)(a).

5. As to the 'circumstances of the entry onto the premises',[82] the plaintiff was on the Premises in circumstances where other family members were attending a martial arts class in the Hall some 80 m away from the Gate. 

   [82] OLA s 5(4)(b).

6. As to 'nature of the premises',[83] I reiterate my comments at [98]. Further, there was nothing inherently dangerous about the Gate. The risk caused by playing on the Gate did not involve an unusual or concealed danger.[84] 

   [83] OLA s 5(4)(c).

   [84] David Jones (Canberra) Pty Ltd v Stone [1970] HCA 28; (1970) 123 CLR 185, 190 - 191 (Barwick CJ) (David Jones); Hetherington [12] (Jerrard JA, with whom White & Philippides JJ agreed).

7. As to the knowledge which the defendant has or ought to have of the likelihood of persons being on the Premises,[85] based on the findings at section 3.4, there are relevantly three classes of people likely to be on the Premises.  The first is people attending race meetings, which is likely to involve significant numbers of people.  The second is people attending martial arts lessons at the Hall.  The third is casual users, predominantly people walking their dogs.  I find that it is most unlikely that small children, under five, would be on the Premises without an adult supervising them.

   [85] OLA s 5(4)(d).

8. As to the age of 'the person entering the premises',[86] the plaintiff was aged just under three years old. 

   [86] OLA s 5(4)(e).

9. As to 'the ability of the person entering the premises to appreciate the danger',[87] I accept that 'youngsters obviously cannot be judged by adult standards'.[88]  A child not yet three would not have appreciated the risk of a crush injury arising from the hinge point where the Barrier meets the fence.  However, in my view, a responsible adult supervising the plaintiff should have appreciated this risk.

   [87] OLA s 5(4)(f).

   [88] Shaw [44].

10. Turning to CLA s 5B(2)(d), the social utility of the activity that created the risk of harm, this has a couple of dimensions. The activity that created the risk is a combination of the defendant having a gate to restrict access to the racecourse and the defendant allowing people to go on to the Premises for the purpose of attending martial arts classes at the Hall. There is social utility in both activities.

11. The remaining requirements of OLA s 5(4) and CLA s 5B(2) fall to be considered in the context of the specific precautions identified by the plaintiff which the defendant failed to take.

5.6     What was the position of the defendant?

1. The position of the defendant was that it was a local government instrumentality whose responsibilities included the management of around 50 public open spaces.  Those public open spaces were maintained to different standards as required by their purpose.

5.7     What precautions would a reasonable person have taken?

1. The question posed by CLA s 5B(1)(c) is whether, in the circumstances, a reasonable person in the defendant's position would have taken the precautions identified by the plaintiff.

2. The phrase in CLA s 5B(1) 'failing to take precautions against a risk of harm' relevantly refers to 'a failure by the person in question to take positive action against the possibility of the occurrence of harm of any kind including personal injury'.[89]

   [89] Smith [78].

3. The manner in which the plaintiff says the duty of care was breached is set out in two places in the statement of claim.  In par 17, the plaintiff pleads that the defendant:

   … breached that duty of care through its employees by leaving the barrier unsecured and as an allurement and unlawful attraction to children when without significant expenses or inconvenience it could have been:

   17.1.secured by a padlock as had been done in the past; or

   17.2.removed from its hinges as occurred after the incident.

4. In par 19, the plaintiff identifies five particulars of negligence, being that the defendant:

   (a)failed to take any or adequate precautions for the safety of the plaintiff while he was on the premises;

   (b)exposed the plaintiff to a risk of damage or injury of which it knew or ought to have known;

   (c)failed to secure the barrier by padlock;

   (d)failed to remove the barrier from its hinges; and

   (e)knew or ought reasonably have known that the barrier being unsecured posed a risk of damage or injury to children such as the plaintiff.

5. 'Proper enquiry at the breach stage involves identifying with some precision what a reasonable person would have done by way of response to the foreseeable risk'.[90]  That has not occurred in the present case.  The particulars in pars (a), (b) and (e) are not in fact particulars at all. They make no reference to the actual facts and circumstances said to give rise to the defendant's breach.  They are no more than a 'pro forma list of failures expressed in entirely abstract terms'.[91]  Moreover, mere knowledge by the defendant of a risk does not establish a breach of duty; rather, as discussed above (section 5.3), it is relevant to whether the risk was foreseeable.

   [90] Smith [105].

   [91] Gregory Spencer Ward t/a Ward's Stock Transport v Watson [2021] WASCA 44 [72] (judgment of the court); Apostolic Church Australia Limited v Dixon [2018] WASCA 146 [61] (judgment of the court) (Apostolic Church).

6. At the commencement of the trial, counsel for the plaintiff made it clear that the failure to remove the Gate from its hinges was not relied on as a particular of negligence.  Rather, this plea draw attention to the evidence that in September 2016 the Gate had been removed from its hinges.[92]

   [92] Exhibit O (see for example, Annexure 10).

7. This leaves the one precaution against a risk of harm, being the failure to secure the barrier by padlock.

8. The central issue at trial became whether, in the circumstances, a reasonable person in the defendant's position would have secured the Gate by padlock in order to guard against a risk of harm from children using it as a swing.  

9. By OLA s 5(4)(g), the question of breach includes an assessment of the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. This factor is also a relevant consideration in CLA s 5B(2)(c), expressed as 'the burden of taking precautions to avoid the risk of harm'.

10. I have found that the Gate was usually secured with a padlock to prevent cars from driving through the opening in the fence and onto the horse running track ([20]).  So for the plaintiff to succeed, a reasonable person in the defendant's position would have done more.  The plaintiff must show that a reasonable person in the defendant's position would have ensured that the Gate was secured by padlock at all times when not open to allow vehicular access to the public open space beyond the outer barrier.  This was accepted by counsel for the plaintiff in closing.[93]  It would only be by this step that it could avoid the risk of harm or eliminate the danger posed to children who played on or around the Gate.

    [93] ts 124.

11. For the defendant to have ensured that the Gate was secured by padlock at all times when not open to allow vehicular access would have required it to have exercised active oversight of the use of the Gate.  For example, it may have required that only staff of the defendant could unlock the Gate.  It may have required that staff of the defendant routinely check that the Gate was locked.  This would have imposed a significant burden on the defendant.

12. Against this, the probability that 'the harm' - injury from a child playing on or around the Gate - would occur if this care were not taken is very low.  The inquiry is somewhat artificial as on the evidence the plaintiff has not proven that the defendant ought to have known of this risk.  The same absence of evidence that children never routinely, if ever, played on or around the Gate is also to the effect that the probability of a child suffering harm were care not taken was very low.

13. Whilst there was a risk of danger to a child playing on or around the Gate, the absence of children routinely being in the vicinity of the Gate means that it is not a risk that a reasonable person in the defendant's position would have taken burdensome steps to avoid.

14. The factors in OLA s 5(4) whilst mandatory, are not exhaustive. The same for the factors in CLA s 5B(2), as is recognised by the words in parenthesis 'amongst other relevant things'.

15. Another relevant factor relied on by the defendant is that, in assessing the response of a reasonable person in the position of the defendant, the protection which a child may be expected to receive from those supervising him or her must be taken into account.[94]  The following comments of Devlin J in Phipps v Rochester Corporation have been endorsed at an intermediate appellant level in Australia:[95]

    Exceptional cases apart, the responsibility for the safety of little children must rest primarily upon the parents; it is their duty to see that such children are not allowed to wander about by themselves, or at the least to satisfy themselves that the places to which they allow their children to go unaccompanied are safe for them to go to.  It would not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after their children from their own shoulders to those of persons who happen to have accessible bits of land.  Different considerations may well apply to public parks or to recognised playing grounds where parents allow their children to go unaccompanied in the reasonable belief that they are safe.

    [94] David Jones (202) (Walsh J); Hetherington [12].

    [95] Phipps v Rochester Corporation[1955] 1 QB 450, 472 (Devlin J). Endorsed in: Hetherington [14]; Rabbitt v Roberts (1996) 67 SASR 358, 365 (Cox J, with whom Matheson & Duggan JJ agreed).

16. The Premises do not fit the description of the caveat identified by Justice Devlin of a public park or recognised playing ground where parents allow their children to go unaccompanied in the reasonable belief that they are safe.  The defendant did not do anything which could be construed as creating an invitation to children to play on or in the vicinity of the Gate, especially alone and unattended.[96]  Nor did the defendant do anything which could be constituted as assuming responsibility for supervising children at the Premises. [97]  

    [96] David Jones (190 - 191); Hetherington [12].

    [97] Hetherington [5] (Jerrard JA, with whom White & Philippides JJ agreed).

17. In my view, a reasonable person in the position of the defendant would assume that a child just under the age of three would not be at the Premises except in the care of and under the supervision of, a responsible adult.  Again, contrast the position that would arise had the plaintiff been injured in an enclosed playground that had been specifically designed to allow children to play somewhat independently of their parents.  I do not accept the submission by counsel for the plaintiff that:[98]

    Nathaniel's mother Ms Corbett was entitled to assume that the parking lot was at that time of night free of hidden hazards to her children.  It was unlikely that in the darkness she could have seen the barrier, or Nathaniel's proximity to the other children swinging on it.

    [98] Plaintiff's opening submissions, par 28.

18. It was no part of the defendant's case that Nathaniel's mother was negligent in her supervision of him on the evening in question.[99]  Rather, the question is whether the defendant was entitled to assume that the adults responsible for the supervision of Nathaniel would be keeping an eye on him.[100]  In particular, a child of his age needed to be protected from risks which he or she did not have the capacity to appreciate.  In general public areas (contrast to say a playground) this is the responsibility of those supervising the child and not the occupier of the premises

    [99] Defendant's opening submissions, par 40.

    [100] See Hetherington [17].

19. As I have observed [89], a failure to eliminate a reasonably foreseeable risk does not establish negligence.  The occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.  The determination of what, if anything, a reasonable person in the occupier's position would have done involves an assessment of what would have been reasonable and practicable for the occupier to have done.  The response to a foreseeable risk is to be judged by the criterion of reasonableness, not some more stringent requirement of prevention.  The court does not look backward to identify what would have avoided the injury to the plaintiff, applying the wisdom of hindsight.  Rather, the issue is to be determined prospectively.  

20. Looking at the issue prospectively, there is nothing in the circumstances which would have indicated to an employee or officer of the defendant that there was a need to ensure that this particular gate was secured by padlock at all times when not open to allow vehicular access.  As I found, there was nothing in the evidence which singled out this particular gate as being something children may play on over and above any of the other gates and fences maintained in the 50 or so other public spaces managed by the defendant.  Rather, if it had been proven that the defendant ought to have known of the risk of children suffering harm from using the Gate as a swing, a sufficient response to that risk would have been to rely on supervision of them by their parents to protect them from that risk.[101]  In terms of OLA s 5(4)(g), this response would have been an entirely reasonable one given the burden of eliminating the risk as compared to the risk of danger to the plaintiff.  Moreover, as counsel for the defendant observed in closing submissions, this is what in fact occurred: Nathaniel and the children he was playing with were in fact being supervised at least by Ms Corbett. 

    [101]   Hetherington [11].

1. Even if it were the case that the defendant knew that there was a risk that a 3‑year‑old child would be playing on or around the Gate, unsupervised by an adult, that would not necessarily give rise to requirement to act.  The following example given by Cox J in Rabbitt makes the practical point. The facts of that case were that a 13‑month‑old boy was being looked after by a Mrs Roberts as part of a day care centre which she operated at her residence.  The boy wandered out of the house, fell into an adjacent dam and suffered severe brain injury.  An issue for determination was whether Mrs Roberts could have been sued by the infant as the occupier of the premises.  Cox J posed the following hypothetical:[102]

   The issue in the present case is confused by the circumstance that the person who unfortunately fell down in her obligation to look after this small child happened also to be the owner and occupier of the premises.  The issue is seen more clearly, I think, if one supposes that the premises were occupied by someone else - a friend of Mrs Roberts, say, on whom she called with the child in the course of minding him while his parents were at work.  No-one would think, on those bare facts, that the occupier thereby became duty bound to turn his property instantly into a nursery with everything made safe and secure for an unsupervised 13‑month-old boy, even if in the company of another small child, who was free to wander about the place as he pleased.  That would be a practically impossible task.  Even making the kitchen child-proof would be difficult enough - removing anything that could be pulled off a table or shelf, taking out the drawers and barricading the cupboards and so on - and then there would be the other rooms and the yard and any domestic outbuildings as well.  No matter how careful the occupier was, there would always be a high risk of overlooking something that could harm an unsupervised one year old child.  But in truth no occupier would attempt to deal with the matter in that way.  He would rely upon the child being properly supervised, most obviously by the adult visitor who was in charge of him, although possibly - if he was willing to assume a share of the responsibility - with his own assistance as well.  No doubt one way of making the task of supervision easier would be to shut some doors and gates securely, but to say that, until this was done, the premises were dangerous or unsafe in the relevant sense would be a distortion of language.

   [102] Rabbitt (364).

2. In effect, the plaintiff asserts that the defendant should have toddler‑proofed the racecourse.  Contemporary standards within the community do not require this to occur.  In my view, it is both unreasonable and unrealistic.  Reasonableness may require no response to a foreseeable risk that is not insignificant.[103]   This is such a case.  As the High Court observed in Thompson v Woolworths (Qld) Pty Ltd:[104]

   In the case of some risks, reasonableness may require no response.  There are, for instance, no risk-free dwelling houses.  The community's standards of reasonable behaviour do not require householders to eliminate all risks from their premises ...

   Nor do the community's standards of reasonable behaviour require a local government to eliminate all risks to children from the public open spaces it manages.

   [103] Taylor [58]; Smith [87].

   [104] Thompson v Woolworths (Qld) Pty Ltd[2005] HCA 19; (2005) 221 CLR 234 [36] (judgment of the court); Neindorf v Junkovic[2005] HCA 75; (2005) 80 ALJR 341; 222 ALR 631 [8] (Gleeson CJ); Hetherington [16].

3. For these reasons, I find that, assuming the defendant ought to have known of the risk of harm from children using the Gate as a swing, in the circumstances (which I have outlined in section 5.5), a reasonable person in the defendant's position (outlined in section 5.6) would not have taken the precaution of ensuring that the Gate was secured by padlock at all times when not open to allow vehicular access.  

4. Accordingly, by CLA s 5B(1), the defendant is not liable for the injury sustained by the plaintiff.

5. There are two decisions on which counsel placed some emphasis in closing, so it is appropriate that I consider each in detail.

6. Counsel for the defendant placed some emphasis on the decision of the Queensland Court of Appeal in Hetherington v Belyando Shire Council.  The plaintiff there sued both the Belyando Shire Council and the Moranbah Hockey Association.  Given how close the facts of that case are to the present one, it is instructive to quote them in some detail:[105]

   On 22 August 1998 the then three year old plaintiff [Preah] was playing in the hockey grounds near an open gate.  Her left thumb was crushed when it was caught between the gate and a gatepost, apparently when other children were swinging the gate open and closed.  The plaintiff was at those grounds that day with her father, mother, and six year old brother; her father and mother were each playing hockey fixtures at the grounds.

   The grounds were surrounded by a fence; the gate in question was next to the car park, which was outside the fenced area.  That area is part of a large sporting ground owned and maintained by the Council.  The Council had erected the fencing and the gates in about 1981.  The gate had a padlock and the respondent association had one of the keys to it.  On match days, the association conducted a canteen on the hockey grounds.  The gate had been opened to allow deliveries to be made to the canteen.  It was probable that the person conducting the canteen that day had driven through the open gate to stock the canteen earlier in the day, and did not lock the gate after her.  The association admitted in its pleadings that it used the gate to control access to the grounds, and that on days when hockey was played it opened and closed the gate.  The gate was locked shut when the grounds were vacant, to prevent 'hoons' from driving onto the area around the clubhouse.

   The gate was used by the association's staff and patrons of the hockey grounds, when open, because it was easier with their gear to use the open gate, than to enter the grounds through a turnstile next to the gate.  There were some 100 or more people using those grounds on the night of the incident.  There had been no prior incident of injury with the gate, which had been present in that condition for almost 25 years, and no evidence that anyone had ever suggested to the association that the gate ought to be locked on game days, or had complained of a risk of injury if it was not locked.

   The plaintiff's mother was exercising supervision over the plaintiff that evening and was well aware that the gate was unlocked, and that older children were swinging on it and standing on it.  The association did not purport to assume responsibility for supervising children at the hockey grounds, and the plaintiff's mother did not expect the association to do so.  The plaintiff's mother was the parent exercising supervision over the plaintiff at the time of the injury because the plaintiff's father was playing his hockey match.

   The plaintiff's mother had seen the plaintiff 'very near' the gate and probably only a metre and a half away from it, and had seen her twice in that area.  The last occasion was within five to seven minutes of the accident occurring.  There were six to eight children there, including her two; the others ranged in age from five to 14.  Preah was just watching the other children when her mother last checked on her before the incident; her mother told both children not to go on the gate, or outside the fence into the car park.

   [105] Hetherington [2] - [6].

7. The respondent (Hockey Association) did not dispute that:[106]

   (a)it owed a duty of care to lawful entrants, such as the plaintiff;

(b)the risk of a small child catching his or her finger in a catch point of a gate was not far-fetched or fanciful, and hence was a relevantly foreseeable one; and

(c)if its negligent conduct materially contributed to the injury occurring, it was no answer to say that someone else, such as the plaintiff's mother, had been negligent.

[106] Hetherington [8].

1. The trial judge dismissed the claim as against the Belyando Shire Council, and there was no appeal from that decision.  As to the Hockey Association, the trial judge found that:[107]

   (a)the accident would not have happened had the gate been locked;

   (b)the unlocked gate posed a danger to young children lingering around the gate while other children were playing with it and moving it;

   (c)the Hockey Association knew that children came onto the hockey field to play their own hockey games, and also that children came there with their parents when their parents were playing fixtures;

   (d)the question to be answered was what a reasonable person, in the position of the Hockey Association, would do by way of response to the risk;

   (e)the answer was that reasonable care required that the risk be avoided by ensuring the gate was locked immediately after a vehicle had entered or left the grounds, or at least ensuring the gates were locked when it could not be expected that children were being supervised by their parents or other responsible adults; and

   (f)there was no breach of duty by the Hockey Association as occupier, because it was entitled to rely on her parents' supervision of the plaintiff to keep her safe from harm, the plaintiff's mother having given evidence that she had assumed responsibility for the safety of her children at all times while their father was playing hockey, and knew there was a risk if they played at or near the gate.

   [107] Hetherington [7], [9].

2. The Court of Appeal dismissed the appeal.  Jerrard JA, who delivered the leading judgment, held that the trial judge correctly identified the principles, properly described the relevant duty in her alternative formulations of it and came to a conclusion that was an appropriate application of those principles and the duty.[108]  White J agreed with Jerrard JA, observing that:[109]

   The learned primary judge applied the correct test and properly concluded that the mother of the injured child had assumed responsibility for her safety at all times whilst the child's father was playing hockey.  She plainly knew of the risk to the child if she played near the gate and had been content to leave her in proximity to it only a short time prior to the child sustaining the crush injury to her hand.

   The third member of the bench, Philippides J, J agreed with Jerrard JA.[110]

   [108] Hetherington [20].

   [109] Hetherington [21] - [22].

   [110] Hetherington [23].

3. The facts in common with the present action are that:

   (a)the accident occurred on land occupied by a local government;

   (b)the type of injury is similar;

   (c)the accident would not have happened had the gate been locked; and

   (d)both mothers assumed responsibility for the safety of their children.

4. The key point of distinction is that in Hetherington, Mrs Hetherington knew there was a risk if children played at or near the gate.  Here, there is no evidence that Ms Corbett was even aware of the existence of the Gate, let alone of any risk to Nathaniel from playing on it or around it.

5. However, in some critical respects, the present case is stronger from the perspective of the defendant.  In Hetherington, the Hockey Association was a far more active occupier of the premises in question than the defendant is in the present case (indeed, as I have indicated, the claim against the Belyando Shire Council was dismissed).  In Hetherington the Hockey Association knew that children came onto the hockey field to play their own hockey games, and also that children came there with their parents when their parents were playing fixtures.  In the present case, there was no evidence to the effect that children routinely, or indeed ever, played on or around the Gate.  

6. The conclusion I have reached at [141] is entirely consistent with the decision in Hetherington and is indeed a stronger case for denying liability.

7. The second decision is the decision of the New South Wales Court of Appeal in Coffs Harbour City Council v Polglase[111] relied on by counsel for the plaintiff.  The facts of that case were that summarised by Leeming JA (with whom Basten and Macfarlane JJA agreed) in the following terms:[112]

   On 30 September 2011, the plaintiff, then aged five, fell from the Coffs Harbour Jetty onto hard sand some 4 metres below, suffering serious injury.  He had been walking with his grandparents.  There were railings on each side of the jetty, which had been in place since it had been opened to the public in 1997.  There was a gap of 395mm between the middle rail and the kerb, and a gap of 480mm between the top rail and the middle rail.  The jetty had, since 2002, been subject to the care, control and management of either or both of the appellants, Coffs Harbour City Council and Coffs Coast State Park Trust.

   [111] Coffs Harbour [3].

   [112] Coffs Harbour [3].

8. The plaintiff sued alleging negligence by the Coffs Harbour City Council (Council) and the Coffs Coast State Park Trust (Trust) as occupiers and the State as former occupier which had designed and constructed the railing.  He also sued his grandparents for negligence on the basis that they had taken him into a place of danger and failed to properly look after him.  The trial judge found the Council and the Trust liable, but dismissed the claims against the State and the grandparents.  The Council and the Trust appealed, which was dismissed.

9. It is sufficient for present purposes to consider only the liability of the Council and the grandparents.  As to the former, there was evidence that there had been, to the knowledge of the Council, a series of accidents and near accidents involving young children falling from the jetty after its reopening on 11 October 1997 following extensive restoration work by the State.  These occurred in October 1997, May 1999 and October 2007.  The plaintiff's accident occurred in September 2011.[113]    

   [113] Coffs Harbour [11] - [15].

10. The Council had control and management of the jetty, and owed the plaintiff a duty of care.[114]  The issue of breach was governed by the NSW equivalent to the CLA, under which the 'ultimate issue in a case … based on an alleged failure to take reasonable care is apt to be whether a person in the position of the defendant statutory authority would have taken a particular precaution'.[115]  Leeming JA found:[116]

    There was a known and indeed realised risk of young children suffering serious injury because of the gap in the railing and the height of the jetty above the surrounding land.  It is difficult to see how heritage considerations would preclude installing additional strands of wire, or a mesh infill, and to be fair, the Council did not suggest that they did. …

    It is true that the taking of one precautionary measure may often exacerbate other risks on a site.  Here there was the possibility of additional strands being used by young children to climb through the railing.  But the relevant risk was not that a person who was minded to jump from the jetty would suffer injury.  It was that a young child might fall from the jetty, with no intention to do so. …

    … what is a reasonable response varies over time, depending upon the known history of the site.  In more than a decade since the railing was constructed, the Council knew that young children had fallen, or nearly fallen, and on one occasion with very serious consequences.

    True it is that there would be an additional cost of installation and some on-going maintenance costs, but both are relatively small ... The jetty is a single, unique, structure; contrast what was said in Vairy at [80], [149] and [218] concerning the 27 km of coastline informing the content of the duty imposed on the Council in that case.  And the evidence suggested that provision was apparently made by the Council for annual maintenance of the jetty in an amount of $72,000.

    I conclude that no error has been established in the finding of breach.  A reasonable person in the position of the Council, charged with the care, control and management of the jetty, and knowing of the actual and potential injuries suffered by young children prior to 2011, not least from the correspondence received by witnesses to those incidents, would have taken the step of installing additional strands of wire or a mesh infill to prevent that risk materialising with the catastrophic consequences that occurred in 2011.  A reasonable person in the position of the Council would have done so no later than 2007, after the third incident.  That accords with the views of the experts, and with ordinary human experience.

    [114] Coffs Harbour [87].

    [115] Coffs Harbour [86].

    [116] Coffs Harbour [107] - [110], citing from Vairy.

11. In relation to the Council, the key difference between the decision in Coffs Harbour and the present case is that the Council knew of the risk of a child falling through the rails on the jetty because this risk had eventuated on three prior occasions.  In the present case, the defendant did not know of the risk of a child being injured on or around the Gate, and it was certainly not a risk which had eventuated in the past.  So the facts of the present case are readily distinguishable from those arising in Coffs Harbour.

12. Turning to the liability of the grandparents, the plaintiff's case was that they should have either been holding his hand at all times whilst he was in proximity to the edge of the jetty or they should have been watching him and being so close to him that they could have taken hold of him.  The conduct amounting to negligence was 'their momentary movement away from the railing without being in physical contact with the plaintiff and without having their eyes on him'.[117] Leeming JA adopted the same approach as the trial judge, assuming favourably to the plaintiff that a duty was owed, but held that there was no breach. Applying principles similar to those in CLA s 5B, the trial judge: [118]

    … found that the risk was foreseeable and not insignificant and that therefore the question was whether a reasonable person in the position of the grandparents would have taken the precautions identified by the plaintiff, in circumstances where there was a high risk of the plaintiff suffering a serious injury should he fall and no burden in taking the precautions. 

    The trial judge:[119]

    found that the exercise of reasonable care did not require the grandparents to be holding the plaintiff's hand or to take a hold of his hands as they started to move away from the railing.  That was based in part upon the fact that they were used to caring for the plaintiff, that he was generally obedient, and that he had been well behaved when walking on the jetty.

    [117] Coffs Harbour [154] - [155].

    [118] Coffs Harbour [158].

    [119] Coffs Harbour [160].

13. Leeming JA agreed with the trial judge and disagreed with the proposition that 'the grandparents should either have been holding the plaintiff's hand, or been in a position to grab him in the event that he moved to the railing'.[120]  His Honour agreed with the trial judge's conclusion that the grandparents had not been negligent, stating:[121]

    Assuming for the sake of argument that they owed a duty because the jetty (or the edge of the jetty) was a place of danger, a reasonable person in their position would not necessarily have firmly held the plaintiff's hand or ensured that it was impossible for him suddenly to approach and pass through the railing.

    [120] Coffs Harbour [161] - [162].

    [121] Coffs Harbour [162].

14. Counsel for the plaintiff relied on the decision in Coffs Harbour on the issue of general parental responsibility, noting that the grandparents were not responsible for keeping the child under close scrutiny.[122]  In written submissions the point is made that 'unlike the grandparents, Nathaniel's mother Ms Corbett was entitled to assume that the parking lot was at that time of night free from hidden hazards to her children.'[123]

    [122] ts 125.

    [123] Plaintiff's opening submissions, par 28.

1. However, the issue in the present case is different from that considered in Coffs Harbour.  Neither the plaintiff nor defendant asserts that Ms Corbett was negligent in her supervision of the plaintiff.  The issue in the present case is that considered in Hetherington being whether in assessing the response of a reasonable person in the position of the defendant, it is appropriate to consider the care which those responsible for supervision of children would exercise over the children under their control.  I have found that it is appropriate to take this approach.

2. So the conclusion I have reached at [141] is in no way inconsistent with the decision in Coffs Harbour.

1. Would the position be any different at common law?

1. Having reached the conclusion that the defendant did not breach the duty of care it owed the plaintiff under the OLA, it is necessary to consider whether a different conclusion is reached under common law.  This is on the basis that an occupier owes an entrant concurrent duties at common law and under OLA s 5.[124]

   [124] Smith [62].

2. At common law, an occupier of premises owes a duty of care to any person whose presence on the premises, either individually or as a member of a class, is reasonably foreseeable in respects of injury arising out of the condition of the premises.[125]  That duty is to take reasonable care to avoid foreseeable risks of harm to an entrant having regard to all the circumstances of the case.[126]

   [125] Smith[55]; Shire of Manjimup [11], [67].

   [126] Smith [55]; Shire of Manjimup [67].

3. As with the duty of care under the OLA, the CLA does not define when a duty of care is owed at common law.  It again only modifies the common law as to breach of duty of care by, among other provisions, articulating situations in which a person is not liable for harm.[127]

   [127] CGU Insurance [77]; Smith [70] - [83].

4. As I have noted, the defendant accepted that it owed the plaintiff a duty 'to take reasonable precautions against reasonably foreseeable risks to persons such as the plaintiff arising out of the state of the premises'.[128] 

   [128] Defence, par 17.

5. I find that the scope of the duty of care owed at common law is in substance the same as that owed under the OLA.  Neither counsel asserted to the contrary.   So at common law, the defendant owed the plaintiff a duty to take such care as was reasonable in all the circumstances of the case to see that the plaintiff did not suffer injury or damage by reason of a danger which is due to the state of the Premises.  

6. Nor did either counsel suggest that the conclusion on breach of the common law duty of care would be any different from the conclusion arrived at by application of the principles in the OLA. The matters in CLA s 5B apply equally to any duty of care arising at common law. The principles identified at [89] apply equally.[129]  Accordingly, had it been necessary to determine the issue of breach based on a common law duty of care, I would have found that for the reasons I set out at [126] - [141] the defendant did not breach that duty.

   [129] See for example: Apostolic Church [60] - [61].

1. What, if any, injuries did the plaintiff sustain as a result of a breach by the defendant?

1. Given the conclusions I have reached on breach, it is not necessary for me to determine causation.  However, in case I am wrong on the issue of breach it is appropriate that I address the issue of causation based on the evidence led at trial.

2. I have already found that (section 3.3):

   (a)on the evening of 28 August 2015 the plaintiff suffered an injury to his left hand that later required the amputation of the fingers of that hand leaving him with only his thumb; and

   (b)the plaintiff's hand was injured when it was crushed between the Gate and the metal post securing it as the other children were swinging it backwards and forwards.

3. The plaintiff pleads that as a result of the Accident and the defendant's breaches of duty of care, the plaintiff sustained the following injuries:[130]

   20.1.Crush injury of the left hand causing a deep laceration resulting in exposure of tendons and bones leading to necrosis of all four fingers of his hand;

   20.2.Loss of four fingers of his hand post amputation of all fingers;

   20.3.Marked scarring at the site of the amputations; and

   20.4.Psychiatric injuries.

   [130] Statement of claim, par 20.

4. The precise nature of the injuries sustained by the plaintiff and the long term sequelae of those injuries was not addressed in the evidence led at the trial before me on liability.  Rather, it is sufficient if I address the issue of causation in general terms. 

5. The defendant did not admit that the plaintiff's injuries were caused in the Accident.  However, it did not plead a positive defence to the plaintiff's case that the alleged negligence of the defendant caused the particularised injuries to his left hand.  Nor did counsel for the defendant address this issue at trial.[131]

   [131] Defence opening submissions, par 42.

6. In determining liability for damages for harm caused by the fault of a person, the plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.[132]

   [132] CLA s 5D.

7. The issue of causation is governed by CLA s 5C which requires two elements to be found. The first element is factual causation, that 'the fault was a necessary condition of the occurrence of the harm'.[133]  The test of factual causation is to be determined by the 'but for' test: but for the negligent act or omission, would the harm have occurred?[134]  'That is to say, a determination in accordance with [s 5C(1)(a)] that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence'.[135] In the circumstances of the present case it is not necessary for me to consider the alternate means of establishing causation in CLA s 5C(2).[136]

   [133] CLA s 5C(1)(a).

   [134] Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 [16] (French CJ, Crennan, Kiefel, Gageler & Keane JJ) (Wallace); Adeels Palace [45]; Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 [20].

   [135] Wallace [16].

   [136] As to which, see generally: East Metropolitan Health Service v Ellis (by his Next Friend Christopher Graham Ellis) [2020] WASCA 147 [586] - [613] (judgment of the court) (East Metropolitan Health Service); Wallace [49].

8. I find that the plaintiff would not have suffered the injuries which he did had the Gate been locked.[137] Or in the language of CLA s 5C(2), the fault of not locking the Gate was a necessary condition for the occurrence of the harm. Had I found in favour of the plaintiff on fault, I would have found in favour of the plaintiff on factual causation, that is, that the injury to the plaintiff's left hand was caused by the fault of the defendant.

   [137] As was the case in Hetherington [7].

9. The second element is the scope of liability as identified in CLA s 5C(1)(b). This is whether 'it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused'.[138]  For the purpose of determining the scope of liability, 'the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor'.[139] 

   [138] CLA s 5C(1)(b).

   [139] CLA s 5C(4).

10. In contrast to the first element, no issue of onus of proof arises in the application of the second element.  Rather, it 'is a qualitative, normative assessment to be made based on the facts as found'.[140] 

    [140] East Metropolitan Health Service [623]; Wallace [14].

11. In the present case, the normative question posed by CLA s 5C(1)(b) is whether it is appropriate for the scope of a negligent defendant's liability to extend to the physical and psychological injuries in fact sustained by the plaintiff.[141]  If fault and factual causation had been established, it would have been on the basis that plaintiff was injured as a result the failure of the defendant to exercise reasonable care in the manner in which it managed the Gate.  This would not be a novel case, rather one in which the scope of liability for the consequences of the harm should be coextensive with the content of the duty of the defendant which has been breached.[142]

    [141] Wallace [21].

    [142] Wallace [26]; East Metropolitan Health Service [630] - [633].

12. Accordingly, had I found in favour of the plaintiff on fault and factual causation, I would have found that it was appropriate for the scope of that defendant's liability to extend to the harm in fact caused.

1. What final orders are appropriate?

1. For these reasons, the plaintiff has not proven on the balance of probabilities that his injuries were caused by the negligence of the defendant.  Accordingly, the action should be dismissed.

2. I will hear from counsel as to costs.

ANNEXURES

Annexure 1 (Exhibit AA, photo 1)

Annexure 2 (Exhibit AA, photo 2)

Annexure 3 (Exhibit P)

Annexure 4 (Exhibit C)

Annexure 5 (Exhibit B)

Annexure 6 (Exhibit C)

Annexure 7 (Exhibit E)

Annexure 8 (Exhibit G)

Annexure 9 (Exhibit L)

Annexure 10 (Exhibit O)

Annexure 11 (Exhibit Z)

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

SVH

Associate

11 JUNE 2021