Nathaniel Corbett by next friend Debra Todd v Town of Port Hedland - [2024] WASCA 9

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NATHANIEL CORBETT by next friend DEBRA TODD -v- TOWN OF PORT HEDLAND [2024] WASCA 9
CORAM:   BUSS P
MITCHELL JA
VAUGHAN JA

HEARD:   16 AUGUST 2022 & 12 APRIL 2023
DELIVERED          :   2 FEBRUARY 2024
FILE NO/S:   CACV 58 of 2021
BETWEEN:   NATHANIEL CORBETT by next friend DEBRA TODD
Appellant
AND
TOWN OF PORT HEDLAND
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GETHING DCJ
Citation: NATHANIEL CORBETT by his Next Friend DEBRA TODD -v- TOWN OF PORT HEDLAND [2021] WADC 55
File Number            :   CIV 2804 of 2019

Catchwords:

Appeals - Negligence - Occupiers' liability - Where child suffered crush injury while playing near unsecured gate - Whether gate was 'allurement' to children - Whether defendant ought to have known of risk of harm - Whether risk of harm not insignificant - Need to assess question of foreseeability and whether there was a not insignificant risk objectively and prospectively - Whether reasonable person in defendant's position would have taken burdensome steps to avoid risk of harm - Whether primary judge's reasoning was irrational and illogical - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), s 5B

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	J L Cameron
Respondent	:	S Vandongen SC (16 August 2022) & G P Bourhill SC (12 April 2023)

Solicitors:

Appellant	:	CLP Legal Pty Ltd
Respondent	:	Jackson McDonald

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

Allied Pumps Pty Ltd v Hooker [2020] WASCA 72
Coffs Harbour City Council v Polgase [2020] NSWCA 265
Corbett v Town of Port Hedland [2021] WADC 55
Cox v Fellows [2013] NSWCA 206
FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754
Gordon v Ross [2006] NSWCA 157
Greenslade v Hiew [2022] WASCA 47
Hetherington v Belyando Shire Council [2006] QCA 209
Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205
Munnings v Hydro-Electric Commission [1971] HCA 27; (1971) 125 CLR 1

JUDGMENT OF THE COURT:

Overview

The appellant, Nathaniel Corbett, is a child who brings this appeal by his next friend.
During the evening of 28 August 2015, the appellant, then aged 2 years and 10 months, was playing with a number of other children at the Port Hedland racecourse. The respondent, the Town of Port Hedland, occupied and controlled the racecourse premises. The group was playing on and in the vicinity of a metal gate. The gate was unsecured and able to be used as a swing. The appellant's left hand was crushed between the gate and a metal post to which the gate was attached while the gate was being swung. The injury to the appellant's hand required the amputation of his fingers to that hand leaving him with only his thumb to his left hand.
Proceedings were commenced against the Town claiming that the appellant's injury was suffered as a result of the Town breaching its duties under the general law and under the Occupiers' Liability Act 1985 (WA).[1]
[1] Referred to below as the OLA.
The issues of liability and causation were tried in the District Court of Western Australia before Gething DCJ. His Honour found that the appellant had not proven, on the balance of probabilities, that his injuries were caused by the negligence of the Town.[2] The action was dismissed. The appellant now appeals. The appellant claims that the primary judge erred in finding against him in numerous respects, namely: in not characterising the gate as an allurement and attraction to children; in finding that the appellant had not established that the risk of harm was foreseeable and not insignificant; in finding that a reasonable person in the Town's position would not have taken the precaution of ensuring that the gate was secured; and in finding that it was open to the Town to rely on the presence of a parent or responsible adult supervising the appellant to keep him safe from harm.
[2] Corbett v Town of Port Hedland [2021] WADC 55 (primary reasons).
The appellant does not challenge any of the primary judge's intermediate factual findings. The gravamen of the appeal is to challenge his Honour's inferential findings as to foreseeability and breach by contending that they are the result of legally irrational and illogical reasoning. The appellant contends that the primary judge erroneously considered these issues from the perspective that the gate was usually secured.
For the reasons that follow the appeal must be dismissed. The appellant has made out a number of his grounds of appeal. However, the appellant has not established error in the primary judge's finding that a reasonable person in the Town's position would not have taken the precaution of ensuring that the gate was secured at all times when not open to allow vehicular access. This finding is sufficient of itself to sustain the order that the action be dismissed.

Background facts

The primary judge's factual findings as to the events of 28 August 2015 are unchallenged on appeal.
It was not in dispute that the Town had the care, order and management of the racecourse pursuant to management orders issued under the Land Administration Act 1997 (WA). In that respect the Town admitted that it occupied or controlled the premises for the purposes of the OLA. The racecourse was used for horse racing for around six to eight race meetings a year between May and October. A perimeter fence made of chain mesh surrounded the racecourse. Otherwise, among other things, the racecourse comprised of a horse running track and a barrier (made of tubular metal) on both the inside and outside of the horse running track.
The gate with which the proceedings was concerned forms part of the outer barrier. It is depicted in the photograph immediately below.[3]

[3] Exhibit B.

Counsel for the appellant preferred to refer to the gate as a 'barrier'. When secured by a padlock the gate was part of the outer barrier; when unsecured it was a gate allowing entry into and exit from the horse running track through the outer barrier. The appellant's injury occurred when the gate was unsecured. Accordingly, we will adopt the terminology of 'gate' rather than 'barrier'. Ultimately, nothing turns on the difference in terminology. The point is that there was a gate; it could have been, but was not, secured by a padlock. While unsecured the gate could be swung in an arc, backwards and forwards.
The gate was usually secured by a padlock to prevent cars from driving through the opening in the outer barrier and on to the horse running track. However, the primary judge found that the gate was not secured during the evening of 28 August 2015 when the appellant's injury occurred.
The appellant arrived at the racecourse some time after 7.00 pm. The appellant's mother had driven to the racecourse to meet up with the appellant's maternal grandmother. The grandmother was minding the appellant's aunt's children (ie the appellant's cousins) while the appellant's aunt was attending a martial arts class at a hall on the racecourse premises. There were five other children with the appellant's mother, not including the appellant. The oldest of the children was 11 years old. The appellant was the youngest. They joined at least two more children who were being minded by the appellant's grandmother (one aged 11 and the other aged 4). It was dark, but a number of the children, including the appellant, went off to run around and play with each other. There were three adults looking after the children.
The children were always within the sight of the appellant's mother. However, as it was dark the appellant's mother's vision of the children was imperfect. The children ended up playing at the gate, some 80 m away from the hall. In the darkness the appellant's mother did not see the children playing on or around the gate. However, based on the evidence of one of the children, the primary judge found that the gate was unlocked and the children were swinging it backwards and forwards.
No one who gave evidence saw the appellant being injured. However, the appellant was heard to cry while standing next to the outer barrier. The appellant's hand was injured. The primary judge found that the appellant's injury was sustained when his hand was crushed between the gate and the metal post securing the gate (there being no competing inference that potentially explained the injury).
The metal post can be seen to the left of the photograph reproduced at [9] above. In substance, as the gate swung around with the children swinging it backwards and forwards, the gap between the metal post and the cylindrical steel edge of the gate closed. This created a pinch point. The appellant's hand was within the pinch point. The appellant's hand was crushed at the fulcrum point where the gate met the post. The primary judge observed that, as a matter of common experience, the leverage evident in the length of the gate had the potential to generate significant force at the fulcrum point.
The appellant was taken to Port Hedland Hospital and subsequently transferred to Perth Children's Hospital. The injury required the eventual amputation of the fingers on the appellant's left hand.
The primary judge made a series of further findings of fact as to the risks involving the gate. They included the following:
1.The Town had around 50 public open spaces, including the racecourse, throughout Port Hedland and South Hedland. The spaces varied in type and were maintained to different standards.
2.The Town first became aware of the accident in late 2018.
3.Prior to 2018, the Town had not been informed of any other incidents involving a person being injured while on or around the gate. There had been no complaints about the state of the gate or it being dangerous. The Town was not aware of the possibility that children might be swinging on the gate.
4.The Town used a security lock system to restrict access to public open spaces. All padlocks used by the Town for this purpose were unlocked by the same security key, which could only be cut at restricted places. The Town spent around $5,000 a year replacing missing and damaged padlocks. Each individual padlock cost around $60 - $80.
5.The racecourse was not a heavily used public open space and was maintained to a low standard. Staff of the Town mowed the racecourse at least once a fortnight. Otherwise, no other staff routinely visited the premises.
6.As to access to the premises, other than the users of the racecourse and the hall (and a cricket pitch located within the inner barrier), the predominant users of the premises were people walking their dogs around the oval in the middle of the racecourse.
7.To the Town's knowledge, the premises were not frequented by children, particularly children under the age of 5. The Town controlled nearby facilities for children such as playgrounds.
8.There was an Indigenous community near the racecourse who used the premises as a shortcut to the shopping centre in Port Hedland.

The primary decision

The primary judge found that the same duty of care was owed at general law and under the OLA.[4] This was expressed in the following terms:
[The Town] owed [the appellant] a duty to take such care as was reasonable in all the circumstances of the case to see that [the appellant] 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.[5]
[4] Primary reasons [81] - [82], [166].
[5] Primary reasons [82].
The primary judge's formulation of the duty owed by the Town to the appellant is accepted by both parties for the purposes of the appeal.
The primary judge first considered whether there had been any breach of the duty owed under the OLA. However, having found that an occupier owes an entrant concurrent duties under s 5 of the OLA and under the general law, the primary judge essentially relied on his breach analysis in respect of s 5 of the OLA in resolving the question of breach of the general law duty.[6] Accordingly, what follows as to breach applies equally to the duty owed under the OLA and the duty owed at general law.
[6] Primary reasons [162] - [167].
As to breach, the primary judge referred to the criteria in s 5(1) and s 5(4) of the OLA and s 5B of Civil Liability Act 2002 (WA).[7] His Honour identified the relevant risk of harm as being the risk of harm from children using the gate as a swing. This included injuries sustained by swinging on the gate, standing close to it or exploring it with fingers while it is being swung.[8] The primary judge's formulation of the risk of harm is also accepted by both parties for the purposes of the appeal.
[7] Referred to below as the CLA.
[8] Primary reasons [94].
The primary judge then evaluated the elements of s 5B(1) CLA in three distinct parts: first, in terms of s 5B(1)(a) CLA, whether the risk of harm was foreseeable (primary reasons, pt 5.3); second, in terms of s 5B(1)(b) CLA, whether the risk of harm was not insignificant (primary reasons, pt 5.4); and third, in terms of s 5B(1)(c) CLA, whether, in the circumstances, a reasonable person in the Town's position would have taken the suggested precautions against the risk of harm (primary reasons, pt 5.5 - pt 5.7).
As to whether the risk of harm was foreseeable, the primary judge found that there was no evidence that the Town actually knew that there was a risk of harm from children using the gate as a swing.[9] There is no challenge to the primary judge's foreseeability finding based on lack of actual knowledge. In terms of what the Town 'ought to have known', the primary judge observed there was no evidence that children were ever ordinarily in the vicinity of the gate - or that children routinely (or indeed ever) played on or around the gate. The racecourse was not a place frequented by children or at which children were generally seen.[10]
[9] Primary reasons [96].
[10] Primary reasons [98].
The appellant had pleaded that the gate, when unsecured, was 'an allurement and unlawful attraction' to children.[11] The primary judge rejected that contention stating:
I do not accept [the appellant's] submission that the Gate was 'alluring' to children. There is nothing in its 'very nature' that would make it alluring to a child. 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 Town].[12]
[11] Amended statement of claim dated 20 May 2021 par 17 BAB 53.
[12] Primary reasons [98].
This finding is challenged by ground 1.
The primary judge then repeated his finding that the gate was usually secured with a padlock to prevent cars from driving onto the horse running track. His Honour said that, if locked, the gate could not be used by a child as a swing.[13] From that foundation the primary judge concluded that the appellant had not proven that the risk of harm from children using the gate as a swing was one which the Town 'ought to have known' saying that there was simply no evidence from which that conclusion could be drawn.[14] This conclusion is challenged by ground 2.
[13] Primary reasons [99].
[14] Primary reasons [100].
The primary judge continued the s 5B(1) CLA analysis assuming that the risk of harm was one which the Town ought to have known. The issue of whether the risk of harm, was not insignificant was also resolved against the appellant. The primary judge reasoned that:
1.The probability of children playing in the vicinity of the gate and using it as a swing was 'very low'.[15] (There is no challenge to this finding.)
2.There was, however, a 'much higher' probability that a child using the gate as a swing, or playing with other children who were using the gate as a swing, might suffer harm. However, against that, the gate was usually secured with a padlock.[16]
[15] Primary reasons [103].
[16] Primary reasons [104].
In finding that the appellant had not satisfied him that there was a 'not insignificant' risk of children using the gate as a swing and in the course of doing so suffering harm, the primary judge stated that his conclusion was driven by the fact that the gate was usually secured by a padlock, coupled with the low probability of children being in the vicinity of the gate.[17] The finding that the appellant had not established a not insignificant risk of harm is challenged by ground 3.
[17] Primary reasons [105].
The primary judge continued the s 5B(1) CLA analysis on the assumption that the earlier elements had been satisfied. His Honour first addressed the relevant circumstances (looking, in this respect, at the factors listed in s 5(4) OLA). There was a range of possible injuries from the less serious (eg a graze or broken bone from falling off the gate) to the more serious (such as occurred with the appellant).[18] However, in a finding that is unchallenged on appeal, his Honour stated that there was a 'low' likelihood of probable injury - the gate was not inherently dangerous and the risk of playing on the gate did not involve an unusual or concealed danger.[19] It was unlikely that small children, under 5 years old, would be on the premises without adult supervision; and a responsible adult supervising the appellant should have appreciated the risk of a crush injury arising from the gate's hinge point.[20]
[18] Primary reasons [109].
[19] Primary reasons [110], [112].
[20] Primary reasons [113], [115].
The primary judge identified social utility in the activity that created the risk of harm.[21] The Town's position was that it was a local government instrumentality. Its responsibilities included the management of around 50 public open spaces. These were maintained to different standards as required by their purpose.[22]
[21] Primary reasons [116].
[22] Primary reasons [118].
The appellant's pleaded case identified two precautions that should have been taken against the risk of harm: first, securing the gate with a padlock; second, removing the gate from its hinges.[23] At trial, however, the appellant did not rely on the failure to remove the gate from its hinges as a particular of negligence. There was one precaution against the risk of harm that was relied on, namely, the failure to secure the gate by padlock. The central issue at trial became whether, in the circumstances, a reasonable person in the Town's position would have secured the gate by padlock in order to guard against the risk of harm from children using it as a swing.[24]
[23] Amended statement of claim dated 20 May 2021 pars 17.1, 17.2, 19.3, 19.4 BAB 53 - 54.
[24] Primary reasons [124] - [126].
In closing submissions at trial, counsel for the appellant accepted that the appellant had to show that a reasonable person in the Town'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.[25]
[25] Primary reasons [128] (referring to ts 124).
The primary judge observed that this would have required the Town to have exercised active oversight of the use of the gate. For example:[26]
1.It may have required that only staff of the Town could unlock the gate.
2.It may have required that staff of the Town routinely check that the gate was locked.
[26] Primary reasons [129].
The primary judge found - and it is not challenged on appeal - that this would have imposed a 'significant burden' on the Town.[27] The primary judge went on to state:
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 appellant] has not proven that [the Town] 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.
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 Town's] position would have taken burdensome steps to avoid.[28]
[27] Primary reasons [129].
[28] Primary reasons [130] - [131].

While, as will be seen, the appellant challenged the primary judge's ultimate finding that a reasonable person in the Town's position 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, no ground of appeal directly addressed the findings reproduced immediately above.
The primary judge then considered the protection which a child might be expected to receive from those supervising him or her. His Honour considered that a reasonable person in the position of the Town would assume that a child under the age of 3 would not be at the racecourse except in the care of and under the supervision of a responsible adult.[29] This finding is challenged by ground 5.
[29] Primary reasons [135].
A series of intermediate findings were made, most of which were repetitive of earlier findings. Relevantly:[30]
1.There was nothing in the circumstances which would have indicated to an employee or officer of the Town that there was a need to ensure that the gate was secured by a padlock at all times when not open to allow vehicular access.
2.There was nothing in the evidence which singled out the gate as being something children may play on.
3.The Town did not do anything which could be construed as creating an invitation to children to play on or in the vicinity of the gate.
4.The Town did not do anything which could be construed as assuming responsibility for supervising children at the racecourse.
5.If, contrary to what had been found, the Town ought to have known of the risk to children suffering harm from using the gate as a swing, a sufficient response to that risk would have been to rely on the children being supervised by their parents to protect them from that risk.
[30] Primary reasons [134], [138].
The primary judge characterised the appellant as contending that the Town should have toddler-proofed the racecourse. The primary judge said that contemporary standards within the community did not require this to occur. It was, in the primary judge's view, both unrealistic and unreasonable. The primary judge stated that the community's standards did not require a local government to eliminate all risks to children from the public open spaces that the local government managed.[31]
[31] Primary reasons [140].
Accordingly, assuming that the Town ought to have known of the risk of harm to children using the gate as a swing, the primary judge held that a reasonable person in the Town's position 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.[32] This finding is challenged by ground 4.
[32] Primary reasons [141].
Having already resolved the case against the appellant, the primary judge then spent considerable time analysing two authorities relied on by the parties. Those authorities were Hetherington v Belyando Shire Council[33] and Coffs Harbour City Council v Polgase.[34] Perhaps because of this the parties spent some time addressing these decisions on appeal. Two things should be said about these decisions. First, while they are useful illustrations of the general principles, that is all that the decisions are - each decision turned on its own particular facts. Second, while the primary judge referred to the two decisions in detail, his Honour had already resolved the case against the appellant before embarking on his analysis of the decisions. The primary judge treated the decisions as being no more than confirmatory of the conclusions he had already reached[35] (as to Hetherington) or distinguishable on the facts[36] (as to Coffs Harbour). That being the case, it is not necessary, in our view, to consider or comment on the two decisions.
[33] Hetherington v Belyando Shire Council [2006] QCA 209.
[34] Coffs Harbour City Council v Polgase [2020] NSWCA 265.
[35] Primary reasons [151].
[36] Primary reasons [156], [160].
For completeness, the primary judge considered the question of causation and, in a necessarily provisional finding, resolved the question of causation in favour of the appellant.[37] However, based on the findings as to breach, the appellant's action had to be dismissed.[38]
[37] Primary reasons [168] - [179].
[38] Primary reasons [180].

The grounds of appeal

The grounds of appeal were amended before, during and after the initial appeal hearing. Throughout that iterative process the essential character of the alleged errors that ground the appeal have remained intact. An understanding of the appellant's case on appeal is assisted by detailing the evolution of the grounds of appeal. Accordingly, we will trace through that process.
Originally, the grounds of appeal filed with the appellant's case were deficient. They did not identify whether the alleged errors were errors in fact or errors in law or errors in mixed fact and law.[39] Nor did the grounds of appeal identify the paragraph numbers of the primary reasons where each error was alleged to have occurred.[40] The appellant was required to file amended grounds of appeal. The appellant did so identifying, by ground, the specific paragraphs of the primary judge's reasons alleged to be infected by error. Having done so, it is apparent that much of the primary judge's factual findings and reasoning process is unchallenged. The appellant also asserted that each of the alleged errors constituted an error in law.
[39] Compare Supreme Court (Court of Appeal) Rules 2005 (WA) r 32(4)(c).
[40] Compare Supreme Court (Court of Appeal) Rules r 32(4)(d).
In substance, by grounds enumerated as follows, the appellant challenges the primary judge's findings that:
1.The gate was not an 'allurement' and an 'attraction' to children (primary reasons [98]).
2.The appellant had not established on the balance of probabilities that the risk of harm was foreseeable as one that the Town 'ought to have known' within s 5B(1)(a) CLA (primary reasons [100]).
3.The appellant had not established on the balance of probabilities that the risk of harm was 'not insignificant' within s 5B(1)(b) CLA (primary reasons [105]).
4.In terms of s 5B(1)(c) CLA, the appellant had not established that, in the circumstances, a reasonable person in the Town's position would have taken the precaution of ensuring that the gate was secured at all times when not open to allow vehicular access (primary reasons [141] - [142]).
5.It was open to the Town to rely on the presence of a responsible adult supervising the appellant to keep him safe from harm (primary reasons [135]).
In each case the appellant alleges an error of law in the drawing of a factual inference. Particulars are given. These overlap as between grounds 1 - 4.
The appellant says, first, that in relying on findings that the gate was usually closed and secured, and that there was no evidence that children played on or in the vicinity of the gate, the primary judge failed to distinguish between the gate as secured by a padlock and the gate unsecured and free to swing in an arc (particulars 1.2, 1.5).[41] Then, in substance, the appellant contends that there were no positive proved facts from which the primary judge was entitled to draw the relevant inferences the subject of grounds 1 - 4. According to the appellant, the primary judge instead based his Honour's inferential findings on the state of the premises when the gate was secured by a padlock. The appellant contends that in so reasoning the inferential findings were erroneous in law as being irrational and illogical. According to the appellant, no inference could reasonably and logically be drawn from the evidence as to the state of the gate when secured which applied equally to the gate when unsecured (particulars 1.3 ‑ 1.5).[42] The appellant also relies on the circumstance that the children found the gate in darkness and started playing on and around it within 10 ‑ 15 minutes of their arrival (particular 1.6).
[41] See also appellant's submissions pars 32, 38 WAB 15 - 17.
[42] See also appellant's submissions pars 29 - 31, 38, 48 - 50 WAB 14 - 15, 16 - 17, 21.
In summary, as the appellant made clear in supplementary submissions dated 30 August 2022:
The appellant's challenge is to the rationality and logic of the inferences drawn by his Honour from the finding of fact that the barrier was usually secured. Illogicality in reasoning reveals error of law.[43] (citations omitted)
[43] Appellant's supplementary submissions dated 30 August 2022 par 2. See also appeal ts 12, 14.
There are separate particulars for ground 5. The appellant relied on the fact that, in the darkness, his mother was unaware of the gate and that the children were playing on or near it (particulars 5.1, 5.2). It was said that the Town led no evidence to support the claim of reliance (particular 5.3). Finally, the appellant claimed that no authority was cited which supported the proposition (particular 5.4) and asserted that the primary judge erred in law in basing his inference as to the Town's permitted reliance on conjecture and misconstruction of the relevant statutory provisions (particular 5.5).
The appellant's case, by the orders wanted, did not simply seek a retrial. Rather, if the appeal was allowed, the appellant sought an order that judgment on liability be entered in his favour. In that respect, at least implicitly, the appellant appeared to be contending not only that the primary judge had erred in law in arriving at the various inferential findings, but also that his Honour was actually wrong in fact as, had the alleged error in law not impacted on the primary judge's reasoning, his Honour would have positively resolved the contentious factual issues in the appellant's favour. In written submissions that implicit contention was advanced expressly. The appellant invited the court to draw positive inferences on the evidence in as much as it was contended that the primary judge should have drawn those inferences.[44]
[44] Appellant's submissions pars 52 - 53 WAB 21 - 22.
In the circumstances, at the initial appeal hearing the appellant was invited to amend his grounds of appeal to allege errors in law and fact. The appellant sought and was granted leave to amend accordingly.[45]
[45] Appeal ts 12 - 13.
Separately, the court raised with counsel for the appellant the absence of any challenge to the primary judge's factual finding that the suggested reasonable precaution, of ensuring that the gate was secured by padlock at all times when not open to allow for vehicular access, would have imposed a significant burden on the Town.[46] At the initial appeal hearing, counsel for the appellant orally moved an amendment to ground 4 so that it read:[47]
A reasonable person in the Town's position would not have taken the precaution of ensuring that the gate was secured at all times when not open to allow vehicular access: s 5B(1)(c): Reason for Decision at [141] & [142]; and the primary judge erred in fact in holding at [129] that this would have imposed a significant burden upon the Defendant in relation to the securing of the barrier.
Particulars
4.1The appellant repeats the particulars 1.1 to 1.5 above.
4.2The Town already had procedures in place for the controlling of keys to the padlocks securing barriers and gates.
[46] Appeal ts 3 - 4, 16 - 19.
[47] Appeal ts 26.
The amendment was opposed by the Town. The court proposed and eventually made orders for a formal application seeking leave to amend. Those orders contemplated the appellant filing and serving a Practice Direction 7.4 schedule in relation to any challenge to the primary judge's findings of fact (such a schedule being required if the appellant sought to rely on the amended ground 4 as formulated in the course of the initial appeal hearing). Having regard to the nature of the proposed amendment, senior counsel for the Town submitted - and the court accepted - that the appeal hearing ought to be adjourned so that the Town had a proper opportunity to prepare for and respond to the different case as first articulated by the appellant at the initial appeal hearing.
In due course the appellant made a formal application to amend the grounds of appeal. However, the amendment sought was not in the terms that had been foreshadowed at the initial appeal hearing. Rather, by supplementary submissions dated 30 August 2022, counsel for the appellant explained that:
Having had an opportunity to review of [sic] the [Town's] pleadings, and the manner in which the trial was run, the appellant now takes the view that the amendment sought at the hearing that relates to the burden of securing the barrier is unnecessary, and does not pursue the amendment earlier proposed. But in the interests of clarity seeks to amend the Particulars to ground 4 by adding:
4.2.Further, the burden upon [the Town] of taking precautions to avoid the risk of harm to children such as [the appellant] did not form part of [the Town's] pleaded defence. [48]
[48] Appellant's supplementary submissions dated 30 August 2022 par 15.
Counsel for the appellant said that, there being no challenges to the primary judge's factual findings, no Practice Direction 7.4 schedule was required or provided.[49]
[49] Appellant's supplementary submissions dated 30 August 2022 par 16.
The Town did not oppose the revised amendment sought by the appellant after the initial appeal hearing. The court made orders granting leave to re-amend in those terms at the resumed appeal hearing.[50]
[50] Appeal ts 36.

Observations as to the scope of the grounds of appeal

The appeal is relatively confined in its scope. The primary judge's finding as to the relevant 'risk of harm' is unchallenged (see [21] above). So too the appellant does not take issue with the primary judge's formulation of the duty owed by the Town (see [18] above).
Nor does the appellant take issue with:
1.The legal principles recited by the primary judge as informing his Honour's approach to the question of whether the appellant had proved that the Town had breached its duty of care.[51]
2.The primary judge's approach to consideration of the relevant factors in s 5(4) of the OLA and s 5B(2)(a), (b) and (d) of the CLA.[52]
3.The primary judge determining the claim under the OLA and then, having found that the Town was not liable under the OLA, determining that the application of the general law would not lead to a different result (the scope of the duty of care owed at general law being in substance the same as that owed under the OLA).[53]
[51] Primary reasons [83] - [90].
[52] Primary reasons [108] - [117].
[53] Primary reasons [6], [166] - [167].
At trial the appellant accepted that:
[The appellant] must show that a reasonable person in [the Town'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.[54]
[54] Primary reasons [128].
Beyond the additional particular 4.2, as added after the initial appeal hearing (see [53] above), there is no challenge, by any ground of appeal, to the primary judge's finding that this would have required the Town to have 'exercised active oversight' of the use of the gate and would have imposed a 'significant burden' on the Town.[55] Indeed, having abandoned the amendment to ground 4 as formulated at the initial appeal hearing, the appellant - by his counsel - raised the pleading point but otherwise eschewed any challenge to this critical factual finding. Nor is there a challenge to the finding that the probability of harm absent the posited precaution was 'very low'.[56] Also, relevant to ground 5, there is no challenge to the findings referred to at [37.3] - [37.4] above.
[55] Primary reasons [129]. Counsel for the appellant confirmed as much: appeal ts 4, 16.
[56] Primary reasons [130]. See also [103], [105], [110].
The appellant cannot succeed in the appeal unless he is successful on each of grounds 2 - 4.
As to grounds 1 - 4, the nub of the alleged error of law is that the primary judge drew the relevant inferences on the basis of a premise that the gate was secured by a padlock. This, it is said by the appellant, is irrational and illogical. It amounts to the primary judge evaluating the issues of foreseeability, degree of risk and the taking of precautions on the basis that the suggested reasonable precaution had in fact been implemented.
In contending that illogicality in reasoning reveals an error of law counsel for the appellant referred to the decision of Hayne J in FTZK v Minister for Immigration and Border Protection.[57] There, in finding jurisdictional error on the part of the Administrative Appeals Tribunal in upholding the Minister's decision to refuse a visa, his Honour stated that various factors identified by the tribunal could not support a conclusion that there were serious reasons for considering that the visa applicant had committed crimes as alleged - none of the factors was logically probative of the applicant's commission of the alleged crimes. Accordingly, reliance on those factors showed that the tribunal must have misconstrued the relevant expression.
[57] FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754 [31].
FTZK is of no assistance in the present appeal. The appellant seeks to challenge factual findings (albeit inferential factual findings) rather than to establish the existence of jurisdictional error.
There are limits to an appeal by way of rehearing which is grounded in the contention that a factual finding on the part of the primary court is not adequately reasoned.[58] That, at bottom, is the appellant's contention in the present appeal - the appellant attacks the primary judge's reasoning on key inferential factual findings as irrational and illogical.
[58] See by analogy Greenslade v Hiew [2022] WASCA 47 [44] - [49].
But, even if the primary judge's reasoning is susceptible to that kind of legal challenge, it does not necessarily follow that the primary judge's factual conclusions are themselves erroneous. The primary judge may have reached the correct factual conclusions for the wrong reasons. An appellant in the position of the appellant in the present appeal must, ordinarily, identify error in the factual finding itself rather than the primary court's reasoning process in coming to that factual finding.[59] In an appeal by way of rehearing it will generally be necessary for the appellate court to consider the evidence and any unchallenged factual findings so as to determine for itself whether the challenged finding is to be affirmed or rejected.[60]
[59] Greenslade v Hiew [48].
[60] Gordon v Ross [2006] NSWCA 157 [81].
In this regard, whether a risk of harm is foreseeable, and the magnitude of that foreseeable risk, involves a factual judgment. So too does that part of the assessment of breach in which a trier of fact determines what a reasonable person in the position of the defendant would do by way of response to a risk.[61] In this respect it is settled that:
Whether, on a given set of facts, negligence on the part of the defendant is established must be determined by an appellate court for itself, without the appellate restraint or deference that applies to discretionary decisions and to some evaluative decisions. In other words, the standard of appellate review is one of correctness. In deciding upon the correct conclusion, the appellate court gives weight to the primary judge's conclusion, but must reach, and give effect to, its own conclusion.[62] (citations omitted)
[61] Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 [15].
[62] Lightfoot v Rockingham Wild Encounters Pty Ltd [2018] WASCA 205 [57].

Disposition

Ground 1: The gate as an 'allurement' or 'attraction'

Ground 1 challenges the primary judge's rejection of the submission that the gate was alluring to children. The appellant sought a substituted finding that the unsecured gate was an allurement to children.

In Munnings v Hydro-Electric Commission[63] Windeyer J identified two senses in which the concept of an 'allurement' may be relevant in an occupier's liability context:
1.First, whether an occupier of land had a responsibility to a child 'trespasser' by reason of having attracted or enticed him or her to come to a place (this being described as using the word 'in its proper sense').[64] Such an allurement might give rise to an imputed licence.
2.Second, as relevant to liability for negligence in that:
A thing that is alluring to a child can have another bearing on liability for negligence, for its very nature may make it foreseeable that it will in fact attract.[65]
[63] Munnings v Hydro-Electric Commission [1971] HCA 27; (1971) 125 CLR 1, 35 - 37.
[64] Munnings v Hydro-Electric Commission (35).
[65] Munnings v Hydro-Electric Commission (35).
The appellant appears to rely on the concept of allurement in the second sense. The appellant submitted that the children found the unsecured gate in the dark, saw the opportunity to use it as a swing, and proceeded to swing on it. The unsecured gate was said to be something that would be of interest to children equivalent to the railway 'turntable cases' as mentioned in Munnings v Hydro-Electric Commission.[66]
[66] Appeal ts 6 (referring to Munnings v Hydro-Electric Commission (35)).
The appellant said that in dismissing the submission that the gate was alluring the primary judge failed to distinguish between the gate unsecured (and free to be used by a child as a swing) and the gate secured by a padlock. The tenor of the submission was a complaint that the primary judge considered the issue of allurement on the basis that the gate was usually secured by a padlock. We do not accept that his Honour drew that distinction in rejecting the submission that the gate was an allurement. We accept that, immediately after rejecting the submission that the gate was alluring to children, the primary judge repeated his finding that the gate was usually secured by a padlock. The primary judge then made the observation that, when locked, the gate could not be used as a swing. This was critical to the primary judge's foreseeability finding. But this was not the basis for rejecting the submission that the gate was alluring. The primary judge said simply that the gate was 'just a gate' (see [24] above).
A gate may be 'just a gate' but nevertheless be alluring to children. In an electronic age, where sophisticated amusements are commonly available for children, it ought not be overlooked that most children - particularly a group of children thrown together - will create their own games and entertainments based on what is available in the immediate surrounds. A gate of the kind in this case, even though 'just a gate', might be used as a swing - a child sitting on the gate might be whizzed in an arc by other children pushing and pulling the gate at speed. Attempts might be made to cause the child sitting on the swinging gate to fall off. Viewed objectively, without hindsight bias as to what in fact occurred in the present case, we are satisfied that a gate of the kind in this case would be alluring to children if not secured by a padlock. The primary judge was, in our respectful view, in error in holding to the contrary.
Ground 1 should be upheld. This has implications for grounds 2 and 3. However, standing alone, the appellant's success on ground 1 is not determinative of the appeal.

Grounds 2 and 3: Whether risk of harm foreseeable and not insignificant

It is convenient to deal with grounds 2 and 3 together. Grounds 2 and 3 challenge the primary judge's findings that the appellant had not established either: (1) that the risk of harm was foreseeable; or (2) that the risk of harm was not insignificant.
The appellant's argument in support of grounds 2 and 3 is adequately summarised in the particulars in support of grounds 1 - 4 (see [45] ‑ [47] above). The proved facts were that, contrary to the usual state of affairs, the gate was unsecured by a padlock at the time of the appellant's injury. However, the primary judge's inferential findings in favour of the Town were based on evidence as to the different state of the premises (said by the appellant to be 'innocuous') in which the gate was secured by a padlock and no children showed a propensity to play on or around the gate. The appellant sought substituted findings that the risk of harm from children using the gate as a swing was foreseeable (as a risk of which the Town ought to have known) and was a risk that was not insignificant.
The Town contended that, reading primary reasons [98] - [100] as a whole, the primary judge did not regard the finding at [99] (ie that the gate was usually secured with a padlock) as necessary to the foreseeability conclusion at [100]. Rather, according to the Town, the findings at [98] of the primary reasons were a sufficient basis in and of themselves to justify the foreseeability conclusion at primary reasons [100].
We do not accept this submission. The primary judge's foreseeability conclusion is expressed in terms of '[i]n these circumstances'.[67] This refers to the circumstances at both primary reasons [98] (where the primary judge commences consideration of whether the risk was one which the Town ought to have known) and primary reasons [99]. The primary judge relied on the combined force of these circumstances as sustaining his Honour's conclusion that the appellant had not proven on the balance of probabilities that the risk of harm from children using the gate as a swing was one of which the Town 'ought to have known' for the purpose of s 5B(1)(a) CLA.
[67] Primary reasons [100].
In any case, having regard to our conclusion on ground 1, one of the findings made at primary reasons [98] has not been sustained on appeal - grounds 2 and 3 must be considered on the basis that a gate of the kind in this case would be alluring to children if not secured by a padlock.
Separately, the Town said there was nothing irrational or illogical in evaluating whether there was a foreseeable risk of harm, one that was not insignificant, on the basis that the gate was secured. The Town submitted, correctly, that the issue had to be approached prospectively. The Town accused the appellant of an impermissible retrospective analysis of risk of harm by identifying what in fact had happened and saying, 'there's a risk'. According to the Town, the primary judge had correctly assessed the risk prospectively by reference to the undisputed fact that the gate was usually secured. In assessing the risk of harm it was enough, according to the Town, that the posited precaution was usually taken - in determining foreseeability and whether there was a not insignificant risk it could be assumed that the precaution had been taken.[68]
[68] Appeal ts 43.
We do not accept this submission. The question of foreseeability and whether there was a not insignificant risk must be determined, objectively and on a prospective basis, on the basis of the risk of harm presented by the gate at the relevant time. At the relevant time the undisputed fact is that the gate was unsecured. The primary judge should have assessed the foreseeability of the risk of harm and, if foreseeable, the magnitude of the risk on the basis that the gate was unsecured. Proceeding to evaluate those matters by reference to a factual position other than the prevailing factual position - because the gate was usually secured with a padlock - was irrational and illogical. It amounted to evaluating the risk of harm presented by the gate on an assumed basis that was contrary to the factual position. The primary judge was, in our respectful view, in error in taking this approach.
The primary judge, in effect, determined the question of foreseeability and the magnitude of the risk of harm as if the relevant precaution had been taken against the risk. This is not warranted by and is inconsistent with s 5B(1) CLA. The relevant risk of harm is one which a person failed to take precautions against. The enervating effect of his Honour's approach is obvious when it is appreciated that the identified risk of harm was the risk of harm from children using the gate as a swing. It was not possible for the gate to be used as a swing if - contrary to the factual position that prevailed at the time the appellant's injury was sustained - it is assumed that the relevant precaution had been taken against the risk of harm because elsewhere the primary judge had found as a matter of fact that the gate was usually secured with a padlock.
Having thus rejected the reasoning process adopted by the primary judge, it becomes necessary for this court to consider the questions under s 5B(1)(a) and (b) CLA for itself. The risk of harm presented by the gate at the relevant time must be examined objectively and on a prospective basis. In doing so, in accordance with the outcome on ground 1, we proceed on the basis that a gate of the kind in this case would be alluring to children if not secured by a padlock. We also proceed on the basis that the gate was unsecured (even though it was usually secured by a padlock).
Otherwise, in terms of what the Town ought to have known as to the risk of harm, there are the primary judge's undisputed findings that:[69]
1.There was no evidence that children were ever ordinarily in the vicinity of the gate.
2.There was no evidence to the effect that children routinely, or indeed ever, played on or around the gate.
3.The racecourse premises were not a place frequented by children or in which children were generally seen (certainly not children under 5 years of age).
[69] Primary reasons [98].
Also relevant, in our opinion, are the primary judge's findings that: (1) while the racecourse premises was not a heavily used public space there were a number of different users, eg persons using the hall and dogwalkers; and (2) there was a nearby Indigenous community who used the racecourse premises as a shortcut to a shopping centre.
The requirement of foreseeability of risk of harm is undemanding. It can be established because the risk was known to the defendant. But it also suffices if the defendant ought to have known of the risk of harm. In the latter respect whether a risk is foreseeable is determined objectively. On the evidence in the trial record, and in particular based on the findings we have mentioned at [71] and [81] - [83] above, we are satisfied that, contrary to the primary judge's conclusion, the risk of harm was foreseeable. While there was no evidence that children played on or near the gate, and the racecourse premises were not frequented by children, the racecourse was a public open space used as a shortcut by a nearby Indigenous community. In those circumstances it was objectively likely that one or more children might enter on and seek to entertain themselves on the racecourse premises. And, in that event, the nature of the gate - in particular its ability to be used as a swing - was such that it presented a foreseeable risk of harm as a risk which the Town ought to have known.
As to whether the risk of harm was not insignificant, the Town said that two issues were raised. First, the probability of children playing in the vicinity of the gate, using it as a swing. Second, the probability of a child who was using the gate as a swing suffering harm. The Town said that the fact that the gate was usually secured by a padlock was relevant to an assessment of the first issue. The Town said further that the fact that the gate was usually secured necessarily meant that the appellant could not establish that the risk of harm was 'not insignificant'.
In terms of the first issue, the primary judge found that the probability of children playing in the vicinity of the gate, using it as a swing, was 'very low'.[70] That finding is unchallenged on appeal. It is a finding that relies in part on the circumstance that the gate was usually secured by a padlock. In that respect the Town's reliance on the gate being usually secured by a padlock may be accepted; it supports the finding that there was a low probability of children playing in the vicinity of the gate. As to the second issue, however, it is plain that the primary judge's finding that the appellant had not established that there was a 'not insignificant' risk of harm was due in large part to the fact that the gate was usually secured by a padlock. The primary judge said as much, stating that the fact that the gate was usually secured coupled with the low probability of children being in the vicinity 'drives this conclusion'.[71]
[70] Primary reasons [103].
[71] Primary reasons [105].
Even accepting, as we do, the unchallenged finding that the probability of children playing in the vicinity of the gate was very low, it does not follow that the risk of harm was not insignificant. The requirement is more demanding than the general law test of foreseeability but is 'not particularly high'.[72] The circumstance that there was a very low probability of children playing in the vicinity of the gate still admits of there being a real possibility that children might enter on and seek to entertain themselves on the racecourse premises. As a matter of objective likelihood such children would be attracted to the gate. And, having regard to the nature of the gate, the probability of a child who was using the gate as a swing suffering harm was - as the primary judge put it - 'much higher'.[73]
[72] Cox v Fellows [2013] NSWCA 206 [145]. See also Lightfoot v Rockingham Wild Encounters Pty Ltd [55].
[73] Primary reasons [104].
In the latter respect, the primary judge stated, correctly in our view, that:
Children have a natural tendency to play on things that swing. There is always a risk of injury when they do so. 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.[74]
[74] Primary reasons [104].
In finding that the appellant had not established a 'not insignificant' risk of harm the primary judge substantially relied on the circumstance that the gate was usually secured. For the reasons we have given his Honour was in error in doing so. When the issue is considered, as it should be, on the basis that the gate was unsecured at the material time, we are satisfied that the risk of harm was not insignificant given the 'much higher' probability that a child using the unsecured gate as a swing might be harmed.
Grounds 2 and 3 should be upheld. This is not, however, dispositive of the appeal. To succeed in the appeal it is also necessary for the appellant to make out ground 4.

Ground 4: Whether a reasonable person in the Town's position would have taken the precaution of securing the gate

The additional particular 4.2 added by the appellant's amendment to ground 4 (see [53] above) should be dispelled at the outset.
There is no merit in the appellant's contention that the burden on the Town in taking precautions to avoid the risk of harm to children such as the appellant did not form part of the Town's pleaded defence. The appellant pleaded that the Town owed a duty of care and:
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 [sic] 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.[75] (emphasis added)
[75] Amended statement of claim dated 20 May 2021 par 17 BAB 53.
Accordingly, by the appellant's pleaded case, the appellant himself raised the question of burden - he contended that the precaution relied on could have been effected without significant expense or inconvenience.
The Town admitted the alleged duty of care but otherwise denied the plea reproduced at [92] above.[76] The Town pleaded further that a person in the position of the Town would not have ensured that the gate was secured by a padlock because:[77]
1.The probability of a child such as the appellant (ie one who was too young to appreciate the risk of crushing his or her hand in the gate) would be at or in the vicinity of the gate without adult supervision was low.
2.The risk of harm to a child when at or in the vicinity of the gate could reasonably be avoided by the Town relying on the fact that such a child would be more than likely supervised by a parent or other adult to keep the child safe from harm.
[76] Amended defence dated 21 May 2021 par 17(a) BAB 59.
[77] Amended defence dated 21 May 2021 par 17(b) BAB 59.
Accordingly, the Town pleaded a positive case based on the objective likelihood of adult supervision. But, critically in relation to the amended particular 4.2, the Town denied that it could have secured the gate by padlock without significant expense or inconvenience. Accordingly, the issue of the burden of the contended for precaution was live on the pleadings. It was a matter for the appellant to prove. The primary judge considered the issue - as was required of his Honour given the state of the pleaded issues - and found that:
For [the Town] 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 Town] could unlock the Gate. It may have required that staff of [the Town] routinely check that the Gate was locked. This would have imposed a significant burden on [the Town].[78]
[78] Primary reasons [129].
Particular 4.2 is without merit. The burden on the Town in taking the contended for precaution formed part of the Town's pleaded defence.
Otherwise ground 4 challenges the finding, at primary reasons [141] ‑ [142], that a reasonable person in the Town's position would not have taken the precaution of ensuring that the gate was secured at all times when not open to allow vehicular access.
Ground 4 relies on the same particulars that inform grounds 1 - 3. There is a difficulty here for the appellant. With the breach finding the subject of ground 4, unlike the findings the subject of grounds 1 - 3, the primary judge's analysis was not erroneously based on the assumption that the gate was secured by a padlock. Rather, as the primary judge expressly acknowledged, the central issue was whether, in the circumstances, a reasonable person in the Town'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.[79] This presupposes that the gate was not secured by a padlock. Accordingly, the primary judge's reasoning on the breach finding the subject of ground 4 was not tainted by his Honour considering the position on an assumed basis that was contrary to the factual position. To the contrary, the primary judge considered the question of whether a reasonable person in the Town's position would have taken the precaution contended for by the appellant to avoid the risk of harm due to the failure to secure the gate by padlock.
[79] Primary reasons [126].
The appellant's submissions in support of this aspect of ground 4 were perfunctory.[80] The appellant said that:
1.The Town officer who gave evidence (a Mr Voss) did not explain why a security system involving the issue of keys to gates had failed on 28 August 2015. Nor did Mr Voss state whether there had been any investigation of the reasons for the failure or measures taken to ensure that it did not recur. (The latter point is plainly irrelevant and need not be further considered.)
2.The only burden on the Town was to put in place a system to ensure that its own policy was followed and the gate was kept secured by employees using the padlocks provided. In this respect the potential for serious harm from leaving the gate unsecured far outweighed the burden.
3.There was evidence of a system failure. On the basis of Mr Voss's evidence the gate should have been secured with a padlock on 28 August 2015. It was not. Nor was the gate secured on 9 September 2016 (when an investigator took photographs of the gate). There was no evidence as to why the padlock was missing or what, if any, inquiries had been made after the grounds person found the gate unsecured.
[80] Appellant's submissions pars 35 - 37 WAB 16.

Mr Voss's evidence was that there was a standard practice (rather than a formal policy) that when a Town employee opened a gate which was secured by a padlock he or she locked it on the way out. The purpose of the padlocking was to restrict vehicular access to public open spaces. There was a key system whereby persons might sign out a universal security key that opened the padlocks used by the Town to secure its public open spaces. However, padlocks went missing - they were cut off and removed (presumably by persons without access to the security key). Hence why it was that the Town spent $5,000 a year replacing padlocks. Mr Voss gave evidence that having to replace padlocks that had gone missing was a continuous problem for the Town.[81]
[81] ts 85 - 87.
In the circumstances it is unfair, in our view, to complain that Mr Voss did not explain why the Town's security system had failed.
The first point is that the Town had no reason to investigate the specific failure with the gate not being secured by padlock on 28 August 2015. The Town was not informed of the appellant's accident until late 2018.[82] By then it was too late to examine what had led to the specific failure to have the gate secured by a padlock on the evening of 28 August 2015. In the circumstances nothing substantive arose from the absence of any investigation or inquiries of grounds people. But, in any case, Mr Voss's evidence established that the Town's padlocks securing its public open spaces continually went missing. Insofar as the Town spent around $5,000 a year replacing missing and damaged padlocks, and each cost around $60 - $80, over 60 padlocks a year went missing. There was no suggestion in the evidence that on 28 or 29 August 2015[83] there was any intact padlock in the vicinity of the gate that had not been relocked to secure the gate. Accordingly, the available inference - and one that we would draw based on Mr Voss's evidence and the absence of a padlock on or in the vicinity of the gate when the appellant's grandmother, Ms Todd, visited the scene on 29 August 2015 to take photographs - is that some unknown person had cut off or otherwise removed the padlock.
[82] Primary reasons [66].
[83] The appellant's grandmother, Ms Todd, having gone back to the racecourse on 29 August 2015 to take some photographs: primary reasons [13].
Hence why the primary judge concluded, correctly in our view, that for the Town to have ensured that the gate was secured by padlock at all times when not open to allow vehicular access would have required the Town to have exercised active oversight of the use of the gate (see [95] above).
His Honour provided two examples of the degree of oversight the contended for precaution would have entailed.[84] First, the Town may have required that only staff of the Town could unlock the gate. Whether this would have been effective may be doubted. Restricting the security key to Town employees would not have prevented the continuous problem of padlocks being cut off and going missing. Second, the Town may have required that its staff routinely check that the gate was locked. In either case, as the primary judge found, this would have imposed a 'significant burden' on the Town.[85]
[84] Primary reasons [129].
[85] Primary reasons [129].
The finding of significant burden was unchallenged on appeal. The burden was, contrary to the appellant's submission, far more than to put in place a system to ensure that the Town's standard practice was followed. The precaution against the risk of harm required active oversight and routine checking on a continual basis.
Also unchallenged on appeal was the primary judge's finding that the risk of harm - injury to a child playing on or around the gate - if the precaution was not taken had a 'low' or 'very low' probability.[86]
[86] Primary reasons [110], [130]. See also [112].
In our view, these unchallenged findings are insurmountable obstacles to ground 4 succeeding. The breach finding the subject of ground 4, unlike the findings the subject of grounds 1 - 3, is not erroneously based on the assumption that the gate was secured by a padlock. There is nothing irrational or illogical about the primary judge's reasoning process insofar as his Honour concluded that a reasonable person in the Town's position 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. The burden this would have imposed on the Town was significant. Against that, the probability that harm would occur if the precaution was not taken was 'very low' to 'low'. Accepting the likely seriousness of harm - this ranging from the less serious to the more serious - and the primary judge's unchallenged findings as to the social utility of the Town's activity in having a gate to restrict access to the racecourse, we are not persuaded that the primary judge erred in concluding that, while there was a risk of harm to a child playing on or around the gate, it was not a risk that a reasonable person in the Town's position would have taken burdensome steps to avoid. To the contrary, for the reasons that his Honour gave and as we have further developed, we are satisfied that the primary judge was correct to conclude that a reasonable person in the Town's position 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.
The appellant has not established error in the primary judge's breach finding the subject of ground 4. All the more so the appellant has not established legal error in terms of irrational and illogical reasoning as was the basis for ground 4. Ground 4 fails. It follows that the appeal must be dismissed.

Ground 5: Whether primary judge erred in holding that it was open to the Town to rely on the presence of a supervising parent or responsible adult

It is not necessary to determine ground 5 given the appellant's failure on ground 4.
By ground 5 the appellant challenges the finding, at primary reasons [135], that a reasonable person in the position of the Town would assume that a child under the age of 3 years would not be at the racecourse premises except in the care of and under the supervision of a responsible adult. However, before so finding, the primary judge had already resolved the issue of breach adversely to the appellant, having found at primary reasons [131]:
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.
The issue of parental supervision, as relied on by the Town by way of a positive defence, provided an additional reason for the rejection of the appellant's case as to breach of duty. It was not, however, a necessary step in the primary judge concluding that the appellant had failed to establish that the Town had been negligent. Accordingly, ground 4 having been resolved against the appellant, ground 5 is an irrelevancy. The appeal must be dismissed even if the appellant establishes that the primary judge erred on the basis alleged in ground 5.
In these circumstances, while ground 5 was the subject of submissions, we would decline to determine the ground. In addition to the circumstance that ground 5 will not affect the outcome of the appeal there are two reasons why we consider it inappropriate to determine the ground:
1.First, there is an apparent disconformity between the appellant's particulars in support of ground 5 and the written submissions directed to ground 5. The particulars erroneously focus on subjective matters (particulars 5.1 - 5.3) and otherwise assert misconstruction of statute (particulars 5.4, 5.5), the latter of which is not developed in any meaningful way in the appellant's written submissions.
2.Second, the primary judge's impugned finding the subject of ground 5 is premised on an implicit assumption that the relevant class of children are those under 3 years of age. That, to our minds, is problematic. Elsewhere the breach analysis was framed by reference to children generally rather than children under 3 years of age. It is unclear why, in this aspect of the breach analysis, the primary judge saw fit to address the question of supervision by reference to the appellant's specific age.
Neither party made any submissions that addressed the latter point. In the absence of submissions dealing with the point it is inappropriate to determine the ground when it will not affect the outcome of the appeal.

Conclusion and orders

The appeal must be dismissed. The parties should be heard on the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HQ
Associate to the Honourable Justice Vaughan
2 FEBRUARY 2024