Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council (No 2)

[2019] NSWSC 1848

Supreme Court

New South Wales

Medium Neutral Citation:	Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council (No 2) [2019] NSWSC 1848
Hearing dates:	17, 18, 20 and 23 September 2019
Date of orders:	19 December 2019
Decision date:	19 December 2019
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	(1)   Verdict for the plaintiff against the first and third defendants with damages to be assessed. (2)   Proceedings dismissed as against the fourth, fifth and sixth defendants. (3)   All cross-claims dismissed. (4)   Direct that the matter be returned to the Registrar’s list for the assessment of damages.
Catchwords:	TORTS — negligence — catastrophic personal injury to child — fall off jetty through railing — public liability — duty of Council and Reserve Trust as occupiers — duty of State as designer of structure — duty of grandparents as carers of child — application of ss 5O, 5M, 42 of the Civil Liability Act 2002 (NSW)
Legislation Cited:	Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5F, 5G, 5H, 5K, 5M, 5N, 5O, 41, 42, 43A Crown Lands Act 1989 (NSW), ss 87, 92, 95, 98, 100 Heritage Act 1977 (NSW) Local Government Act 1993 (NSW) Public Works Act 1912 (NSW), ss 153, 157
Cases Cited:	Action Paintball Games Pty Ltd (In Liquidation) v Barker [2013] NSWCA 128 Bathurst Regional Council v Thompson [2012] NSWCA 340; (2012) 191 LGERA 182 Brown v Hewson [2015] NSWCA 393 Council of the Shire of Muswellbrook v Lettice & Anor; New South Wales v Lettice & Anor [2000] NSWCA 359 Dobler v Kenneth Halverson; Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113; (2010) 267 ALR 752 Glasgow Corporation v Muir [1943] AC 448 Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 Guiney v Australand Holdings Ltd & Ors; Castlehaven Sales No 2 (trading as Castlehaven Realtors & Ors v Guiney & Ors [2008] NSWCA 44 Hahn v Conley (1971) 126 CLR 276; [1971] HCA 56 Hoffmann v Boland [2013] NSWCA 158; [2013] Aust Torts Reports ¶82-134 Howmet Ltd v Economy Devices Ltd & Ors [2016] EWCA Civ 847 Laresu Pty Ltd v Clark [2010] NSWCA 180; [2010] Aust Torts Reports ¶82-068 Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 Macquarie Hastings Council v Mooney [2014] NSWCA 156; (2014) 201 LGERA 314 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Mulligan v Coffs Harbour City Council & Ors [2003] NSWSC 49; [2003] Aust Torts Reports ¶81–689 Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited (2009) 77 NSWLR 360; [2009] NSWCA 263 Robertson v Swincer (1989) 52 SASR 356; [1989] SASC 1758 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; [1998] HCA 5 Sharp v Parramatta City Council [2015] NSWCA 260; (2015) 209 LGERA 220 Shaw v Thomas [2010] NSWCA 169; [2010] Aust Torts Reports ¶82–065 Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308; (2006) 150 LGERA 11 South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 Sparks v Hobson; Gray v Hobson [2018] NSWCA 29; (2018) 361 ALR 115 St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185 Tedmund Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council & Ors [2019] NSWSC 1249 Tweed Shire Council v Carly Eden Howarth (by her tutor Trent Howarth) [2009] NSWCA 103; [2009] Aust Torts Reports ¶82-101 Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 Voli v Inglewood Shire Council & Anor (1963) 110 CLR 74; [1963] HCA 15 Waverley Council v Ferreira [2005] NSWCA 418; [2005] Aust Torts Reports ¶81–818 Weber v Greater Hume Shire Council [2019] NSWCA 74; (2019) 237 LGERA 363
Category:	Principal judgment
Parties:	Tedmund Polglase by his tutor Jeffrey Polglase (Plaintiff) Coffs Harbour City Council (First Defendant) Coffs Jetty Foreshore Reserve Trust (Third Defendant) State of New South Wales (Fourth Defendant) Betty Whitton (Fifth Defendant) David Whitton (Sixth Defendant)
Representation:	Counsel: R S McIlwaine SC with R E Quickenden (Plaintiff) R Sheldon SC with S J Walsh (First and Third Defendants) N E Chen SC with H Chiu (Fourth Defendant) M Hutchings (Fifth and Sixth Defendants)   Solicitors: Whitelaw McDonald (Plaintiff) Mills Oakley (First and Third Defendants) Wotton & Kearney (Fourth Defendant) Sparke Helmore (Fifth and Sixth Defendants)
File Number(s):	2014/281434
Publication restriction:	None

Judgment

Introduction

The proceedings

The events leading to the accident

The mechanics of the fall

The Coffs Harbour jetty

Restoration of the jetty

The design of the railing

Responsibility for the jetty on reopening

Responsibility for the jetty after the handover

Expert evidence

Mr Patterson’s evidence

Dr Cooke’s evidence

Mr Keirnan’s evidence

The joint report

The risk of harm

Liability of the Council and the Trust

Liability of the Council and Trust as occupier

The events after restoration and the knowledge of the Council

Breach of duty

Sections 42 and 43A of the CLA

Reasonable Precautions

Liability of the State

Negligence in design

Section 5M of the CLA

Liability of Mr and Mrs Whitton

Conclusion

Judgment

Introduction

1. On 30 September 2011, the plaintiff, who was at the time five years of age, sustained severe injuries, including a brain injury, when he fell through a railing on the Coffs Harbour Jetty (“the jetty”) situated at Coffs Harbour in the State of New South Wales.

2. The plaintiff originally commenced proceedings on 25 September 2014 against only four defendants, being:

1. Coffs Harbour City Council (“the Council”);

2. Coffs Jetty Foreshore Reserve Trust;

3. Coffs Coast State Park Trust (“the Trust”); and

4. State of New South Wales (“the State”).

3. The plaintiff subsequently discontinued the proceedings against the second defendant.

4. By way of an amended statement of claim filed on 9 March 2017, the fifth and sixth defendants, Betty (“Mrs Whitton”) and David Whitton (“Mr Whitton”), the plaintiff’s grandparents, were joined to the proceedings.

5. The plaintiff alleges that his accident was caused by the negligence of each of the defendants. It is the Plaintiff’s claim that there was negligence in the design and construction of the railing affixed to the jetty during its restoration in the 1990s and that the railing should have been altered in some way prior to his accident to make the jetty safe for use by children. He also asserts that his grandparents were negligent in their care of him.

6. The issues in the proceedings are complex. The issues include questions relating to:

1. The nature and extent of the duty of care owed by the State arising out of the restoration of the jetty in the mid-1990s and any continuing responsibility in respect of the jetty at the time of the plaintiff’s accident;

2. The nature and extent of any duty of care owed by the Council in circumstances in which the jetty was handed over to the Council in 2002;

3. The existence and scope of any duty of care owed by Mr and Mrs Whitton arising out of the responsibility they took on when they were caring for the plaintiff at the time of the accident; and

4. The application of various provisions of the Civil Liability Act2002 (NSW) (“the CLA”) including sections 5B, 5C, 5D, 5F, 5G, 5H, 5K, 5M, 5N, 5O and sections 41, 42 and 43A.

7. It is appropriate, particularly in a case of this type, to have regard to the observations of McHugh J in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [34] (“Dovuro”):

“34.   If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community or, in cases of expertise, of the experts in that particular community. To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute. That is not to say that a defendant will always escape liability by proving that his or her conduct was in accord with common practice. From time to time cases will arise where, despite the common practice in a field of endeavour, a reasonable person in the defendant's position would have foreseen and taken steps to eliminate or reduce the risk that caused harm to the plaintiff. But before holding a defendant negligent even though that person has complied with common practice, the tribunal of fact had better first make certain that it has not used hindsight to find negligence. Compliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently. And the evidentiary presumption that arises from complying with common practice should be displaced only where there is a persuasive reason for concluding that the common practice of the field of activity fell short of what reasonable care required.”

8. Those words seem particularly apt in a claim by the plaintiff against his grandparents arising out of their care of him and claims against the local Council and the State which are said to be supported by expert evidence which was not the subject of any challenge. The result of these proceedings is reflective of his Honour’s observations.

The proceedings

9. The essential allegation made by the plaintiff [1] is that at 3.45pm on 30 September 2011 he was walking along and/or situated on the jetty when he fell through a railing fence affixed to the jetty, falling a distance of over 4 metres onto hard sand below. A photo of the jetty taken by the Council’s risk coordinator on 4 October 2011 is below:

1. para 14 of the Amended Statement of Claim.

10. He sues each of the Council, the Trust and the State on the basis that they were the owners and/or occupiers of the jetty at all relevant times. “All relevant times” is not specified in the Amended Statement of Claim. There is a dispute as to who owned and occupied the jetty and when it might have been so owned or occupied by any of those three defendants. Although only the relationship of occupier/owner was pleaded as being the basis of the existence of a duty of care, the plaintiff also pursued a negligent design case.

11. I should emphasise that the following terms have all been used interchangeably by the parties and in the documents and the expert reports to mean the same thing: fence, railing fence, guardrail, safety fence, safety rail, handrail, and balustrade. In reality, the rails along each side of the jetty were erected as a physical barrier rather than as a handrail to assist people walking along the jetty. For the purposes of any standards and the Building Code of Australia (“BCA”), the railing is more a balustrade than a handrail but the various persons referred to in the documents have tended to use the terms interchangeably with the result that a range of words or terms are used in this judgment to reflect the same thing.

12. The plaintiff, who is currently 13 years of age, did not give evidence. He sustained severe injuries. The hearing proceeded as a hearing on liability only, the Court having ordered that the issue of liability and damages be separately determined.

13. The only oral evidence came from Mrs Whitton. Mrs Whitton was called in the plaintiff’s case. The plaintiff also tendered paras 1 to 9 of her statement dated 20 June 2017, [2] which had been prepared by her solicitors.

    2. Ex 28.

14. She was asked some limited questions in chief and then cross-examined. No other witnesses were called.

15. Expert reports were admitted into evidence from Dr John Cooke, Mr Warwick Keirnan and Mr Andrew Patterson, without oral evidence from any of the experts.

16. There is a joint statement of agreed facts and issues. Whilst the parties agreed on a number of facts relating to the history of the jetty, the only facts agreed in respect of the circumstances of the accident are that on 30 September 2011, Mr and Mrs Whitton took the plaintiff to the jetty and on 30 September 2011, the plaintiff fell from the jetty and suffered injury. The agreed issues comprise 20 in number and include issues relating to the existence of duty, breach and causation, as well as the availability of various statutory defences arising out of the CLA.

17. Whether any of the defendants were negligent must be determined in accordance with the CLA.

18. The plaintiff did not make any reference to the provisions of the CLA and did not plead the risk of harm for the purposes of the CLA in either the original or the amended statement of claim.

The events leading to the accident

19. There is an issue as to the precise mechanics of the fall. Leaving aside the information contained in the COPS reports, the only factual evidence is from Mr and Mrs Whitton.

20. Mrs Whitton is the maternal grandmother of the plaintiff and is currently 72 years of age. She said in her statement dated 20 June 2017 [3] that she and Mr Whitton were on the way to Yamba for a family holiday when they met up with the plaintiff and his paternal grandparents, Debbie and Jeffrey Polglase (being the plaintiff’s tutor in these proceedings) at the Caribbean Motel, Coffs Harbour. The plaintiff had been with his paternal grandparents on a holiday in Darlington Park and it seems that there was to be a change of grandparents looking after the plaintiff at that time.

    3. Ex 28.

21. The plaintiff’s mother, Fiona, was due to travel with Mr and Mrs Whitton but she had to have emergency surgery. After checking into the motel room, Mr and Mrs Whitton decided to go for a walk along the jetty and take a photo of the plaintiff to send to the plaintiff’s mother. Mrs Whitton recalled that the plaintiff’s mother had a photo of her holding the plaintiff on the jetty when he was a baby.

22. Mrs Whitton asked the plaintiff to change from his thongs to a pair of canvass shoes, as they would be more comfortable for him. They then proceeded to walk across the road and then a further distance of approximately 400 metres to the jetty.

23. Mrs Whitton said in her statement that she had walked out along the jetty in the past with her own children although she admitted in cross-examination that that had been many years earlier. She said that she was aware that many families with small children walk or ride or play on the jetty as it was highlighted as a major tourist attraction. She said that she had seen children looking over the edge and leaning on the rails.

24. They were about one quarter of the way along the jetty when the events leading to the accident occurred. Mrs Whitton said in her oral evidence that the plaintiff was in the middle, between her and her husband, as they were walking along. They walked over to the left side of the jetty and looked out at people swimming. After a while, they were ready to move on. In para 9 of her statement, she says that before walking away from the jetty edge and while still close to the plaintiff, she half turned and out of the corner of her eye saw the plaintiff as he was falling from the jetty. She screamed to anyone below to help him and ran quickly back down the jetty onto the sand where the plaintiff lay.

25. Mrs Whitton expanded on her evidence in cross-examination. She said that after putting the plaintiff’s jacket on, she recalled the plaintiff walking with his arms extended out from his shoulders horizontally just over the soft sand as they went onto the jetty. He was facing towards the centre of the jetty at the time. She did not agree or recall that he was walking sideways with his arms out in that manner but agreed that she said to him, “Come away from the edge and walk with us”. She agreed that she did not want him standing like that as it looked dangerous because of the edge of the jetty. [4]

    4. T.53.

26. She said that the plaintiff was between her and her husband as they walked to the railing. Neither had a hold of the plaintiff’s hand. She did not agree that and said she could not recall whether she was on the plaintiff’s left and could not recall whether the plaintiff had a hold of the middle rail of the railing. She did recall Mr Whitton suggesting something like “Let’s keep walking”. She then took a step to her right. She said it may have been one or two steps and then she half turned around to follow her husband and said that she would have said to the plaintiff, “Let’s go”. She agreed that she then caught sight of some movement out of the corner of her eye on her left side. She also said that as they were standing at the rail they were close together, just touching one another.

27. It was put to her that she must have moved from behind the plaintiff and towards the end of the jetty and that in doing that, she had left him at the rail. She said she just thought that he was following them and she was not very far from him and she estimated only being a few feet from the plaintiff. [5] She thinks that her husband was a little bit in front of them at the time.

    5. T.55.

28. Mrs Whitton was questioned by her own Counsel but no questions were asked about the circumstances of the accident. She said that she had spent quite a lot of time with the plaintiff in the five years of his life, sometimes seeing him every day and picking him up from school. She clarified that to mean pre-school. He would have some sleepovers at their house. She formed the view that he was a gentle, lovely little child and usually very obedient. She said she went to the jetty so that they could take a photo to send to the plaintiff’s mother. She did not recall how long she had been on the jetty immediately prior to the accident.

29. Mr Whitton did not give evidence. Paras 10-13 and 28 of his statement of 1 July 2015 were admitted into evidence. [6] Paragraphs 10-13 are set out below:

“10.   We reached the jetty at about 3.30pm after a walk of about 400 metres. As we started out along the deck which runs west to east from land to sea and where there was no drop, Ted walked for a short distance with his back to the railing and his arms extended horizontally. Betty told him to “Come away from the edge and walk with us”.

11.   As we walked out along the jetty Ted was between Betty and I, and at no time was Ted any further than 2 metres from me. We had been on the jetty for about 5 minutes and we reached a point about 40 – 50 metres from the jetty entry, Betty put Ted’s jacket on as there was a coolish breeze blowing. We then moved to the northern rails and were looking northward watching people walking on the beach and some swimming.

12.   My wife was on the western side of Ted and I was on his eastern side. To the best of my recollection Ted was standing with his feet on the jetty deck (not the hob or curb), and he was looking down between the top and middle rail at the swimmers while holding on to the middle rail. Betty was talking to Ted, and pointing things out to him.

13.   After a while I suggested we move on, and I turned to the right to start walking, momentarily losing sight of Ted, but knowing that Betty was close to him, and assuming that the protective fence was safe. Almost immediately she screamed and called out that Ted had fallen. She looked down and saw Ted and called out to people to help him.”

6. Ex 1D3.

30. Mr Whitton thus last saw the plaintiff as the plaintiff was standing with his feet on the jetty deck looking down between the top and the middle rail holding onto the middle rail. He turned to the right momentarily losing sight of the plaintiff and then heard Mrs Whitton scream almost immediately. He assumed that the fence was safe.

31. The Police attended the scene and investigated the accident. There are two COPS reports, being COPS Report Event reference E45861048 and Case Report C45718627. [7] The information contained in the COPS reports is uncontroversial. I ruled on objections and struck out a sentence in the COPS report: Tedmund Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council & Ors [2019] NSWSC 1249.

    7. Exs 21 and 22.

30. It is recorded that both grandparents were only about two metres from the young child when he fell.

31. As I have said, Mrs Whitton said she was somewhat closer in oral evidence and her oral evidence is not subject to challenge. I accept her evidence that whilst she and her husband and the plaintiff were standing at the rail, they were close together and maybe touching one another. I would also accept that she thought that the plaintiff was following them and that she had only moved a few feet when she observed the plaintiff falling out of the corner of her eye. This is consistent with Mr Whitton’s evidence, in that he heard his wife scream immediately after he turned away from the railing.

The mechanics of the fall

34. Immediately prior to his fall, the plaintiff was standing with Mr and Mrs Whitton at some point adjacent to the railing to their left as they walked along. The vertical drop to the hard sand below was 4.08 metres.

35. It was not suggested to Mrs Whitton that the plaintiff was attempting to climb up onto the railing or doing anything with the railing other than just standing there. Neither Mrs Whitton nor Mr Whitton saw through which part of the two gaps in the railing the plaintiff fell. There is no direct evidence of how he came to fall in the sense of observations by any other witnesses.

36. Bearing in mind his position as observed by Mr and Mrs Whitton immediately prior to the fall and that his fall must have commenced in the time that it took Mrs Whitton to turn away and walk one or two paces and that he was only five years old at the time, I infer from the evidence that he fell through the railing at a point between the top railing and the kerb or decking. There would not have been time for the plaintiff to have climbed up and over the top rail and fallen off the top rail. The circumstances give rise to a reasonable and definite inference, being that he fell under rather than over the top rail.

37. Whether he fell between the top and middle rail or the middle and bottom kerb is more controversial.

38. The distance between the top rail and the middle rail is agreed by the experts to have been 480mm. The gap between the middle rail and kerb was 395mm.

39. It is agreed that there was sufficient space for the plaintiff to fall between the top and middle rails as well as between the middle rail and kerb.

40. In para 28 of his statement, Mr Whitton says that at the time the plaintiff was about 110cms tall which he says would have made the top of his head level with the top rail when he was standing on the deck.

41. When last seen, the plaintiff was standing on the timber decking (not the raised kerb) with his arms outstretched holding onto the middle rail.

42. There is no direct evidence as to whether he fell through the upper or lower gap. He may have tripped on the kerb as he was turning to follow his grandparents and slipped underneath the middle rail. He might have taken a step forward and placed his foot on the kerb and lent over the middle rail to look at the water below just at the point when his grandparents turned away. He may have just bent down and placed his knees on the kerb and placed his head below the middle rail and fallen.

43. A finding as to whether the plaintiff fell between the top gap or lower gap requires me to speculate. In my view, the circumstances give rise to conflicting inferences of equal degrees of probability so that the choice between them is a matter of conjecture: Luxton v Vines (1952) 85 CLR 352 at 358; [1952] HCA 19.

44. The plaintiff fell through either the top or the lower gap. Both gaps were sufficient to allow the plaintiff to pass through without any hindrance or difficulty. I am unable to find precisely how he came to fall or whether he fell through the top or lower gap.

The Coffs Harbour jetty

45. The Coffs Harbour jetty was constructed in 1892. On 31 December 1906, it was gazetted as a national work in the sense that it became a heritage item.

46. It is situated near the centre of the Coffs Harbour port, projecting from the foreshore area in a south-easterly direction into the harbour. A crane was erected at the end of the jetty for loading. It had a single 3ꞌ6ꞌꞌ railway track down its centre for nearly 100 years of its existence prior to its restoration in the mid-1990s.

47. Cargo handling over the jetty reached its peak in the 1930s. The jetty was extended on two occasions, the last time being immediately after the Second World War. Use of the jetty for exports reached its peak in the early 1950s. In the 1960s, shipping to Coffs Harbour declined and maintenance work on the jetty was correspondingly reduced. By the 1970s, its condition was too poor for regular use by ships. As commercial cargo out of Coffs Harbour declined, the importance of fishing and recreational vessels increased. In the 1970s the Public Works Department (“the Department”) built a safe harbour for fishing and pleasure craft near Mutton Bird Island, adjacent to the northern breakwater.

48. From July 1978, the responsibility for maintenance of the jetty was transferred from the Department to the Maritime Services Board, although the maintenance work was actually carried out by the Department. In 1982, the railway track was removed and in 1984, both cranes situated on the jetty were removed. The jetty fell into disuse. In 1984, it was closed to the public.

49. In 1988, the Council listed the jetty as an item of environmental heritage, preventing any demolition or renovation without the consent of Council. In 1990, the then Department of Lands wrote to Council regarding Council accepting ongoing responsibility for the jetty. On 6 November 1990, the Council wrote to the Department of Lands agreeing to accept responsibility, provided that the jetty was first brought up to a state of full maintenance and safety by the Department and that satisfactory legal arrangements could be put in place regarding Council’s legal liabilities which would flow from acceptance of responsibility for the jetty. [8] The Department then commenced the process of restoring the jetty for its intended use as a public walkway.

    8. Ex 1D1(5).

Restoration of the jetty

50. A period of community consultation took place and a steering committee was formed, comprising representatives of various government departments as well as the Council. As set out in the steering committee report, [9] the Council agreed to accept responsibility for all ongoing maintenance associated with the restored structure, subject to the State meeting the once-off cost of the restoration.

    9. Ex 1D1(50).

51. In 1991, the Ministerial Taskforce proposed that the part of the jetty that had been extended in the 1940s (by 91 metres) be demolished and the shortened jetty be restored. A development application was made in the joint names of the Department and the Council on 11 December 1991. A conservation plan was completed by 14 December 1994 (“the Conservation Plan”). As part of this process, it was agreed that the wider jetty would be preserved because of its heritage significance and that lighting, handrails and a firefighting service should be added because of public safety concerns.

52. According to the Conservation Plan, [10] few timber jetties remained in New South Wales by the 1990s. As at the time of the commencement of the restoration, the jetty was listed as an item having environmental heritage but was not subject to any conservation order under the Heritage Act 1977 (NSW). It is one of the few ocean jetties remaining in Australia. As noted in the Conservation Plan, it is the layout of the structure rather than the fabric that is significant.

    10. Ex 4D1(10).

53. It is the most prominent landmark in Coffs Harbour. It was described in the Conservation Plan as the focal point of Coffs Harbour, not only visually but also socially. The authors described it as being equivalent to a town square. After restoration it was promoted as a tourist attraction and a major attraction for families. The compatible uses of the jetty as set out in the Conservation Plan [11] include passive recreational use and limited hospitality, retail and tourism uses.

    11. Page 64.

54. In his memo dated 22 October 1997, [12] that being around the time of completion of the restoration, the Council’s risk coordinator observed that the jetty would become one of the city’s popular attractions, open 24 hours a day and that it would also become one of the major risk areas for litigation including personal injury.

    12. Ex 4D1(303).

55. Subsequent to the completion of the Conservation Plan, the Department set about the process of restoring the jetty.

56. On 20 December 1994, there was a site meeting, including representatives of both the Council and the Department. The minutes record that the Council requested a fence along the sides of the jetty. [13]

    13. Ex 4D1(158).

57. On 7 February 1995, the Heritage Council endorsed the Conservation Plan and requested that restoration of the jetty be carried out in accordance with the Conservation Plan.

58. On 14 March 1995, the Council resolved to support the development application for the reconstruction of the jetty and the demolition of the other 91 metres, as well as to have discussions with the Department to set in place satisfactory legal arrangements regarding Council’s legal liabilities which would follow on from acceptance of responsibility for the jetty.

59. Minutes of a meeting of the Council on 27 March 1995 record that the Council supported the development application for the reconstruction of the jetty and that it would seek the Director of Planning’s concurrence to issue a development consent.

60. In October 1995, the Minister announced funding for the restoration of the jetty and the Department called for tenders. The design documentation was completed and tenders were called for in October 1995.

61. The Department let the refurbishment contract to ProBase Pty Ltd (“ProBase”) in 1996. There followed a number of meetings of the partnering committee, including representatives of the Department and the Council.

62. It is clear from the documents that the jetty was restored for the purposes of allowing safe pedestrian access and that it was being restored by the Department on the basis that the Council would assume responsibility for the jetty.

63. The restoration of the jetty was undertaken at a cost of $3.8 million. Although the jetty was opened on 11 October 1997, the Department retained responsibility for the jetty even after opening. Prior to the opening of the restored jetty on 11 October 1997, the Department wrote to the Council requesting that it execute a notice of handing over of a national work. [14] The handover did not take place until 18 October 2002.

    14. Ex 4D1(311).

The design of the railing

64. The restoration was undertaken by the State and its officers were ultimately responsible for the design, construction and installation of the railing which was erected on each side of the restored jetty and remained in place at the time of the accident.

65. Whilst the restoration of the jetty was undertaken by the State, representatives of the Council were involved at all stages. This included the Mayor and Deputy Mayor being members of the Steering Committee; the development application being submitted in the joint names of the Department and the Council; the Council requesting a fence along the sides; and the Council attending pre-partnering meetings and being part of the partnering process which included discussion as to the design of the railing/fence/balustrade. It was always intended that the jetty would be handed over to the Council after restoration.

66. The jetty was not restored to allow commercial or maritime use, other than the stairs leading down to the small platform on one side where small craft might tie up. It was restored so that it could be used as a public walkway. As the community consultation report makes clear, it would be a place where families could go.

67. Attached to the project report no. 1 dated 30 October 1995 [15] is an artist’s impression of the restored jetty, particularly of the stairs leading down to the platform at water level at which pleasure craft might drop off persons. The railing depicted in the artist’s impression is different from that which was ultimately constructed. The tender specifications completed in October 1995 include a specification in respect of railing. [16] The specification required posts and rails with galvanised fencing wire. This was not the railing ultimately constructed.

    15. Ex 1D1(95).

    16. Ex 1D1(114).

68. On 12 December 1995, the Department, through its State Projects division, provided comments in respect of the timber handrail, noting that the new handrails should not detract from the visual character of the jetty platform and that a lighter handrail would be less intrusive to the jetty’s platform; that, for example, the mid-rail could be wire rather than timber. [17]

    17. Ex 1D1(168).

69. On 29 January 1996, Joy Singh, an architect employed by the State working in the Heritage Group of the State Projects division, commented on the handrails, noting that they appeared bulky and may be confused as being part of the original structure. She suggested that a more appropriate solution would be a timber top-rail, rectangular in section with stainless steel (marine grade) vertical supports and mid-rail wires.

70. As noted at the project meeting no. 1 on 8 February 1996, the criteria for final design of the fence would be acceptance by the Heritage Group, the degree of future maintenance by Coffs Harbour City Council and construction costs.

71. Alternative designs were submitted at the partnering meeting on 27 February 1996. [18] There was a discussion on the rails and two alternative designs were submitted to the meeting; one being with aluminium rails and the other with timber rails of a lighter construction than that specified. The partnering group determined that the heritage architect was to be consulted as to whether the design was acceptable and that ProBase should supply a price for the construction of the alternative designs.

    18. Ex 1D1(CB 166).

72. The minutes of the partnering meeting no. 2 on 16 April 1996 [19] record that the Heritage Group had responded to the effect that the design was acceptable. There was reference to the size of the post being questioned by the contractor, ProBase. At project meeting no. 3 on 17 April 1996, it was noted that the fence details had been agreed with the other partners but the details of the size of the post was to be determined. At project meeting no. 4 there is reference to the fence details to be finalised.

    19. Ex 4.

73. On 25 November 1996, Jeff Clancy, the State’s project manager, wrote to Ms Singh providing details of the proposed handrail. [20]

    20. Ex 1D1(30–568).

74. On 25 November 1996, Ms Singh wrote to Mr Clancy regarding Mr Clancy’s details of the proposed handrail to the jetty. [21] She stated that:

“The intention of the handrail is to:

●   provide safety to the public by complying with the building codes;

●   maintaining the platform quality of the jetty by means of introducing a structure as light as possible;

●   the proposed design should not be confused as the original, but a contemporary addition to the jetty.”

21. Ex 4.

75. She stated that the proposed design was acceptable on heritage grounds.

76. The issue of fence posts was discussed at partnering meeting no. 6 on 9 December 1996. The contractor was then instructed by Kevin Plummer, a project manager employed by the Department, to locate fence posts midway on each bend with two posts being installed between the big posts.

77. The design of the railing appears to have been finalised by the end of 1996.

78. The railing was erected in 1997 and was in situ as at the time of reopening in 1997. It remained in place unchanged as at the date of the accident.

Responsibility for the jetty on reopening

79. Although it was intended that the jetty would be handed over to the Council on completion of the restoration works, this did not occur. There was a delay in the establishment of the reserve trust and there were issues as to the mechanics of the handover. The Council resolved on 18 December 1997 to defer the handover until the Maintenance Report had been prepared, costings could be assessed and the legal conditions of the handover could be reviewed.

80. The State remained responsible for the jetty until handover on 18 October 2002. The Council ultimately agree to reimburse the State in respect of maintenance costs incurred by the State during the period between reopening and the handover.

Responsibility for the jetty after the handover

81. There is a dispute between the Council and the Trust (jointly represented) and the State, as to responsibility for the jetty after handover in 2002. Whilst the Council and the Trust accept that they had some responsibility, they say that their responsibility was limited to ongoing “maintenance” and other administrative matters. They say that the State remained an owner and occupier and had partial ongoing control of the jetty.

82. The State submits that subsequent to handover to the Council, it had no responsibility at all in respect of the jetty. It says that it did not occupy the jetty and it had no control over the jetty.

83. Although the plaintiff alleges that the State was the owner and/or occupier of the jetty, [22] presumably meaning at the date of the plaintiff’s accident, the plaintiff did not address the basis on which it is said to have remained an occupier. The competing positions were addressed by the Council and the State.

    22. Amended statement of claim para 6.

84. The Council submitted that the State continued to have a degree of control over the jetty and that the obligations of the Council were necessarily confined by the limitations of the handover to the Council as set out in s 153 of the Public Works Act 1912 (NSW) (now titled the Public Works and Procurement Act 1912 (NSW)). That is, it was submitted that the obligation of the Council was only to “maintain” the jetty, not to upgrade or change it or alter its structure.

85. The Council sought to emphasise that there is a distinction between maintaining and changing or upgrading. As such, it said, the State still had a degree of control over the jetty, such that it could also be considered to be an occupier of the jetty and owe an ongoing duty of care as an occupier at the time of the plaintiff’s accident.

86. The State points out that not only was there a handover to the Council in accordance with s 153 of the Public Works Act but that there was a handover of control and responsibility for the land on which the jetty was affixed, such that the Trust was conferred an estate in fee simple on the land for the purposes of providing care, control and management of the land within which the jetty was situated and thus the jetty itself.

87. Not that it is determinative but it is notable that there is no evidence of any document or communication between the Council and the State regarding the jetty following the handover in 2002. That is, the Council did not tender even one document demonstrating the State’s ongoing responsibility or acceptance of any responsibility.

88. It might be said that the Council’s attempt to limit its responsibility for the jetty after handover is inconsistent with documentation coming into existence in the time leading up to handover which generally refers to the Council accepting responsibility for the jetty.

89. However, the determination of the dispute between the defendants on this issue lies not in drawing inferences from the absence of documents or from earlier documents as to what was proposed but from considering the terms of the documents adduced in evidence and properly considering and construing the statutory framework.

90. In 1906, the jetty was declared a national work under the Public Works Act. This imposed an obligation on the State to maintain, manage and administer the jetty. That responsibility continued to exist after the jetty was reopened in 1997 and up until the date of handover.

81. Section 153 of the Public Works Act specifies that the Minister may, with the agreement of a council, declare that a national work is handed over either temporarily or permanently to a council. On 18 October 2002, as set out in the official notice in Gazette No 178, the Minister for Public Works declared that the jetty was handed over permanently to the Council.

82. Section 153(2) of the Public Works Act imposes an obligation on the Council to maintain, manage and administer the work. It is important to emphasise that by virtue of s 153(1) the jetty was handed over permanently to the Council. It was not envisaged that the jetty would in some way be merely temporarily looked after by the Council.

83. Further, it ceased to be a national work at the time of handover. It was the Council and/or the Trust which had the right to control entry onto the jetty or the land on which the jetty stood. It was the Council which had the power and ability to erect appropriate signage. To the extent that the jetty was not safe for use, it was the Council which had the power to do something about it in terms of modifying the railing, if that was the problem, or precluding access to the jetty, if that was necessary.

84. Section 153 of the Public Works Act must be interpreted having regard to the words used, the context in which those words appear and in a purposive of manner. As was stated in Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 at [69].

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.” (Footnotes omitted.)

95. The context in which the words “maintain, manage and administer” are used is that the jetty was handed over permanently to the Council. In considering the meaning of “maintain, manage and administer”, it is important to have regard to the fact that the Minister was handing over the structure to the Council. The Minister did not merely appoint the Council as its agent. There are other provisions of the Public Works Act pursuant to which the Minister might have done so.

96. In those circumstances, the term “maintain, manage and administer” should be given a broad, rather than limited meaning. The words should be construed so as to reflect the intent of a permanent handover. The proposition that s 153 should be interpreted so narrowly that the Council was not empowered to make (or charged with the responsibility for making) the jetty safe for its intended use by altering the railing should be rejected.

97. The handover process which happened on 18 October 2002 was only one part of the process happening on that day. There was a further process under pt 5 of the Crown Lands Act1989 (NSW). It was an agreed fact that the jetty was situated on land registered as Lot 546 of DP45226. The land was Crown land. By official notice in Gazette No. 178 dated 18 October 2002, the Minister for Land and Water Conservation exercised his power under s 87 of the Crown Lands Act to reserve the land as Reserve No. 1003728. Further, on the same day, 18 October 2002, the Trust was appointed under s 92 (1) of the Crown Lands Act as trustee of Reserve No. 1003728. The Council was a manager of affairs of the Trust, in accordance with s 95(1) of the Crown Lands Act.

98. By virtue of s 100(1) of the Crown Lands Act, the Trust was conferred an estate in fee simple on the land on which the jetty stood. Further, the Trust was charged with the care, control and management of the land (being Reserve No. 1003728) on which the jetty stood.

99. The Council submits that the handover connotes an arrangement falling short of a transfer of any legal right or title in the jetty/land and, indeed, that the relationship was akin to the relationship of a managing agent of commercial premises as identified in cases such as Laresu Pty Ltd v Clark [2010] NSWCA 180; [2010] Aust Torts Reports ¶82-068.

100. I doubt that the relationship is analogous to that of a managing agent or any type of agent. If the Minister wished to appoint the Council as merely the Minister’s agent, the Minister could have done so under s 157 of the Public Works Act. As set out in s 157(1) the Minister may appoint a council as the Minister’s agent for the care, control and management of a national work. The Minister did not do so.

101. A reserve trust established under s 92(1) of the Crown Lands Act is constituted as a corporation having as its corporate name the name assigned to the trust. As set out in s 92(5), a reserve trust is charged with the care, control and management of the reserve. Under s 95(1), the Minister may appoint a council to manage the affairs of a reserve trust. The Council was appointed to manage the Trust.

102. The Trust thus held an estate in fee simple over the land on which the jetty stood. It thus had the powers of a landowner but qualified by the purpose for which it was created: see Weber v Greater Hume Shire Council [2019] NSWCA 74; (2019) 237 LGERA 363. The Trust was charged with the care, control and management of the land. By virtue of the handover of the national work (being the jetty) to the Council on 18 October 2002, the Council was charged with the responsibility to maintain, manage and administer it.

103. The Council had the management and control of the jetty at the time of the accident. I do not consider that the State remained an occupier of the jetty at the time of the plaintiff’s accident. The touchstone of occupation is control. There is no evidence that it had exercised any control over the jetty since the handover on 18 October 2002.

104. The situation in respect of the jetty was not analogous to that of an owner of commercial premises and the managing agent. There is no evidence that the State had inspected the jetty between the date of handover and the day of the plaintiff’s accident. There is no evidence that it was involved in the change of the signage post after the plaintiff’s accident.

105. The responsibility for the safe condition of the jetty at the time of the plaintiff’s accident rested with the Council in all practical and relevant senses. Whether or not the State might still have been described as “the owner of the jetty” does not, in the circumstances, lead to the imposition of a duty of care to a user of the jetty in 2011 of the nature and scope suggested. Even if the State remained an owner as asserted by the plaintiff, the maintenance, management and administration of the jetty had been handed over to the Council. If it was an owner, it was entitled to appoint the Council to discharge its responsibilities and it did so.

106. The circumstances of this matter are quite different from those considered in Mulligan v Coffs Harbour City Council & Ors [2003] NSWSC 49; [2003] Aust Torts Reports ¶81–689 (“Mulligan”). In Mulligan at [354], Whealy J held that, in respect of Crown land (a creek) the subject of a reserve trust, the State remained the owner of the land, although the Council had been appointed the manager of the trust under s 95 of the Crown Lands Act.

107. In Mulligan, the State, through the department, had undertaken significant works and demonstrated some ongoing control of that which was happening in and around the creek.

108. This matter does not involve the condition of land. It is the condition of the structure which was permanently handed over to the Council which is relevant.

109. Accordingly, I find that:

1. The State was responsible for and carried out the restoration of the jetty in the 1990s. This included the design and construction of the railing erected on each side of the jetty.

2. The State remained responsible for and the occupier of the jetty during the period between reopening in 1997 and handover to the Council on 18 October 2002.

3. At all times subsequent to the handover in 2002, the Council was responsible for the jetty, was the occupier of the jetty and was the manager of the Trust. It had the power to alter or change the railing if it was necessary to do so for safety reasons.

4. As and from its creation at the time of handover, the Trust was the owner of the land on which the jetty stood. The Trust was managed by the Council.

Expert evidence

110. Reports from three experts were admitted, being:

1. Reports of Dr John Cooke dated 24 September 2015 and 22 December 2016; [23]

2. Reports of Mr Warwick Keirnan dated 1 June 2016 and 6 June 2019; [24] and

3. Report of Mr Andrew Patterson dated 31 May 2016. [25]

   23. Exs 23 and 24.

   24. Exs 4D2 and 3.

   25. Ex 1D2.

111. In addition, Dr Cooke and Mr Keirnan met in conclave and prepared a joint report dated 27 August 2019. [26]

     26. Ex 25.

112. In the joint report they provided answers to 56 questions. Mr Patterson did not participate in the conclave or sign the joint report. I understand that illness prevented him from doing so. None of the experts gave oral evidence. The objections to their reports were very much related to limiting the use of the matters of fact or assumptions they made. As I said to the parties, I will not be treating their list of assumptions as evidence of the fact.

113. Some parts of the expert reports are confusing, even though there is substantial agreement between Dr Cooke and Mr Kiernan identified in the joint report. As I have said, no party wished to challenge anything they said but that leaves some uncertainty in the effect of some of their comments. A good example of this is the joint opinion that any decision to leave the handrail unaltered after installation in 1997 was an act that would not have been widely accepted in Australia by peer professional opinion as competent professional practice. I am not sure whether this is a reference to the practice of an engineer, an architect, a project manager, a property manager or is just a general reference to the Department or the Council.

114. It is difficult to understand whether references to the railing being designed in accordance with a standard are meant to be opinions as to how things were done, assumptions or statements of fact based on documents.

115. It might be said that, to a certain extent in their primary reports, the experts strayed into matters for the Court but I would treat their opinions as to how the accident occurred as a matter of assumption and their views as to foreseeability are not relevant.

116. The purpose of expert evidence in a case in which the circumstances of the accident can be determined having regard to the lay evidence is to assist the Court on issues relating to proper building/engineering/architectural practice, the applicability of relevant standards and guidelines and the availability of preventative measures. I emphasise that in a negligence action, the question of breach must be determined prospectively and opinions of experts as to how they might have made the railing safe and secure are really only opinions as to how it might have been done should the exercise of reasonable care have required that some preventative measure be taken in all of the circumstances.

117. The plaintiff bears the onus of proof on causation and thus must establish that if the so called preventative measures were taken, the injury/accident would not have occurred.

118. Experts assist the Court in concluding that, if reasonable care required that a preventative measure be taken, there was such a measure which might have been taken. The question of causation is then a matter for the Court, although in some cases the opinion of an expert might assist the Court in making its factual findings on causation.

119. Both Dr Cooke and Mr Keirnan agree that there were measures available which would have made the jetty safe in that the plaintiff would not have been able to fall through the railing. Their opinion in this regard was not the subject of challenge, although the State submitted that Dr Cooke’s opinion as expressed in his primary report was really only directed at securing the bottom gap. The problem for the State in that submission is that, whatever the merit in that proposition, the joint report does not contain any such limitation.

120. I have had regard to the content of both the primary reports and the joint report which I summarise as follows:

Mr Patterson’s evidence

121. Whilst the plaintiff did not object to the admission of Mr Patterson’s report, I am inclined to give his opinion less weight in circumstances in which he did not participate in the conclave. It is not known whether he might have altered his opinion or, in some way, modified his views if he was afforded an opportunity to discuss matters with his fellow experts. Further, the information with which he was provided was quite limited. It included little by way of background material and included only one of Dr Cooke’s reports. He appears to have placed weight, perhaps a little too much weight, on what he observed happening on the jetty at the time that he attended to inspect the jetty.

122. Having said that, there are matters of significance contained in Mr Patterson’s report, including that:

1. He says that there were no Australian Standards and regulations or bylaws which were applicable to the design and installation of handrails/fencing at the jetty at the time that the work was carried out.

2. He agrees with Dr Cooke that the conservation works of the jetty did not fall within Class 10 of the BCA.

3. He considers that a more substantial fence could be a detriment to the heritage value of the structure and a disconnect between the safety aspects and modern materials of such a fence and the slightly elevated risk levels in walking on the old industrial timber deck.

4. He says that the use of the old PWD (Department) standard two-rail handrail (being the rail installed in-situ at the time of the accident) is very widespread and common practice throughout New South Wales and Australia.

123. He then goes on to say that the structure is patently and obviously not meant to be childproof but that the installation of the higher than normal timber kerb combined with the mid-rail would mean that children walking on the jetty or standing at the rail would be adequately prevented from falling. The basis of that opinion is unclear as the gaps between the rails are wide enough to allow children to fall through.

124. Mr Patterson’s ultimate conclusion is that neither the State nor the Council contravened any rules, building codes or standards in erecting or maintaining the fence system at the jetty.

125. He goes on to suggest that if the Council was required to demolish the existing two-rail fence and hardwood kerb and install a childproof fence, the capital cost would be in the order of $400,000 with an increased annual maintenance burden of about $10,000 per annum. There would also be a significant loss of amenity.

126. It is not suggested by the plaintiff that the whole of the railing system and kerb should be demolished. Mr Patterson’s alternative design and structure appears not to have been considered or favoured by any other expert or put forward by the plaintiff. One of the disadvantages arising from Mr Patterson’s inability to meet in conclave is that he focused only on the idea that any preventative measure would necessarily involve knocking down the whole railing.

127. There are other deficiencies with Mr Patterson’s report. He identifies that the use of BCA fencing would limit the enjoyment of users of the jetty such as persons wishing to jump from the deck into the water but at the time of his inspection, the Council expressly prohibited jumping into the water. He opined that even BCA fencing could be deliberately overcome. That may be so, but there is no suggestion that the Council is the guarantor of safety and the point of fencing or railing is more as prevention against accidents rather than deliberate conduct.

Dr Cooke’s evidence

128. Dr Cooke was asked to opine on the basis of assumptions both that:

1. the plaintiff fell between the bottom railing and the top railing; and

2. the plaintiff fell between the bottom railing and the deck.

129. I do not interpret his evidence as being limited only to the bottom gap.

130. Dr Cooke accepts that the works to the jetty did not fall within Class 10 of the BCA but states that the balustrade provisions in the BCA are indicative of good building practice. As he says, the provisions in BCA clause D2.16 are designed to prevent children falling through gaps and balustrades and climbing balustrades. An opening in a balustrade must not permit a 125mm sphere to pass through. Plainly the gaps are much wider than that.

131. Dr Cooke also points to Section 5.5 of the Design Guidelines for Wharves and Jetties (Public Works (NSW), August 1990) which refers to rails being important where decks are above shallow water where severe injuries could result from pedestrians falling from the deck. He points out that AS1657-1992 was current at the time the works were carried out, but it was superseded by AS4997-2005 Guidelines for the Design of Maritime Structures.

132. Dr Cooke suggests that, for compliance with AS1657-1992, continuous guard railing was required. By this he means that in order to comply, clause 3.4.1 requires the rail to be a monolithic structure. There is reference to the space between the top rail and the floor being provided with infill (clause 3.4.2). Infill may be fabricated from a number of materials including expanded metal mesh or any other material.

133. Dr Cooke opines that to satisfy the objective “to enable safe pedestrian access”, the balustrade design should have been safe for all classes of users including young children able to walk unaided.

134. He goes on to opine that the design option that should have been adopted was one which included mesh infill which would have prevented the fall, either, as he says, between the top rail and intermediate rail or between the bottom rail and the kerb.

135. In his primary reports, Dr Cooke thus opines that, although there was no mandatory standard which applied, both the BCA and AS1657-1992 would have provided a guide to good practice. In order to ensure that the jetty was safe for use by children, infill could have been installed in the gaps in the railing. This is an option referred to in AS1657-1992.

136. Further in his supplementary report he suggests one or two additional intermediate rails could have been added. Whist he did suggest at one point in his report that the rails would be positioned between the kerb and the middle rail, [27] later in the same report he refers to the two or three options being the mesh infill and two additional railings, one being between top and middle and the other being between middle and kerb at a total cost of $35,900. [28] The State’s submission, relevant to causation, that Dr Cooke was only ever suggesting protection in the lower gap should be rejected.

     27. Ex 24 para 26.

     28. Ex 24 paras 28, 33.

Mr Keirnan’s evidence

137. Mr Kiernan is a consulting civil engineer. He prepared a report dated 1 June 2016 at the request of the State. He was asked to address a number of specific matters. [29]

     29. Ex 4D2 pp 2–3.

138. He notes that the original design of the hand rails was prepared by a firm of consulting engineers, Erwin Johnson & Partners. He refers to the partnership meetings and discussions regarding the heritage architect and the revised drawings on which I have already commented. He concludes that the final drawing from which the rail is based was prepared by a Department engineer and was approved by a more senior one, based on AS1657-1992, which was considered by them to be the most relevant design standard. He says that each engineer formed the view that the BCA did not apply to the jetty.

139. He emphasises the difference between a balustrade and a hand rail. He notes that AS1657-1992 includes the definition of a guard rail being a structure to prevent a person from falling off a platform, walkway or landing. He opines that, as the BCA generally refers to buildings rather than non-habitable buildings and structures, AS1657-1992 would be the preferred standard. He then says that on the assumptions he has been asked to make, AS1657-1992 was adopted as the appropriate design standard.

137. Mr Kiernan opines, without setting out the basis for the opinion, that the design of the rail would have been carried out whilst the construction was under way in 1996 and thus AS1657-1992, AS1428-1 and the BCA would have been considered. It is not clear from the source documentation when the BCA and the standards were considered. He notes that there were two options available under AS1657-1992, being the hand rail as built and, in the alternative, with mesh infill between the kerb and the intermediate rail.

The joint report

141. The joint report is extensive in that the experts answered 56 questions. It is not necessary for me to merely set out the answers to all of those questions. I have had regard to the content of both the primary reports and the joint report. It is notable that the experts agree that:

1. at the time of the restoration work there was no standard, regulation or bylaw applicable to the design and installation of the guard railing for the jetty;

2. as such, neither the State nor the Council contravened any rules, regulations or standards in erecting and maintaining the fence system as built at the jetty;

3. compliance with the BCA was not mandatory because the jetty was not a class of structure to which the BCA applied;

4. however, the balustrade provisions in the BCA are indicative of good building practice and include a design requirement for a balustrade to prevent children falling through the balustrade. The building regulations and Australian Standards distinguish between a balustrade and a handrail. A balustrade is a protective guard along the open side of a walkway whereas a handrail provides support for stair users;

5. the provisions in BCA clause D2.16 are designed to prevent children falling through gaps and balustrades and climbing balustrades;

6. at the time of the restoration, relevant design guidelines for the jetty were provided in the Design Guidelines for Wharves and Jetties (Public Works (NSW), August 1990);

7. similarly, at the time of the restoration works, AS1657-1992 was an Australian Standard relevant to the safe construction of the jetty;

8. the Design Guidelines for Wharves and Jetties (Public Works (NSW), August 1990) provides guidance on the design of balustrades in situations where children have access;

9. the vertical drop from the deck level to the jetty to the hard sand was approximately 4.08 metres; and

10. for compliance with AS1657-1992 clause 3.2, continuous guard railing was required. AS1657-1992 clause 3.4.1 requires that guard railing be constructed in accordance with one of several alternative designs, relevantly including:

“(a)   A top rail, supported by posts, at a vertical height of 900–1100 mm above standing level with one or more intermediate rails, having a maximum distance of 450 mm between the rails or between the lowest rail and the toeboard where fitted. Where a toeboard is not fitted, the maximum distance between the lowest rail and the floor shall not be greater than 560 mm. Alternatively, the space between the top rail and the floor may be provided with suitable infill (see Clause 3.4.2) fixed to the top rail and to the floor, toeboard or a bottom rail not more than 80 mm above the floor.”

142. The jetty guardrail was built in accordance with a design permitted by AS1657-1992 cl 3.4.1(a) except that the opening between the top rail and the intermediate rail of 480mm exceeded the maximum permitted by 30mm.

143. It follows that the experts are agreed that, subject to the top gap being too wide by 30mm, the guardrail was constructed in accordance with an option permitted by AS1657-1992.

144. Dr Cooke opines that, at the time (being 1997), the design would not have been widely accepted in Australia by peer professional opinion as competent professional practice. Mr Keirnan disagrees and opines that the design would at that time have been widely accepted in Australia by peer professional opinion as competent professional practice.

145. Both experts agree that any decision taken after installation in 1997 to leave the handrail design unaltered was an act that (at the time such decision was made) would not have been widely accepted in Australia by peer professional opinion as competent professional practice. If this is an answer directed at s 5O CLA, then it hardly suffices. In the context of this matter, s 5O has no application subsequent to the jetty being reopened.

146. Mr McIlwaine, Senior Counsel for the plaintiff, submitted that this opinion (at Question 55) [30] does not so much relate to s 5O of the CLA as represent an agreed expert opinion that those responsible for the jetty after it was reopened had failed to act competently and in accordance with proper practice in not altering the guard railing.

     30. Ex 25.

147. I will come back to these matters when considering s 5O and liability more specifically.

The risk of harm

148. In Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59], Gummow J emphasised that in a negligence action it is only by the correct identification of the risk that one can assess what a reasonable response to that risk would be. This is given statutory force in the CLA.

149. Assuming that a duty of care is owed by a particular defendant, the first step in the proper application of s 5B of the CLA is the identification of the risk of harm. As set out in s 5B(1), “A person is not negligent in failing to take precautions against a risk of harm unless …”. Only once the risk of harm has been properly identified can the Court consider whether the risk was foreseeable, not insignificant and whether a reasonable person would have taken the precautions suggested: see also Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102] (“Uniting Church v Miller”); Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; (2014) 201 LGERA 314 at [52].

150. Unlike the question of breach which must always be considered prospectively, in identifying the risk of harm the Court may have regard to what actually happened. Further, the risk of harm may be identified generally or more specifically; it is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances: Uniting Church v Miller at [118] (Leeming JA).

151. In Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [106] (“Perisher Blue”), the Court held that it was generally unnecessary and undesirable to define the relevant risk with too much particularity but particularity can be called for in some circumstances, as without particularity, one cannot determine what, if any reasonable precautions ought to have been taken, in order to avoid the risk.

152. In his Amended Statement of Claim the plaintiff did not identify the relevant risk of harm. I asked the parties to address the issue in their submissions. The plaintiff identified the risk of harm as being falling through the railing onto the hard sand below. The Council and the State identified the risk of harm more generally as falling from the jetty and being injured. Mr Sheldon, Senior Counsel for the Council and Trust, submitted that to adopt the plaintiff’s description would be to apply hindsight rather than foresight and would be paying too much regard to what actually happened.

153. In my view, the risk of harm was the risk of a child falling through the rails onto the hard sand below. The true source of injury was the materialisation of the risk of falling through the rails onto the hard sand. Describing the risk more generally obscures the true source of the injury as well as the potentially catastrophic consequences which might arise if the risk materialises.

Liability of the Council and the Trust

154. The State undertook the restoration works, albeit on at least the understanding that the Council would assume responsibility for the jetty on completion of the restoration.

155. The Council was made aware of the design and structure of the railing and agreed to it as part of its involvement in the partnering meetings and other processes in the 1990s. The Council had an interest in ensuring that the restored structure was properly designed and constructed. As is plain from the correspondence, its interest was both in respect of the safety of the jetty and the ongoing costs relating to the maintenance of the jetty.

156. I do not consider that the Council should be liable in respect of any negligent design for the following reasons:

1. Firstly, the Council and Trust are sued as the owners and occupiers of the jetty at all relevant times. Prior to handover to the Council, it could not be said that the Council was an owner or occupier. The Trust did not exist at the time of restoration of the jetty.

2. Secondly, whilst the process of restoration involved consultation between the State and the Council, the jetty remained a national work up until 2002. It was the State that was responsible for the jetty, in control of the jetty and which was carrying out the restoration. Further, the State’s architect, Ms Singh, and construction manager, Mr Clancy, were the professional persons most involved in the design of the railing. Questions of the Council being vicariously liable for the conduct of persons employed by it during the restoration phase do not arise on the pleadings and such a finding would not be available on the evidence in any event.

Liability of the Council and Trust as occupier

157. The Council and Trust were sued as occupiers. It is not in dispute that a duty of care was owed to the plaintiff. The control by a statutory body of premises used by the public constitutes “occupation” by that body.

158. As has been emphasised in considering the liability of a statutory authority such as the Council, which is said to be an occupier of premises or in this case a structure, the essential question is what the content of the duty of care was in a particular case: see, for example, Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308; (2006) 150 LGERA 11 at [32] (“Shellharbour v Rhiannon Rigby”).

159. As was said by Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 at [102], the relevant question is not whether the occupier owes some duty of care, but what is the extent of the duty of care which the occupier owes.

160. In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; [1998] HCA 5 at [152] (“Romeo"), Hayne J said:

“152.   It has now long been held by this Court that the position of an authority, such as the Commission, which has power to manage, and does manage, land which the public use as of right is broadly analogous to that of an occupier of private land.  It is the management of the land by the authority which provides the necessary relationship of proximity between authority and members of the public.” (Footnote omitted.)

161. Again, in Romeo, when referring it to the content of the duty of care, Kirby J said (at [123]):

“The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier.  The measure of the care required will take into account the different ages, capacities, sobriety and [advertence] of the entrants.”

162. The plaintiff belongs to a class of persons who it might reasonably have been anticipated would use the jetty after it was restored. The duty of care required the Council to consider whether the jetty was reasonably safe for users including children, in circumstances in which the jetty was a public walkway and major tourist attraction.

163. The issue in this matter is what the exercise of reasonable care on the part of the Council required in the circumstances. The circumstances include the knowledge and considerations of the Council prior to the plaintiff’s accident.

The events after restoration and the knowledge of the Council

164. The jetty was reopened on 11/12 October 1997. On that day (12 October), a seven-year-old girl (Miss Marr) fell through the railing onto the hard sand below. She was walking along holding onto the middle rail when she slipped, causing her to roll between the middle rail and the kerb onto the beach below, a distance of approximately 4.6 metres. Having regard to that measurement, it seems likely that Miss Marr fell somewhere in the same vicinity as the plaintiff. She sustained injury.

165. The Department reported the accident to its insurer. The circumstances of the accident led to Mr Clancy of the Department preparing a report on the railing (see below).

166. The Council became aware of this accident shortly after it occurred as there is a reference to the accident in the risk assessment subsequently conducted by the Council and the Council also forwarded documents relevant to this accident to its insurer when notifying the insurer of the 2007 Travaskis accident (which I will come to).

167. On 20 October 1997, the Council’s risk coordinator, Mr Quinn, carried out a risk inspection of the Coffs Harbour jetty. [31] This was after Miss Marr’s accident, although there is no evidence that it was conducted because of the accident. He sent a memo to the directors. Present at the risk inspection was the Director of Engineering (Mr Davidson who had been involved throughout the project), the Works Manager, the Risk Coordinator and a representative of Jardine’s Insurance.

     31. Ex 8.

168. Mr Quinn noted that following the reopening of the jetty it would be one of the city’s popular attractions and it would be open 24 hours a day. He also noted that it would probably become one of the Council’s major risk areas for litigation from personal injury and property loss or damage. As he said, after discussion with the insurance broker, there were a number of areas of concern. It is plain from a consideration of those areas of concern that Mr Quinn and the other representatives of the Council identified a number of issues or features of the jetty which could give rise to potential injury and liability or loss. As he said, informal discussions were taking place with the Department and many of the items would be addressed by the Department prior to handover. Mr Quinn even identified the defects which might give rise to slight injuries such as a jagged uneven concrete finish or protruding nails.

169. In photograph 10 there is reference to a five-year-old child falling into this area the day after the jetty opened. [32] The photo appears to be a photo taken from the jetty down to the beach below. There is no further comment in the risk assessment about this incident. It could only be a reference to Miss Marr’s accident, although she was seven. The source of the Council’s knowledge about this accident is surprisingly not the subject of evidence, although it seems likely that the occurrence of such an accident would have become common knowledge at the time.

     32. Ex 8.

170. The significance of Mr Quinn’s memo of 22 October 1997 is that Mr Quinn and other representatives of the Council recognised that the jetty would be a popular attraction which would be open 24 hours a day. Mr Quinn recognised that there were risks of injury associated with the jetty. He must have considered it his responsibility to identify risks and ensure that steps were taken to reduce the risks.

171. Mr Davidson, the Council’s Director of Engineering, was present at that risk inspection in October 1997. They made no mention in the written part of the document of the risk of a child falling through the railing even though such an event had already occurred. It is not known what further discussions took place between the Council and the Department at that time as none of the relevant witnesses were called.

172. It may be that the accident on the day of reopening was not mentioned in any detail because the Council knew that the Department was already investigating and that Mr Clancy would be preparing his own report. It must be that the Department considered that it should be investigating whether the railings could be made safer as that is exactly what it did.

173. Having regard to the ongoing communications between the Department and the Council about things happening with the jetty at that time, it seems likely that the Council was aware that the Department was investigating how to make the railings safer. On 13 November 1997, the Council met and decided not to take over responsibility until a number of things had been attended to, including that physical safety issues raised by Council’s officers and insurers were addressed. [33]

     33. Ex 1D1(187 A).

174. I am unable to determine whether the physical safety issues included the railings.

175. Mr Clancy completed his report on 25 November 1997. Mr Clancy concluded that the BCA was not clear as to whether the jetty should be classified as a Class 10B building and the subject of the regulations pertaining to balustrades. He considered the construction of the jetty guard rail as consistent with the details as provided in “AS1657-1985”. However, as he said, in order to reduce the risk to the community (presumably addressing the particular circumstances of the fall on the day or re-opening), the section below the mid rail could be filled so that any opening would not permit a 125mm sphere to pass through it (this must be a reference to the BCA requirement).

176. He pointed out the disadvantages of such a change and estimated the cost as being $20,000. However, as he said, “Should the section between the kerb and mid-rail only be altered then on a pro rata basis the estimate would be $9,000). Mr Clancy’s reference to strands of wire at a cost of $20,000 must be a reference to ensuring that both the top and bottom gaps were less than 125mm because he specifically said that, if only the section between the kerb and mid-rail was altered, it would only cost $9,000.

177. Thus a method of making the railing safe so that children would not fall through was first identified by the Department in 1997 and the Council was made aware of this. The cost of filling in one or both gaps was identified.

178. On 24 November 1997, Mr Clancy reported to the NSW Treasury Managed Fund in respect of the accident which happened on 12 October 1997. NSW Treasury Managed Fund is “the insurer” of the State. [34] Mr Clancy said that investigations were continuing as to whether the safety fence needed to be modified to prevent further similar accidents from occurring again. There is no evidence as to these continuing investigations.

     34. Ex 1D1(192).

179. In January 1998, there were a number of reports of vandalism on the jetty. The Department became concerned about costs associated with ongoing vandalism.

180. On 8 July 1999, Mr Clancy prepared a memo in respect of the jetty acknowledging that it remained under the care, control and maintenance of the Department but that there were problems with continuing vandalism. [35] There was no reference to any changes to the railing.

     35. Ex 1D1(187A).

181. No document has been admitted evidencing what occurred in respect of Mr Clancy’s report of 25 November 1997 on possible alterations to the railing.

182. On 19 May 1999, Warren Helwig wrote to both the Department and the Council regarding his observations of a near miss involving a young child falling through the railing. [36] He asked why there was no intermediate wire cable spaced between the railings to stop people from falling through either onto the sand or into the water.

     36. Ex 10.

183. The letter was obviously passed to Mr Davidson, the Council’s Director of Engineering, who I have already noted was part of the original risk assessment in October 1997 as he then passed on the correspondence to Mr Clancy of the Department. [37]

     37. Ex 11.

184. Mr Davidson referred to Mr Helwig suggesting an alternative arrangement for Mr Clancy’s consideration. I would take his reference to the alternative arrangement to being Mr Helwig’s suggestion of intermediate wire cables spaced between the railings. Mr Helwig’s suggestion happens to be consistent with that suggested by Mr Clancy following the first incident in October 1997.

312. In considering which of the expert opinions might be preferred, in circumstances in which none of the experts gave evidence, there are a number of relevant factors including:

1. The original design was prepared by external engineers;

2. The process of change and finalisation of the design involved consultation between various stakeholders seemingly under the coordination of the project manager, Mr Clancy;

3. The architect, Ms Singh, was a Heritage architect who provided advice and acceptance in the Heritage context;

4. The appropriate design was reviewed and considered not just by the Heritage architect and the project manager but also by the builder, ProBase, and the partnering committee which consisted of a number of representatives and stakeholders. It seems that none turned their mind to the risk of children falling through the railing. It was only after the accident on the opening weekend that the Department turned its mind to what could be done to prevent such accident;

5. The design of the railing was thus a consultative process undertaken, in the context of Council approval, the need to comply with Heritage aspects and the fact that the jetty was being converted from an old maritime wharf to a walkway. Further, as Ms Singh said, on 25 November 1996, the intent of the design was to ensure compliance with “building codes”.

315. Mr Clancy considered and later advised the Council that the handrail had been designed in accordance with AS1657-1992. The Department considered it to be the relevant standard. The experts agree that it had been designed and constructed in accordance with one of the options available under that standard (except that the top gap was a little wider than it should have been). Both Mr Patterson and Mr Kiernan opined that the use of that type of railing on the wall was common.

316. It is thus established that the type of railing designed and erected was consistent with railing generally used on wharves and jetties at the time and was consistent with a standard which provided for railings on walkways and platforms at the time (the standard was changed in 2005).

317. As I have already identified, there were a range of factors and events which put the party responsible for the jetty on notice from 1997 that there was a risk of very serious injury to children with the railing remaining as it was when erected. However, in considering the question of breach on the design aspect, the Court must look prospectively, that is, what was required of the persons involved in the design looking forward at the time that they were undertaking their work. Undertaking a design consistent with a standard and common practice is hardly suggestive of a failure to take care.

318. It is worth emphasising the comments in Erwin, to which I have already referred, and once again those of McHugh J in Dovuro at [34]:

“Compliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently and the evidentiary presumption that arises from complying with common practice should be displaced only where there is a persuasive reason for concluding that the common practice of the field of activity fell short of what reasonable care required”.

319. Ms Singh, who gave her final approval on 25 November 1996, was of the view that the handrail complied with the relevant codes. [56] I do not know what she meant by that but, as there is no contrary evidence about what she did or did not do, then the only available inference is that she considered the design was consistent with the building codes. This again would be consistent with the view of the Department as expressed by Mr Clancy. The State designed and constructed railing which it believed was consistent with the code and appropriate standard.

     56. Ex 4.

320. The opinion of Dr Cooke, such as it is, relating to the negligent design allegation is lacking in supportive reasoning. His opinion seems to be that as it was foreseeable that children would be on the jetty then “someone” should have considered other design options. However, he does not engage in any Heritage issues or the role of the partnering committee and the involvement of the builder and other stakeholders.

321. The State, in the period prior to 1997 was in a far different position from the Council in the period 2002 to 2011. The State considered that it was designing and had designed a railing consistent with relevant codes and standards and having regard to the interest and input of the various stakeholders. At the time of design , no one had raised with it the potential for children to fall through the railing and it was not on notice of the events which commenced to occur on opening weekend.

322. At its highest, the plaintiff’s claim on negligent design is based on Dr Cooke’s opinion that those responsible should have considered other options. Yet, that opinion is countered by the opinion of Mr Kiernan who, on the face of his report and the joint report, had regard to the multi-factorial process of design and the fact that the railing which was erected was the same as other railings commonly used around Australia on wharves and jetties at the time.

323. I thus prefer the opinion of Mr Kiernan on this issue. I do not consider that the State acted without reasonable care in putting in place a design which was consistent with railings commonly used throughout Australia at the time and which was not inconsistent with any standard or code.

324. However, as is apparent from the rest of this judgment, I also consider that once those responsible for the jetty were put on notice of potentially catastrophic injuries to children consequent on falling through the railing and themselves investigated and became aware of other options in respect of the railing and might have become aware of a number of options if the issue had been considered and investigated, then there was an obligation to take those preventative measures. That may have included the State if it had remained in control of the jetty at the time of the accident or if it owed a continuing duty because it occupied the jetty between 1997 and 2002 but it did not.

325. In the circumstances, the plaintiff has not succeeded on any of its claims against the State.

Section 5M of the CLA

326. The Council, the Trust and the State rely on s 5M of the CLA as a defence to the plaintiff's claim against them. They say that a risk warning within the meaning of s 5M was provided and thus they did not owe a duty of care to the plaintiff and cannot be liable. As the only cause of action pleaded against the defendants is a cause of action in negligence then it must follow that if any or all of the defendants did not owe a duty of care to the plaintiff then that defendant could not be liable to the plaintiff.

327. The defendants point to the sign which was positioned at or adjacent to the entrance to the jetty on the day of the plaintiff’s accident. The sign is shown in a photograph annexed to the COPS report C45718627. [57] The evidence does not establish when the sign was erected or by whom it was erected but, based on the COPS report, it was there on the day of the accident on the left side of the jetty railing as persons would walk onto the jetty, situated at a slight angle facing outwards from the jetty.

     57. Ex 22.

328. As depicted in the sign, users of the jetty are warned to observe the warning and information symbols. There are two general warnings, with photographs and words, being in respect of shallow water and shallow depths. At the bottom of the sign are the words, “USE OF THIS FACILITY MAY BE HAZARDOUS. PLEASE BE CAREFUL”.

329. The defendants submit that the words in capital letters constitute a risk warning within the meaning of s 5M of the CLA.

330. At some stage between the time of the accident and the attendance in 2016 by Mr Patterson, the expert retained by the Council, the sign was changed. It was changed to include more specific warnings, in particular, a picture or warning as to “the edge” and a warning as to supervision of children. Photos of the two signs are below (the second sign was not in place at the time).

Image 2 - 2011 Warning Sign (34.9 KB, rtf)

Image 3 - 2016 Warning Sign (39.8 KB, rtf)

331. It is also apparent from the photos annexed to Dr Cooke’s report that there was a sign there in 2007 which did not contain the general warning and the same sign which did not contain the general warning was there in 2014. I am not sure how it came about that the sign present in 2007 and again in 2014 contained the general warning in capital letters but the sign there in 2011 did not.

332. The new or different warning signs are not relevant to the application of s 5M of the CLA. Whether s 5M applies depends on whether the presence of the sign as at the date of the accident constitutes a risk warning such that the elements of s 5M are satisfied.

333. A party seeking to rely on s 5M as a defence bears the onus of establishing that s 5M is satisfied. As set out in s 5M(1) of the CLA, a person does not owe a duty of care to another person who engages in a recreational activity to take care in respect of the risk of the activity if the risk was the subject of the risk warning to the plaintiff.

334. Although the plaintiff was only five at the time of his accident the defendants are entitled to rely on the risk warning, if otherwise made out, by virtue of s 5M(2). Plainly, the plaintiff was an incapable person within the meaning of s 5M(12) and the risk warning, if it was a risk warning, was given to a person who was under the control of a person who was accompanying the plaintiff or the plaintiff was under the control of that person.

335. The State is entitled to rely on the risk warning because the warning was given by or on behalf of the occupier of the place where the recreational activity is engaged in: CLA s 5M(6). The Council and Trust would similarly be able to rely on the risk warning because the warning was given by the Council (which is a defendant) or given by the occupier, being the Council or the Trust.

336. I should say that the focus of dispute between the parties related to the content of the sign rather than whether because of its positioning it could be said to have constituted a valid risk warning. It was positioned near the entrance to the jetty, although on one side.

337. Section 5M only applies when the person (the plaintiff) is engaged in a recreational activity. “Recreational activity” is defined in s 5K of the CLA. Section 5M is contained within pt 1A div 5 of the CLA. As set out in s 5K, “recreational activity” relevantly includes:

“(b)   any pursuit or activity engaged in for enjoyment, relaxation or leisure; and

(c)   any pursuit or activity engaged in a place (such as a beach, park or other public open space) where people ordinarily engage in sport or any pursuit or activity for enjoyment, relaxation or leisure.”

338. The Council and the State submitted that the plaintiff was engaged in an activity at a place where people ordinarily engage in sport or any pursuit or activity for enjoyment, relaxation or leisure.

339. The jetty was a public open space. People generally use the jetty for enjoyment, relaxation or leisure. Recreational activity includes a pursuit or activity for enjoyment, relaxation or leisure engaged in at a public open space. The plaintiff was engaged in a recreational activity at the time of his accident. It is not necessary that the activity be a dangerous recreational activity as that term is defined in s 5K.

340. As set out in s 5M(5), a risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk).

341. In Action Paintball GamesPty Ltd (In Liquidation) v Barker [2013] NSWCA 128 at [27], Basten JA (Hoeben CJ at CL and Ward JA agreeing) said:

“27. A ‘risk warning’ is a warning with respect to the existence of a risk. It is perfectly possible to warn of a risk without instructing the recipient as to all the steps necessary to avoid the risk: indeed such instruction might be counterproductive. Further, an adequate warning can be given, at least in some circumstances, by reference to the general kind of risk involved without precise delineation of each separate obstacle or hazard which may be encountered: section 5M(5).”

342. In Sharp v Parramatta City Council [2015] NSWCA 260; (2015) 209 LGERA 220 at [31] (“Sharp”), Meagher JA held that a sign which merely referred to persons using platforms and springboards at their own risk was sufficient to identify the general risk involved in using the 10 metre platform being a risk from diving or jumping from the platform. That is, using the platforms and springboards would include diving or jumping from the platform. Of course the only likely uses of the springboard would be diving and jumping. The reference in the sign to using the platforms and springboard could only have been a reference to using it for its intended purposes.

343. It is said that the approach in Sharp supports the s 5M defence in this matter.

344. It may be that the purpose of s 5M of the CLA is not served by requiring a lengthy list of specific risks on any sign or warning and it may be that in some circumstances a general warning would satisfy s 5M. However, it remains necessary to consider the words of ss 5M(1) and 5M(3), make factual findings as to the warning and then find whether, in the particular circumstances of this matter, the risk was the subject of a risk warning to the plaintiff (or in this case, Mr and Mrs Whitton).

345. It is necessary to be satisfied that the warning was given in a manner that was reasonably likely to result in people being warned of the risk before engaging in the activity: CLA s 5M(3). It is not necessary to establish that Mr and Mrs Whitton read the sign. The issue of the sign was not taken up with Mrs Whitton when she gave evidence and there is nothing in the other evidence which would suggest that either Mr or Mrs Whitton read or paid attention to the sign.

346. Nor does it matter whether Mr or Mrs Whitton actually believed that the jetty was dangerous or that the railing was not sufficient to prevent the plaintiff from falling through the railing. It is merely necessary for the defendants to establish that the plaintiff was engaged in a recreational activity and that the risk of the activity was the subject of a risk warning to him (or in this case, Mr and Mrs Whitton). That must depend upon whether the warning was given in a manner that was reasonably likely to result in people being warned of the risk before engaging in the recreational activity. That requires an objective rather than a subjective analysis.

347. The recreational activity in which the plaintiff was engaged was simply walking along the jetty for enjoyment. There is nothing in the sign present on the day of the accident that provides a warning of the risk of a child falling through the railing (being the risk for the purposes of s 5M(3)), unlike the sign subsequently installed by 2016.

348. In my view, the words in capital letters at the bottom of the sign and read in the context of the whole of the sign or even in isolation, do not constitute a warning that was given in a manner that was reasonably likely to result in people being warned of the risk (being the risk the plaintiff of falling through the rails) before engaging in the recreational activity. The sign does not convey a warning, either generally or specifically, of the risk of a child falling through the railing. It does not matter whether Mr and Mrs Whitton could have checked the railing to see whether it would prevent the plaintiff from falling through or whether they might have observed that it might be dangerous for a child standing next to the railing whilst they were actually standing next to the railing. Section 5M of the CLA directs attention to the warning and not what people might know or observe themselves.

349. The words relied on by the defendants are general. Indeed they are as general as possible — “Use of this facility may be hazardous”. The words do not direct attention to any particular risk or activity. They do not direct attention to any hazard or even suggest that there is a hazard. It is necessary to make a finding of fact as to whether the warning constituted by the words was reasonably likely to result in people being warned of the relevant risk in this matter before engaging in the activity. In my view, they were not such as to result in people being warned of the relevant risk in this matter.

350. In the circumstances, a defence under s 5M of the CLA is not made out.

Liability of Mr and Mrs Whitton

351. Mr and Mrs Whitton were accustomed to caring for the plaintiff having, like many grandparents, seemingly cared for him on a regular basis for the first five years of his life. There is no evidence that he had been involved in any earlier incidents or problems and nor is there any evidence of any general want of care or supervision on their part.

352. Mrs Whitton was called in the plaintiff’s case and thus not cross-examined on behalf of the plaintiff. Only a few questions were asked of her by her own counsel. She was cross-examined by Mr Sheldon . The key points to emerge from her cross-examination were:

1. that she considered that the jetty was dangerous (although precisely why she considered it was dangerous was not explained and nor was she asked to elaborate during cross examination);

2. that neither she nor her husband were holding the plaintiff’s hand as they walked along the jetty or whilst they were standing at the side looking over and through the railing;

3. that whilst they were standing looking over into the railing, they were so close to each other as to be touching each other;

4. that she and her husband turned away momentarily, calling the plaintiff to come with them;

5. that her impression of the plaintiff was that he was normally an obedient child; and

6. that she had only moved a few feet when she observed him falling out of the corner of her eye (again, I take this to mean that she observed him in the air, rather than actually in contact with or falling through the railing).

353. I have already referred to those parts of Mr Whitton’s statement that were admitted into evidence.

354. It is alleged that Mr and Mrs Whitton were each familiar with the jetty before going there on the day of the accident and they decided to take the plaintiff to the jetty. It is alleged that it should have been apparent to them that the railing on the jetty was not such as would prevent a child, such as the plaintiff, from getting between the railings and that the jetty was some distance above the beach, such that, if the plaintiff were to fall, injury could result.

355. The plaintiff alleges that in recognition of the risk they told the plaintiff to come away from the edge of the jetty and led the plaintiff by the hand as they walked out along the jetty. [58] Those two allegations of fact are not supported by the evidence.

     58. Amended statement of claim para 17.7.

356. Further, I do not accept the allegation [59] that Mrs Whitton was not aware of the plaintiff’s precise whereabouts. She turned away momentarily and, as she said, had only taken one or two steps.

     59. Amended statement of claim para 17.10.

357. As the plaintiff outlined his case against Mr and Mrs Whitton, it is 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. In those circumstances, the conduct amounting to negligence (in the plaintiff’s case), could only be their momentary movement away from the railing without being in physical contact with the plaintiff and without having their eyes on him.

358. In closing submissions, Mr McIlwaine submitted that the basis of that duty of care was not the relationship of grandparent and grandchild but the control and supervision exercised over the plaintiff in the particular circumstances. He emphasised that it did not matter whether they were the grandparents. The relationship that gave rise to the duty of care was one of control over the plaintiff as a child. Mr McIlwaine said that Mr and Mrs Whitton exposed the plaintiff to the risk by taking him to the northern edge of the jetty where there was a foreseeable risk of harm, being falling onto the sand below, and that the duty of care required them to hold the plaintiff’s hand.

353. Mr McIlwaine also accepted that merely keeping an eye on the plaintiff (without physically holding his hand) may not have prevented the accident. [60] I should emphasise that the plaintiff did not submit that the exercise of reasonable care required Mr and Mrs Whitton to have a hold of the plaintiff’s hand as they were merely walking along the jetty. So the plaintiff’s case is squarely based on the proposition that Mr and/or Mrs Whitton should have had a hold of the plaintiff’s hand whilst he was at the edge of the jetty and should not have turned away without keeping a hold of his hand.

     60. T.177.

354. The particulars of negligence raised by the defendants in their cross-claims are a little more expansive than that. They include taking or permitting the plaintiff to stand at the edge of the jetty. That is, they would say that the plaintiff should never have been allowed to go anywhere near the edge of the jetty. I do not agree.

355. Questions of breach presuppose the existence of a duty of care. Mr Hutchings, on behalf of the fifth and six defendants, accepted that Mr and Mrs Whitton would have owed a duty of care to the plaintiff if he was led into danger by them: see Hahn v Conley (1971) 126 CLR 276; [1971] HCA 56 (“Hahn”) and Hoffmann v Boland [2013] NSWCA 158; [2013] Aust Torts Reports ¶82-134 (“Hoffmann”) in support of that proposition.

356. In Hahn, a three-year-old child was injured by a motor vehicle when crossing the road. The child was in the care of her grandfather. The grandfather had gone to the other side of the road and when called by the child the grandfather had said that he was “over here”. The child crossed the road and was struck by the motor vehicle whilst doing so. After considering other cases, Barwick CJ held at 283–4:

“[W]hilst in particular situations and because of their nature or elements, there will be a duty on the person into whose care the child has been placed and accepted to take reasonable care to protect the child against foreseeable danger, there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship. Also parents like strangers may become liable to the child if the child is led into danger by their actions … In the case of the parent, as in the case of a stranger it seems to me that the duty of care springs out of the particular situation: the extent and nature of the steps which it may be necessary to take to discharge the duty may well be influenced by the fact of parenthood, though parenthood is not itself the source of the duty.”

363. In St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185, the plaintiff, a nine-year-old boy, was injured whilst playing at school prior to teachers becoming available to supervise the children. Ipp JA held that the circumstances may give rise to a duty of care but that the duty will spring out of the particular situation, not the mere fact of the parent/child relationship. His Honour stated at [31]:

“31.   In my opinion, the ratio of Hahn vConley was that, while the mere existence of a parent/child relationship does not bring about a duty of care on the part of a parent towards a child, the circumstances of a particular situation may give rise to such a duty. As Kirby J said in Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52 (at 92, [129]), citing Hahn v Conley, ‘Australian law does not recognise any principle of parental immunity in tort.’”

364. Similarly, in Tweed Shire Council v Carly Eden Howarth (by her tutor Trent Howarth) [2009] NSWCA 103; [2009] Aust Torts Reports ¶82-101, Giles JA confirmed that there was no principle of parental immunity in tort and emphasised that the circumstances which give rise to a liability would involve much more than merely a relationship of parent and child. The child, who was two years and four months at the time, had wandered into a pond. As Giles JA said, it was arguable that there was a duty of care imposed which would include an obligation to take adequate supervision to guard against the child wandering off and falling into the nearby pond.

365. In Robertson v Swincer (1989) 52 SASR 356 at 361–2; [1989] SASC 1758, King CJ emphasised that the social consequences of a legal rule imposing a duty of care upon the custodians of children to protect from harm require consideration. As his Honour held, there are no readily recognisable standards for parental supervision. This factor was emphasised by Basten JA in Hoffmann at [34]. His Honour went on to summarise the position as follows (at [36]):

“36.   The case law reveals a range of different circumstances, which may give rise to differing results. First, where a child is injured in a road accident, where the nature and standard of the duty depend on what is required generally of the driver of a motor vehicle, and in circumstances where liability will usually be met by a third party insurance policy, the courts have had no hesitation in imposing a legally enforceable duty of care to a child. Secondly, where a young child is removed from the safety of the home and exposed to potential dangers, an enforceable duty of care has been accepted. Thirdly, the law has not imposed an enforceable duty in respect of decisions by parents as to the future upbringing of a child: Barrett v Enfield LBC at 588 (Lord Hutton). Fourthly, in the case of a very young child in the care of his or her parents (or foster carers) within the home, the weight of authority is against the existence of any enforceable duty of care.”

366. In Hoffmann, the infant plaintiff suffered injury whilst being carried down the stairs in the middle of the night by her grandmother. The grandmother was staying with her daughter at the holiday house and to assist her daughter, had taken the infant out of the daughter’s room in the night and walked down the stairs without turning the light on. The grandmother fell on the stairs and the infant plaintiff sustained injury.

367. Basten JA summarised the position as follows (at [36]):

“36.   The case law reveals a range of different circumstances, which may give rise to differing results. First, where a child is injured in a road accident, where the nature and standard of the duty depend on what is required generally of the driver of a motor vehicle, and in circumstances where liability will usually be met by a third party insurance policy, the courts have had no hesitation in imposing a legally enforceable duty of care to a child. Secondly, where a young child is removed from the safety of the home and exposed to potential dangers, an enforceable duty of care has been accepted. Thirdly, the law has not imposed an enforceable duty in respect of decisions by parents as to the future upbringing of a child: Barrett v Enfield LBC at 588 (Lord Hutton). Fourthly, in the case of a very young child in the care of his or her parents (or foster carers) within the home, the weight of authority is against the existence of any enforceable duty of care.”

368. His Honour concluded that the grandmother owed no greater duty of care to the child than did the mother and that the mother owed no duty enforceable by an action in tort in respect of ordinary day-to-day care of the baby.

369. At [133]–[134], Sackville JA accepted that the grandmother could have owed a duty of care to the plaintiff in the circumstances, though his Honour did not ultimately express a concluded opinion on the existence of the duty. His Honour found nothing particularly novel in holding that the parent or grandparent in a similar situation owed such a duty of care. His Honour further said that the reason that a duty of care was owed was not because of the relationship of the grandparent but because of the circumstances in which the grandparent undertook responsibility to protect the plaintiff from the risk of foreseeable harm. His Honour went on to hold that it was particularly important in the circumstances of that case to have regard to s 5B(2)(d) of the CLA; that is, to consider the social utility of the activity that created the risk of harm.

370. The Court rejected the proposition that the grandmother had been in any breach of any duty of care in ascending the stairs in the manner in which she did.

371. This case might fall into the second category identified by Basten JA, that is, the plaintiff was a young child who was removed from the safety of the home and exposed to potential dangers. When I say “removed” I mean that whilst under the control of Mr and Mrs Whitton he was taken outside the safety of the home onto the jetty which necessarily exposed him to a risk of injury. However, bearing in mind that Mr and Mrs Whitton were merely going for a walk on a public jetty which was then being used a walkway, even if a duty of care was owed, there must be an issue as to what reasonable care required in all the circumstances.

372. Liability must be determined on a conventional basis, having regard to s 5B of the CLA. Mr Whitton said, in effect, that he assumed that the railing was safe. Mrs Whitton must be taken to have been aware that there was some danger associated with the edge of the jetty, although it is possible to interpret her evidence that “she thought it looked dangerous” as referring to either the actions of the plaintiff as he was walking along, or to the edge of the jetty, or to the railing. Taken in context, her evidence demonstrates at least a concern about what the plaintiff was doing because of the edge of the jetty.

373. In my view, the risk of harm was foreseeable and the risk was not insignificant within the meaning of ss 5B(1)(a) and 5B(1)(b). The question which arises is whether a reasonable person in their position would have taken the precautions identified by the plaintiff and the other defendants. In answering that question, regard must be had to s 5B(2). It must be found that there was a high risk of the plaintiff suffering a serious injury should he fall through the railings. Further, the burden of taking precautions which it is said would have prevented the risk of harm, primarily being taking a hold of the plaintiff’s hand, was not high. There was no burden.

374. However, other factors are significant. Section 5B(2)(d) of the CLA refers to the social utility of the activity that creates a risk of harm. The activity that created the risk of harm was the plaintiff’s grandparents taking him for a walk along a public walkway over water for his enjoyment and their enjoyment. That activity would necessarily involve looking out at the water and to the water below. It could hardly be said that Mr and Mrs Whitton were negligent for taking the plaintiff on a walk on the jetty. This is presumably why the plaintiff has limited his allegations against Mr and Mrs Whitton to their conduct in the seconds before he fell. They turned away from him for that one or two paces without first taking hold of his hand and were supervising him to make sure he was away from the railing.

375. The plaintiff bears the onus on causation within the meaning of s 5D of the CLA. There is no evidence would which would allow me to find that if Mr and Mrs Whitton had still been looking at the plaintiff every moment as they walked away the accident would have been prevented.

376. The evaluation of conduct by measuring it against that supposed of a reasonable person is a normative decision: Hahn at 295 (Windeyer J). Further, it remains appropriate to bear in mind the caution of Lord Thankerton in Glasgow Corporation v Muir [1943] AC 448 at 454–5, as referred to by Windeyer J in Hahn at 295:

“The court must be careful to place itself in the position of the person charged with the duty and to consider what he or she should have reasonably anticipated as a natural and probable consequence of neglect, and not to give undue weight to the fact that a distressing accident has happened or that witnesses in the witness box are prone to express regret, ex post facto, that they did not take some step, which it is now realised would definitely have prevented the accident.”

377. In my view, the suggestion that they should have been holding his hand is influenced by hindsight. It fails to have regard to the fact the plaintiff was five, not two. The plaintiff was of school age. The exercise of reasonable care did not require them either to be holding his hand as they were standing adjacent to the railing or to take a hold of his hand or hands in those moments as they started to move away from the railing.

378. Regard must be had to the fact that they were used to caring for the plaintiff. Mrs Whitton said she found him to be generally obedient. He had not been skylarking or mucking around on the walkway. He had been walking with them. When Mrs Whitton saw the plaintiff doing something which she did not want him to do, that is, walk with his arms outstretched in some way near the edge, she asked him not to do it. There is no evidence that he simply ignored her request.

379. Whilst the plaintiff emphasises that the existence of a duty should not be dependent upon the relationship of a grandparent and child, rather than the fact that the grandparents were in control of the plaintiff and supervising him at the time, the fact that Mr and Mrs Whitton were the plaintiff’s grandparents is relevant. They must have had a perception about his general behaviour and capabilities. They knew him.

380. There is no evidence that the plaintiff gave any indication that he might move closer to the railing, that he might attempt to lean over the railing, that he might attempt to crawl under the railing or that he would be doing anything other than simply turning around and following his grandparents when they asked him to do so.

381. A five-year-old boy is not unsteady on his feet. As I have said, a finding of what reasonable conduct might be in the circumstances is a normative judgment. There could hardly be expert evidence as to what a person in the positions of Mr and Mrs Whitton might have done. They were not failing to supervise him. They simply turned and commenced to walk. No evidence has been adduced that might have suggested to them that the plaintiff would not immediately do the same. It is not a case of adults walking off into the distance leaving a child exposed to a dangerous situation or adults in some way forgetting that they were supposed to be supervising a child.

382. The law of negligence must reflect the foresight, reactions and conduct of ordinary members of the community. The Court must be careful not to have regard to the fact of the distressing accident and look backwards at something that with the benefit of hindsight might have prevented the accident.

383. It does not seem to me that in not holding the plaintiff’s hand as they stood next to the jetty Mr and Mrs Whitton were failing to act with reasonable care towards him. Nor were they negligent in taking him out to the jetty or allowing him to stand with them adjacent to the railing.

Conclusion

384. The plaintiff succeeds only against the Council and the Trust. There will then be a verdict in favour of the plaintiff against the first and third defendants.

385. The proceedings against the State and Mr and Mrs Whitton are dismissed.

386. All cross-claims are dismissed.

387. I direct that the proceedings be returned to the Registrar’s list for further management for the assessment of damages.

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Endnotes

Decision last updated: 19 December 2019