Shellharbour City Council v Rigby - [2006] NSWCA 308

No judgment structure available for this case.

Reported Decision: 150 LGERA 11
(2006) Aust Torts Reports 81-864

Court of Appeal

CITATION: Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308

HEARING DATE(S): 10, 11 & 12 May 2006

JUDGMENT DATE:
27 November 2006

JUDGMENT OF: Beazley JA at 1; Ipp JA at 293; Basten JA at 294

DECISION: 1. Appeal and cross-appeal allowed in part; 2. Vary the award of damages by deducting the amount of $101,684; 3. Verdict for the first respondent/plaintiff in the sum of $1,745,852.70 and judgment accordingly; 4. The appellant and second respondent/cross-appellant are to pay the first respondent/plaintiff’s costs of the appeal and cross-appeal; 5. The appellant and second respondent/cross-appellant are to pay their own costs of the appeal and cross-appeal insofar as it relates to the issue of contribution.

CATCHWORDS: DUTY OF CARE – occupier’s liability – statutory authority as occupier – control over land an important factor in determining duty – liability dependent on content of duty in particular case – duty not extinguished or restricted by obviousness of risk - BREACH OF DUTY – duty to avoid injury to inexperienced riders – whether breach of duty by failing to fence off an area of the BMX track particularly likely to cause injury - OBVIOUS RISK – relevant to breach of duty of care – not determinative of breach – whether obvious risks of BMX riding undertaken by inexperienced riders – whether occupier entitled to expect reasonable care of young entrants - CAUSATION – common sense reasoning – inferential reasoning sufficient in absence of precise evidence - CONTRIBUTORY NEGLIGENCE – comparison of culpability required - JUDGMENT – adequacy of reasons – whether basic requirements of a statement of reasons were met by the trial judge - JUDGMENT – acceptance and weight of evidence, and findings of credit, are matters for the trial judge unless error established – preference of trial judge for particular witness – whether any error established - DAMAGES – whether award outside discretionary range – whether Griffiths v Kerkemeyer damages can be awarded for care of plaintiff’s child – whether award for costs of fund management to be reduced by contributory negligence

LEGISLATION CITED: Evidence Act 1995 (NSW) ss 63, 67, 69, 79, 135, 136
Supreme Court Rules 1970 (NSW) Pt 51 r23

CASES CITED: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Booksan Pty Ltd v Wehbe [2006] NSWCA 103
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; [2001] HCA 29
Burnicle v Cutelli [1982] 2 NSWLR 26
Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 389
Cooper v Southern Portland Cement Ltd (1972) 128 CLR 427
CSR Limited & Anor v Eddy (2005) 222 ALR 1; [2005] HCA 64
David Jones Limited v Bates [2001] NSWCA 233
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hastings Council v Giese (2003) 127 LGERA 109; [2003] NSWCA 178
Jones v Dunkel (1959) 101 CLR 298
Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34
Liftronic Pty Limited v Unver (2001) 75 ALJR 867; [2001] HCA 24
March v E & M H Stramare Pty Limited (1991) 171 CLR 506
McPherson’s Ltd v Eaton (2005) 65 NSWLR 187
Modbury Triangle Shopping Centre Pty Limited v Anzil & Anor (2000) 205 CLR 254; [2000] HCA 61
Morgan v Sherton Pty Limited (1999) 46 NSWLR 141; [1999] NSWCA 60
Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43; [2005] HCA 63
Nambucca Shire Council v Connor [2004] NSWCA 13
Nicholson v Nicholson (1994) 35 NSWLR 308
Payne v Parker [1976] 1 NSWLR 191
Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492
Ratcliff v McConnell [1999] 1 WLR 670 at 683
Richmond Valley Council v Standing (2002) 127 LGERA 237; [2002] NSWCA 359
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Rootes v Shelton (1967) 116 CLR 383
Rundle v State Rail Authority of New South Wales [2002] NSWCA 354
Southern Portland Cement Limited v Cooper [1974] AC 623
Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Thompson v Bankstown Corporation (1953) 87 CLR 619
Vairy v Wyong Shire Council (2005) 80 ALJR 1; [2005] HCA 62
Vinidex v Theiss [2000] NSWCA 67
Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57
Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460; [2002] HCA 9
Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES: Shellharbour City Council (Appellant)
Rhiannon Rigby (by her tutor Carole Lynne Rigby) (First Respondent)
Southlake BMX Club Incorporated (Second Respondent)

FILE NUMBER(S): CA 40375/05

COUNSEL: M Joseph SC; S Glascott (Appellant)
P Webb QC; J C Stewart (First Respondent)
D Davies SC; K M Guilfoyle (Second Respondent)

SOLICITORS: Phillips Fox, Sydney (Appellant)
Lough Wells Duncan (Wollongong) (First Respondent)
Ebsworth & Ebsworth, Sydney (Second Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20724/01

LOWER COURT JUDICIAL OFFICER: Dunford J

LOWER COURT DATE OF DECISION: 22 February 2005

LOWER COURT MEDIUM NEUTRAL CITATION: Rhiannon Rigby v Shellharbour City Council & Anor [2005] NSWSC 86

- 95 -

CA 40375/05

BEAZLEY JA
IPP JA
BASTEN JA
27 November 2006

SHELLHARBOUR CITY COUNCIL

v

RHIANNON RIGBY by her tutor CAROLE LYNNE RIGBY & ANOR

Headnote

Facts

On 11 November 1995 the plaintiff, then 13 years old, was riding her bicycle along a BMX track situated within a sporting complex at Albion Park Rail. The sporting complex was located on community land and the track was open to the public. In response to a dare from her companion, the plaintiff cycled down the starting ramp, which was the highest point of the track, and built up speed in an attempt to ride over a speed hump. As she took off over the speed hump her bike became airborne and she fell to the ground. The plaintiff suffered brain damage as a result of the accident and successfully brought proceedings in the Supreme Court against Shellharbour City Council (the Council) and the BMX Club (the Club).

The trial judge found that, by failing to fence off the starting ramp to prevent it being used by inexperienced riders, both the Council and the Club were in breach of their duty of care to the plaintiff. The Council and the Club (by way of cross-appeal) appeal against his Honour’s findings on negligence and the award of damages. They further challenge the allowance made by his Honour for contributory negligence; his Honour’s findings in respect of the respective contributions of the Council and the Club to the damages award; his Honour’s credit findings; his Honour’s preference of certain medical evidence; and the adequacy of his Honour’s reasons.

Held per Beazley JA (Ipp JA agreeing; Basten JA agreeing subject to further comments):

(i) Whether an occupier, in this case the Council, is liable in negligence is dependant not only by reference to the existence of a general duty of care, but having regard to the content of the duty of care owed to the plaintiff in this particular case. That content may be determined, but will not always be sufficiently stated, by reference to the kind of damage suffered and the class of which the plaintiff is a member.

Modbury Triangle Shopping Centre Pty Limited v Anzil & Anor

Sutherland

Shire Council v Heyman

(ii) In determining the duty of a statutory authority, control is an important consideration, particularly given that a statutory authority does not ordinarily have the same level of control over access to the land or premises in question as does a private occupier.

Romeo v Conservation Commission of the Northern Territory

Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council

(iii) The fact that the Club had the ongoing management of the sporting complex did not, in the circumstances of this case, abrogate the Council’s duty of care, nor otherwise confine its duty to a generalised one of no relevant specific content.

(iv) The obviousness of a risk, on the weight of legal authority, relates to breach and not to duty. But, even if obviousness was relevant to duty, the fact that there was a risk of injury in this case called for a response. The question of what response was called for strictly goes to the question of breach.

Vairy v Wyong Shire Council

Mulligan v Coffs Harbour City Council

Woods v Multi-Sport Holdings Pty Limited

(v) The obviousness of a risk is not determinative of breach.

(vi) The class of persons to whom the Council owed a duty to take reasonable care were all persons who were likely to use the track other than under the supervision of the Club. That class included the plaintiff.

(vii) The Council’s duty of care as an occupier of public recreational space was not extinguished by obviousness nor was it confined to a generalised duty.

Consolidated Broken Hill Ltd v Edwards

Booksan Pty Limited v Wehbe

Neindorf v Junkovic

(viii) The content of the Council’s duty of care required that the Council take reasonable steps to avoid injury to inexperienced riders by fencing off the starting pad and ramp to prevent it being used by such riders. The trial judge was correct in so finding.

(ix) The plaintiff was not engaged in the sport or recreation of BMX racing such as to undertake the inherent risks of the activity.

Agar v Hyde

Woods v Multi-Sport

(x) The Council was not entitled to expect an entrant of the plaintiff's age to exercise a degree of care comparable to an adult with a similar lack of experience.

Brodie v Singleton Shire Council

Romeo v Conservation Commission of the Northern Territory

(xi) In the absence of precise evidence as to how the accident occurred, common sense reasoning may require that to establish causation all that is necessary is proof of breach and a temporal suffering of harm. The trial judge engaged in inferential reasoning sufficient to establish causation.

March v E & M H Stramare Pty Limited

(xii) In the circumstances, including that the sport required specialised training, that the track was of a competitive standard, and that there was a known risk of serious injury, reasonable members of the community in the Club’s position would consider that the risk required preventative action, namely fencing off the starting pad and ramp.

Tame v New South Wales

Wyong Shire Council v Shirt

(xiii) The assessment of the responsibility for damage as between a plaintiff and defendant(s) requires a comparison of the culpability and the importance of the acts of the parties. The Council and the Club were the most culpable parties, and the trial judge did not err in his assessment.

Podrebersek v Australian Iron & Steel Pty Limited

Joslyn v Berryman

Liftronic Pty Limited v Unver

(xiv) The Club, having designed and constructed the track, and the Council, having had day-to-day management of the track and being the consent authority, were equally responsible for the damage.

On the trial judge’s reasoning process

(xv) Questions of the acceptance of evidence and the weight it is given are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved. The trial judge heard a great deal of evidence in this matter. There was sufficient evidence to support his factual findings and the Council and the Club failed to identify specific errors.

(xvi) It was open to the trial judge to prefer evidence of one witness over another on the basis that the preferred witness had observed the plaintiff in her home environment.

(xvii) Credit is essentially a matter for the trial judge to assess. The trial judge’s finding on the plaintiff’s credit was open to him, and was not undermined by isolated portions of evidence.

(xviii) A Jones v Dunkel inference could have been drawn due to the failure to examine the plaintiff’s father as to the plaintiff’s personality change, however the failure to do so would not have made out the case for the Council or the Club. This was not an appellable error.

Jones v Dunkel

Payne v Parker

(xix) The judicial obligation to give reasons is not a mechanical process, but is dependent upon the purpose those reasons serve. However the basic requirements of a statement of reasons include referring to relevant evidence, setting out material findings of fact and conclusions, and setting out the reasons for making the relevant findings of fact and conclusions.

Beale v Government Insurance Office of NSW

Waterways Authority v Fitzgibbon

(xx) The trial judge satisfied the basic requirements to give reasons, and various assessments made by the trial judge were not shown to be in error.

On damages

(xxi) Where no error in the trial judge’s assessment of the brain damage suffered by the plaintiff and the effect it has on her ability to function has been established, no challenge is open to the trial judge’s assessment as to the extent of future care required.

(xxii) Damages are awarded to compensate plaintiffs for the cost of services rendered to them due to their incapacity, not for the cost of services they cannot render to others. Damages for the care of the plaintiff’s child cannot be awarded.

CSR Limited & Anor v Eddy

Sullivan v Gordon

Burnicle v Cutelli

(xxiii) Once the trial judge’s findings as to the extent of the plaintiff’s injuries were accepted, there was no basis to interfere with the award of general damages, or with his attribution of one half of those damages to the past. The award was not outside the discretionary range that could have been awarded.

(xxiv) An award to provide for the costs of fund management is calculated on the damages awarded after a reduction for any contributory negligence. To reduce the amount of fund management costs itself for contributory negligence would not be just or equitable.

Nicholson v Nicholson

Held per Basten JA (Ipp JA agreeing):

(xxv) The standard, content or extent of a duty of care may be identified with such precision that a conclusion as to negligence follows as a matter of course. Alternatively, the duty may be broadly defined so that the key question is breach. In the present case the approach was not important, as long as the real issue was clearly identified.

McPherson’s Ltd v Eaton

Dovuro Pty Ltd v Wilkins

(xxvi) The precise manner in which the plaintiff lost control and fell is not known and is largely irrelevant. Each of the facts or inferences made by the trial judge pertaining to the circumstances of the fall and the access, use and control of the track were findings that were properly made by the trial judge.

(xxvii) Whether it was reasonable to make the ramp available for use by the public was a matter for normative judgment, about which opinions may differ. This does not involve a question of law, and the ultimate conclusion may not lend itself to precise analysis or detailed logical appraisal.

Neindorf v Junkovic

Fitzgerald v Penn

March v E & MH Stramare Pty Ltd

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme

Dinsdale v The Queen

Saville v Health Care Complaints Commission

(xxviii) The court conducting a rehearing is obliged to consider so much of the evidence as is necessary to deal with matters raised by the appellant and must formulate its own view with respect to those matters.

State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq)

CSR Ltd v Della Maddalena

(xxix) The established principle with respect to the drawing of inferences (putting to one side cases requiring the trial judge to resolve conflicting testimonies as to primary facts) is that the appellate court is to give respect and weight to the conclusion of the trial judge, but is to give effect to its own conclusion once reached.

Warren v Coombes

Fox v Percy

Minister for Immigration and Multicultural Affairs v Jia Legeng

Livingstone v Halvorsen

(xxx) On appeal, an unsuccessful defendant must satisfy the appellate court that the inference drawn in favour of the plaintiff was the wrong inference, after the Court has given respect and weight to the conclusion of the trial judge.

Walsh v Law Society

(xxxi) A failure to give adequate reasons for a decision may not need to be identified as a separate ground of appeal. It was unnecessary and inappropriate for the appellant to rely on a separate ground of inadequate reasons.

Beale v Government Insurance Office of NSW

(xxxii) There is no need, on an appeal by way of rehearing, for the appellant to establish an error of law. The appeal court must determine for itself whether particular evidence is relevant and whether a conflict in the evidence needs to be resolved.

CA 40375/05

BEAZLEY JA
IPP JA
BASTEN JA
27 November 2006

SHELLHARBOUR CITY COUNCIL

v

RHIANNON RIGBY by her tutor CAROLE LYNNE RIGBY & ANOR

Judgment

1 BEAZLEY JA: Rhiannon Rigby (whom I will call the plaintiff) was injured on 11 November 1995, when she fell from her bicycle after becoming airborne whilst attempting to ride over a speed hump on a BMX track within the Croome Road Sporting Complex (the Sporting Complex) at Albion Park Rail. She was aged 13 at the time of the accident.

2 The plaintiff successfully brought proceedings in the Supreme Court against the appellant (the Council) and the second respondent (the Club) and was awarded in excess of $1.8m by the trial judge, Dunford J.

3 Both the Council and the Club (by way of cross-appeal) appeal against his Honour's verdict in favour of the plaintiff and against the award of damages. They both also challenge his Honour's percentage allowance of contributory negligence and his Honour's finding in respect of the Council’s and the Club’s respective contribution to the plaintiff's injury. Other challenges are made in relation to his Honour's credit findings, his preference of certain medical evidence and to the sufficiency of his Honour's reasons. Save for the independent challenges to the findings of duty, breach and contribution made by the Council and the Club respectively, the Club appealed on the same grounds as the Council and substantially advanced the same arguments. I have approached these reasons through the Council’s argument as a matter of convenience, unless the Club advanced some further or different argument.

Background: the BMX track

4 The Council was the owner and occupier of the whole of the Sporting Complex which was a substantial area of land, much of which is heavily wooded and includes football and hockey fields, tennis courts, cricket nets and changing sheds. There were also numerous unsealed trails running through the bushy areas which were mostly used for bicycle riding. The BMX track occupied an area of about 100 metres by 50 metres within the Sporting Complex.

5 There were a number of entries into the Sporting Complex, including sealed roadways, and there was a flat concrete path running diagonally through the park. This pathway was the most direct route between Albion Park Rail and Albion Park, a nearby township. The ramp of the BMX track was the closest part of the track to the flat concrete path. There was unimpeded 24 hour access to most areas of the Sporting Complex, including the concrete path and the BMX track.

6 The BMX track had been designed and built by the Club. Development consent had been granted by the Council as the development authority. The Council had supervised the construction of the works and provided labour and machinery to undertake some of the work. Council had the overall management and control of the Sporting Complex, although the ongoing management of the track was the responsibility of the Club. As part of that ongoing management, the Club undertook the maintenance and upkeep of the BMX track. It is unclear from the evidence whether this was required by the terms of the development approval and/or its licence to use the track or whether it was a responsibility that the Club assumed itself.

7 The Club’s right to use the track was granted by means of an annual approval from the Council for use by the Club from Monday to Friday for practice sessions and on race days. Under the approval, the Club did not have exclusive use of the track other than during the times specifically approved. It would seem however that the Club’s actual use of the track extended beyond the terms of the approval and that obtaining the annual approval and the terms of the approval were somewhat of a formality, with little attention by the Club or the Council in the terms of approval sought and granted to the actual use of the track by the Club. Otherwise, the track was open to the public as a recreational facility and there was evidence that the BMX track was used every day by children.

8 The BMX track itself is located on land zoned ‘community land’. Council approval was necessary to erect any fencing on any part of the BMX track, but the Council had made a decision not to fence the track and surrounding areas. The Council accepted however that, either directly or indirectly, it had the power to erect or require the erection of a fence or some other barrier if it thought it was necessary. For example, the Council could have made it a condition of Development Consent or alternatively a condition of the Club's licence to use the track that there be a fence or barrier.

9 The Club organised activities at the track both for its members as well as for a variety of different groups. For example, in addition to those who used the track for racing on official race days, the Club arranged coaching clinics, had open days and made the track available for use by scout and other groups.

10 There were no signs forbidding access to the BMX track or any warning of any potential dangers in relation to it. The Council accepted that the track was accessible to members of the public and to people of various experience in bike riding. The Council did not suggest that it was unusual for young persons to use the track.

11 The BMX track is located in the northwest section of the park and is isolated from the playing fields. It comprises four main parallel legs, or 'straights', with curved end sections joining the end of one straight to the commencement of the other, giving what was roughly described as a "snake-like configuration". The track is approximately 350 metres in length, commencing from the starting ramp which is located in the northeast section of the Sporting Complex. The starting ramp and much of the first leg of the track is approximately eight metres wide. The track then narrows down to approximately four to five metres wide.

12 Some 12 to 14 humps are placed along the track, which is otherwise flat. The curved end sections slope inwards. Each main straight contains two or three humps of varying configuration, height, length and profile. The highest part of the track is the starting pad itself, which is some three to four metres above general track level. The top of the pad is flat and surfaced in loose gravel at the rear, with a concrete apron at the front. The concrete apron continues over the front edge of the pad and down the full length of the starting ramp, a length of some 17 metres.

The accident

13 The plaintiff suffered brain damage in the accident and has no recollection of what happened. She was accompanied at the time by her younger brother Nicholas, who was then nine years old, and a friend who was also aged 13. The children had ridden their bikes to the Sporting Complex and went to the BMX track. The plaintiff was riding a girls' mountain bike with wide tyres. It was not specifically designed for a BMX track. The children went to the top of the starting ramp where they talked for a while and watched the aeroplanes on the nearby airstrip. The plaintiff then accepted a dare by her friend to ride down the starting ramp.

14 The friend gave evidence that the plaintiff had walked the bike down the starting ramp until about halfway down before she put her feet on the pedals and started pedalling. Her version of the accident was that the accident occurred on the second hump when the bike skidded on the gravel. The plaintiff’s brother gave a different version. He said that the plaintiff had commenced riding her bike from the top of the starting ramp and became airborne as she went over the first hump. The bike then crashed to the ground.

15 The trial judge accepted the brother's recollection as generally more reliable, but found that it probably did not matter whether the plaintiff commenced pedalling from the top of the starting ramp or from about halfway down. His Honour found that at some stage, the plaintiff started pedalling and was trying to build up speed as she approached the first hump and that as she took off over it, her bike became airborne, she lost her balance and fell to the ground, landing on the left side of her face (judgment [19]). His Honour further found that the plaintiff’s speed at the first hump was too great for a person of limited experience, so that when she became airborne, she lost her balance and fell. His Honour found that the plaintiff was wearing a properly fitted safety helmet at the time (judgment [20]).

16 It seems that the plaintiff and her brother Nicholas had been told not to ride on the BMX track. It is likely that this instruction had been given to them by their parents after a teacher at the children's school had died when he suffered fatal head injuries whilst riding on the track in 1993. The plaintiff gave evidence that she knew that her parents did not like her and her brother riding on the track but could not remember when she had been told that. She recollected that her parents' instruction was related to the death of the teacher at the track (judgment [21]).

The plaintiff's allegations of negligence

17 The plaintiff alleged that the Council and the Club had a duty to take reasonable care for her safety and that each had breached that duty. The allegations of breach were, effectively, the same against the Council and the Club, namely: a failure of adequate design and construction; a failure to adequately fence the track; a failure to erect appropriate warning signs of the danger of use of the track; a failure to instruct users of precautions to be taken in using the track; and a failure to adequately restrict access to the track.

18 There were specific allegations against the Council relating to a failure to specify adequate conditions in its consent in relation to the construction of the BMX track. There were also specific allegations of a failure to carry out modifications or rectification work after the death of the teacher and a specific allegation against the Council that it was negligent in failing to fence off the starting ramp with lockable gates across its entry.

19 There was a similar, but slightly differently worded, allegation against the Club, namely, that it was negligent in failing to erect removable or lockable gates across the track at intervals to restrict its use by unauthorised cyclists. There was a specific allegation against the Club that it failed to provide a gate to the concrete starting pad.

The trial judge's findings

20 The trial judge found that there were a number of risks of injury inherent in the use of any BMX track where the object was to ride over humps at speed so as to become airborne. His Honour found that the risk of injury, including serious and even fatal injury, was foreseeable. Accordingly, his Honour found that the Council and the Club each had a duty to take reasonable care to prevent injury to those persons who might use the track.

21 His Honour rejected a number of aspects of the plaintiff's claim in negligence. Specifically, he rejected the allegation that the general public should have been excluded from the use of the track. His Honour observed that that would defeat the very purpose of providing a public recreational facility. His Honour also rejected that the whole track should have been fenced off, as that would have had the same effect of excluding the public. His Honour found that there was no "industry practice" to fence off BMX tracks.

22 His Honour further rejected the allegation that there was any inadequacy of design, construction or maintenance of the park. His Honour observed that the BMX track was not as safe for bicycle riding as a flat concrete path, but that it was not meant to be. His Honour found, in any event, that there was no evidence that any deficiency in design led to the plaintiff's fall.

23 His Honour next rejected the allegation of negligence based on the failure to erect warning signs. There was no evidence as to what an appropriate sign should state and his Honour found that in any event, he was not satisfied that a warning sign would have been effective to dissuade two teenage girls from riding on the track, even if they had seen the signs and read them. Finally, his Honour rejected the allegation that the humps should have been fenced off.

24 His Honour held, however, that the position with the starting ramp was different. His Honour found (at [34]) that the starting ramp was there for the specific purpose of securing even starts and a build-up of initial speed by experienced riders on race days. He found that its use was not necessary for casual, inexperienced riders, who simply wanted to ride over the humps. He considered that it was foreseeable that an inexperienced rider would use the starting ramp as a means of acceleration to the first hump without realising the danger. He also found that the ramp and its proximity to the first hump appeared to be the most dangerous feature of the track. His Honour found, therefore, that the Council and the Club had a duty to take reasonable steps to avoid injury to inexperienced riders, by fencing off the starting pad and ramp to prevent it being so used (judgment [34]).

25 His Honour further found that the starting ramp and its proximity to the first hump involved a foreseeably increased risk of injury in the case of children: see particularly Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [123] per Kirby J. His Honour further found that the starting ramp was an allurement to children, rendering it more likely that they would attempt to use it: Thompson v Bankstown Corporation (1953) 87 CLR 619; Southern Portland Cement Limited v Cooper [1974] AC 623, affirming Cooper v Southern Portland Cement Ltd (1972) 128 CLR 427.

26 The trial judge found that in circumstances where the ramp and its proximity to the first hump appeared to be the most dangerous feature of the track it was incumbent on the Council to take reasonable care to avoid injury to casual inexperienced riders by fencing off the starting pad and ramp to prevent it being used by such riders (judgment [34]). The Council submits that this finding was no more than a finding of a generalised duty of care. A finding of a general duty of care was not sufficient, on the Council’s submission, to make it liable to the plaintiff.

27 His Honour found that fencing off the starting pad would not be disproportionately expensive and would have prevented the plaintiff approaching the first hump at such a high speed and would probably have prevented her fall or at least rendered it much less catastrophic. His Honour found, therefore, that by failing to fence off the starting pad and ramp, the Council and the Club were each in breach of their duty of care to the plaintiff.

Ground 1: Did the Council owe a relevant duty of care?

28 The Council accepted that as an occupier of the Sporting Complex it had what it described as a general duty of care. However, it submitted that it did not owe a relevant duty of care to the plaintiff, by which, as I understand it, the Council contended that there was nothing by way of the content of the duty of care it owed that would make it liable to the plaintiff. It was integral to the Council's submission that it did not owe a duty of care, other than in a general sense as occupier, in circumstances where the Club had, on the Council’s submission, the day-to-day control of the track, and in circumstances where his Honour did not make any specific finding as to the Council's role in the design and construction of the ramp.

29 The Council also submitted that his Honour deduced that because the Council was in general occupation of the Sporting Complex and because there was a risk of injury that was foreseeable, it thereby owed a duty “to take reasonable care to prevent injury to those persons using the track” (judgment [28]). It was submitted that his Honour failed to have regard to the specific circumstances of the case so as to determine the duty of care above that generalised level.

30 In particular, the Council disputed that it owed a duty of care to inexperienced riders, as found by the trial judge. It submitted that the BMX track, including the facility provided by the starting ramp was there for the use of all persons who wished to use it so as to allow people to exercise their own level of skill and reach their own level of competence. It was an inherent part of the risk of BMX bike riding that injuries would occur, so that it followed, on the Council's submission, that it did not have a duty to ensure that inexperienced riders did not suffer injury.

31 The first question, therefore, on the Council's submission, was what were the reasonable risks to which the Council had a duty to respond, so as to be able to determine the content of its duty of care. The Council submitted that this determination could not be made by distinguishing between the risks involved in the use of the starting ramp and the risks involved in riding over the humps, being a distinction made by the trial judge. It was submitted that such a distinction could not be supported in law or in fact.

32 I agree that it does not assist to merely identify a general duty of care when seeking to ascertain whether an occupier is liable in negligence. The essential question is what is the content of the duty of care in a particular case and in this case, what was the content of the duty of care owed by the Council to the plaintiff. As Hayne J in Modbury Triangle Shopping Centre Pty Limited v Anzil & Anor (2000) 205 CLR 254; [2000] HCA 61 noted, although it is well established that an occupier owes a duty of care to those who enter upon its land, that is an insufficient analysis of the duty question. His Honour said at [102]:

some

extent

33 Modbury involved the question whether the owner and occupier of a shopping complex had a duty to control the criminal conduct of third parties. The plaintiff had been attacked in the car park owned and occupied by the appellant. The Court rejected the plaintiff’s argument that the appellant owed a relevant duty of care to prevent physical injury resulting from the criminal behaviour of third parties. In doing so, the Court focussed on the question of how a relevant duty of care might be identified. Gleeson CJ said:

"[17] That an occupier of land owes a duty to a person lawfully upon the land is not in doubt. It is clear that the appellant owed the first respondent a duty in relation to the physical state and condition of the car park. The point of debate concerns whether the appellant owed a duty of a kind relevant to the harm which befell the first respondent. The nature of the harm suffered was physical injury inflicted by a third-party over whose actions the appellant had no control …

was control over, and knowledge of, the state of the premises."

34 Gleeson CJ had earlier pointed out that many negligence cases arose out of relationships where the nature of the duty of care was well understood. He cited motor vehicle accident and employer/employee cases as examples. However, there were other cases where there was a real issue as to the existence and measure of legal responsibility. His Honour said that in such cases,

“[14] ... it is useful to begin by identifying the nature of the harm suffered by a plaintiff, for which a defendant is said to be liable.”

35 Hayne J considered that often, the extent of the relevant duty could not be determined in isolation from the facts. He said:

Perre v Apand Pty Ltd

36 Hayne J referred to SutherlandShire Council v Heyman (1985) 157 CLR 424, where Brennan J had pointed out, at 487, that:

"… a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member."

37 Hayne J considered, however, at [104] that the duty of care will not always be sufficiently stated by reference to those two postulates viz: the kind of damage suffered and the class of which the plaintiff is a member. His Honour then dealt with the circumstance where the extent of the relevant duty was uncertain. He said:

“[105] … where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by the want of care, resulted from the breach of duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegation of breach and damage must depend.”

38 In dealing with the duty of an occupier Hayne J said:

Australian Safeway Stores Proprietary Limited v Zaluzna

39 In Modbury, the ‘control’ which the occupier had over the conduct of others was the important matter for consideration. The question of control, particularly in the case of statutory authorities, has emerged as an important consideration in recent authorities. In Romeo v Conservation Commission of the Northern Territory at 487-488 Hayne J said:

“[152] It has now long been held by this Court that the position of [a statutory] authority … 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.” (Reference omitted)

40 However, in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; [2001] HCA 29, Hayne J observed at [303] that a statutory authority does not have the same level of control over access to land or premises under its authority as does a private occupier. In Brodie, the Court was concerned to define the duty of care owed by a statutory road authority. On the question of control, Gaudron, McHugh and Gummow JJ said at 559:

“[102] … the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person … as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance .

41 Hayne J said:

“[116] It is sometimes said that a statutory authority having the care, control and management of a reserve is in a position analogous to that of an owner of private land. Like all analogies, however, it is dangerous to assume that the analogy is perfect. For example, a statutory authority having the care, control and management of land may not be able to control entry on the land in the same way as a private owner. It may or may not be able to close the area or part of it. And its task of care, control and management of the various areas committed to its care may be much larger and more complicated than any obligations a private owner of land may encounter.

[117] It is long established, however, that a statutory authority, having the care control and management of land to which the public has access, owes a duty of care to those who enter . To this extent, the analogy with private landowners is apt. But what reference to the breadth of a council's obligations reveals is that the analogy is not perfect. In particular, the content of the duty is not necessarily identical. [Emphasis added]

reasonable

42 The Council, relying upon those authorities, injected considerable energy into its submission that it did not have the requisite occupation or any role in the management of the track for it to have other than a general duty of care. In particular, the Court was referred to the extensive documentation relating to the approval of the building of the track; the annual licence renewals; and correspondence relating to fencing.

43 One piece of correspondence relating to fencing was raised after the death of the school teacher. The solicitor for the school teacher’s wife wrote to the Council on 14 October 1996 seeking to have the track fenced off. The Council replied:

“[W]hile fencing off the facility has been considered it is not considered as a solution which will prevent accidents from occurring on the BMX track.”

44 The documentation to which reference was made also covered the Club minutes and other correspondence which, it was contended, established that the Club was responsible for the maintenance of the track. It must be said that was well established by the evidence and, in any event, was not in dispute. It was in dispute, however, that the Club had the day-to-day management of the track, as found by his Honour, a matter to which I will refer later. It did, however, have some ongoing management of the track.

45 The Council submitted that the Club was the relevant occupier of the track for the purposes of determining the question of whether a duty of care was owned and, if so, who owed the duty of care. The Council further submitted that the Club had the overall management of the track and knew the particular dangers that it posed. It followed that it was the Club that owed any duty of care to users of the track, not it. This argument also went to contribution.

46 However, the fact that the Club had the ongoing management of the track and was responsible for its maintenance does not, in the circumstances of this case, abrogate the Council’s duty of care, nor otherwise confine its duty to a generalised one of no relevant specific content. The Council was the development authority for the site, and, as such, had the power to specify conditions relating to the design and construction of the track. The Council inspected the track regularly and from time to time made decisions about its design and layout, including, specifically, a decision not to fence any part of it. It licensed the use of the track annually.

47 The duty of care in this case does not concern the question of controlling the criminal or other conduct of third parties, as was the case in Modbury. Nor in my opinion does it fall within the more difficult category of case referred to by Hayne J in Modbury, where the duty is not stated sufficiently by reference to the kind of damage suffered and the class of which the plaintiff is a member. I will return to this shortly. Before doing so, it is necessary to address a further argument advanced by the Council as to why it did not owe a duty of care to the plaintiff beyond a general duty, namely, because of the obviousness of the risk.

Obviousness of the risk

48 The council argued that it did not owe a duty of care in respect of obvious dangers and that the risk of falling on the track was obvious. It submitted that Brodie v Singleton Shire Council established that ‘obviousness’ was relevant to the question whether a duty of care was owed, particularly in the case of recreational activities where all participants will be exposed to risks. It was further submitted that to simply define ‘duty’ in terms of experience/inexperience was not meaningful in the context of a sport.

49 In Brodie, Gaudron, McHugh and Gummow JJ observed at [163] that:

Ghantous

obvious hazards

50 Following the High Court's decisions in Brodie and Ghantous, there was what might be described as an explosion of decisions relating to "obvious hazards". As has been the subject of comment in other judgments, significant confusion arose in relation to the role that "obviousness" played, and in particular, whether it was relevant to the question of duty or breach, or both. The question was addressed again in the decisions of the High Court in Vairy v Wyong Shire Council (2005) 80 ALJR 1; [2005] HCA 62 and Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43; [2005] HCA 63. It is necessary to deal with these decisions in some detail because of the Council's insistence that, in this case, the obviousness of the risk was relevant both to the question of duty and breach and that it was decisive of both issues. In considering the way that ‘obviousness’ was dealt with by the High Court, it is convenient to refer to the passages in the judgment that deal with breach, as well as duty.

51 Both Vairy and Mulligan involved circumstances where a plaintiff dived into water and suffered catastrophic injury. In the case of Vairy, the diving was from a rock platform. In Mulligan, the plaintiff attempted a shallow dive from a standing position in a creek. In each case it was held that the respective Council did not breach its duty of care.

52 The principal judgment of the Court was in Vairy at [6]-[8]. Gleeson CJ and Kirby J dealt with obviousness at the level of breach. McHugh J also dealt with the question of obviousness at the breach stage. His Honour said at [19]:

Seldom will the obviousness of a risk created or permitted by a defendant who owes a duty of care require no action by that party.

53 Gleeson CJ, Kirby and McHugh JJ dissented in the result. The point of difference between their Honours’ judgments and those of the majority was very much a factor of the individual emphasis placed upon the question of obviousness.

54 Gummow J said at [55]:

of questions of the existence and content of duty

55 Hayne J stated at [162] that the reference to a risk being "obvious" was apt to mislead and could not be used “as a concept determinative of questions of breach of duty”, nor should the notion of ‘obviousness’ be elevated into some doctrine or general rule of law. As his Honour pointed out, to make ‘obviousness of risk’ determinative of breach:

56 Callinan and Heydon JJ relied upon their comments as to obviousness in their judgment in Mulligan. In Mulligan, their Honours, at [75], considered that in a particular case obviousness might be of such significance as to carry with it a high degree of importance, even to be conclusive. Their Honours referred to the statement of Gleeson CJ in Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460; [2002] HCA 9, where Gleeson CJ, with whom Hayne J agreed, thought obviousness was decisive in relation to the recreational activity in which the plaintiff was there engaged. Their Honours also referred to the judgment of Callinan J in Woods v Multi-Sport at [62] as being relevant to their determination in Mulligan. In Woods v Multi-Sport, Callinan J said:

As I said in

Agar v Hyde

sports injuries and duties of care owed by those involved in sport simply cannot be approached in the same way as non-recreational or involuntary activities

57 As I have indicated above, the Council relied upon this line of authority in support of a submission that obviousness of risk was relevant at both the level of duty and breach. It was submitted that, even though there was now a body of authority to the effect that ‘obviousness’ was relevant to breach, it remained relevant to the determination of duty in the case of recreational activities. The particular submission made by the Council was in terms that there were recognised obvious risks inherent in the activity of riding on a BMX track where the object was to ride over humps at speed so as to become airborne (see judgment at [27]), including falling over for whatever reason. It followed, on the Council's submission, that it was a risk in respect of which nothing reasonably could be or ought to have been done.

58 In my opinion, the weight of authority in the High Court is that the question of obviousness relates to breach and not to duty. But, even assuming in this case that obviousness was relevant to duty, then, contrary to the Council's assertion that the obviousness of the risks associated with BMX bike riding negated any relevant duty, the fact that there were risks of injury called for a response. The question of what response was called for strictly goes to the question of breach. However, breach can only be determined having regard to the content of the duty, to which I will return shortly. Before doing so, I should refer to one other matter.

59 The trial judge found that the class of persons to whom the Council owed a duty was the class of inexperienced riders. That may be too narrow a classification, although as will be apparent, the fact that the class should perhaps be identified more broadly would not affect the outcome in this case. The BMX track was an open track within a major recreational area. The recreational area itself was a large complex, designed for use by a variety of users, including for organised and non-organised activities and use for purely recreational and leisure activities. The persons who might so use the complex would cover the whole range of citizens: young and old, families and children and teenagers, alone, in groups of varying sizes, supervised and unsupervised.

60 The track itself was unfenced and available for use by anyone at any time, including use by all persons who had access to the complex. It follows, in my opinion, that the class of persons to whom the Council owed a duty to take reasonable care were all persons who were likely to use the track other than under the supervision of the Club. That class included young children and teenagers who were inexperienced BMX riders.

Conclusion on duty of care of the Council

61 It is necessary to return to the question whether the Council owed a duty of care to the plaintiff and more particularly, what was the ‘content’ of that duty, to use the language of Gummow J in Vairy, or what was the ‘extent’ of the duty, as Hayne J phrased the issue in Modbury.

62 In this case, the nature of harm suffered was injury from a fall after riding down a starting ramp that was designed so as to build up speed preliminary to becoming airborne over the humps. The trial judge found the starting ramp itself was there for a specific purpose, namely to secure even starts and a build up of initial speed by experienced riders on race days. That finding was open to his Honour, as was his finding that the ramp was not necessary for use by inexperienced riders, being the ‘class’ to which the plaintiff belonged, as was his further finding that the ramp and its proximity to the first hump was the most dangerous feature of the track. In this regard, it should be observed that his Honour had a view of the track and was able to make an assessment of the features of the track.

63 The Council contended, however, that there were inherent risks in this activity and that risk came home, just as there were in the ‘sports’ cases, such as a scrum collapsing, or being hit in the eye by a cricket ball at an indoor cricket game, such a risk was not something in respect of which anything reasonably needed to be done. It was in this respect that the Council relied in particular upon the comments of the High Court in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 (referred to in Woods v Multi-Sport to which I have already referred). Those cases, however, were very different from this. They involved organised recreational sporting activities for adults. In this case, three young children/teenagers were out riding their bikes. They did not immediately go to the starting ramp, but went there after riding around the track backwards and then finally going up onto the platform of the ramp to watch aeroplanes take off. This is a different context in which to determine whether there was a duty of care than was being considered either in Agar v Hyde or Woods v Multi-Sport. In the latter case, Gleeson CJ said at [37]:

Rootes v Shelton

64 Gleeson CJ contrasted the position where adults were engaging in risky activities, to the case of a child: see at [40].

65 There have been other cases in this Court where it has been argued that an occupier does not owe a duty of care in respect of ‘obvious risks’: see Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; Booksan Pty Limited v Webbe [2006] NSWCA 3. That argument was rejected in both cases. In Booksan, Ipp JA observed that the High Court’s decision in Neindorf v Junkovic [2005] HCA 75 reinforced the view that obviousness of the risk did not bear upon the question of the duty of care of an occupier. Those cases concerned private land. I do not consider that the position is different in respect of a public recreational space. I am of the opinion that the obviousness of the risk did not extinguish the Council’s duty of care as occupier or otherwise confine it to a generalised duty of care with no specific content.

66 The Council had almost complete control over the BMX track. It was the consent authority. It provided assistance with its construction. It inspected the track. It made decisions as to its use. It made a specific decision to allow members of the public access to the whole track. As his Honour found, the starting ramp was dangerous to inexperienced riders and it was foreseeable that inexperienced riders would use the ramp and that there was a risk of injury should they do so. In the circumstances, the Council owed a duty to take reasonable care to avoid that foreseeable risk.

67 In the present case the damage that was suffered by the plaintiff was an injury when she became airborne whilst going over the first hump on the BMX track and then fell. The trial judge found that prior to becoming airborne she had gathered speed as she came down the starting ramp and continued to pedal so that she arrived at the first hump at a speed that was too great for a person of her limited experience. In my opinion, his Honour’s finding at [34] as to the extent of the duty was correct: namely, that the Council had a duty to take reasonable steps to avoid injury to such inexperienced riders by fencing off the starting pad and ramp to prevent it being used by such riders. It follows I would reject Ground 1 of this Appeal.

Ground 2: Did the Council breach its duty of care

68 Much of the Council's argument on breach was directed to the risk of falling being an inherent part of the sport of BMX riding and, given that the sports complex in general and the BMX track in particular was open to the public without discrimination according to experience, it was reasonable for the Council to expect that the individual entrant would exercise care in selecting what risks would be taken. The Council relied in particular on the comments of Gleeson CJ in Agar v Hyde at [13] ff and Woods v Multi-Sport, where his Honour referred to the hazardous nature of many recreational activities.

69 In Woods v Multi-Sport, the High Court was concerned with a person who was hit in the eye whilst playing a game of indoor cricket. Gleeson CJ, in referring to the judgment of Kitto J in Rootes v Shelton (1967) 116 CLR 383 at 387, observed that the application of the law to the conduct of persons in undertaking risky activities is not new. He pointed out, however, that the context may be of special significance in relation to the factual judgment that must be made. The Chief Justice identified the question to be determined in classic terms: namely, what a reasonable person in the position of the defendant would do in response to the risk (see Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47).

70 Gleeson CJ explained this further:

"[40] In some cases, of which the present is an example, a court is not confronted with a risk that is quite unlikely to occur; it is dealing with an activity which carries with it the possibility of injury, including serious injury, in a number of different forms. The appellant was not a child , and he was not being compelled to play the game. He was an adult who chose, for his personal enjoyment, to play. That the activity is risky is plain to anyone who understands what it involves, including the respondent. The respondent carried on the business of providing facilities for persons such as the appellant to play the game. The question for the tribunal of fact was what reasonableness required by way of response from the respondent, having regard to the respects in which the respondent was alleged to have been negligent.

71 His Honour found that the ramp and its proximity to the first hump not only constituted a foreseeable risk of injury in the case of inexperienced adult riders, but that the risk was increased in the case of children, such as the plaintiff. His Honour referred, correctly, to the statement of Kirby J in Romeo v Conservation Commission of the Northern Territory at [123] per Kirby J that:

"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."

72 His Honour found that each of the Council and the Club was in breach of its duty of care to the plaintiff in failing "to take reasonable steps to avoid injury to such inexperienced riders by fencing off the starting pad and ramp to prevent it being used by such riders".

73 The Council submitted that his Honour, in determining breach, had impermissibly engaged in hindsight reasoning. The notion of hindsight reasoning was explained in Romeo v Conservation Commission of the Northern Territory at [123], where Kirby J stated:

"The projected scope of the duty must therefore be tested, not solely with the hindsight gained from the happening of the accident to the particular plaintiff but by reference to what it was reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public generally coming upon any part of the lands under its control which presented similar risks arising out of equivalent conduct."

74 It was submitted that to identify the starting ramp as a place of particular danger was to engage in hindsight reasoning. I do not agree. The law of negligence requires reasonable care to be taken to avoid a foreseeable risk of injury. That requires an identification of the danger or risk that calls for a response from a party that owes a duty of care.

75 It was next submitted that given the particular characteristics of the sport of BMX riding, no response was called for. It was said that a rider becoming airborne was an integral part of the sport of BMX bike riding, that speed, and variations in speed, were also integral to the sport, speed being one of the ingredients enabling a rider to become airborne. The starting ramp was specifically intended to enable a rider to gather speed at the commencement of the ride for the very purpose of allowing the rider to become airborne. The intent of this submission, as I understand it, was that if some step was taken to make the starting ramp inaccessible, an essential part of the activity would be taken away. However, the plaintiff was not engaged in the sport of BMX bike riding. Nor was she engaged in the recreational activity of BMX bike riding. She was riding her mountain bike through a sporting complex that involved pathways, bushland and the BMX track. The inherent risks of BMX bike riding were not ones that she was undertaking, except to the extent that she responded to a dare and thus became subject to such risks in circumstances where she did not have the experience to deal with them. In my opinion, this submission should be rejected.

76 The Council also submitted that there were other features of the track that enabled a rider to pick up speed. Senior counsel for the Council referred to photographic evidence that demonstrated that there were portions of the ride that were cambered in such a way so as to enable a rider to pick up speed. It was submitted that the gradient of these cambers was greater than the gradient of the starting ramp and that it followed that there were other parts of the track that were as dangerous as the starting ramp. It followed, on this submission, that there was no point in isolating the starting ramp and taking steps to prevent its use.

77 The trial judge did not deal with any such argument (and no complaint was made that he failed to do so). Nor would I be prepared to make such a finding on the basis of photographic evidence. The photographic evidence was useful to demonstrate the topography of the track in a general sense. However, as is well-known, photographs are inefficient tools to demonstrate angles, distances, heights and gradients. There was no specific evidence to make the Council’s submission good on this point.

78 The Council further submitted that the trial judge's finding (judgment [34]) was erroneous in a number of respects. First, it submitted that it was not open to his Honour to make any finding that it was the ramp and its proximity to the first hump that appeared to be the most dangerous feature of the track without there being expert evidence to that effect. I do not agree with this submission. His Honour had a view of the BMX track and the starting ramp. In these circumstances, it was within the capacity of the trial judge to make findings of fact in this case on the physical features of the track and of the dangers of the starting ramp, without the need for expert evidence. A trial judge is not deprived of the ordinary person’s common sense when having to decide such matters. Indeed, that is an inherent part of a fact-finding process of a trial judge. If the Council’s submission was to be accepted it would mean that a trial judge would need expert evidence that a child riding a bicycle down a hill which ended in a sharp curve or a hump was in danger of being unable to negotiate the curve or hump. With respect, the process of fact finding is not so esoteric. In this case, the dangerous aspect of the starting ramp was, even on the Council’s case, obvious.

79 It was also submitted that his Honour's reasoning was not supported by the existence of any industry practice to fence off the starting ramp, and was also inconsistent with the known practice in relation to skateboard ramps, which are not fenced as to do so would have the effect of excluding the general public. In my opinion, for reasons I explain more fully below, neither of these matters undermines his Honour’s finding.

80 It was further submitted that his Honour erred in finding that the starting ramp was there for a specific purpose, namely to secure even starts and a build-up of initial speed by experienced riders on race days. On the Council’s submission, his Honour’s finding was that this was its only purpose. The Council contended that the starting ramp was there for all users of the BMX track, both experienced and inexperienced, and that it was a false dichotomy to distinguish between the two. It was submitted that this was apparent from the fact that the Club itself used the track for a range of activities, including for persons who were not experienced.

81 This particular submission can be dealt with shortly. The thrust of his Honour's reasoning was that the starting ramp had a specific purpose. He did not find that the use of the ramp to build up speed by experienced riders on race days was the only purpose for which the ramp was used. Rather, his Honour recognised that it was foreseeable that inexperienced riders would use the ramp and would do so unsupervised. Being foreseeable, it was a risk in respect of which the Council and the Club had a duty to take reasonable steps to avoid injury to inexperienced riders. There was no error in his Honour making this finding and reaching the conclusion he did.

82 The Council also challenged his Honour's factual finding that the plaintiff was an inexperienced bike rider. He referred to evidence that she had been riding bikes since she was young, and that she was a good rider. Again, this challenge can be disposed of shortly. The plaintiff was not an experienced rider on a BMX track. It was unclear whether she had been on the track before, but if she had, it was at the most on one occasion. She did not have and never had a BMX bike, and there was no evidence that she had ever ridden one. On the day of the accident she was riding her mountain bike.

83 The Council further submitted that the plaintiff's conduct in riding down the ramp, given her inexperience, was unreasonable conduct which, although foreseeable, did not require any response by the Council in order to discharge its duty of care. In short, it was submitted that the Council was entitled to expect that the plaintiff would exercise reasonable care for her own safety: see Brodie v Singleton Shire Council at 581 [163]; Romeo v Conservation Commission of the Northern Territory at 444 [19] and 478 [123]. It was submitted that the Council was entitled to expect an entrant of the plaintiff's age to exercise a degree of care comparable to an adult with a similar lack of experience. I would also reject this submission. It is contrary to any realistic understanding of the capabilities, sense of responsibility and maturity, or otherwise, of children.

84 His Honour was required to determine what the reasonable response was to the risk of injury that he had identified. His Honour was satisfied that even though the track as a whole should not be fenced off, the reasonable response to the identified risk of harm required that the starting ramp be fenced off so as to ensure that it was not used by inexperienced riders who, by the fact of their inexperience, were unlikely to be able to manage the speed generated by using the starting ramp prior to negotiating the first hump. His Honour posed the central question for determination and answered that question. In my opinion, no error has been demonstrated on this issue.

Causation

85 The trial judge found that fencing off the starting pad and ramp:

"… would have prevented the plaintiff approaching the first jump at such a high speed and thus would probably have prevented her fall, or at least rendered it much less catastrophic" (Judgment at [37]).

86 The plaintiff's essential challenge to the finding that a fence positioned at the top of the ramp would have prevented the accident was without evidentiary foundation. It was submitted, for example, that the plaintiff did not prove that if a fence was positioned at the top of the ramp, she would not have attempted to ride her bicycle down the ramp, either by lifting the bicycle over the fence or walking or riding her bike up the ramp: see Nambucca Shire Council v Connor [2004] NSWCA 13 at [20]. That case was what might be described as a "warning" case. The plaintiff was injured when she tripped, allegedly on a protruding nail, as she was walking along one of the boardwalks on the harbour front at Nambucca Heads. The evidence established that the Council was aware of problems that arose with the boardwalk from time to time, particularly when nails lifted. The trial judge had found for the plaintiff on the basis that the Council had failed to warn users of the boardwalk that that was an occasional problem.

87 Tobias JA (Handley and Beazley JJA agreeing) observed at [18]:

Chappel v Hart

Chappel,

‘Where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided.’"

88 In Nambucca, Tobias JA recognised that the prima facie sufficiency of a finding of duty and breach in order to establish causation does not usually arise in "warning" cases. Usually, some evidence would be required as to the plaintiff's response to a given warning.

89 This, however, is not a "warning" case. The Council submitted, nonetheless, that similarly to a case of a "failure to warn”, the failure to fence the ramp operated as a deterrent and not a prevention. It was submitted that the plaintiff was required to prove what she would have done if the fence was in place. This was particularly so, it was said, given that she had responded to a dare. In my opinion, the analogy sought to be drawn by the Council between this case and that of the "warning" cases is not of assistance. In any event, it is hard to understand how the plaintiff might have lifted her bike over any such fence or been able to get onto the bike whilst actually being on the ramp.

90 Another challenge made to the trial judge's finding of a causal nexus between the injuries sustained and the breach was that, on the Council's submission, any nexus between the ramp and the first hump was broken by the fact that the plaintiff pedalled her bicycle, which generated the speed so that she became airborne. It is not apparent that pedalling alone would have built up enough speed to cause the plaintiff to become airborne. The Council did not call expert evidence. Mr Moir did give evidence on this point that was to the contrary of the submission, although the trial judge, in his reasons at [25], appears to have rejected Mr Moir's evidence as not being of assistance. However, as I have already explained, his Honour was entitled to use the experience of everyday life in finding that the ramp was a means of accelerating to the first jump. The Council's submission appears to overlook a fundamental principle relating to causation, namely, that it is sufficient if a particular found cause is a contributing factor to an injury. It does not have to be the sole or the most substantial cause of a particular injury.

91 The Council further submitted that, given that Mr Moir's evidence was rejected, there was no evidence upon which his Honour could conclude that a specific purpose of the ramp was to secure even starts and a build-up of initial speed by experienced riders, and therefore it was not open on the evidence to find that the speed at which the plaintiff approached the first bump was "too great for a person of her limited experience". It was argued that without such findings, causation could not be proved. It was part of this submission that there was no finding, and there could not be any finding, as to whether the build-up of speed was the result of pedalling alone or whether the build-up could only have occurred as a result of the ramp. It was submitted that without this finding, causation could not be proved.

92 Although his Honour rejected the evidence of Mr Moir, the plaintiff’s expert, (see judgment [25]), it is necessary to have some regard to it for present purposes. Mr Moir said that one of the relevant factors is the speed at which the bike arrived at the first hump. The speed was determined by a numbers of factors, including the proximity of the ramp to the hump, the gradient of the starting ramp, whether the rider pedals or brakes during the lead up to the hump. He was of the opinion, however, that in this case, the factor that had the greatest effect was the height of the starting ramp. His Honour independently came to the conclusion and it is a matter of common sense.

93 Mr Moir also gave evidence that he had done calculations that indicated that the velocity generated by the bike commencing its downward run on the ramp from “2 metres up the ramp” was such that the front wheel would leave the surface at the first hump. Objection was taken to this evidence on the basis that it was not material contained in Mr Moir’s report. However, the trial judge appears to have admitted the evidence on the basis that it accorded with the evidence in the case that that is what had happened.

Conclusion on causation

94 The starting point for a consideration of causation in negligence is the statement of Mason J in March v E & M H Stramare Pty Limited (1991) 171 CLR 506 at 515 that causation was ultimately a matter of commonsense and “not susceptible of reduction to a satisfactory formula”.

266 It is necessary to understand the basis of the reasoning in CSR v Eddy in order to determine whether any claim for the care of the child can be sustained. Gleeson CJ, Gummow and Heydon JJ observed that the reasoning in Sullivan v Gordon was based on the rule in Griffiths v Kerkemeyer (1977) 139 CLR 161. Their Honours then said:

“[21] … Griffiths v Kirkemeyer damages are awarded to plaintiffs to compensate them for the cost (whether actually incurred or not) of services rendered to them because of their incapacity to render them to themselves, not to compensate them for the cost of services which because of their incapacity they cannot render to others . In each instance there may be a ‘need’ for services, but it is a different kind of need, and the recipient of the services is different …

Sullivan v Gordon

Griffiths v Kirkemeyer

Sullivan v Gordon

Griffiths v Kirkemeyer

267 Their Honours rejected the contention that the outcome in Sullivan v Gordon could be supported in any other way. They recognised, (at [16]) however, that as had been determined in Burnicle v Cutelli [1982] 2 NSWLR 26:

“… the lost capacity of injured plaintiffs to assist their families was compensable … if the loss was to be compensated, compensation was to be given not as special damages, but as part of general damages.”

268 The plaintiff contended, however, that there was still a basis for those costs to be awarded. As I understand it, it was submitted that the costs for the care of the child could be compensated under the Griffiths v Kerkemeyer head of damages. The plaintiff relied upon the statement of McHugh J at [115], where his Honour said:

Griffiths v Kirkemeyer

269 McHugh J observed that the respondent’s needs were the co-mingled needs of the husband and wife, but were no less the needs of the husband’s because they were mutual. His Honour stated that it was an unfortunate aspect of the case that it was pleaded on the basis that the domestic work was performed for the benefit of the wife.

270 This paragraph does not assist the plaintiff, for the simple reason that his Honour made a specific award under Sullivan v Gordon for the care of the child, additional to the plaintiff’s need for household assistance, which he had assessed under Griffiths v Kerkemeyer. As Sullivan v Gordon has been overruled, the award of damages made under that head must be disallowed.

Ground 13: the award of general damages was excessive

271 Immediately upon the accident occurring, the plaintiff was in a coma and remained in a coma for nine days and had post-traumatic amnesia for a period of about three weeks. She also suffered a severe de-gloving injury to her lip and major lacerations and abrasions to her face. She was in hospital for one month and during the time in hospital was observed to have post-accident impairment of judgment, planning and abstract thinking and poor short term memory. She showed some behavioural problems including agitation, tearfulness, perseveration of ideas, occasional urinary incontinence and mildly aggressive behaviour (judgment [43]). When she returned to school the following year, she experienced difficulty relating to other pupils and they to her. She suffered long periods of depression, although Dr Dus, child and adolescent psychiatrist, who attended the plaintiff after the accident, found that there was no evidence of Major Depression or other major mental illness, but that her residual cognitive and emotional difficulties, marked emotional lability and poor impulse control were likely to be due to “organic personality change secondary to the head injury”.

272 At an early stage of recovery, Dr Hartman, neuropsychologist, reported low average results of the plaintiff in tests of her intellectual functioning, with particularly poor results on tasks involving attention and concentration (report 19 January 1996). At such an early stage, the plaintiff’s fluctuating immediate memory and attention, and her slow speed of processing, were likely to improve in the Dr Harman’s opinion. At a later date (19 April 1996) the Dr Hartman wrote a letter to Dr Raje, the plaintiff’s consultant paediatrician, to the effect that he was concerned about the plaintiff’s behavioural and thinking problems. In a further letter to Dr Raje (6 August 1996), Dr Hartman’s diagnosis was more positive, such that he “could not detect any specific abnormalities” upon neurological examination. He noted only the intermittent dizziness experienced by the plaintiff and its resulting frustration causing her to “lash out”, and additionally problems with “the higher centres, particularly with concentration and marked lability of her emotions”. Six months later (3 February 1997) Dr Hartman stated he was impressed with her improvement and that there was nothing remarkable resulting from a physical examination (including neurologically), but that there were still many problems affecting her socialisation skills that may never be resolved.

273 However, on the next consultation (see letter 14 August 1997), Dr Hartman became concerned about the plaintiff’s self-injurious behaviour, and referred the plaintiff to Dr Dus, adolescent psychiatrist. Dr Dus examined the plaintiff and prepared a psychiatric report, dated 21 October 1997. According to that report, the plaintiff revealed a history of peer difficulties prior to the accident, which were exacerbated by the accident such that she was “generally unaccepted” upon her return to school post-accident.

274 Dr Dus’ report stated that the plaintiff’s mother noticed that her confidence and grades were increasing in the months leading up to her accident.

275 Dr Raje reported on 8 February 1996 as to the plaintiff’s “dramatic improvement”, however, he noted that she still had problems with emotional lability and loss of inhibition.

276 A speech pathologist, Ms Judy Pearson, in a report dated 11 April 1996, commented on the “good gains” in all areas, but, relevantly, observed that the plaintiff’s behaviour fluctuated depending upon the environment she was in. Another speech pathologist, Ms Ellie Ainsley, reported on 2 August 1996 that although the plaintiff had a number of areas of strength, she still lacked insight into the emotions of others and spoke in a loud voice with a sometimes inappropriate and offensive intonation. She considered that this, along with difficulties in auditory attention, would adversely impact upon the plaintiff’s schooling.

277 His Honour made his findings in relation to the plaintiff’s injuries and ongoing disabilities at [77]-[78] set out above. In addition, his Honour referred to Dr Jones’ evidence as to her scarring, as follows:

‘There was a scar under the nose, extending down to the top lip. There was a long scar extending laterally from beneath her left eye to lateral to her lip and below the lip. There were 3 other short scars near it. There were 6 parallel longitudinal scars on her neck on the left side. There were patchy scars 20cm in size on the distal right forearm and on the left shoulder. I should point out that these scars are superbly covered with make-up, so that she is an extremely attractive young woman in spite of this.’”

278 Having regard to the plaintiff’s brain injury, frontal lobe damage and its consequences, including headaches and loss of balance, and her facial and other external injuries, including residual scarring, his Honour assessed damages at $200,000. He attributed $100,000 of that to the past: at [79].

279 In my opinion, once his Honour’s findings as to the extent of the plaintiff’s injuries are accepted, there is no basis to interfere with the award of general damages, nor with his attribution of one half of those damages to the past. It is apparent that for a period of years after the accident, the effects of the plaintiff’s injuries were severe. Not only was her brain damage at its most severe state, she was also seriously affected at a social and emotional level, all of which was attributable to her brain damage. She was sexually assaulted by boys at her school and her general interaction with her peers was seriously impaired. Not only were there difficulties at school, evidenced by comments in the school reports and in the evidence of Ms Pike, but she was effectively socially isolated, having few friends and her ability to successfully engage in productive activities had been seriously impaired.

280 The plaintiff will have significant problems in the future because of her brain damage, which according to Dr Bell’s evidence, accepted by his Honour, was severe.

281 In my opinion, the award is not outside the discretionary range that could have been awarded and I would reject this Ground.

Ground 14: His Honour erred in the award of past and future economic loss

282 His Honour reviewed the plaintiff’s work history since leaving school at judgment [81]. He observed that except for a short period of employment with a photographer and one shift per week for a short period, the plaintiff had not had any remunerative employment. His Honour referred to the evidence of some witnesses that she was capable of engaging in some forms of selected employment, but noted that she had not been successful in obtaining employment. His Honour accepted the plaintiff’s evidence that she had tried to do so. He also observed that she had unsuccessfully undertaken a number of vocational courses. His Honour found that she was unemployable.

283 The Council contended that the plaintiff was dismissed from her employment at the photographic store for reasons unassociated with her disability. In my opinion, the evidence does not support that submission. The plaintiff gave evidence that she was dismissed after two specific incidents. She was then telephoned by the employer to say that there had been a number of complaints about her and he dismissed her. When she went to collect her pay cheque in the company of her father, she said that the employer yelled at her father: “it was like he didn’t want to pay me”. That employment lasted about a week.

284 I have already considered much of the other evidence relating to the plaintiff’s employability in connection with the challenge made in Grounds 6 and 8 to his Honour’s findings and reasoning. It is not necessary to repeat it. As those challenges have failed, this challenge must also fail. If the plaintiff is unemployable, as found by his Honour, there is no basis to make an allowance for a residual earning capacity.

Ground 15: His Honour erred in awarding the cost of administration of the award of damages

285 This ground relies upon the case sought to be made by the Council that the plaintiff has suffered brain damage to a limited extent only. In particular, the Council seeks to support its case on the basis that the plaintiff has been able to establish relationships, including a marriage, undertakes social activities, has completed TAFE courses, has obtained a car licence and is able to manage her money and her change. I have dealt with these matters at various places in my judgment.

286 As I have found that his Honour's finding of the extent of the plaintiff's brain damage has not shown to be erroneous, this challenge must also fail.

Ground 16: His Honour erred in not reducing the sum awarded to the plaintiff for funds management to take account of his findings on contributory negligence

287 This ground was asserted by the Council only, as the Club did not take this point at trial.

288 The Council's contention is that as his Honour reduced the plaintiff's award of damages by 20 per cent for contributory negligence, the amount awarded for fund administration in the sum of $461,969.50, should likewise be reduced by 20 per cent. The basis of this argument was that this head of damage was no different from any other award and likewise it should be reduced.

289 The response made by the plaintiff in respect of this ground is that as the agreed costs for fund administration was based upon the amount of the award of damages after the discount for contributory negligence, a reduction in the award for funds administration would be unjust. This in effect was the approach taken by his Honour. His Honour said at judgment [101] that 80 per cent of the agreed sum of $461,969.50 would not "in theory be sufficient to administer” the fund constituted by the award of the reduced damages.

290 The ground will only succeed if the Council is given leave to reargue the decision of this court in Nicholson v Nicholson (1994) 35 NSWLR 308. In Nicholson v Nicholson Kirby P at [29]-[30] stated:

“I would accept the appellant's argument that to reduce this head of damages would involve a double reduction. The reason this head of damage is allowed is because the plaintiff is incapable (either intellectually or physically) of managing the damages which have been awarded. To reduce the fund management fee for contributory negligence would leave a plaintiff with inadequate funds to manage his damages. That would defeat the very purpose of providing damages on that head. Although the amount allowed for fund management is part of the damages recoverable, it would not be just or equitable to reduce this component for contributory negligence. This would especially be so in this case in view of the fact that the amount allowed for fund management was calculated on an already reduced figure. The underlying premise to recovery of damages is that the amount awarded should be just and equitable in the circumstances of the case … Justice requires that the fee for fund management should not be reduced for the contributory negligence which the Act requires the Court to fund although the basis of that claim was, in the particular facts of this case, causally irrelevant to the appellant's damage.”

291 Meagher JA agreed. Mahoney JA took a different view, although his Honour observed that he was bound by previous decisions of the Court. Nicholson v Nicholson has been consistently applied by the Court since. In my view, this Court should continue to do so and I would refuse leave to reargue the decision. The ground of appeal must fail.

292 Accordingly, I propose the following Orders:

1. Appeal and cross-appeal allowed in part;

2. Vary the award of damages by deducting the amount of $101,684;

3. Verdict for the first respondent/plaintiff in the sum of $1,745,852.70 and judgment accordingly;

4. The appellant and second respondent/cross-appellant are to pay the first respondent/plaintiff’s costs of the appeal and cross-appeal;

293 IPP JA: I agree with Beazley JA and Basten JA.

294 BASTEN JA: I agree with the orders proposed by Beazley JA and her Honour’s reasons, subject to the following comments.

Negligence: the issue

295 To establish negligence on the part of the defendants, the plaintiff needed to demonstrate that each of them owed her a duty of care, which it had breached. As Beazley JA explains at [32]-[35] above, the standard, content or extent of the duty may be identified by reference to the harm which befell the plaintiff: see Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [14], [17] (Gleeson CJ) and at [103]-[105] (Hayne J relying on Brennan J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487); Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [158] (Hayne and Callinan JJ) and see authorities discussed in McPherson’s Ltd v Eaton (2005) 65 NSWLR 187 at [6]-[11] (Mason P) and [128]-[133] (Ipp JA); see also Booksan Pty Ltd v Wehbe [2006] NSWCA 3 at [75]-[77] (Ipp JA).

296 The existence of a duty of care was not in dispute: the standard, content or extent may have been identified with such precision that a conclusion as to negligence followed as a matter of course. Alternatively, the duty may have been broadly defined so that the key question was breach. In some cases the distinction between the existence of a duty and the question of breach is important; in McPherson’s Ltd v Eaton it was necessary to distinguish questions of fact from questions of law. In the present case the approach was not important, as long as the real issue was clearly identified: see Dovuro Pty Ltd v Wilkins at [97]-[99] (Kirby J). There would remain, of course, a question of causation.

297 The question to be answered in the present case may be readily identified. The harm suffered by the plaintiff, as a 13 year old at the time of the accident, resulted from peddling her mountain bike down a ramp (or part thereof) at the commencement of a BMX track and losing control when she became airborne at the first hump on the track. The whole incident must have taken a matter of seconds; the precise manner in which she lost control and fell is not known and is largely irrelevant. It may be inferred that the fall resulted from a combination of speed and inexperience in handling the bicycle in such circumstances.

298 Thus, the essential facts and inferences were as follows:

(1) the plaintiff suffered injury as a result of a fall from her bicycle;

(2) the fall resulted from speed and inexperience on her part;

(3) she was able to achieve the relevant speed by cycling down a ramp constructed in part for that purpose;

(4) an intended purpose of the ramp was to allow riders to obtain sufficient speed to become airborne;

(5) the risk that an inexperienced rider achieving sufficient speed to become airborne might lose control of the bicycle was reasonably foreseeable;

(6) the ramp and BMX track were accessible to the public;

(7) the fact that unsupervised young people on bicycles might use the ramp and the track was reasonably foreseeable;

(8) access to the ramp and track were within the control of the defendants, and

299 Each of these facts or inferences was a finding properly made by the trial judge. In order to establish negligence, only one issue remained, namely whether the defendants should, in their exercise of reasonable care, have blocked public access to the ramp. This was not a case in which the question of reasonableness was being addressed as a matter of hindsight, the nature of the risk having been apparent at all stages: c.f. Neindorf v Junkovic [2005] HCA 75; (2006) 80 ALJR 341, at [97].

300 This was a constructed facility, not part of a natural environment. The fact that a recreational facility involved risks was a matter to be taken into account in making it available to the public without supervision: see [63] above, quoting Woods v Multi-Sport Holdings Pty Ltd at [37] (Gleeson CJ), referring to Rootes v Shelton (1967) 116 CLR 383 at 387. The ability to become airborne was undoubtedly part of the intended excitement of the feature, and the risk of an inexperienced airborne rider losing control of his or her bicycle was no doubt likely to be appreciated at some level by all riders, both experienced and inexperienced. However, the real concern related to inexperienced young riders who might lack the maturity and understanding to appreciate adequately the risks involved.

301 Whether it was reasonable to make the ramp available for use by the public, including the class of young inexperienced riders, of whom the plaintiff was one, was a matter for normative judgment. This was a borderline case, which might readily have fallen on either side of the line. The trial judge held that failure to fence the ramp constituted a failure to take such reasonable care. A different view may have been legitimately open: see Neindorf v Junkovic 80 ALJR 341 at [9] (Gleeson CJ). Because this was not a jury case, the view of the trial judge was explained by reasons. Reasons are desirable in order to ensure that a transparent and principled approach has been adopted, that the legal principles applied have been correctly identified and that appropriate considerations have been taken into account. Nevertheless, the ultimate conclusion may not lend itself to precise analysis or detailed logical appraisal, as has been recognised in other areas of the law: see, in relation to questions of causation, Fitzgerald v Penn (1954) 91 CLR 268 at 277, applied by Mason CJ in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515; see also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [40] (Gleeson CJ, Gummow and Heydon JJ) and Dinsdale v The Queen (2000) 202 CLR 321 at [9] (Gleeson CJ and Hayne J), applied in Saville v Health Care Complaints Commission [2006] NSWCA 298 at [52].

302 What is thus in issue in the present case is the correctness of a normative judgment, made by the trial judge, and about which opinions may differ. This does not involve a question of law: see Neindorf v Junkovic at [14]. However, it invites consideration of the correct approach for an appellate court in such circumstances.

Appellate review

303 The jurisdiction exercised by the Court is governed by s 75A of the Supreme Court Act 1970 (NSW). It is an appeal “by way of rehearing”: s 75A(5). The Court has the power to draw inferences and make findings of fact: s 75A(6); in particular, sub-s (10) provides:

(10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires.

304 The Court conducting a rehearing does not literally rehear the evidence: it deals with the evidence on the papers, not by rehearing the witnesses and receives further evidence only on special grounds: s 75A(7) and (8). However, it is well-established that the Court is obliged to consider so much of the evidence as is necessary to deal with matters raised by the Appellant and must formulate its own view with respect to those matters: see, eg, State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at [64] (Gaudron, Gummow and Hayne JJ), [89]-[93] (Kirby J); [139] and [146] (Callinan J); CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at [16]-[17] (Kirby J). Putting to one side cases in which the trial judge has been required to resolve conflicting testimony as to primary facts, the established principle with respect to the drawing of inferences is that identified in Warren v Coombes (1979) 142 CLR 531, as expressed by Gibbs ACJ, Jacobs and Murphy JJ at 551:

“Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.”

305 These principles have been consistently applied in the High Court: see, eg, Fox v Percy (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [75] (Gleeson CJ and Gummow J). Although the majority in Warren v Coombes required the appellate court to “give respect and weight to” the conclusion of the trial judge, their Honours drew a distinction between that approach and the approach of Barwick CJ which they described in the following terms at p 548:

“Barwick CJ has continued to call for judicial restraint on the part of members of courts of appeal, and to repeat that the decision of a trial judge should not be reversed simply because the appellate court holds a view of the facts different from that which the trial judge has taken, when that view is not unreasonable in the circumstances of the case … .”

Livingstone v Halvorsen

Warren v Coombes

“If on the facts as found by the trial judge two inferences were equally open, it would not be right for the Court of Appeal merely to substitute their own view of which inference should be drawn for that of the trial judge, though if one inference had a substantial preponderance of probability in its favour it may be justifiable to interfere with the trial judge if he took the view that the other inference should be drawn.”

306 A difficulty with this language is that two inferences are not “equally open” in any abstract sense, but only in the view of a particular court. If an appellate court says that two inferences are equally open, it may mean that the plaintiff has failed to establish his or her case on the balance of probabilities. Alternatively, it may mean that the court has been unable to form the view that the trial judge was wrong in preferring one inference to the other. However, the important underlying principle is that the appellate court must review all the evidence before reaching a conclusion. It must also take into account the conclusion reached by the trial judge and the explanation for that conclusion identified in his or her reasons.

307 The difficult case may be the one in which two inferences are held to be “equally open” and there is no preponderance of probability, whether substantial or otherwise, favouring one view or the other. At trial, the plaintiff may fail unless he or she establishes a balance in favour of that view required for liability. However, on appeal, an unsuccessful defendant must satisfy the appellate court - see, eg, Walsh v Law Society (1999) 198 CLR 73 at [56] - that the inference drawn in favour of the plaintiff was the wrong inference, after the Court has given “respect and weight” to the conclusion of the trial judge. This last injunction could mean that it is necessary to take account of those factors in relation to which the trial judge may fairly enjoy an advantage, as identified by Kirby J in SRA v Earthline at [90]. These factors do not require any general deference, for that would reinstate the views of Barwick CJ, from which the joint judgment in Warren v Coombes expressly departed. But neither do they require the appeal Court to ignore real advantages enjoyed by the trial judge, including those which are not readily reduced to written explication.

308 Further, it is clear from the discussion of the facts in the joint judgment in Warren v Coombes that the statement of principle with respect to drawing inferences was treated as relevant to the ultimate question, namely whether the trial judge was wrong in holding that the defendant was negligent: at p 553. To similar effect, in Anikin v Sierra (2004) 79 ALJR 452, having noted at [28] that “[d]ifferent minds might respond in different ways to the evidence given at the trial”, the joint judgment applied the principles established in SRA v Earthline noted above at [304] in order to test the conclusion of the majority in this Court that had overturned “the primary judge’s conclusion on the issue of negligence”: at [39]. Accordingly, the approach in Warren v Coombes should be applied to the question identified above, namely whether the exercise of reasonable care to a class of which the plaintiff was a member, required closing off access to the ramp, being the critical issue on the question of negligence in this case.

309 The trial judge in the present case had a particular benefit in deciding whether the failure to prevent access to the ramp demonstrated a lack of reasonable care, namely his Honour’s view of the facility which, as Beazley JA explains, would have provided a significant benefit over the assessment of the photographs available to this Court: see at [77] above. Taking that benefit into account, and considering the evidence referred to by Beazley JA, to much of which the Court was taken in submissions, I am not persuaded that his Honour’s conclusion in relation to this critical question with respect to liability was wrong.

Inadequacy of reasons as separate ground

310 As Beazley JA notes at [225] and [231] the Appellant complained of the inadequacy of the reasons given in respect of certain aspects of the judgment. The complaint seemed to accept that the trial judge adequately recorded the findings he in fact made, but not by reference to relevant evidence. The basis for this kind of challenge is, however, obscure. The Appellant sought to demonstrate error by taking this Court to the evidence. Given the nature of the proceedings in this Court, as discussed above, if the Appellant seeks to challenge a conclusion reached by the trial judge, this Court must review all of the material relevant to that conclusion to determine if error is established. If there is no reasoning to support the trial judge’s conclusion, it may be that the conclusion itself should be given little or no weight.

311 As I sought to explain in 260 Oxford Street Pty Ltd v Premetis [2006] NSWCA 96 at [118]-[119] (Young CJ in Eq agreeing at [140]), in this State ‘inadequacy of reasons’ acquired its modern attraction as a ground of appeal in cases where the right of appeal was limited to error of law: see, eg, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. The complaint of inadequate reasons has expanded into the broader jurisdiction of an appeal by way of rehearing without full consideration of why such an expansion is necessary, or what are the proper consequences of establishing such an “error”. Initially the expansion was cautious: thus, in Mifsud v Campbell (1991) 21 NSWLR 725 at 728B, Samuels JA stated:

“It seems to me that this ground of appeal does not seek to establish that the learned judge’s conclusion was necessarily wrong, or to seek to replace it by a finding that the plaintiff was entitled to judgment. It attacks the method by which the judge reached his conclusion. There is, I think, an analogy, which is of service in determining the present case, with those authorities which deal with the judicial obligation to give reasons.”

Public Service Board of New South Wales v Osmond

Soulemezis

“Similarly, in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. …

Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge … may promote a sense of grievance … . It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires.”

312 In Mifsud, both Clarke JA and Hope AJA (at p 729) reserved their opinions on whether the error was one of law or not.

313 The second case frequently referred to in this context in this jurisdiction is that of Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. Beazley JA sets out a passage from the reasoning of Meagher JA in that case at [233] above. In that passage, his Honour was dealing with the content of the obligation, not its source, or its relevance in relation to an appeal by way of rehearing. However, to a significant degree, his Honour recognised that a failure to give adequate reasons for a decision may not need to be identified as a separate ground of appeal. Thus, in relation to the first element identified, namely the need for reasons to refer to relevant evidence, his Honour noted:

“However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. … “

Minister for Immigration and Multicultural Affairs v Yusuf

314 An appeal by way of rehearing is quite different from an appeal on a question of law. Indeed, even where it is necessary to establish an error of law for a particular purpose, that may be done in the absence of reasons by drawing inferences of the kind identified by Meagher JA: see Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J). There is no need, on an appeal by way of rehearing, for the appellant to establish an error of law; the appeal court must determine for itself whether particular evidence is relevant and whether a conflict in the evidence needs to be resolved. If the appeal court is satisfied of those matters, no finding having been made, error will have been established. If a finding was made, but no reasoning was provided in support, it may not be possible to discern error from a review of the evidence. It will follow that the correct finding could not be made by the appeal court. If the correctness of the finding is material to the outcome, the absence of adequate reasons may constitute error sufficient to require a retrial if the court is satisfied that “some substantial wrong or miscarriage has been thereby occasioned”: Supreme Court Rules, Pt 51, r 23. In such a case lack of reasons may provide an appropriate ground of appeal. In most other circumstances nothing is achieved by adding an additional ground of inadequate reasons, said to flow from the fact that a failure to provide sufficient reasons “can and often does lead to a real sense of grievance”: Beale, at p 442.

315 Although the reasoning of Meagher JA in Beale has been referred to on subsequent occasions in this Court, the majority judgment in Beale was that of Mason P, with whom Sheller JA agreed. Mason P approached the matter by a careful review of the evidence on the critical issues, noting at 440:

“In those circumstances the appellant was in my view entitled to a finding indicative of some reason, be it demeanour or otherwise, why the trial judge did not take account of this evidence either generally or as part of the process of reasoning back to his highly adverse assessment of the appellant’s credibility and her essential case.”

“However, the critical problem with the judgment is the acceptance of Dr Millar’s unchallenged evidence as destructive of the appellant’s case, when it did just the reverse.”

316 Beazley JA also sets out at [234] the comments by Hayne J in Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at [129] that:

“When it is said that a judge did not give ‘sufficient’ reasons for a decision there may be some doubt about what principles are engaged.”

Gordon v Ross

“As is frequently the case in relation to an appeal by way of re-hearing, a complaint of lack of adequate reasons tends to obscure the real ground of complaint. Thus, if the real complaint is that no finding has been made, the question of reasons is irrelevant. There is no obligation to give reasons for a finding which has not been made. The gravamen of that complaint, whether right or wrong, must be that no finding has been made in circumstances where there was an obligation to address the issue. On the other hand, if a finding has been made, but is not supported by the evidence, there is little substantial benefit to an appellant to complain of inadequate reasons: on a re-hearing, it would generally be necessary for the Court hearing the appeal to consider the evidence and determine for itself whether it was adequate to support the finding made.”

317 I agree with the conclusions reached by Beazley JA at [236]-[247], but would also reject the Appellant’s reliance upon a separate ground of inadequate reasons as unnecessary and inappropriate. Otherwise, and for the reasons given by Beazley JA, I am not persuaded the trial judge was wrong in respect of the other findings challenged by the Appellants.

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Citations

Shellharbour City Council v Rigby [2006] NSWCA 308

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CITATION:	Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308
HEARING DATE(S):	10, 11 & 12 May 2006
JUDGMENT DATE:	27 November 2006
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 293; Basten JA at 294
DECISION:	1. Appeal and cross-appeal allowed in part; 2. Vary the award of damages by deducting the amount of $101,684; 3. Verdict for the first respondent/plaintiff in the sum of $1,745,852.70 and judgment accordingly; 4. The appellant and second respondent/cross-appellant are to pay the first respondent/plaintiff’s costs of the appeal and cross-appeal; 5. The appellant and second respondent/cross-appellant are to pay their own costs of the appeal and cross-appeal insofar as it relates to the issue of contribution.
CATCHWORDS:	DUTY OF CARE – occupier’s liability – statutory authority as occupier – control over land an important factor in determining duty – liability dependent on content of duty in particular case – duty not extinguished or restricted by obviousness of risk - BREACH OF DUTY – duty to avoid injury to inexperienced riders – whether breach of duty by failing to fence off an area of the BMX track particularly likely to cause injury - OBVIOUS RISK – relevant to breach of duty of care – not determinative of breach – whether obvious risks of BMX riding undertaken by inexperienced riders – whether occupier entitled to expect reasonable care of young entrants - CAUSATION – common sense reasoning – inferential reasoning sufficient in absence of precise evidence - CONTRIBUTORY NEGLIGENCE – comparison of culpability required - JUDGMENT – adequacy of reasons – whether basic requirements of a statement of reasons were met by the trial judge - JUDGMENT – acceptance and weight of evidence, and findings of credit, are matters for the trial judge unless error established – preference of trial judge for particular witness – whether any error established - DAMAGES – whether award outside discretionary range – whether Griffiths v Kerkemeyer damages can be awarded for care of plaintiff’s child – whether award for costs of fund management to be reduced by contributory negligence
LEGISLATION CITED:	Evidence Act 1995 (NSW) ss 63, 67, 69, 79, 135, 136 Supreme Court Rules 1970 (NSW) Pt 51 r23
CASES CITED:	Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Booksan Pty Ltd v Wehbe [2006] NSWCA 103 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; [2001] HCA 29 Burnicle v Cutelli [1982] 2 NSWLR 26 Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 389 Cooper v Southern Portland Cement Ltd (1972) 128 CLR 427 CSR Limited & Anor v Eddy (2005) 222 ALR 1; [2005] HCA 64 David Jones Limited v Bates [2001] NSWCA 233 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Griffiths v Kerkemeyer (1977) 139 CLR 161 Hastings Council v Giese (2003) 127 LGERA 109; [2003] NSWCA 178 Jones v Dunkel (1959) 101 CLR 298 Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 Liftronic Pty Limited v Unver (2001) 75 ALJR 867; [2001] HCA 24 March v E & M H Stramare Pty Limited (1991) 171 CLR 506 McPherson’s Ltd v Eaton (2005) 65 NSWLR 187 Modbury Triangle Shopping Centre Pty Limited v Anzil & Anor (2000) 205 CLR 254; [2000] HCA 61 Morgan v Sherton Pty Limited (1999) 46 NSWLR 141; [1999] NSWCA 60 Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43; [2005] HCA 63 Nambucca Shire Council v Connor [2004] NSWCA 13 Nicholson v Nicholson (1994) 35 NSWLR 308 Payne v Parker [1976] 1 NSWLR 191 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 Ratcliff v McConnell [1999] 1 WLR 670 at 683 Richmond Valley Council v Standing (2002) 127 LGERA 237; [2002] NSWCA 359 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Rootes v Shelton (1967) 116 CLR 383 Rundle v State Rail Authority of New South Wales [2002] NSWCA 354 Southern Portland Cement Limited v Cooper [1974] AC 623 Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 Thompson v Bankstown Corporation (1953) 87 CLR 619 Vairy v Wyong Shire Council (2005) 80 ALJR 1; [2005] HCA 62 Vinidex v Theiss [2000] NSWCA 67 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460; [2002] HCA 9 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Shellharbour City Council (Appellant) Rhiannon Rigby (by her tutor Carole Lynne Rigby) (First Respondent) Southlake BMX Club Incorporated (Second Respondent)
FILE NUMBER(S):	CA 40375/05
COUNSEL:	M Joseph SC; S Glascott (Appellant) P Webb QC; J C Stewart (First Respondent) D Davies SC; K M Guilfoyle (Second Respondent)
SOLICITORS:	Phillips Fox, Sydney (Appellant) Lough Wells Duncan (Wollongong) (First Respondent) Ebsworth & Ebsworth, Sydney (Second Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20724/01
LOWER COURT JUDICIAL OFFICER:	Dunford J
LOWER COURT DATE OF DECISION:	22 February 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	Rhiannon Rigby v Shellharbour City Council & Anor [2005] NSWSC 86