Shire of Wakool v Walters

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 1161 of 2001

SHIRE OF WAKOOL
	Appellant
v.
JESSE WILLIAM WALTERS (By his Litigation Guardian MICHELLE STEAD)	Respondent

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JUDGES:	BUCHANAN and NETTLE, JJ.A. and HOLLINGWORTH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 August 2005
DATE OF JUDGMENT:	1 September 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 216

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Negligence – Duty of care – Breach of duty of care - Shire council – Children’s playground equipment under management and control of Council – Whether Council breached duty of care by failing to warn of obvious risks of use of equipment – Whether Council breached duty of care by failing to take reasonable care to maintain sufficient depth of soft-fall surface below equipment – Causation – Proof of causation –Standard of proof - But for test – Whether necessary for plaintiff to prove on balance of probabilities that he would not have suffered injuries but for absence of sufficient depth of soft-fall surface - Damages – Whether assessment of damages supported by evidence.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S. Campbell	Hunt and Hunt
For the Respondent	Mr J.H.L. Forrest, Q.C. with Mr T.S. Monti	Garden and Green

BUCHANAN, J.A.:

I would grant leave to amend the notice of appeal to accord with the draft notice dated 12 July 2005 and dismiss the appeal for the reasons stated by Nettle, J.A.

NETTLE, J.A.:

This is an appeal from a judgment for $84,000 for damages for personal injuries suffered by the respondent on 25 April 2000 when he fell from playground equipment installed at the Moulamein playground in Wakool in New South Wales.

The facts as found by the trial judge were that at about 3.00 pm on 25 April 2000, the respondent and his mother were sitting in Howard Park in Main Street, Moulamein, New South Wales. The respondent was then aged two years and five months[1]. Howard Park was managed by the defendant (which I shall call “the Council”) and the Council had established and maintained an adventure playground in the park. The respondent and his mother were accompanied by a friend, Ms Veering, and they were to be met at the park by the respondent's aunt, Ms Hodson. While they waited for Ms Hodson, the respondent went to play on the adventure playground equipment. His mother and Ms Veering went with him and his mother followed him closely beside the equipment as he went through it. Having crossed a bridge which formed part of one of the pieces of equipment, he moved on to a flat steel platform 1.25m above ground at the end of the bridge. At its side, and forming part of a corner with the bridge and the platform, was an arched climbing frame connecting the steel platform to the ground. It had several bars across it but the spaces between the bars and between the top bar and the steel platform were large enough for a child of the respondent's size to fall through. The respondent walked to the far edge of the platform, and fell through the gap between the top bar and the platform. He appeared to land on both feet and then fall backwards onto his backside and roll onto his side.

[1]The respondent was born on 20 November 1997.

The respondent was distressed by the fall and when his mother picked him up he clung to her neck. She and Ms Veering attempted to check his body for injuries but they did not remove his trousers. When they went to leave they had difficulty seating him in the car. Once seated, he appeared more comfortable and as the car travelled he alternated between sleep and waking. It was later ascertained, however, that he had been passing in and out of sleep when jolted by muscle spasms in his fractured femur.

When the respondent’s mother and Ms Veering got the respondent home they removed his trousers and saw a very large lump in his left thigh. They took him immediately to the Balranald hospital. He was seen there at 1640 hours. Dr Marton examined him and formed the opinion that his left femur had been fractured. He was given pethidine for pain and Maxolon to relieve nausea and was driven then to Swan Hill hospital by ambulance where an x-ray was taken. A spiral fracture of the left femur was diagnosed.

The treatment recommended was “gallows” type traction apparatus and thus he remained in that apparatus for seven and a half weeks. Both legs were strapped with adhesive strapping which was used to suspend his legs and hips in a vertical position while he lay on his back. He had to remain in that position 24 hours a day for the whole of the seven and a half weeks. On four occasions, the strapping failed causing one or other of the respondent’s legs to fall onto the bed. On three of those occasions it was the fractured leg and each occasion was extremely painful. At the end of the seven and a half weeks, the respondent’s legs were lowered. He was given more pethidine to cope with the extreme pain associated with blood flowing back into the limbs. His mother, who observed and took part in the exercise, said that he was in extreme pain and that the nursing staff had physically to force his legs down.

The respondent was x-rayed before discharge. The x-ray showed a slight shortening of his leg but with good new bone formation. The treating surgeon, Mr Young, noted a 15 mm shortening of the left leg but commented that this was not alarming because growth would compensate for it. The respondent returned home. It took him three weeks to begin walking again.

When seen by an orthopaedic surgeon, Mr Nattrass, on 12 March 2003, the respondent was found still to have a mild diaphyseal varus angulation of the left femur of 12 degrees and mild external rotation relative to the right side. His gait was also unusual in that the foot progression angle on the right side was plus 10 degrees and the left side plus 20 degrees. Plus 10 degrees is normal. His hip rotation on the right side was 80/20 (inset) but on the left side was 45/60. A mild leg length difference was found of approximately 5mm. There remains a risk that he will have some physical problems as he grows up and his enjoyment of life will be affected. It appeared to the judge to be common ground that surgery to correct the deformity would not be contemplated while the respondent was still growing. Although the medical evidence suggested that it was more likely than not that surgery would not occur, that outcome was not certain.

The judgment below

The respondent’s claim below was for general damages for the injury, including for the deformity resulting from the injury, pain, suffering and loss of enjoyment of life associated with the injury and its treatment, in the past and up to the present and into the future. It was contended on his behalf that the Council had breached its duty of care to him by failing to put up a sign warning that the equipment was unsuitable for children under three years of age and that the Council had also breached its duty of care to him by failing to maintain not less than 200mm of soft fall surface below the equipment (which, it was said, would have prevented his injuries).

The judge accepted both contentions. As to the first his Honour reasoned that the Council had installed the playground for use by children and knew or should have known of the nature and extent of risks associated with its use. His Honour considered that the Council was entitled to expect parents in charge of their children to exercise reasonable care to control them in the use of the equipment, but had an obligation to exercise reasonable care to ensure that the parents had information sufficient to enable them to exercise reasonable care. The judge noted that the respondent's mother had been sufficiently concerned to follow the respondent closely beside the equipment as he went through it, but said that she did not have experience of the equipment and was not fully aware of the nature and extent of its dangers. His Honour found that, if there had been a sign warning that the equipment was unsuitable for children under thee years of age, she would not have let the respondent use the equipment. In his Honour’s opinion the Council’s failure to warn was therefore causative of the respondent’s injuries.

As to the second way in which the respondent’s case was put, the judge accepted that the Council was under an obligation to maintain a soft fall surface under the equipment to a depth of at least 200mm and that the Council had breached that obligation. His Honour found that the ground below the equipment was “hard and bare” and that its condition was “the result of the failure of the [Council] to take reasonable care in the inspection and maintenance of the area”. In his Honour’s opinion the absence of soft fall caused or materially contributed to the fracture.

The duty to warn

It is implicit in his Honour’s judgment that the equipment was unsuitable for children under three years of age. There was not, however, any expert opinion evidence to support that view. Apart from the fact that the respondent fell from the equipment, it appears that the judge’s reasoning was based simply on a complaint made by a play group to the Council some years before the accident and a suggestion noted in a Council Playground Equipment Survey dated March 1998 to: “install a sign indicating age limits permitted to play on equipment.” As the judge put it:

“… The clear conclusion is open that people writing to the defendant were expressing concerns for the safety of children under the age of five [sic., presumably three] when playing on the equipment in question and the defendant's staff advised in 1998 that warning signs were required. The defendant was well aware of the problem but chose not to address it.”[2]

[2]Reasons: at [11].

With respect, I consider that there are some problems with that reasoning. To begin with, the play group’s complaints did not necessarily establish anything about the safety of the equipment for children under three years of age (or five years of age for that matter). Evidence of the complaints was admissible to establish that the group had made the complaints. It did not prove the truth of their contents.

In the second place, even if the complaints had been evidence of the truth of their contents, there was nothing in them which explicitly, and little which implicitly said anything about “safety of children under the age of [three]”. In terms the complaints were as follows:
“21 April 1997
“Dear Sir,
The Moulamein Playgroup members write through the Secretary to lend support to a recent request to your organisation [sic. the Council] for a toddlers play area in Howard Park. You may or may not be aware that our local playgroup has grown significantly in numbers this year and would find an area such as this invaluable. At present an excursion to the park would be out of the question as the existing equipment is inadequate for our group but a toddlers area would be utilised regularly extending our outdoor activities considerably. We urge you to give this request support as we feel a facility such as this is urgently required in our community….”[3]
“19 June 1997
Dear Sirs/Mesdames,
In reference to our letter of 21^st April 1997 I write express [sic] the disappointment of the Playgroup members that the Toddlers play area in the local park is not being attended to until next year. Our playgroup numbers are now running at 21 and we feel that the need for this facility is urgent. Our children deserve a safe/suitable playground and we feel that the Council is letting these children down by not providing this. As written in our previous letter the park is unsuitable for the 1-3 age group and what is there is poorly maintained (Exposed concrete under the swings,) loose boards on the bridge.
We ask the Council reconsider and act on this matter this year. We appreciate that the Council intends to spend money in this area in the future but we feel the matter needs to be attended to now, ie upgrading of present equipment and installation of equipment suitable for the 1-3 age group….”
Assuming that the playground equipment was “unsuitable for the 1-3 age group,” it does not necessarily follow that the playground equipment was “unsafe” for children under three years of age or that it was unsafe in a fashion likely to lead to injuries of the kind in question. The complaints of a lobby group like the playgroup could mean any number of things and may mean nothing at all.
[3]The balance of the letter was directed to another and unrelated matter.

In the third place, if there were any evidential value in the playgroup’s complaints, it was substantially undermined by uncontradicted expert evidence given by Mr Hutchinson on behalf of the Council that the equipment in question was:

“…an Oz Play play booster unit which certainly at the time of its purchase was considered the best and was certainly the most expensive equipment available in the country.”[4]

The judge expressed the view in relation to other parts of Mr Hutchinson’s evidence that it lacked objectivity but, given that his evidence about the quality of the Oz Play booster unit stood uncontradicted, there was no reason to doubt it.

[4] T. 137 .12 – 16.

In the fourth place, other evidence showed that the Council had responded to the playgroup’s concerns, in September 1997, by having the playground redesigned and upgraded with the addition of equipment designed specifically for children in the one to three year old age group. In a Council intra-office memorandum dated 2 September 1997 it was recorded thus:

“Subject: Upgrading of playground facilities
Brian Chapman, from Island Recreation in Tasmania, has designed the playgrounds; with a copy of the plans attached.
To reduce costs to Council, it has been proposed and agreed that Brian will supervise volunteer labour to construct the playgrounds.
…
Moulamein’s playground is set for Monday 8^th September to Wednesday 10^th, although it is anticipated that the vast bulk of the work of Moulamein will be completed on the Monday. Nettie Adams is coordinating volunteers in Moulamein.
…
Softfall material is being organised through Swan Hill Sand Supplies. The material is sourced from Ballarat and will cost $28/m3 delivered ($12/m3 supply and $16/m3 delivery). Delivery date/time for the softfall is still to be confirmed.
There will be a need for logs/sleepers at both Tooleybuc and Moulamein to contain the softfall, with design depth of the softfall at 250 mm (10”).
The inside of the tyres in the Moulamein playground will need treatment to minimise their attraction for spiders, with the suggestion having been made of painting them white. They will also need a drainage hole, although it is anticipated that this will put in during construction of the playground itself.”

After that work was carried out there were no further complaints from the playgroup or as far as appears from anyone else.

In the fifth place, I consider that the judge’s observation that the defendant's staff advised in 1998 that warning signs were required considerably overstates the effect of the evidence. The evidence showed that after the playground was upgraded in September 1997 the council implemented a regime of twice-yearly inspections with reports of each inspection and subsequent works to rectify any defects. The so-called “advice” that warning signs were required was no more than a note at the end of the report of the March 1998 inspection, as follows:

“Suggestion: Install a sign indicating age limits permitted to play on equipment.”

Whether the limits referred to were upper or lower limits or both does not appear, and no evidence was given on either side about it. For all one knows, the suggestion may have been to install signs of the kind which prohibit children over a certain age playing on equipment designed for younger children. Since the equipment added in 1997 seems to have been designed specifically for children under three years of age, that may well have been so. Perhaps the failure of the Council to give evidence about the matter entitled the judge to infer that anything which it could have said on the subject would not have assisted the Council’s case. But, in the absence of anything else, that was not a sufficient basis to conclude either that the equipment from which the respondent fell was unsafe for children under three years of age or that the Council knew or ought to have known that it was so.

In the sixth place, the law is clear that when deciding whether there has been a breach of duty of care the tribunal of fact must first ask itself whether a reasonable defendant in the Council's position would have foreseen that its conduct involved a risk of injury to the respondent or to a class of persons including the respondent. If that is answered in the affirmative, the tribunal of fact must then determine what a reasonable defendant would have done by way of response to the risk.[5] In turn that calls for consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when those matters are balanced out that the tribunal of fact can determine the requisite standard of care.[6] With respect, I see nothing of that kind of analysis in the judge’s reasons for judgment.
[5]Nagle v Rottnest Island Authority (1993) 177 C.L.R. 423 at 427; Romeo v Conservation Commission of The Northern Territory (1998) 192 C.L.R. 431; Swain v Waverley Corporation (2005) HCA 4 at 45.
[6]The Council of the Shire of Wyong v Shirt and Ors (1980) 146 CLR 40 at 47-48, per Mason, C.J.

Finally, there is the vexed question of the obviousness of the risk. Generally speaking, a local authority is not required to apply time and resources in warning of risks that are obvious[7]. Consequently, a local authority charged with responsibility for a playground is not ordinarily under an obligation to set up signs warning of the obvious risks of using the playground.[8]
[7]Ghantous v Hawkesbury City Council (2001) 206 C.L.R. 512 at 639 [355].
[8]Black v City of South Melbourne (1964) 38 A.L.J.R. 309; Department of Natural Resources and Energy v Harper [2000] 1 V.R. 133 at 148 [47]-[50]; Waverley Council v Lodge (2001) 117 LGERA 447 at 459; Woods v Multi-Sport Holding Pty Ltd (2002) 208 C.L.R. 460 at 474 [44]-[45].

It is commonplace to see public playgrounds fitted with a range of equipment of differing sizes and styles for children of different age groups. Common sense suggests that there is less risk for a small child if he or she is confined to the smaller items of equipment and greater risk if he or she is allowed to go onto the larger items. So much is usually obvious or at least should be obvious to any adult in charge of a small child in a playground. Therefore, in my opinion, an authority would not ordinarily be expected to devote time and resources in putting up warnings of that fact.

No doubt there are cases where the risks are not self evident and therefore in which it is necessary for an authority to warn of the risks. There may also be cases where, although a risk may appear clear, the history of accidents or other reason implies that those affected tend to underestimate the risk and proceed in ignorance. In such cases too it may well be incumbent upon an authority to take steps to warn of the risks and perhaps also to take greater precautions to guard against accident. The fencing of swimming pools and a prohibition on children or unattended children using particular equipment or particular swimming facilities are obvious examples of that kind.

But on the evidence this was not a case of that kind. Assuming for the sake of argument that the equipment from which the respondent fell was not suitable for a child of two years and five months of age, that was so only because the spacing of the treads of the curved ladder made it too difficult for a child of that age to negotiate. Yet on the evidence, the spacing of the treads was obvious or at least just as obvious to the respondent’s mother as to the Council, and there was nothing to suggest that there had been other incidents in which young children had fallen in a similar fashion or to suggest that the Council had reason to believe that young children were likely to fall in that fashion. On the evidence, no one was better placed than the respondent’s mother to assess whether the treads were too difficult for her son to negotiate, and evidently she judged that they were not. In principle the case is very like Black v City of South Melbourne[9].
[9](1964) 38 A.L.J.R. 309

Since the only way in which this part of the respondent’s case was put was that the Council had breached its duty of care to the respondent by failing to warn the respondent’s mother that the equipment was unsafe for children under three years of age and since, assuming it was unsafe, it was or should have been obvious to the respondent’s mother why it was unsafe, I consider that this part of the respondent’s case should have been rejected. On the evidence, the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of a public authority having to put up a warning sign wherever there is risk of that kind, leads me to the conclusion that a reasonable authority placed in the Council's position would not have put up a warning sign in this case.

Amendment of Notice of Appeal.

As the Notice of Appeal stands the only ground of appeal directed to the judge’s conclusions about the extent of soft fall is that:

“His Honour erred in…(b) finding that there was negligence on the part of the Defendant that was a cause of the Plaintiff’s injury…”

On the last business day before the hearing of this appeal, however, the Council’s solicitors served on the respondent’s solicitors and delivered to the court a draft proposed amended notice of appeal which includes the following additional grounds of appeal:
“2.His Honour erred in finding the Defendant’s negligence (if such finding be maintained) caused or materially contributed to the Plaintiff’s injury.
“3.His Honour failed to properly engage with the issues raised by the expert evidence lead on behalf of the Defendant in relation to liability, and to discharge his judicial duty to give adequate reasons for rejecting it.”

At the outset of the hearing, counsel for the Council sought leave to amend the Notice of Appeal in accordance with the draft.

Counsel for the respondent opposed the application on the basis, they said, that the draft notice of appeal had been delivered so late as to prejudice their ability to present argument on the proposed ground 3. But they conceded that notice of the proposed ground had in effect been given approximately one week before the hearing of the appeal in the form of the Council’s outline of submissions. We reserved our decision on the grant of leave until after the conclusion of argument. Having now heard full argument I do not consider that the respondent’s counsel were prejudiced by the lateness of the notice of the amendment. The quality and detail of their submissions shows that they were prepared to meet it. I would be disposed to grant leave to amend as sought.

Failure to engage the issues

The contention that the judge failed to engage the issues has two aspects. The first is concerned with the condition of the ground below the equipment from which the respondent fell and the second with the respondent’s prognosis. Assuming that the court is disposed to grant leave to amend, it is convenient to deal now with the first aspect of the matter and then with causation and to leave until I deal with quantum the question of the respondent’s prognosis.

The argument that the judge failed to engage with the issues concerning the condition of the ground at point of impact centres on opinion evidence given by Mr Hutchinson on behalf of the Council and of photographs of the playground taken some three to four weeks after the accident. The Council contended that unless Mr Hutchinson’s opinion was rejected it established that the depth of soft fall was adequate at the time of the accident and that the judge was in error either in failing to take account of the evidence or alternatively in failing to explain why his Honour rejected it.

Counsel for the respondent denied that was so. In their submission there was direct evidence of three eye witnesses [10] that the ground at the point of impact was hard and bare, and the judge was entitled to prefer that evidence to Mr Hutchinson’s opinion. They further submitted that given the simple factual nature of the question for decision (which is to say, what was the condition of the surface at the time of impact) the judge gave an adequate explanation of why he preferred the direct evidence of the three eye witnesses to Mr Hutchinson’s opinion.
[10]The respondent’s mother, her friend Ms Veering and the respondent’s aunt Ms. Hodson.

I accept the respondent’s submission. The direct evidence of the three eye witnesses was in substance that the ground at the point of impact was hard and bare. All of them said in terms that it was bare. Two of them said in terms that it was hard. All of them in substance conveyed that there was very little soft fall covering the bare ground at the point of impact:

(1)In evidence in chief the respondent’s mother was asked the following questions and gave the following answers on the point :
“What did you see when you looked there?---Well, it was dirt and the pieces of bark that were there were large, large pieces, almost half the size of my hand, and there was very little of what was there and it was solid, hard dirt.
Was there much bark there at all?---No. No, there wasn’t. As I said, what was there were big pieces.
Were they soft or hard pieces?---The were hard, very hard. To me it was garden bark that goes in the garden.
Did you have a good look at the surface?---I did.
…
There is something I have forgotten to ask you, I want to come back to it, and that is the photographs that have been tendered in evidence; when did you obtain those photographs?---Jesse [the respondent] had been in hospital three weeks and my father and myself went over three weeks after the accident to take those photos, the first lot.
When you got there on that occasion, did you inspect the surface of the park?... Yes , we did.
How did its condition compare to the day that Jesse had his accident? ---It hadn’t changed at all, at all; there was the big hard bark chips there. It was still ground, dirt ground.
When you say ‘dirt ground’ what do you mean?---It was just dirt, there just wasn’t any covering of bark at all.“ [11]
[11]T.32.
(2)In cross-examination, the questions and answers were as follows:
“You say that the area underneath the arch was dirt?---Yes.
I suggest to you, you are exaggerating about that?---Well, that’s what I looked at and I picked him up - - -
…
There will be evidence from council employees who went out to the area on 26 May, that’s one month after the accident, and they found that the cover was quite adequate then. What do you say about that?---That’s the first I’ve known about that. Well, still I’m going on what I could see when I was there and it was dirt and it was so much different when I went back 18 months ago.[12]
[12]T.46.
…
You didn’t take close-up photographs of the ground three weeks after the event, thought , as you did when the photographs in P5 were taken, did you?---Well, no.
Sorry?---No.
I suggest again you are exaggerating as to the amount of material that was actually under the arch on the day that you – on the day that this accident happened?---Well, I don’t think I am.
You don’t think you are?---No – well, I know I’m not exaggerating it.[13]”
[13]T. 46-47.
(3)In evidence in chief Ms Veering was asked the following questions and gave the following answers on the point:
“At any time did you look at the area where had had fallen?---Yes, I did.
At what stage or time did you do that ?---When he had actually fallen on the ground.
How close to the area where he landed were you when you looked?‑‑‑Roughly a metre. I was right there with him and with Michelle [the respondent’s mother].
When you looked at where he fell, what can you tell His Honour as to the surface where he fell?---There was bare ground. You could actually see the dirt and there were large bark chips on the ground.
Were those large bark chips hard or soft? ---Very hard.”[14]
[14]T. 52-3.
(4)In cross examination, the questions and answers were as follows:
“…On the day of the accident?---Yes, okay. On the day of the accident there was bare ground and it was a different covering at that stage. It was big, round bark chips mot a mulch-like substance.
When you say ‘big round bark chips’, how big were they?---The were clumps, I don’t know how big. “
(5)In evidence in chief Ms Hodson was asked the following questions and gave the following answers on the point:
“When you went over and inspected was it pointed out to you where he had fallen?---Yes.
How close were you to the position at which he fell?---I would have been probably two metres, three metres.
When it was point out to you where he fell, could you describe to his Honour what you saw by way of the surface there?---Well, the surface was mainly dirt and some bark chips that had kind of spread out over the area underneath where he had fallen but mostly just dirt and a few large bark chips.
…
Can you tell his Honour how the surface in those photographs [taken by the respondent’s mother three weeks after the accident] where Jesse fell compares to how it was on the day of the accident?---Well, there was hardly any ground – there had been bark chips put there but it had all moved away and there was just bare dirt.
Would you look in those photographs and see how the surface there compares to how it was when you looked at it. Are you able to say, or not?---Well, it looks the same. There’s bare dirt under where it is and some big bark chips.”[15]
[15]T. 58-59.
(6)In cross-examination, the questions and answers were as follows:
“[After being shown one of the photographs taken by the respondent’s mother three weeks after the accident] But there’s material under the arch, isn’t there?---Very little.
…
Was the area under the arch pretty much similar to the whole area; was it the whole area that was lacking in cover or was it just under that arch?---No, pretty much. It was very thinned out, scattered out.
The whole area had bits of ground showing and that sort of thing?‑‑‑Yes, it did.
Would you look at these photographs please [taken by the respondent’s mother three weeks after the accident] please. You would agree that in those photographs there’s no wide areas of bare ground or bare dirt showing, is there?---There are parts, yes.
There’s quite a lot of cover there, isn’t there?---There ‘s still quite a bit of sand.
Where is that?---Could you show us in one of those photographs where there’s quite a bit of sand?---Well, all around here.
…
You see, I put it to you, you are exaggerating the account of how much cover there was underneath the arch?---Well, I disagree because when I was there was bare dirt and there was hardly any cover underneath where he fell, around the area.
That’s an entirely different account of what’s in that photograph [one taken by Mr Lightfoot of Casconsult between three and four weeks after the accident], isn’t it?---No. Well, I think that yes, there appears to be more on this D1 than there was on the day.”

Mr Hutchinson was put forward by the Council as a parks consultant specialising in playground inventories and assessments. As he explained in cross examination, however, he had a close affinity with local councils in Victoria and if he were asked to provide an opinion for a person injured in a council playground he would decline to act. To use his words, he did “not to wish to work both sides of the fence” and in cross examination he assented to the proposition that he was “unequivocally on one side of the fence”. At the request of the Council’s instructing solicitors, he had prepared two reports, the first dated 21 May 2002 and the latter dated 24 January 2003:

(1)In the first report he recorded that he had recently attended on site and measured the depth of the under-surfacing material at four points around the climber, and found that the depth of the material varied slightly between the four positions:
“…The photos taken at the time by the plaintiff’s consultant indicate a mostly pine bark surface. NB: Pine Bark being a deeper brown in colour. The depth of material varies slightly between the four positions, which is to be expected given the range/concentration of activity at each.
Given these factors plus knowledge of a certain amount of settling/wastage in the intervening twelve months [sic] in my opinion, indicates a well maintained softfall area. If the plaintiff has fallen, as indicated to me between the top rung and the deck, the depth of mulch at this point of contact (Position D) currently exceeds the physical requirements of the Standard AS/NZS 4422: 1996 “Playground Surfacing” and must have complied with the required 200 mm depth at the time of the incident.
As the area beneath the arch climber is not subject to traffic at all the compaction level compared to the other positions was negligible despite some indication of tree root growth….”
(2)In the second report he stated, among other things, that:
“At the time of my [first] report the playground surface directly beneath this point [from which the respondent fell] consisted of a 200mm depth of pine bark with a 20 mm layer of fresh pine mulch on top. Of the four positions in which I recorded the depth of mulch, this was the greatest. This point of fact came as no surprise as the area beneath such a climber is not subject to traffic that would otherwise disperse the loose fill material.
Although the original report by Casconsult Pty Limited dated 23^rd May 2000 did not record the depth of material at this point it did record that the depth of material ranged from a minimum 150 mm in a heavy traffic area, 200mm around the play area up to a maximum of 250 mm beneath the platform.
From this information together with the 200mm existing depth of the older loose fill material beneath the climber it is safe to assume that the minimum “quantitative” requirements of AS/NZS 4422 were being observed at the time of the incident.”
…
In conclusion I would like to state that…all of the evidence available to me indicates that the softfall material, at the time of the incident, met the requirements of the existing Australian Standard for playground surfacing.”
(3)Asked by the judge how he extrapolated from his observations in 2002 and the Casconsult report back to the day of the accident, he said:
“We look at quite a few playgrounds over a period of time and they are routine regular reports and we are reporting for councils throughout a year on the depths of the mulch in playgrounds, so we have a fair idea of how long mulch takes to settle, disburse and even the colour of the mulch, as it ages on the ground, is different from when it goes on to the ground as it wears. It lightens and becomes a different colour. If the depth recorded by the Casconsult reports within a matter of weeks of the incident, certainly the variance in the depths would indicate that it hasn’t been suddenly topped up. I took that as a reasonable base to assume that what it was like at the time versus the depth and the indication at the time of my report. “

The judge began his consideration of the evidence of the three eye witnesses and Mr Hutchinson’s opinion by observing that the issue was one of fact, namely, what was the state of the ground onto which the respondent fell? His Honour noted then that the respondent relied upon the evidence of his mother, Ms Veering and Ms Hodson, and that the effect of their evidence was that the ground where the respondent fell was hard and bare, save for some pieces of bark. He observed that their evidence was the only direct evidence concerning the state of the ground at that time and that they had not been challenged in their evidence on the basis of partiality or concoction; simply on the basis that they were exaggerating. His Honour said that he considered that the three women were telling the truth and that he was confirmed in that view by the photographs. He considered that the photographs taken by the respondent's mother supported her evidence and that the Casconsult photographs showed uneven soft fall which was not inconsistent with her evidence. The judge said, however, that because photographs tend to be misleading he found to be more significant the Council inspection reports dated 21 January 1999 and 26 May 2000, the latter date being approximately one month after the event, and in particular that each report recorded that 100 mm of soft fall was required to be added. As against all that evidence, the judge observed, the Council had not called any witness to give direct evidence about the state of the surface at the relevant time - even though it had been put to the respondent’s mother in cross-examination that two such employees would be called - and the Council had not led any evidence to account for the absence of those persons from the witness box. The judge referred to the fact that the Council had called Mr Hunter, who was at the relevant time in charge of the persons whose job it was to inspect and carry out maintenance work on the playground, who gave evidence of the Council systems in place for regular inspection, reporting, maintenance and aeration of the soft fall. But, as the judge observed, Mr Hunter did not give evidence of any report of deficiencies or difficulties or any explanation of why, if deficiencies were reported and rectified on a regular basis, there was a 100mm deficiency recorded in both of the 1999 and 2000 annual inspection reports. The judge then turned to the Council’s reliance on Mr Hutchison’s opinion that the area onto which the respondent fell would have had 200mm of soft fall. He noted that Mr Hutchinson advised local government authorities on safety and other issues concerning playground facilities, and that Mr Hutchinson’s opinion was based on an inspection not carried out until 2002, and evidently his Honour considered that Mr Hutchinson’s opinion was not sufficient to overcome the effect the evidence of the three eye witnesses. As the judge put it, the opinion was not the only occasion where Mr Hutchison had revealed a lack of objectivity. The judge concluded on the basis of his analysis of the evidence that the ground on which the respondent fell was hard and bare.

It was submitted for the Council that it was not open to draw that conclusion. As the Council would have it, this court is in just as good a position as the judge to determine the effect of the photographs and, according to the Council, the photographs show clearly that the ground at the point of impact was covered with soft fall. In the Council’s submission, the judge was bound to reject the testimony of the eye witnesses and, in the absence of their testimony, Mr Hutchinson’s opinion held sway.

I reject that submission. On any analysis the opinion was no more than a guesstimate of what might have been and it was dependent on Mr Hutchinson’s assertion that he had “a fair idea of how long soft fall takes to settle, disburse and even the colour of the soft fall, as it ages on the ground, is different from when it goes onto the ground as it wears”. The way in which Mr Hutchinson responded to questions in cross-examination bears out that he lacked objectivity, quite apart from his admission that he was unquestionably on one side of the fence. The Council had two employees with direct knowledge of the condition of the ground at the time of the accident, and the Council chose not to call them. It was therefore properly to be inferred that anything which they might have said on the subject would not have assisted the Council,[16] and the two Council inspection reports mentioned by the judge were consistent with the conclusion that the surface had been substandard at the time of the accident.
[16]Jones v Dunkel (1959) 101 C.L.R. 298 at 321, 322; Brandi v Mingot (1976) 12 A.L.R. 551 at 559.

I agree that this court may be in just as good a position as the judge to view the photographs, and to form conclusions as to what they appear to show. [17] Having looked at them, I also accept that some of them appear to show that the ground at the point of impact was covered with tan bark or something like it. But, as the judge rightly said, photographs can be misleading and, in any event, the task for the judge was not just to interpret the photographs but also to assess whether the photographs so damaged the credit of the eye witnesses that their testimony should be rejected. Since the judge saw the witnesses give evidence, and was thus far better placed than us to carry out that assessment,[18] I am not persuaded that his Honour erred in the fashion alleged.[19] The position here may not be the same as in Pledge v Roads and Traffic Authority[20] for, among other reasons, the trial judge in that case had the benefit of a view which was treated as part of the evidence, and the evidence of the eyewitness was unopposed. But there are similarities. They support the conclusion that there is insufficient basis for preferring what appears to be revealed by the photographs to the evidence of eyewitnesses whom the judge held to be truthful. Like the judge, I consider that the contents of the Council’s inspection reports point strongly in favour of their evidence.
[17]Warren v Coombes (1979) 142 CLR 531 at 551; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 at [51] and [95]-[100].
[18]Fox v Percy (2003) 214 CLR 118 at 125-126 at [21]-[25], per Gleeson, C.J. and Gummow and Kirby, JJ.
[19] Allesch v Maunz (2000) 203 CLR 172 at [23].
[20](2004) 205 ALR 56; (2004) 78 ALJR 572; [2004] HCA 13 esp. at [47] and [48].

Finally on this aspect of the matter, it is plain that the judge did not overlook Mr Hutchinson’s opinion or fail to explain why he rejected it. His Honour specifically referred to the opinion and explained that because of its nature and what his Honour perceived to be its lack of objectivity, he preferred the direct evidence of the three eye witnesses (which his Honour thought to be supported to some extent by the photographs and more fully by the Council’s inspection reports of 21 January 1999 and 26 May 2000). The Council submitted that it was incumbent on the judge to explain his reasoning in greater detail. But I disagree. The degree of detailed reasoning required to be provided in support of a determination depends upon the nature of the determination, the complexity of the issues, whether the issues are of fact or law or mixed fact and law and the function to be served by giving reasons, namely, that the parties may know the basis on which the matter has been decided and to enable a court of appeal to determine whether there has been error[21]. In a simple case like this there is not a great deal which is required. The determination involved a straightforward question of fact of which the determination turned on acceptance or rejection of the testimony of the eye witnesses and the weight to be accorded to Mr Hutchinson’s expression of opinion. The judge explained with tolerable clarity the evidence of the eye witnesses and the nature and limitations of Mr Hutchinson’s opinion and why his Honour accepted and preferred the former to the latter.
[21]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 N.S.W.L.R. 247 at 270; Perkins v County Court of Victoria (2000) 2 V.R. 246 at 272 [62]–[69]; Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 N.S.W.R. 127 at 135-136 [58] and 137 [62].

Negligence

At trial the Council conceded that it was under an obligation to take reasonable care to maintain a soft fall surface under the equipment to a depth of at least 200mm in accordance with Australian Standard AS/NZS 4422:1996 “Playground Surfacing – Specifications, Requirements and Test Method”. It submitted, however, that it had discharged that duty by putting in place a system which aimed to maintain the depth of the soft fall at 250mm. The judge rejected that submission. The judge found that the existence of the system was established in Mr Hunter’s evidence and was confirmed by the contents of the inspection reports. But his Honour held that the system had not been applied with reasonable care. The Council contends that his Honour’s reasoning was erroneous. It submits that the evidence, particularly the inspection reports, established that there was at least 150mm of soft fall at the position where the respondent fell. It contends that there was not sufficient evidence to establish that it was negligent in failing to guard against the sort of risk which befell the respondent.

In my opinion there was sufficient evidence to establish negligence. The judge’s finding of fact was that the surface at the point of impact was hard and bare. I have already explained why I consider that it was open to the judge to make that finding. The entries in the inspection reports were not inconsistent with that conclusion. It is true that the reports were annual inspection reports, in one case made months before and in the other case made months after the date of the accident, and Mr Hunter gave evidence that repairs were made to the soft fall surface from time to time between annual inspections. But Mr Hunter was unable to provide or at least chose not to provide any more detail than that. That being so it was open to conclude that the area at the point of impact was hard and bare at the date of the impact even if it were covered with 150mm or some other depth of soft fall at the date of the next annual inspection. I agree that that the Standard of 200mm of cover was not necessarily critical. It may be that the Council would not have been adjudged negligent if there had been 150mm cover at the point of impact on the day of the accident.[22] But that was not the case. On the facts as found, the surface was hard and bare and, in the absence of evidence from the gardener and the townman,[23] the inference was open if not irresistible that it was due to lack of reasonable care.
[22]Voli v Inglewood Shire Council (1963) 110 C.L.R. 74 at 87.
[23]Who were the two Council employees who had personal knowledge but were not called.

Causation

The Council next contended that the judge erred in finding that the Council’s negligence caused or materially contributed to the respondent’s injuries. It argued that the judge failed to make reference to the limited objective of the relevant Australian standard and to the evidence of a relevantly qualified expert, Dr. Ronald Summers. The point as the Council would have it is that the Standard exists to protect against head injuries and there is no satisfactory evidence that 200mm or any other amount of soft fall would have significantly reduced the risk of long bone injuries of the kind which the respondent suffered. Indeed it says that Dr Summers gave uncontradicted evidence to the contrary.

In my opinion that submission suffers from a number of defects. To begin with, the judge did notice that the Standard was primarily directed to the prevention of head injuries, His Honour said that:

“The standard used a head injury criterion value not only because of the relative seriousness of such injury compared to a broken bone but also because there were recognised methods available for calculating the effect of deceleration on the brain but not for predicting the likelihood of bone breakage. The Standard noted in its Foreword that
‘Fall height and the impact energy attenuating characteristics of the under surfacing . . . do not seem to be the determining factors for longer bone injuries.’

It stated a little later that should a reliable method of predicting the likelihood of long bone injuries become available, the Standard would be revised. The Foreword concluded, after referring to the fact that it would not always be possible to ensure all injuries were prevented,
‘However, adequate under surfacing will minimise the incidents and severity of head injury, and will reduce the occurrence of long bone injuries.’[24]”

[24]My emphasis.

Secondly, there was evidence, in addition to the Standard, that a decent amount of soft fall would have significantly reduced the risk of a fractured femur. Mr Hutchinson accepted that it was good practice to install soft fall and that it absorbs impact. Mr Young, the general surgeon who treated the respondent shortly after the accident, said that he considered that 10 inches (which is to say, 250mm) of soft fall would have prevented the respondent’s injuries and that: “…If a child lands on a soft bed of cushioning, the probability will be that he would not have fractured his femur.” He added that he was not aware of any study showing that tan bark offers shock absorbing capacity and that his opinion was based more on common sense than particular scientific or medical knowledge. But he regarded it as obvious that: “…if you are going to land on a hard bed of stuff you are more likely to break your leg, whereas on the other had [if] you land on something soft, then you are less likely to break your leg.” Mr Nattrass, the paediatric orthopaedic surgeon who had examined the respondent on 12 March 2003 and provided a report, expressed the view that “…the probability of a certain injury happening is greater on a harder surface”. He also entered the caveat that he had not been involved in the formal study of accident reconstruction and had not been involved in seminars concerning the issue of impact trauma. But he said that in his opinion a child of two years and five months would be at greater risk when falling on hard ground than an adult, because of bone structure and the child’s ability to deal with the circumstances of the injury.

Thirdly, I do not perceive Dr Summers to have said anything essentially inconsistent with the opinions of Mr Hutchinson and Mr Young and Mr Nattrass. Dr Summers was not a medical man but a public servant employed by the State of South Australia who described himself as an epidemiologist practising in injury prevention. He said that he held a Bachelors degree in psychology, a Masters degree in maternal child health from an American university and a PhD in epidemiology, public health, and he was also a one time member of the Standards Australia Committee for Playground Safety and a sometime member of that committee. He claimed as a qualification that he headed a small unit within the population health group of the South Australian Department of Human Services devoted exclusively to monitoring cases of injury in South Australia, examining them for opportunities to prevent future cases and taking action by way of legislative regulation, national safety standards and education, and he said that he had started a programme in South Australia in conjunction with several major hospitals in Adelaide to record and study the circumstances that give rise to injury, particularly children’s injury, from a variety of causes including playgrounds. He had not been to the site of the respondent’s accident, however, or examined the respondent or spoken to any of the witnesses and he said that he was only vaguely aware of the circumstances of the accident. Asked in chief whether he was aware of any way to prevent long bone injuries in playgrounds, he answered that: “…My observation is that even on fully complying playgrounds, that is standards complying playground safety surfaces, we are still observing many bone fractures and I don’t know of any system available in the world that claims to effectively prevent these injuries”. Asked, however, whether full compliance with the standard would have prevented the respondent’s injuries, he answered: “…we simply have not got the ability at the moment to quantify what benefit we get from adding an extra measure of softness to a natural surface in regards to long bone fracture”. He said that “his own feeling” was that “…the difference will only be marginal…”. But he qualified that by saying that his opinion was “subjective rather than objective because of lack of research.” In cross-examination he agreed with the statement made in the Standard that adequate under-surfacing will reduce the occurrence of long bone injury - indeed he said he thought he wrote it - and he agreed that “…It would be important for a playground to ensure the playground is maintained with adequate, soft surface fill.”

It is true that the judge did not refer specifically to Dr Summers or his opinion. But in the circumstances I do not think it was necessary for his Honour to do so. Certainly, as the Council submitted, if a dispute involves something in the nature of an intellectual exchange between expert witnesses, with reasons and analysis advanced on either side, a judge may need to enter into the issues so canvassed and explain why one case is to be preferred over the other.[25] But this was not such a case. Here, as I comprehend the totality of their testimony, all of the experts were more or less aligned. As I have endeavoured to explain, Dr Summers seems to have shared Mr Young’s and Mr Nattrass’s opinion that proper under-surfacing reduces the occurrence of long bone injuries, even if there is no statistical data to support that conclusion. Taken with the Standard and the measure of common sense and experience which the judge was bound to bring to the task of fact finding, that appears to me to have been an adequate basis for his Honour’s conclusion. It accords with common sense and experience that 200mm of suitable soft fall would have had a significant effect in reducing the impact and, if appropriately loose, lessened the forces contributing to rotational stress.
[25]Flannery v Halifax Estate Agencies Ltd [2000] 1A W.L.R. 377 at 381-2; Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 N.S.W.L.R. 127 at 135[56] – 141[85]; Expectation v PRD Realty (2004) 209 A.L.R. 568 at 575 [82].

Finally, the Council contended that even if the judge was entitled to conclude that 200mm of soft fall would have reduced the risk of a broken femur, his Honour erred in his ultimate conclusion that the absence of soft fall caused the respondent to fracture his femur. In the Council’s submission, the judge reasoned incorrectly that the respondent needed only to establish that the absence of soft fall increased the risk of fracture, whereas the Council contended that the respondent needed to establish that it was probable (which is to say, more likely than not) that but for the absence of soft fall the respondent would not have fractured his femur.

Counsel for the respondent replied that there was plainly enough evidence to establish causation on the balance of probabilities and that the judge was entitled to find causation on just that basis. But they added in the alternative that if the evidence did not go that far it was sufficient to sustain the judge’s reasoning that the evidence showed that the absence of soft fall resulted in an increase in the risk of fracture and the risk eventuated. And they relied in support of that proposition on the following passage from the reasoning of McHugh, J. in Chappel v Hart [26] (which was later adopted by Gaudron and Callinan, JJ. in Naxakis v Western General):[27]

“Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury[28]. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases [29] the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff. That being so, whether the claim is in contract or tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the plaintiff's injury unless the fact of that particular time or place increased the risk of the injury occurring.[30] (Emphasis added.)

[26](1998) 195 C.L.R. 232.

[27](1999) 197 C.L.R. 269.

[28]Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 614; Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 417; 1 ALR 125 at 138; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724; 10 ALR 303 at 310-311; March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 514.

[29] "Increases" in this context includes "creates".

[30](1998) 195 C.L.R. 232 at 244 [27].

Counsel for the respondent added that since Chappel v Hart was decided it has become commonplace in the County Court for civil juries to be charged on the basis of the emphasised section of the passage that it is enough for a plaintiff to establish causation for the plaintiff to show that the defendant’s breach of duty resulted in an increased risk of injury and that the risk eventuated.

It is convenient to deal with that question first. Despite what is said in the passage from Chappel v Hart which is set out in paragraph 43 above, in my judgement it was necessary for the respondent in this case to prove causation on the balance of probabilities. The law is that in order to succeed in an action for damages for personal injuries the plaintiff must establish on the balance of probabilities that the injuries were caused or materially contributed to by the defendant’s default. [31] A plaintiff does not ordinarily prove his or her case merely by showing that it is possible that his or her injury was caused or contributed to by the defendant’s default.[32] Generally speaking, he or she must demonstrate that it is more likely than not that the defendant’s default caused or materially contributed to the injury. [33]
[31]Bonnington Castings Ltd v Wardlaw [1956] A.C. 613 at 620; Tubemakers of Australia Ltd v Fernandez (1976) 50 A.L.J.R. 720 at 724; Hotson v. East Berkshire Area Health Authority [1987] 1 A.C. 750 at 783, 793.
[32]St George Club Ltd v Hines (1961) 35 A.L.J.R. 106 at 107.
[33]Dahl v Grice [1981] V.R. 513 at 523.

I do not see anything in Chappel v Hart which detracts from that conclusion. In order to understand the effect of the passage which is set out above, it is necessary to bear in mind that the case involved a breach of duty to warn or advise. Admittedly, McHugh, J. was speaking in terms of general principle but his Honour’s reference to a wrongful act resulting in an increase in risk of injury is a reference to a wrongful act of failing to warn against the risk and when his Honour spoke of the risk eventuating he meant that the harm of which there was a risk actually occurred. That is made clear in the rest of the judgment and in particular in his Honour’s conclusions, that:

“ (1) a causal connection will exist between the failure and the injury if it is probable that the plaintiff would have acted on the warning and desisted from pursuing the type of activity or course of conduct involved;
(2) no causal connection will exist if the plaintiff would have persisted with the same course of action in comparable circumstances even if a warning had been given;
(3)no causal connection will exist if every alternative means of achieving the plaintiff's goal gave rise to an equal or greater probability of the same risk of injury and the plaintiff would probably have attempted to achieve that goal notwithstanding the warning;
(4)no causal connection will exist where the plaintiff suffered injury at some other place or some other time unless the change of place or time increased the risk of injury;
(5)no causal connection will exist if the eventuation of the risk is so statistically improbable as not to be fairly attributable to the defendant's omission;
(6)the onus of proving that the failure to warn was causally connected with the plaintiff's harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists. Examples of such evidence are: evidence which indicates that the plaintiff would not have acted on the warning because of lack of choice or personal inclination; evidence that no alternative course of action would have eliminated or reduced the risk of injury. Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff. [34]

[34](1998) 195 C.L.R. 232 at 245-246 [34].

The first and fifth of those propositions are for present purposes the most important. Where a failure to warn results in a plaintiff adopting a course of action which exposes him or her to risk or increased risk of injury, and the risk occurs and he or she is injured, and it is probable that if warned he or she would not have adopted that course of action and hence would not have been injured, he or she is entitled to recover. But he or she is not entitled to recover if the connection between the failure to warn and the damage is so statistically improbable as not fairly to be attributable to the defendant's omission to warn. In other words, as Spiegelman, C.J. put it in Selstram v McGuinness,[35] when it is said that it is sufficient to establish that a breach of duty exposes a plaintiff to increased risk and that the risk eventuates, what is really meant is that the breach of duty has exposed the plaintiff to the increased risk and that the risk has eventuated because of the breach of duty. [36]
[35](2000) 49 N.S.W.L.R. 262.
[36]ibid. at 280 [119].

Contrary therefore to the respondent’s submission, the passage of McHugh J’s judgment in Chappel v Hart which is set out in paragraph 43 above does not imply that it was sufficient for the respondent to establish that the Council’s breach of duty may possibly have caused the damage alleged. Consistently with the long established law as to the proof of causation, it means that it was necessary for the respondent to prove that it was probable that the breach of duty caused his injuries.[37]
[37]Rosenberg v. Percival (2001) 205 C.L.R. 434 at 443 [24], 461 [85]-[89], for the reference to which I am indebted to Buchanan, J.A.

It remains to say something further of McHugh, J’s fifth proposition that no causal connection will exist if the eventuation of the risk is so statistically improbable as not fairly to be attributable to the defendant's omission. As the disparity of opinion in Chappel v Hart tends to demonstrate, one of the major problems in that case lay in saying whether the connection between the failure to warn or advise and the damage was so statistically improbable that the damage was not fairly attributable to the defendant's omission. In the ordinary run of case, however, if one is satisfied on the balance of probabilities that a risk which has eventuated would not have occurred but for the defendant’s breach of duty, it is open to conclude that the risk eventuated because of the breach of duty. Equally, in the ordinary run of case, if one is not satisfied on the balance of probabilities that the risk would not have occurred but for the defendant’s breach of duty, it is not open to conclude that the risk eventuated because of the breach of duty. Thus as Kirby, J. explained in Chappel v Hart:

“If, but for the negligent act or omission, the actual damage suffered by a plaintiff would not have occurred, it will often be possible, as a practical matter, to conclude the issue of causation in the plaintiff's favour. Similarly, where the damage would probably have happened anyway, it will often be possible to conclude that the act or omission was not the cause for legal purposes [38]. In this sense, the ‘but for’ test, so qualified, remains a relevant criterion for determining whether the breach of duty demonstrated is a cause of the plaintiff's damage [39]. However, it is not the exclusive test. Nor is it sufficient on its own to demonstrate the causal link for legal purposes[40]. It is a mistake to read this Court's cautionary words about the ‘but for’ test as an expulsion of that notion from consideration where the question of causation is in contest. On the contrary, a sufficient causal connection will, generally speaking, be established if it appears that the plaintiff would not have suffered the damage complained of but for the defendant's breach of duty. The Court has simply added the warning that it is necessary to temper the results thereby produced with ‘value judgments’ and ‘policy considerations’. This qualification has been expressed lest a party, shown to have been in breach of duty, is forever thereafter to be liable for every misfortune that follows in time[41] whatever the breach demonstrated and however irrelevant it may appear to the damage which ensued.”[42]

[38] Prosser and Keeton on the Law of Torts, 5th ed (1984) at 265.

[39] Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 413.

[40] March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 515, 522.

[41] March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 517.

[42](1999) 195 C.L.R. 232 at 269 [93(3)]; and see also, per Hayne, J., at (1999) at 283[117].

There are some cases, notably industrial disease cases, in which defendants have been held liable for injury on the basis that their negligence substantially increased the risk of injury. The decision of the House of Lords in McGhee v National Coal Board[43] is the principal example. But the line of authority has been criticised and it is unlikely to be extended. Sometimes, it is sought to be justified in terms of the shibboleth of “common sense question of fact”.[44] Other times, it is acknowledged as an exercise in value judgment and policy, which no doubt it is.[45] A further explanation sometimes given is that the increased risk taken in conjunction with the fact that the risk eventuated is enough to support an inference that the risk eventuated because it was increased. [46] None of them is particularly satisfactory.
[43][1973] 1 W.L.R. 1.
[44][1973] 1 W.L.R. 1 at 5, per Lord Reid.
[45]See also Wilsher v Essex Area Health Authority [1987] Q.B. 730 at 780, per Browne-Wilkinson, L.J. in diss, referred to with approval in Wilsher v Essex Area Health Authority [1988] A.C. 1074 at 1090-1091; Seltsam v McGuinnesss (2000) 49 N.S.W.L.R. 262 at 279 [113] - [116], per Spiegelman, C.J.
[46]EMI (Australia) Ltd v BES [1970] 2 N.S.W.L.R. 238 at 242; Dahl v Grice [1981] V.R. 513 at 523.

Such difficulties, however, do not arise in the present case. In cases like the present, the law requires that the connection between cause and damage be established on the balance of probabilities, to a level of comfortable satisfaction,[47] and in this case that means that the “but for” test applies.
[47]Seltsam v McGuinnesss (2000) 49 N.S.W.L.R. 262 at 280[119] , per Spiegelman, C.J.

I turn to the passages of the judgment in which his Honour dealt with causation. They were as follows:

“Failure to maintain surface - causation issue
29. The defendant also submitted that the plaintiff had not proved on the balance of probabilities that, assuming that the plaintiff landed on bare hard earth, the state of the surface was a cause of the fracture that occurred. Counsel submitted that the highest the plaintiff's case could be put was that provision of 200 mm of soft mulch could have avoided the injury and that this was not enough. Counsel referred to Chappel v Hart [48], and the following passage [49] in the judgment of McHugh J …

…
30. Counsel for the defendant submitted that the treating specialist Mr Young said no more than that ‘If you fall on hard ground you are more likely to get hurt’ and that he conceded that in most cases a spiral type of fracture, as occurred in this case, results from a rotational force. He also referred to the evidence of Mr Nattrass that the fracture was the result of a combination of impact and a rotational force. Counsel submitted that the very highest the plaintiff can put his case is to appeal to commonsense and argue that if there was bare ground that was the cause it might have been, or could possibly have been avoided, if there had been more soft filling.
31.The question to be resolved is not whether the fracture would not have occurred if there had been 200 mm of soft fill into which the plaintiff fell but whether the absence of such soft fill was a cause of the fracture. Bearing in mind that the spiral fracture suffered was caused by both rotational force and impact force, the absence of the soft fill was a probable cause of the injury. What occurred was that a small boy fell only 1.25 metres. Two hundred millimetres of suitable soft fill would have had a significant effect in reducing the impact and, if appropriately loose, lessened the forces contributing to the rotational stress. In my view, the absence of any suitable soft fill can, on the balance of probabilities, fairly and properly be considered a cause of the fracture.”[50]

[48](1998) 195 CLR 232.

[49](1998) 156 ALR 517 [23].

[50]Emphasis added.

Taken out of context there are parts of those reasons which might be interpreted as an indication that the judge accepted that it was sufficient for the respondent to establish that the absence of soft-fall resulted in an increase in the risk of fracture. But I do not interpret them in that fashion. It is not likely that his Honour would have adopted a test of causation different to that under which he had operated, as barrister and judge, for almost forty years, and in my opinion the part of the reasons which I have emphasised shows clearly enough that his Honour did not. He assessed the matter on the balance of probabilities and therefore in accordance with the law as it stands. Furthermore, like the judge I think that there was adequate evidence to establish on the balance of probabilities that the lack of soft fall caused or materially contributed to the respondent’s injuries. Given the Standard, the opinions expressed by Mr Hutchinson, Mr Young and Mr Nattrass, and the measure of common sense and experience that one is required to bring to the assessment of such a matter, I judge it to be more likely than not that the respondent would not have broken his femur were it not for the absence of appropriate soft fall.

Damages

In assessing damages the judge said:

“40. In considering the evidence of the medical witnesses it should be noted that none of them had had the benefit of recent examinations or recent information about the varus angulation's effect on the plaintiff. In particular, his mother gave evidence of observing her son at a recent sports day at his school. She observed him coping with walking events and throwing events but having difficulty running and jumping through hoops and he was a lot slower than other children including other children who had their own problems. He is still noticeably limping when tired, for example, after school and tires more quickly than he did prior to the injury.
41.This evidence provides additional information relevant to the plaintiff's future. In particular, it seems, contrary to the medical opinions, that his ability to take part in physical activity and, in particular, sporting activity has been affected. He is still very young and has many years ahead of him as he grows up where he is likely to be disadvantaged in his peer group because of his slowness and tendency to tire. I note also that sport is a significant part of his parents' lives. His parents are athletic people interested in sport. His mother was a very good competitive swimmer (Riverina champion) and plays tennis and netball. His father played AFL football with St Kilda and is still playing football for Wakool at the age of 37. There is also a risk that he will have some physical problems as he grows up and his enjoyment of life will be affected. Whether these issues will continue into adulthood is unclear. It appeared to be common ground that surgery to correct the deformity would not be contemplated while the plaintiff was still growing. There is also uncertainty as to whether such surgery would be recommended. While the medical evidence suggested that it was more likely than not that surgery would not occur, that evidence did not have the benefit of the more recent information.”

The Council contends that the judge erred in that analysis by discounting the opinions of medical experts as to the respondent’s prognosis and placing undue weight on concerns expressed by the respondent’s mother about the respondent’s future. The Council accepts that the respondent’s mother’s concerns were legitimate and entitled to consideration but submits that they could not be regarded as having any weight unless the judge’s acceptance of them were supported by and grounded in appropriate medical opinion. The problem, it is said by the Council, is exacerbated by the fact that the concerns expressed by the respondent’s mother, who was the first witness called to give evidence for the respondent, were not put the respondent’s medical experts, Mr Young and Mr Nattrass, and in the Council’s submission that should have led the judge to draw an inference adverse to the respondent that anything which the experts might have said about the respondent’s prognosis if they had they known of the respondent’s mother’s concerns would not have assisted the respondent’s case.

I am not certain what the judge meant by saying that none of the medical experts had the benefit of recent examinations or recent information about the varus angulation's effect on the respondent. The respondent’s original treating surgeon, Mr Young, had not seen the respondent since attending him in mid 2000 and Mr Young’s reports were confined to that period of treatment. The Council’s expert, Mr Davie, had not seen the respondent since 26 February 2002, more than a year and a half before the trial. But the respondent’s current treating specialist, the paediatric orthopaedic surgeon, Mr Nattrass, had seen the respondent as recently as 12 March 2003, only eight months before the trial.

I also am not certain what the judge meant by saying that none of the specialists had recent information about the varus angulation's effect on the respondent. Mr Davie noted the effects of the condition in his report of 27 February 2002 as follows:

“When seen on the 26^th February, 2002, the mother reported that the child seemed to be satisfactory but seemed to carry the leg when tired and tended to limp, and he didn’t seem to move the left leg as well as the right. There had been some in toeing or rolling in the left ankle and foot…
…
Jesse Salters has sustained a displace fracture of the shaft of the left femur. It has united with an external rotation deformity of approximately 50 degrees. I don’t think this will interfere in his abilities to play sport or to have a satisfactory career even if he goes into manual pursuits. However as a result he will have an external rotation deformity of the left femur and this would be permanent… [51]

[51]Emphasis added.

Mr Nattrass wrote in his report of 15 April 2003:

“…At this time [the respondent’s mother] is concerned that [the respondent] may be favouring his leg. She notes that when he runs he lifts his shoulder up and at the end of the day he has a noticeable limp. She had received a letter from pre-school suggesting that he see a Podiatrist for his limp. She feel[s] this has been increasing since he has been a[t] “big school”. He does have occasional aching in the left hip.
…
…He does have mild angulation in the femur and mild external rotation relative to the right side (although probably more ‘normal‘ rotation of the femur rather than the inset right hip.) The complaints that his mother relate are really rather vague but [he] does appear to [be] probably getting some trouble with limping which may relate to the mild varus position of the femur.
…I suspect that Jesse will get along without any major problems whatsoever. It is still a bit concerning that three years after his injury he continues to have some gait abnormalities that are brought on by increasing fatigue when he is tired. I suspect he will get along well in the long term without any long term problems…If however he continued on with fatigue/discomfort one may be tempted in the future to proceed with a femoral osteotomy which would help with internal fixation….
The surgical costs would be upwards of $1500 with associated costs perhaps approaching $5000.
I doubt very much this injury does affect his ability to participate in sports or any other activities that he wants. The only cause for some concern is the mild varus angulation of the femur
… “ (Emphasis added.)

Perhaps the judge was simply emphasising that Mr Nattrass did not have the benefit of the respondent’s mother’s evidence. That would explain his Honour’s statement that the continuing effect of the varus angulation on the respondent’s ability to participate in sport was contrary to medical opinions.

But however all that may be, I do not accept that the judge’s analysis was erroneous. Earlier in his reasons his Honour set out the substance of the medical opinions as well the respondent’s mother’s concerns. He reached the view on the basis of all that evidence, lay and expert, that the respondent had suffered a permanent deformity and that it was unclear whether the respondent’s difficulties in running would continue into adulthood. In my opinion that conclusion was open to be reached on the basis of the expert medical opinions alone. The preponderance of medical opinion supported an ongoing permanent disability which could affect the respondent for the balance of his life.

It is true that his Honour treated the respondent’s mother’s evidence about recent sporting difficulties as additional information relevant to the respondent’s future. It is also true that Mr Nattrass was not asked about the effect of the mother’s evidence on his opinion. But even assuming, without deciding, that the failure to ask Mr Nattrass about the mother’s most recent concerns gave rise to an inference adverse to the respondent,[52] the worst that Mr Nattrass could have said in response to such an inquiry was that he was surprised that the problem had not improved more quickly and the fact that it had not did not alter the opinion he expressed eight months before. That would not have been sufficient if any reason to disregard the respondent’s mother’s concerns.
[52]Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 N.S.W.L.R. 389 at 419; R. v G.E.C. (2001) 3 V.R.334 at 345; Ta Ho Ma Pty Ltd v Allen (1999) 47 N.S.W.L.R.1 at 4; Cross on Evidence, Aust. Ed. at [1215]

The authorities are clear that when an appellate court is asked to interfere with a trial judge’s assessment of damages, it must be satisfied that the judge has

acted on wrong principle or has misapprehended the facts or for those or other reasons can be seen to have made a wholly erroneous estimate of the damages suffered.[53] I am not so satisfied.
[53]CSR Readymix (Australia) Pty Ltd v Paine (1998) 2 VR 505 at 508, per Winneke, P.; State of Victoria v McIver (2005) VSCA 50 at [17] and [18].
Conclusion

For the reasons I have given, I would dismiss the appeal.

HOLLINGWORTH, A.J.A.:

I would also grant leave to amend the notice of appeal and dismiss the appeal, for the reasons given by Nettle, J.A.

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[2005] VSCA 216

1 September 2005