Strath v New South Wales

NEW SOUTH WALES COURT OF APPEAL

CITATION: STRATH v. STATE OF NEW SOUTH WALES [2000] NSWCA 288

FILE NUMBER(S):
40376/99

HEARING DATE(S): 13/10/2000

JUDGMENT DATE: 03/11/2000

PARTIES:
Steven Strath formerly known as Steven Orle, by his Tutor, the Protective Commissioner (Appellant)
State of New South Wales (Respondent)

JUDGMENT OF: Sheller JA Powell JA Stein JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): CLD17586/85

LOWER COURT JUDICIAL OFFICER: Master Malpass

COUNSEL:
M.F. Holmes QC/M.A. Elkaim (Appellant)
Ms. R.S. McColl SC/G.A. Laughton (Respondent)

SOLICITORS:
McLaughlin & Riordan (Appellant)
I.V. Knight, State Crown Solicitor (Respondent)

CATCHWORDS:
NEGLIGENCE - Liability of State for injury sustained in grounds of State primary school - Injury sustained by pupil of school playing in school grounds outside school hours - Pupils and parents previously advised school grounds "out of bounds" outside school hours - Pupil injured when fell while playing on a "fort" erected in school grounds - At trial the pupil's case was that the "fort" was dangerous because the ground surface around and under it was inadequate to provide "a soft landing" in the event of a child jumping or falling from it.
D

LEGISLATION CITED:

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA0 40376/99
CLD 17586/85
SHELLER JA
POWELL JA
STEIN JA
3 November 2000

STRATH v STATE OF NEW SOUTH WALES
JUDGMENT

SHELLER JA: I have had the benefit of reading the judgment of Powell JA in draft. I agree with his Honour's reasons for judgment and the order he proposes.
POWELL JA: This is an appeal by an unsuccessful Plaintiff from a Judgment delivered and verdict found by Master Malpass sitting in the Common Law Division of the Court on 30 April 1999.
In the proceedings, which have had a sorry history which does not appear to cast a favourable light over the efforts of some at least of the members of the legal profession who have acted for the Appellant over the years, the Appellant, who is now 25 years of age, sought to recover from the Defendant damages in respect of the injuries which he sustained as long ago as March 1984 when he fell and struck his head while playing, after school hours, on what has been described as a "fort" - a log play structure - which was then erected in the grounds of Cabramatta Primary School, a school which the Appellant then attended as a pupil in an OA class in Year 3. At the time of his accident the Appellant was a little over 8½ years of age.
At the time of his accident, the Appellant, whose parents had separated almost 3 years previously, was living with his mother and his brother, who was not quite 3 years older than he, in what appears to have been a flat or unit in Broomfield Street, Cabramatta, which flat or unit seems to have been within an easy walking distance of Cabramatta Primary School - the school appears to have had a frontage to two streets, Levuka Street - which was given as its address (see Exhibit 4 - Blue AB 503-504) - and Cumberland Street - the relevance of which latter street will shortly appear. The Appellant and his brother seem to have commenced as pupils at Cabramatta Primary School in 1982 shortly after they, together with their mother, had moved to the flat or unit in Broomfield Street following their parents' separation.
Situated within the school grounds were the "fort" to which I have earlier referred and, in close proximity to the "fort", a tennis court, which was fenced with what appears to have been a weldmesh type fence (see Black AB 3, Exhibit A4 - Blue AB 2) the relevance of which will shortly appear. The "fort" was described by Mr. Pilton - an expert who appears to have been retained on behalf of the Appellant in about May 1995 - who, although not having inspected the "fort" had seen photographs of it, as follows (Exhibit J - Blue AB 380):
"I have not inspected the equipment and therefore the dimensions given in the following description are approximate only. The play structure is a common style of equipment in schools and parks. It consists of a central deck approximately 1300 mm high and 2000 mm square with firemen's poles at one side, a balance beam on another and a log ladder/bridge on a third side. The central deck has a double rail surround approximately 800-900 mm high except where the three pieces of equipment are located and there is no protection at those points. There are three points of access; up a log ladder and across the bridge, up a log ladder and across a balance beam or via climbing logs up to the deck. Thus it is relatively easy for an 8 year old child to access the desk but exiting is quite difficult. There are the firemen's poles, the bridge, the balance beam and the log ladder. Use of the firemen's poles should be well within the capabilities of an 8 year old child, particularly given the relatively low height involved, but it is not easy to get off the equipment via the log ladders since this manoeuvre involves turning through 180 degrees. The difficulty is exacerbated by the fact that the logs are inherently of such a size that it is not easy for a child to maintain a firm grasp during the manoeuvre. Thus the situation will inevitably develop where a child, wanting to get off the equipment in a hurry - whether because of a chasing game or to rush off somewhere else more attractive or through normal children high spirits - has no option but to jump, most probably without thinking since the height is not excessive."
Although the photographs which form part of Exhibit A appear to show that, in addition to the fence around the tennis court, there were other fences within the school grounds (see Exhibits A3, A4), the evidence as to the existence of any perimeter fences around the school grounds and of their nature is less than clear. The evidence of Mr. Manwaring (Black AB 152-155), who, at the relevant time, was one of the Deputy Principals at the school, would suggest that there were perimeter fences, but the evidence of the Appellant (Black AB 3) and of Mr. Akin (Black AB 99) a former pupil at the school who was a year or two older than the Appellant, and who then lived with his parents in a block of home units situated in Cumberland Street, Cabramatta immediately adjoining the side boundary of the school, would suggest that, although there may have been perimeter fences on the other three boundaries of the school grounds, there was but a dwarf brick wall, which could easily be clambered over, between the school grounds and the grounds of the unit block in which Mr. Akin then lived, which provided a means of access to the school grounds out of school hours.
The evidence of Mr. Manwaring (Black AB 142 - see also Exhibit 7 - Blue AB 649-650) was that, during each school term, there were held assemblies for both Infants and Primary Departments, during the course of which assemblies children were told (inter alia) what were school hours and, in particular, that they were not to enter the school grounds prior to 8.30 a.m. on school days and, when leaving the school of an afternoon, they should not return to the school to play and that they should not play in the school grounds on week-ends. In addition, at the beginning of each school term, children attending the school were given copies of a newsletter to be taken home to parents, the newsletter not only being in English but also translated into other languages as well. The newsletter for Term 1 1984 (Exhibit 4 - Blue AB 503-504) dated 21 February 1984 - that is, less than 3 weeks prior to the Appellant's accident - contained (inter alia) the following (Blue AB 504):
"SUPERVISION OF CHILDREN BEFORE AND AFTER SCHOOL
Please note children will only be supervised between the hours of 8.30 a.m. and 3.00 p.m. Children travelling by bus will be supervised until the arrival of the bus. We ask you to ensure that your child/children are aware of these hours and that the school grounds are 'OUT OF BOUNDS' outside these hours and particularly at week-ends."
In addition, so it would seem (see Exhibit 7 - Blue AB 649), the area where the "fort" was located - which area seems to have been set aside for children in the Infants Department (Black AB 157-158) - was out of bounds to children unless supervised by a teacher during normal school hours.
The evidence of Mr. Manwaring (Black AB 142 - see also Exhibit 7 - Blue AB 650) was that he was regularly at the school outside school hours and at weekends and that it was his practice, both on school days and at weekends when he was at the school, to patrol the school grounds and make sure there were no unauthorised persons within the school grounds or in the school buildings - on one such occasion, which seems to have been shortly before the Appellant's accident, he found the Appellant either in the school grounds or in the school buildings after 4.00 p.m. and asked him to leave.
Despite this, it would seem that there were pupils, including the Appellant and Mr. Akin, who, because there were no nearby parks or playgrounds in which they could play (see Black AB 3, 99), would, after having gone home from school, return to the school grounds to play.
On 12 March 1984, both the Appellant and Mr. Akin, having earlier gone home, were playing in the school grounds. Although the Appellant has no recollection of what occurred (Blue AB 4) Mr. Akin claimed to have observed the Appellant's accident.
In a statement (Exhibit G - Blue AB 11) taken - but not until March 1989 - from him, Mr. Akin said (inter alia) as follows:
"I can remember the afternoon when Steven Orle fell off the fort in the school.
It was about 4 o'clock in the afternoon, after school, I was playing in the tennis court, I was on my own. I don't think there was any other kids around except for Steven and I. I can't remember now. I was on roller skates and in the tennis court. Steven was climbing on the fort, he was on the top, there were two poles that come down the side of it, they were there so you could come down fast. The fort was made out of steel. He was on the platform and then he put his hands on the poles as if he was going to slide down, but his hands seemed to slip and he went down head first, he hit his head I think it was on the left hand side when he hit the ground. I can't remember any pieces of wood sticking up. But they might have been there.
When he hit the ground he didn't move, I thought he might have hurt himself so I ran over to him. He looked like he was unconscious. I think some other kid who was nearby went and told their mum after I told them that the boy had fallen down and to call the ambulance. My mum had been on the balcony of our unit and saw what happened. Then my dad came over and waited with us for the ambulance. The ambulance parked down the road a bit and when they came over they got him up and helped him to walk over to the ambulance. He was all the time falling down but they kept helping him along.
I don't think anyone else saw what happened. I cannot remember if Steven was playing on the fort before I started playing in the tennis court. I had been in the tennis court for about half an hour before he fell. I was riding around the tennis court on my skates and I just happened to be going toward the fort when he fell."
(The significance of Mr. Akin's statement that "he couldn't remember any pieces of wood sticking up" will later appear.)
Mr. Akin's evidence in chief at trial (Black AB 100-102) was as follows:
"Q,. Do you know Steven Orle or Strath? A. I know just his face I don't know him as a friend.
Q. On 12 March 1984 did you see something happen? A. Yes, I did.
Q. First of all where were you? A. I was inside the tennis court.
Q. What were you doing? A. Roller skating.
Q. What did you see? A. I seen Steven, he was coming down, I was going around and he went to grab the actual … ?
Q. First of all where was he? A. He was on top of the fort, he went to grab the pole to slide down and I don't know if because of the …
Q. Just tell us what you saw, not what you are not sure of the mechanism, what you actually saw? A. He slipped, his hand couldn't grab and he went head first …
Q. What I want you to do is to describe what you saw, without forming a conclusion as to why something may have happened, for example you said his hand could not grab it. Do you understand, you do not really know …. A. Right
Q. Just all you saw? A. I saw him lean forward and fall down head first.
Q. And then what happened? A. Falling.
Q. What happened? A. He was unconscious.
Q. No. Before he was unconscious did he hit something? A. His head hit the floor.
Q. What do you mean by 'the floor'? A. Where the actual sliding pole was his head and his shoulders were between a pole.
Q. When you say 'the floor'? A. It was compacted sand.
Q. The ground, you mean? A. Yes.
Q. Then just, correct me if I am wrong, was he then like wedged between the two poles, is that what you are trying to say? A. Yes.
Q. He is at the top? A. Yes, at the top.
Q. And you say he fell down? A. Yes.
Q. Head first? A. Yes.
Q. Before that what was he doing? A. Was going down and back up, going down, just constantly doing that.
Q. Going up? A. Up the fort and then sliding down and then going back up the fort and sliding back down.
Q. Sliding down what? A. The pole.
Q. How was he sliding down, this is before the fall? A. With his hands and legs.
Q. When you saw that happen, when he fell, what did you do? A. Then I ran to my parents that were in the balcony and we called an ambulance, I think, or we told a friend to call an ambulance, or something."
Although the evidence is not clear, it would seem (Black AB 57) that the Appellant's mother had not been at home when the Appellant and his brother came home after school and when they then returned to the school grounds to play. Although the Appellant's brother had, for a time, played in the school grounds, at the time of the Appellant's accident he had apparently gone to a local shop to "buy some lollies and things" (Black AB 41). It was while he was there that the Appellant's brother was told by one of the Appellant's friends that the Appellant had been hurt in the school grounds, following which he returned to the school grounds and saw the Appellant lying in the grounds near the "fort" (Black AB 41). When the ambulance arrived the Appellant's brother went with him in the ambulance to Fairfield Hospital (Black AB 42) where the Appellant's brother telephoned his mother who then went to Fairfield Hospital (Black AB 42, 57).
It would seem that, on the following day, the Appellant's mother went to the school and saw, first, Mr. Manwaring and, then - the School Principal Mrs. Ford being absent - the Senior Deputy Principal, Mrs. Jago. In a statement (Exhibit 7 - Blue AB 649-650) taken from him in November 1985, Mr. Manwaring said (inter alia):
"The first thing that I knew about this accident to the boy Orle, was when his Mother arrived at the school on the Tuesday morning the 13th March, 1984, our Principal for the school Mrs. Ford was away sick. Mrs. Orle had made a general inquiry at the front office asking for additional information on the circumstances of the accident which had happened to her son on the 12th March 1984. Up to the stage of Mrs. Orle coming to the school requesting this information I was not aware that there had ever been an accident. At the time of Mrs. Orle coming to the school she was extremely upset, together with the Senior Deputy Principal Mrs. Jagoe (sic) I took Mrs. Orle to Mrs. Jagoe's (sic) office, I left Mrs. Orle with Mrs. Jagoe (sic) and I commenced to make some investigations into this accident. I first made contact with Steven Orle's Brother, Joseph, and I brought him up to Mrs. Jagoe's (sic) office and continued the discussion about the accident for some time. From that discussion we were able to ascertain another school child that had been present when Steven was transported by ambulance to the hospital. I made contact with that child who was then in year five, his name was Ali Akin. I interviewed Ali privately in my office, he told me that he had been playing in the tennis court with a ball, and that he had seen Steven Orle playing on the climbing equipment which is the fort. The boy Akin returned to the driveway of his block of flats and his Mother who was standing on the balcony of their flat saw Steven lying on the ground at the base of the fort. Mrs. Akin asked her son to go back into the school, which he did, and he went to the fort area and he could see Steven lying on the ground, and that he could see blood. Ali then told his Father that Steven was hurt and his Mother rang the ambulance about 6.30 p.m. on that day, in the meantime Ali went and got Steven's brother Joseph and brought him back to the scene of the accident. When the ambulance arrived Joseph accompanied his brother to the hospital.
On Wednesday the 14th March, 1984, Mrs. Orle came to the school, she was still extremely upset, and she made a statement to me that another boy had pushed Steven from the climbing equipment. After this statement was made, Mrs. Jagoe (sic) and I further investigated this matter but we could find no evidence to substantiate the claim made by Mrs. Orle."
By the time the proceedings came on for hearing before the Master both Mrs. Ford and Mrs. Jago were deceased (Black AB 143).
It was either on 13 or 14 March 1984 when the Appellant's mother took the four photographs which comprised Exhibit A (Black AB 56) - whether the Appellant's mother took those photographs of her own volition or as the result of some advice or instruction given to her by someone else was not explored in the evidence.
The evidence reveals nothing as to any inquiries or investigations which may have been made of anyone - in particular of Mr. Akin - on behalf of the Appellant prior to the commencement of these proceedings in November 1985. Indeed, it may well be that no inquiries were made of Mr. Akin or of his parents on behalf of the Appellant for many, many years after the Appellant's accident - the statement which was taken from Mr. Akin in 1989 was taken, not on behalf of the Appellant, but by a police officer carrying out investigations on behalf of the State Crown Solicitor - and Mr. Akin was not asked anything as to the state of the ground around and under the "fort" - a matter which, as will become apparent, assumed some importance at trial - until late 1998 when asked by someone apparently representing the State Crown Solicitor's office (Black AB 105). The only expert report dealing with matters going to liability - and even then based on what appears to have been a false assumption as to the facts of the accident - was that obtained from Mr. Pilton which, as I have earlier noted (para. 4 (above)), which was not obtained until May 1995.
These proceedings were commenced on 5 November 1985 when there was filed on behalf of the Appellant a Statement of Claim to which was joined as Defendant - one assumes as the Nominal Defendant appointed pursuant to the provisions of s.3 of the Claims Against the Government and Crown Suits Act 1912 - the then Permanent Secretary of the Attorney-General's Department. So far as is relevant, that Statement of Claim (RAB 1-2) alleged:
"1.At all material times the plaintiff was a pupil of the Cabramatta Public School.
2.There was erected in the school grounds a childrens fort constructed of treated pine logs.
3.In close proximity to the base of the said fort were portions of two such logs protruding approximately 10 cm above ground level.
4.On 12 March 1984 in the course of playing on the said fort, the plaintiff fell therefrom so that his head struck one of the protruding logs.
5.It was the duty of the Government of New South Wales to take reasonable care to protect the plaintiff was dangers which he might encounter in using the fort.
6.In breach of its said duty the Government of New South Wales negligently failed to protect the plaintiff from the said dangers.
PARTICULARS OF NEGLIGENCE
(a)Failing to remove the protruding portions of logs
(b)Failing to appreciate the risk that such portions of logs posed to children jumping from the fort to ground level;
(c)Failing to warn the plaintiff of the danger in jumping from the fort;
(d)In the circumstances of the hazard created by the exposed portions of logs, failing to supervise the activities of children including the plaintiff;
(e)In the circumstances including the absence of supervision, failing to exclude children including the plaintiff from the area of the fort.
………"

Paragraphs 3, 4 and 6 of this Statement of Claim would seem to demonstrate that - as I have earlier (para. 16 (above)) suggested - at no time prior to its being filed had any inquiry been made of Mr. Akin on behalf of the Appellant and that the probability is that no inquiry had been made on behalf of the Appellant of his brother. While it is true that, in some of the photographs (Exhibit A1, A3, A4) taken by the Appellant's mother, one can see, as Mr. Pilton noted in his report (Exhibit J - Blue AB 381), "two logs fixed vertically into the ground around 1-1.5 metres away from the main structure (which) logs are around 300 mm high and appear to be about 90 mm in diameter", those logs are set off from the fourth side of the "fort", which side does not provide any means of access to, or exit from, the central deck of the structure - in particular, they are not located near the firemen's poles down which, so Mr. Akin suggested, the Appellant was seeking to slide at the time of his accident and between which his head came to rest after his fall.
On the hearing of the appeal, we were informed by senior counsel for the Appellant (T. 2) that "(his) instructing solicitors were not the solicitors on the record (at the time of the commencement of the proceedings) and what further investigations were made at that time we're unable to say". Although it is true that the name of the firm of solicitors, of which the solicitor on the record for the Appellant at the time of the commencement of the proceedings was then a partner, differs from the name of the firm of solicitors, of which the solicitor now on the record for the Appellant is a partner, that fact would appear to provide no explanation for the apparent lack of investigation or inquiry made on behalf of the Appellant at the time and later or for the dilatory manner in which the proceedings have been conducted on behalf of the Appellant. Although the partnership of which the solicitor on the record for the Appellant at the time of the commencement of the proceedings was a member was, if my memory serves me correctly, dissolved in the early 1990's, the solicitor then on the record for the Appellant then became a partner in the firm of solicitors of which the solicitor now on the record for the Appellant is a partner, which new firm of solicitors continued, for some years at least, to occupy premises previously occupied by the former firm - even now the new firm appears to occupy offices in the same building as those occupied by the former firm, albeit on another floor. Further, although the solicitor on the record for the Appellant at the commencement of the proceedings is no longer a partner in the new firm of solicitors, he remains a consultant to it.
As will be apparent from what I have earlier recorded - and, in particular, the statement of Mr. Manwaring to which I have earlier (para 13 (above)) referred - after the Statement of Claim had been filed and served a Police Officer, who was apparently seconded to the State Crown Solicitor's Office for the purpose of carrying out investigations, attended at the school and obtained statements from a number of members of the staff - the fact that the statement obtained from Mr. Akin was not obtained until 1989 would suggest that the investigations in 1985 were restricted to members of the staff of the school.
In the Defence which was filed on behalf of the Government (RAB 15-16) the allegations contained in paras. 3, 5 and 6 of the Statement of Claim and the particulars of negligence given were put in issue. Further, it was asserted that the Appellant had been guilty of contributory negligence, particulars of which were given as:
"(a)Failing to keep a proper lookout for his own safety;
(b) Failing to take adequate care for his own safety;
(c)Failing to obey instructions not to enter upon school grounds outside of school hours;
(d)Entering upon the Defendant's property outside of school hours contrary to instructions;
(e)Playing on or about the fort erected on the Defendant's property without supervision contrary to instructions;
(f)Playing on or about the fort erected on the Defendant's property outside of school hours contrary to instructions."
Despite the fact that it was clear by March 1986 that the Government strenuously denied that it was liable to the Appellant, the materials which are before the Court do not disclose any efforts being taken on behalf of the Appellant to obtain evidence directed to that issue, or otherwise to ready the proceedings for trial. On the hearing of the appeal senior counsel for the Appellant informed the Court (T. 7) that there was an Issues and Listing Conference held in June 1989 but that "in the light of Dr. Marosszeky's report of 15 May 1989" - semble of 28 July 1987 (Blue AB 96-99) - "it was agreed that the claim should not be finalised until he turns (sic) 18 because his condition was not sufficiently stable to assess. When he turned 18 in 1993 his condition deteriorated with his leg and his hip and he had a series of various operations, and then my instructing solicitors in '94, '95 and'96 updated the medicals and the Pilton report was obtained and served on 22 July 1997". However, while Dr. Marosszeky's report and the need for the Appellant later to be hospitalised provided a valid reason for the assessment of damages, if payable by the Government to the Appellant, to be deferred, it provided no reason whatsoever for there not having been any application made for an order that the question of the liability of the Government to pay damages being tried as a preliminary issue. The failure on the part of the Appellant's solicitors to obtain evidence relevant to the question of the Government's liability to pay damages certainly did not assist the Appellant's case at trial, for it is clear that, even in 1989, when the statement to which I have earlier (para 10 (above)) referred was obtained from him, Mr. Akin's recollection was defective and, even though the "fort" was ultimately removed from the school grounds, Mr. Manwaring's recollection (Black AB 164) was that that did not occur in the 2 years - 1984 and 1985 - while he was at the school so that, during that time, it would have been possible for the "fort" and the ground around and under it to be inspected by, and a report obtained from, an expert such as Mr. Pilton.
As I have previously (para. 4 (above)) recorded, Mr. Pilton's report (Exhibit J - Blue AB 380-382) was obtained in May 1995. It is clear, that even at that stage, those acting for the Appellant still had no real idea of how the Appellant's accident occurred, for the report commences (Blue AB 380):
"I understand that the Plaintiff, who was then 8½ years old, was playing on a log play structure in the grounds of Cabramatta West Public School after school hours when he jumped from the structure and struck his head on a short log protruding from the ground nearby, causing severe head injuries. I have examined the photographs of the equipment in question as well as the plaintiff's mother's statement."
Following the paragraph from the report which I have earlier set out (para. 4 (above)), the report continued (Blue AB 381):
"Any play equipment should allow for children jumping or falling off. Studies have shown that more than 75% of serious childhood injuries in playground accidents are caused by falls onto the ground from play equipment; falls are inevitable. They are a natural part of the learning process. Thus the critical factor in any playground design is not so much the equipment itself (although that cannot of course be neglected) but rather the design of the ground surface under and around the equipment. Tests conducted on the energy absorption of common playground surfaces indicate that even at heights as low as 300 mm a fall directly on to the head on to concrete can prove fatal. It is generally accepted that an impact of 50g gravity force is an acceptable limit for playgrounds falls (i.e. to provide a relatively 'soft landing') and that the fatal threshold is approximately 150 -160g. To achieve such a limit the maximum height of fall (i.e. beyond which serious injury is likely) is approximately 600m for packed earth. Using the same criteria the safe fall height is 2.4 metres for thick rubber mats and 3.2 metres for 300 mm deep pea gravel or wood chips. It must be borne in mind that the height of fall to be allowed for is not the height of the deck but rather the height of the highest point at which children are likely to play. In this case that is the top of the rails which I estimate from the photographs to be in the order of 2-2.4 metres above the ground. Thus for the equipment in question it is my opinion that the ground surface around the structure is inherently dangerous."
Then, following a paragraph in which Mr. Pilton referred to the "two logs fixed vertically into the ground around 1-1.5 metres away from the main structure" the report continued:
"Finally there is the question about the propriety of the school failing to construct an adequate fence to exclude young children from using the school grounds after hours. To be fully effective such a fence would have to have the physical (and therefore aesthetic) attributes of a prison fence which would be unlikely to be acceptable in today's world where schools are intended to be 'warm and friendly' places! I would suggest that even then children would eventually find a way in. Thus it is my opinion that in designing a school in general, and the grounds in particular, one should always bear in mind the likelihood of accidents happening and design accordingly, irrespective of whether or not the children will be supervised. With regard to play equipment this means in essence that it must be designed so that when children fall off they will have a relatively soft landing."
In his evidence in chief at trial (Black AB 125-126) Mr. Pilton gave the following (inter alia) evidence:
"Q. If you go over to the second page of the report … at the end of the first paragraph, the very last sentence you say, 'Thus for the equipment in question, it is my opinion that the ground surface around the structure is inherently dangerous'? A. Yes, that's my opinion.
Q. What was your understanding of what the ground structure was? A. This is based on the photograph. I haven't been to the site, but the ground appears to be packed earth, grass in some areas, which had worn off around the equipment itself, around the entry points and so on.
Q. I think you had one photograph available to you? A. I did.
Q. (Shown Exhibit A) Have a look at those photographs that are part of Exhibit A, and could you tell the Court if the photograph you had is included in those photographs, and which one it is, if it is included? A. Yes, it is. It's this photograph.
Q. What's written on the back? A. '1'.
Q. That's a copy of the photograph you had? A. Yes.
Q. Take a look at the other photographs? A. Yes.
Q. If you wouldn't mind paying particular attention to the ground surface below the fort. Is there anything in those other photographs that would lead you to change your opinion about the nature of the ground surface below the fort? A. If anything, it looks worse in photograph number 3. There is even less grass. The ground surface in photograph 3 looks to be worse than the ground in the photograph that I was given. There is less grass and it appears to be quite densely packed earth.
Q. The area that you are describing, is that in the proximity of the firemen's poles? A. That's at the base of the firemen's poles."
Mr. Pilton's report was not served on the Crown Solicitor until July 1997, over 2 years from the time when it was received. Despite the fact that the report, coupled with the evidence which Mr. Akin and Mr. Pilton were to give at trial as to the nature of the ground around and under the "fort" provided the basis of the case which was sought to be made on behalf of the Appellant at trial no application to amend the pleadings was made until the commencement of the hearing before the Master.
Although the materials which are before the Court do not disclose when this occurred, it is clear enough that, at some time prior to the proceedings coming on for hearing before the Master, the Court had made orders pursuant to the provisions of ss. 13, 22 of the Protected Estates Act 1983 that the Appellant's estate be subject to management under the provisions of the Act and committing the management of the Appellant's estate to the Protective Commissioner.
When the proceedings came on for hearing before the Master, application was made for leave to file an Amended Statement of Claim, the proceedings being amended by substituting the Protective Commissioner for the Appellant's mother as his tutor and, the Claims Against the Government and the Crown Suits Act 1912 having been repealed by the Crown Proceedings Act 1988, by substituting the State for the Nominal Defendant - despite the latter amendment, the Amended Statement of Claim still asserted that "the Plaintiff brings this action against the Defendant pursuant to s.4 of the Claims Against the Government Crown Suits Act 1912 (sic)". Insofar as is relevant, the Amended Statement of Claim (RAB 3-5) alleged:
"2.There was erected in the school grounds a childrens fort constructed of pine logs.
2A.The ground surface below the childrens fort was a packed earth surface.
3.In close proximity to the base of the said fort were portions of two such logs protruding approximately 10 cm above ground level.
4.On 12 March 1984 in the course of playing on the said fort, the Plaintiff fell therefrom so that his head struck either:
(i)The packed earth surface; or
(ii)One of the protruding logs.
5.It was the duty of the Government of New South Wales to take reasonable care to protect the Plaintiff from dangers which he might encounter in using the fort.
6.In breach of its said duty the Government of New South Wales negligently failed to protect the Plaintiff from the said dangers.
PARTICULARS OF NEGLIGENCE
(a)Failing to remove the protruding portions of logs;
(b)Failing to appreciate the risk that such portions of logs posed to children jumping from the fort to ground level;
(c)Failing to warn the Plaintiff of the danger in jumping from the fort;
(d)In the circumstances of the hazard created by the exposed portions of logs failing to supervise the activities of children including the Plaintiff;
(e)In the circumstances including the absence of supervision, failing to exclude children including the Plaintiff from the area of the fort;
(f)Failing to provide or ensure an appropriate ground surface under and around the equipment;
(g)Failing to restrict access to the fort in the absence of supervision and/or out of school hours.
Despite the form taken by the Amended Statement of Claim, it is, I believe, clear that the case which was sought to be advanced at trial on behalf of the Appellant was that the "fort" was inherently dangerous because the ground surface both around and underneath it was of packed or compacted earth. As will appear from what I have earlier (para. 5 (above)) recorded, the question of perimeter fencing and of access to the school grounds was barely explored on the hearing.
The case which was sought to be advanced on behalf of the Appellant at trial was based entirely on the evidence in chief of Mr. Akin and Mr. Pilton, no question as to the nature of the surface of the ground around, and under, the "fort" being directed to either the Appellant's brother or mother despite both being called at trial.
I have already (para. 11 (above)) set out substantially the whole of the evidence given in chief by Mr. Akin. However, there should be added to that evidence the following (Black AB 102-103):
"Q, Some time later did you see something happen in the area of the fort? A. Yes, sand was put at the bottom of it then they removed …?
Q. First of all how long after the fall was the sand put there? A. Very soon after, I can't give exact date.
Q. Can you say within a month, a year or five years? A. I would say a month or so.
Q. You were going on to say something else happened? A. Yes, then they removed the actual fort altogether.
Q. Do your best. Can you give us some sort of time frame time? A. What I would say I would not be right, I don't know but may be months."
In the course of his cross-examination, Mr. Akin, as I have earlier (para. 16 (above)) recorded said that it was not until about 9 or 10 months prior to the hearing that he was asked to recall what was the surface of the ground around the fort; as well, he admitted (Black AB 106) that he could not be accurate about the time when the fort was removed and that, in the statement which was taken from him in 1989, he made no reference at all to new sand being put around the fort.
I have previously (para. 24 (above)) set out in full that part of Mr. Pilton's evidence where he dealt with what he claimed was the nature of the ground surface around and under the "fort". As is apparent, he did not, in that evidence, offer any opinion as to the use of soft sand as a means of providing a "soft landing" in the event of a child falling or jumping from the "fort".
In the course of his cross-examination, Mr. Pilton gave the following (inter alia) evidence:
"Q. It's the case, is it not, that sand, when it becomes wet and subsequently dries, forms a thin-ish crust on top? A. Depends on the type of sand.
Q. If you assume that it's a fine-ish beach sand, that's the case isn't it? A. Some beach sand would do that, but I wouldn't use beach sand in a playground.
Q. It's the case, is it not, that one of the things you recommend is that sand be placed around the base of these forts to break the falls of children coming off them? A. Soft material. It depends on the height of the fall and so on. There is a variation between sand and gravel and pine chips and rubber mats. Each one of them has a different safe-fall height." (Black AB 127-128)
………
"Q. If you look at Exhibit A and if I could get you to assume that there was an observation made that below the fireman's poles, the ground was sand. If I could get you to assume that the observation was that it was compacted sand? A. You are telling me this is compacted sand?
A. Can I ask you to assume that it was observed to be compacted sand. You couldn't tell this court, for someone falling head first off the fireman's pole from a height of two metres, that the person would be any more or any less injured than if the person landed head first on rubber matting, could you, from the evidence which you have given earlier? A. From the basis of all the studies that I have referred and conferences that I have attended, I could tell you perhaps not sand, but if you had 3 or 400 millimetres of graded pine bark, I am quite certain the injury would be less severe than falling on to concrete or hard earth or compacted sand.
Q. Compacted sand has a certain amount of give in it doesn't it? A. Depends on the grade of sand and grading of actual particles. The idea is to have sand which has got particles all of the same size, so they can move against each other and give. The sort of sand you are talking about that forms crust, has got lots of different grades, so that the holes between the grains all pack together and there is no give.
Q. Once again, there are degrees of compaction of sand isn't (sic) there? A. Certainly.
Q. That is, that there is sand which forms a crust on top and which, even when trodden on, breaks? A. Yes.
Q. And forms an absorbent surface as a consequence? A. Depends on the depth of the sand and size of grains. But all things being equal, the fact that it cracks and breaks and is able to be penetrated, it forms at least a surface which gives, doesn't it? A. Yes.
Q. You are not able to tell from those photographs whether or not there is a crust on the sand or whether or not it is just simply rock hard, are you? A. I can't even tell if its sand. It looks like bare earth around the material in the photograph.
Q. It's coloured sand? A. The photograph is very underexposed. It's not possible to tell from the photograph." (Black AB 129-130)
………
"Q. But if you assume that the base below the fall in the picture was sand, and it's sand depicted in the photograph, and I accept you may have difficulty with what you see in the photograph because its underexposed, that would be a material subject to its suitability in terms of size and the like which was appropriate in 1984 to be put under equipment such as that? A. It would depend how deep, sand is not a material I would recommend in a site open to the public because of things like cats and dogs. It's very unhygienic.
Q. Normally will extend wire of it (sic)? A. In terms of the grain size would need to be 3 or 4 hundred millimetres deep.
Q. All those things considered, you recommend, you would have no difficulty where it is a material under the equipment? A. Well, I personally wouldn't specify it for say hygiene reasons, and it is not as good absorbing surface (sic) as pine bark or a double rubber mat." (Black AB 131)

In the course of his evidence in chief, Mr. Manwaring gave the following (inter alia) evidence (Black AB 144-146):
"Q. In relation to the ground surface immediately below the structure itself, what was it? A. Yes. yes.
Q. What was it?
………
Q. My friend says, Master, what if any I think recollection you have of the ground surface immediately below the fort? A. Below the fort?
Q. Yes? A. At the time I recollect there was (sic) surfaces of sand placed under that area.
Q. And immediately below the firemen's poles, what was your recollection? A. That it was a similar surface of sand.
Q. And in relation to the sand what was it? A. I understand it was river sand.
……..
Q. Perhaps that is a bit general. I withdraw it. In relation to the sand how would you describe it as of March of 1984? Soft, hard? A. Well, it was a covering of sand that was over the surface of the play area that was maintained under that particular fort.
Q. When you say sand? A. River sand.
Q. How would you describe it? A. Similar to the sand that you would see in a sand pit.
Q. Soft or hard or otherwise? A. Well, it was placed there for the purpose of being soft to take the fall of any students from that particular piece of equipment.
Q. And in March of 1984 how was it? A. Well, from my recollection it was a covering that was placed there to do that particular task.
Q. When you say it was placed there to do a particular task, in order to perform that task what was it like? A. A soft surface."
In the course of his cross-examination, Mr. Manwaring gave the following (inter alia) evidence (Black AB 155-156):
"You have given some evidence about the sand beneath the fort? A. yes.
Q. You had a bit of a look at Exhibit A, I am not criticising you for that? A. I did, yes.
Q. You certainly wouldn't see on the basis of those photographs anything that looks like sand, would you? Do you want to have a look again? A. Well, I can only recollect the situation as I knew it at the school at the time, and the general assistant, I think his name was Mr. Mick Milic, he had a responsibility in that area to maintain those areas and did, and from my memory I can remember sand underneath that particular structure.
Q. To what depth? A. I couldn't be specific.
Q. Because no one was really interested; is that right? A. No. I wouldn't say that at all.
Q. Mr. Mainwaring, this is Exhibit A3. You can see the firemen's poles? A. Yes, I can.
Q. You can see the earth beneath? A. Yes.
Q. And there is certainly in the photograph no appearance of any layer of sand in the nature of sand that you might get in a sandpit, is there? A. I believe that's sand there.
Q. What you are pointing at is … A. This area here.
Q. You are describing the area at the bottom of the firemen's poles, you say a circle of a metre around it? A. And this section of the fort here.
Q. So all around the perimeter of the base of the fort? A. That's what it appears to be, yes.
Q. That appears to you to be sand … A. A level of sand.
Q. What level? A. Well, I couldn't judge from the photograph.
Q. If you look at Exhibit A4, it is quite clear that the area around the fort is area (sic) where grass has been worn out isn't it? A. Certainly in the area near the ladder, yes."
and, later (Black AB 164), after having been shown the statement taken from him in November 1985:
"Q. Just take a moment to refresh your memory and read through it to yourself. You agree with me, do you not, sir, that in that statement there is not a single word or description of any kind about the ground at the base of the fort? A. No, there is not.
Q. When was the first time that you were asked to recollect the nature of the surface between the fort? A. It would have been in the days following the accident by the Principal.
Q. Why is it not mentioned in your report? A. I can't comment on that.
Q. You have already agreed with me that you put everything that you considered relevant in your report? A. That's right.
Q. You know that you would have known that the surface between the fort was a very important consideration, would you not? A. It was an issue, yes.
………
Q. Following the accident to Stephen, sand was put at the base of the fort, was it not. When I say 'following' I do not necessarily mean …? A. I can't comment about, that I don't know.
Q. I am not talking about the same day, I am talking within days, weeks or perhaps month? A. I have no knowledge of that, I am sorry.
Q. It is 15 years ago, all of this, which, you would agree, is a long time for the memory to stay fresh? A. Yes, that's right.
Q. I suggest that the sand that you say you remember at the base was only put there after this fall? A. No, there was sand there beforehand."
When, in the course of his Judgment, the Master came to deal with the question of liability he wrote (RAB 27-32):
"25I now turn to the question of liability. The existence of the alleged duty of care was not in issue. Breach of that duty was in issue. Ultimately, two matters were agitated. The first may be generally described as a matter concerning the ground surface at the base of the fort. The second may be generally described as a matter concerning one of fencing or access to the fort during non-school hours. The first matter was the one principally relied on by the plaintiff.
26The first matter was not raised until a very late stage in the proceedings. It was raised by the amendments which appeared in the Amended Statement of Claim filed in Court on 12 April 1999. This pleading contained the fresh allegation that the ground surface below the children's fort was a packed earth surface. One of the particulars of negligence introduced by this pleading was failing to provide or ensure an appropriate ground surface under and around the equipment.
27 The original pleading had alleged that the plaintiff's head had struck one of two logs protruding from the fort. The amended pleading alleged that his head struck either the packed earth surface or one of the logs.
28The case proceeded on the basis that the providing of a soft sand surface would have been appropriate ground surface. The question of fact in issue was the nature of the actual surface at the time of the incident. Both Mr Akin and Mr Manwaring said that the ground surface was of sand. The issue of fact thrown up by their evidence was whether or not it was compacted sand or a soft sand surface.
29At this stage, I should observe that I closely observed the demeanour of all witnesses. In assessing credibility, I have taken both the evidence and demeanour into account.
30It seems to me that the late raising of the ground surface matter may be of significance in explaining some of the questions agitated on this issue. It may go some way to explain the lack of reference to it in material and the lack of attention to it otherwise. For completeness, I should add that there is history in expert reports which records that the plaintiff's head hit a timber pole or a protruding peg. It may also be observed that whilst the ground surface may have been seen as a relevant matter, there may have been initial focus on the suggestion that the plaintiff had been pushed from the fort and later focus on the suggestion that he struck his head on one of the logs.
31The fort was a piece of equipment for use by the younger children (it was placed in the K2 playground area adjacent to the K2 classes) at the school. The material does not suggest that Mr Akin played on the fort. When he went to the fort, his attention may have been concentrated on the injured plaintiff. He was then about 11 years of age.
32Mr Manwaring was a school administrator involved in the making of investigations following the incident. He inspected the fort on the following day (inter alia to view the line of sight from the fort to where Mrs Akin was standing on her balcony). It was initially said that he was a witness who was not prepared to make concessions. This submission was later withdrawn. During the course of his evidence, Mr Manwaring both corrected earlier evidence and made concessions (inter alia concerning his recollection as to matters such as the fort and the fence). However, his evidence remained firm on the matter of the presence of the sand at the base of the fort. He gave me the impression of a witness doing his best to give honest and reliable evidence.
33Both parties contend that Exhibit A gives support to their respective case. In my view, these photographs afford little assistance on this issue. At best they may be regarded as giving an ambiguous impression. There are problems occasioned by under-exposure and the presence of shading. At the very least it can be said what is depicted by the photographs is not inconsistent with what has been said by Mr Manwaring.
34It is not said that either of the witnesses has set out to deceive the Court. It is crucial to the case of the plaintiff that Mr Akin's evidence be preferred to that given by Mr Manwaring. The Court is asked by the plaintiff to not accept Mr Manwaring's evidence.
35I am not satisfied that I should prefer the evidence given by Mr Akin to that given by Mr Manwaring. I reject the submission that I should not accept Mr Manwaring's evidence on this question. For completeness, I shall add that I prefer the evidence given by Mr Manwaring to that given by Mr Akin. These findings are decisive on the principal matter argued in respect of the allegation of breach of duty.
36I now turn to the other matter argued on the question of breach of duty. Whilst this matter was not abandoned, it was not argued with great vigour. One problem for the plaintiff is that this matter received a lack of support from his own expert. In Exhibit J, Mr Pilton said inter alia;-
'Finally there is the question about the propriety of the school failing to construct an adequate fence to exclude young children from using the school grounds after hours. To be fully effective such a fence would have to have the physical (and therefore aesthetic) attributes of a prison fence which would be unlikely to be acceptable in today's world where schools are intended to be `warm and friendly' places!'
37I have already made mention of the steps taken by the school to prevent children from entering upon the school premises during non-school hours. I should also mention that during a routine perimeter walk, the plaintiff had been found on the premises between 4 and 4.15 pm on a day in early March 1984. He had been asked to leave.
38I am not satisfied the part of the case founded on this matter has been made out. In my view, the plaintiff also fails on this matter.
39The plaintiff bears the onus of satisfying the Court that he has a cause of action (on the balance of probabilities). In my view, he has failed to satisfy the Court that there was a breach of duty.
40Whilst the findings that have been made dispose of the question of liability, I should mention two other matters which were agitated by the parties. Firstly, there was a question of causation. Secondly, there was a defence of contributory negligence.
41Mr Pilton provides the only expert material on the question of liability. He did not have the advantage of inspecting the fort. He appears to have prepared his report on an implicit assumption that there was a hard surface at the base of the fort. His report is founded on the premise that the ground surface around the structure was inherently dangerous (the basis for this premise is not specified). He was cross-examined at some length. He conceded that any of the measures proposed by him and a soft sand surface ("safe falling zones") do not serve the purpose of preventing injury. He said that "The idea is to reduce the severity of injury". They do not exclude the possibility of a significant injury for someone falling head first on to the surface (be it rubber matting, pea gravel, soft sand or pine bark). Both parties have referred the Court to passages in the judgments delivered in Chappel v Hart 72 ALJR 1344.
42It has been said that causation is a complex and controversial problem. The plaintiff is required to prove that the breach of duty by the defendant caused the particular damage that the plaintiff suffered. Causation is essentially a question of fact to be resolved as a matter of common sense (Fitzgerald v Penn (1954) 91 CLR 268 at 277-278 at 277-278). It arises in the context of attributing responsibility for the damage that has occurred.
43 In this case, the only expert is of limited expertise. The plaintiff's case has its other evidentiary deficiencies. In my view, if the plaintiff had been able to prove breach of duty, I would not have been satisfied that he could demonstrate the requisite causation between such breach of duty and the damage suffered.
In the result, the Master directed the entry of Judgment for the Respondent and ordered the Appellant to pay the Respondent's costs of the proceedings.
In the Notice of Appeal (RAB 37-39) which was filed on behalf of the Appellant, the following (inter alia) grounds of appeal were taken:
"1.The Court failed to have any regard at all to the oral and written evidence of Mr. Pilton in determining whether or not there had been a breach of duty.
2.The Court failed in determining whether or not there had been a breach of duty to properly consider the following evidence in relation to the appropriateness of the ground surface under and around the play equipment.
a.Four photographs taken of the area shortly following the accident which became Exhibit 'A';
b.The evidence of Mr. Pilton.
3.The Court erred in holding there was no breach of duty unless the evidence of Mr. Akin be preferred to that given by Mr. Mainwaring.
4.The Court erred when considering the issues of causation, by rejecting the evidence led on behalf of the Plaintiff because it did not exclude the possibility of significant injury.
5.The Court erred when considering the issue of causation, in finding that an appropriate ground surface would not have excluded the possibility of the Plaintiff sustaining his injuries when there was no proper evidence relating to the nature of the injuries sustained by the Plaintiff being unrelated to the ground surface provided or being unavoidable even if an appropriate ground surface had been provided."
When the appeal came on for hearing Mr. M. F. Holmes QC appeared with Mr. M. A. Elkaim for the Appellant while Ms. R.S. McColl SC appeared with Mr. G.A. Laughton for the Respondent.
If I may, with respect, say so, I found both the Written Submissions which were provided prior to the hearing of the appeal, and the oral submissions which were advanced on the hearing of the appeal, on behalf of the Appellant to be confused and difficult to follow. However, in the end, it seems to me that, reduced to their most simple form, the submissions advanced on behalf of the Appellant involved the following:
1.the Master erred when, in paragraph 28 of his Judgment, he described the issue of fact to be determined as whether the sand underneath and around the "fort" was compacted sand or a soft sand surface. Far from this being so, the issue for determination was whether, by reason of what was alleged to be the Defendant's failure to provide an appropriate ground surface under and around it, the "fort" was inherently dangerous;
2.even if the Master had not erred in posing the issue for determination in that way, he erred in accepting the evidence of Mr. Manwaring in preference to that of Mr. Akin as, so it was submitted, the photographs which form part of Exhibit A could not be reconciled with the evidence given by Mr. Manwaring;
3.even if the Master did not err in accepting the evidence of Mr. Manwaring, he nonetheless erred in holding that that evidence resolved that the liability issue in favour of the Defendant. Implicit in this last submission was the suggestion that the Respondent bore the onus of demonstrating that the soft sand which the Master found to be under the "fort" was at least 300-400 mm deep (see, for example, para. 9 of the Appellant's Written Submissions) and that, there being no evidence as to the depth of the sand, the Respondent had failed to discharge that onus.
Given the manner in which the case appears to have been conducted at trial and the manner in which it was conducted on the hearing of this appeal, it does not seem to me that any detailed consideration of the law relating to the liability of an occupier of land for an injury sustained by a person who was not lawfully on the land at the time when he sustained his injury is called for. For the purposes of the present appeal, I am prepared to proceed upon the basis that, if it could be shown that the "fort" was, by reason of the manner of its design or construction or the way in which it had been maintained, inherently dangerous and the Respondent, through its agents, the teachers at the school, knew, or ought to have appreciated, that fact, and the injury sustained by the Appellant was caused by the inherently dangerous nature of the "fort", then the Respondent ought to have been held liable to the Appellant.
Let it be assumed in favour of the Appellant that, at least in broad general terms, the principal issue which was tendered for the determination of the Master was whether or not the "fort" was, for one or other of the reasons which I have suggested, an inherently dangerous structure, the inescapable fact is that, in the Amended Statement of Claim, the particular factual issue which was tendered for the Master's determination was whether or not the "fort" was an inherently dangerous structure by reason of the fact that the ground surface below it was of packed earth or that protruding above the ground surface and in close proximity to it were the two "logs".
Nor, is one limited to a mere question of pleading for, as I have earlier recorded, evidence was led in chief from both Mr. Akin and Mr. Pilton that the surface was compacted sand (Mr. Akin) or densely packed earth (Mr. Pilton). It is inescapable that this evidence was led for the purpose of demonstrating that it was the compacted, or densely packed, nature of the sand or earth under and around the "fort" which rendered the ground surface inappropriate and, thus, rendered the "fort" an inherently dangerous structure. As is clear from the passages in the evidence of Mr. Akin and Mr. Pilton to which I have earlier (paras. 11,24 (above)) referred, there was no attempt made on behalf of the Appellant to demonstrate that, even if the surface below the "fort" was of soft sand, it was of an insufficient depth to provide a "soft landing".
In these circumstances, it seems to me that the Master did not err when he posed the principal factual issue for his determination as being whether or not the surface was of soft sand.
It is clear from what the Master has written in his Judgment that, in determining to prefer the evidence of Mr. Manwaring on this issue to that of Mr. Akin, he relied, at least in part, upon his assessment of the credibility of each as a witness. This being so it is clear that it is not open to this Court to disregard the Master's finding in this respect unless the Appellant can demonstrate that the Master erred in one or other of the respects referred to in the well known passage in the joint Judgment of Brennan, Gaudron and McHugh JJ in Devries v. Australian National Railways Commission (1992-1993) 177 CLR 472, 479.
In seeking to demonstrate that the Master had erred in a relevant respect, the Appellant sought to place great weight upon the photographs comprising Exhibit A and upon the evidence given by Mr. Pilton as to his interpretation of what was revealed by those photographs, as, for example, Mr. Pilton's assertion (Black AB 130) that "it looks like bare earth".

I am not persuaded that the Master erred in the respects alleged by the Appellant. I share the Master's view that the photographs afforded little assistance on the issue and that, at best, they may be regarded as giving an ambiguous impression and, at least, it can be said that what is depicted in the photographs is not inconsistent with what was said by Mr. Manwaring. Nor does it seem to me that Mr. Pilton's interpretation of what is depicted by the photographs carries the matter any further. It is sufficient in my view to note that, immediately preceding his assertion that "it looks like bare earth", Mr. Pilton had said "I can't even tell if it's sand".
Nor am I able to accede to what appeared to be the third submission advanced on behalf of the Appellant.
Even if - which did not occur at trial - the Appellant had set out to make a case that the "fort" was an inherently dangerous structure because the sand which it was said by the Defendant was under and around the "fort" did not provide an appropriate surface as it was of an inadequate depth, there was, as I have earlier noted, no evidence led on behalf of the Appellant as to the depth of the sand that was said to be in place. As the Master very rightly pointed out in para. 39 of his Judgment, the Appellant bore the onus of establishing that he had a cause of action and the suggestion - which, as I have indicated, appears to be implicit in the submissions made on behalf of the Appellant on the hearing of the appeal - that the Respondent bore the onus of demonstrating that the sand which the Master found to be in place was of a sufficient depth should be rejected.
For these reasons, I would propose that the Appeal be dismissed with costs.
STEIN JA: I agree with Powell JA.
**********

LAST UPDATED: 21/11/2000

[2000] NSWCA 288

3 November 2000

Key Legal Topics

Areas of Law

Negligence & Tort

Administrative Law

Legal Concepts

Duty of Care

Negligence

Causation

Appeal

Standing