Town of Mosman Park v Tait - [2005] WASCA 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TOWN OF MOSMAN PARK -v- TAIT [2005] WASCA 124

CORAM: STEYTLER P
WHEELER JA
MCLURE JA

HEARD: 2 MARCH 2005

DELIVERED : 4 JULY 2005

FILE NO/S: FUL 185 of 2003

BETWEEN: TOWN OF MOSMAN PARK
Appellant
AND
DIANE TAIT
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER GREAVES
Citation  :[2003] WADC 266

Catchwords:

Negligence - Occupier's liability - Local authority in control of recreation grounds - Duty of care owed by local authority - Whether local authority had breached its duty of care - Magnitude of the risk - Likelihood of the risk - Whether inspection regime of recreation grounds by local authority reasonable - Turns on own facts

Legislation:

Local Government Act 1995 (WA)

Occupiers' Liability Act 1985 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr M H Zilko SC & Mr J Eller
Respondent: Mr G Droppert

Solicitors:

Appellant: John Eller
Respondent: Ilberys Lawyers

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

Brodie v Singleton Shire Council (2001) 206 CLR 512
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Jones v Bartlett (2000) 205 CLR 166
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Tame v State of New South Wales (2002) 211 CLR 317
Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn v Hadba [2005] HCA 31
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Bartels v Bankstown City Council [1999] NSWCA 129
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Leichhardt Municipal Council v Green (2004) Aust Torts Rep 81753
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Pyrenees Shire Council v Day (1998) 192 CLR 330
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431

STEYTLER P: I have had the advantage of reading the judgments of Wheeler and McLure JJA. As has been pointed out by each of them, there were material errors in the Commissioner's approach to the question of breach of the duty of care owed by the respondent to users of its sporting ovals and, in particular, the oval upon which the respondent was injured when she stepped into a partially concealed hole in its surface.
What the Commissioner should, in my respectful opinion, have done, but did not do, was to identify, with some precision, what a reasonable person in the respondent's position would do by way of response to the reasonably foreseeable risk of harm that existed to users of the oval arising out of imperfections in its surface: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 611 ‑ 612 [192]. As McLure JA has pointed out, he should, in that process, have made, but did not make, findings as regards the magnitude of the risk. He should also have made, but did not make, findings as regards the nature and extent of the appellant's then system of inspection so as to be able to evaluate it against that which might reasonably have been implemented. If he had made findings in this last respect (and I agree with all that Wheeler and McLure JJA have said as regards the material evidence), there was, for the reasons which their Honours have respectively given, no admissible evidence (I agree with McLure JA's comments as regards the inadmissibility of part of the evidence of the expert witness, Dr Ackland) sufficient to establish that there was any practically available alternative system, to that which was used by the appellant, which would have avoided or reduced the risk of injury to users of the oval.
I am consequently in agreement with Wheeler and McLure JJA that the appeal should be allowed, that the findings of the Commissioner should be set aside and that, in lieu thereof, the respondent's claim should be dismissed.
WHEELER JA: In proceedings in the District Court, Ms Tait brought an action against the Town of Mosman Park for injuries suffered by her on 11 October 2000 at the Fred Mann Oval in Mosman Park. The Town of Mosman Park is a municipality constituted under the Local Government Act 1995 (WA). Ms Tait sued the Town of Mosman Park alleging negligence at common law and under s 5 of the Occupiers' Liability Act 1985 (WA).
In October 2000, Ms Tait was the assistant to the coach of the Claremont Police and Citizens Youth Club ("PCYC") T‑ball team. Ms Tait had contacted the Town of Mosman Park in September 2000 to

book the Fred Mann Oval on behalf of the Claremont PCYC for T‑ball training for the 2000‑2001 season. Ms Tait alleged that on 11 October 2000, she suffered injury to her right ankle during a T‑ball training session when she stepped in a hole whilst running from first base to second base. That day was the first training day of the season. Ms Tait stated that she was being chased by a fielder who was trying to tag her, and had been running at full speed between first and second base when she stepped into the hole. Ms Tait claimed that the hole was about six to eight inches deep and was slightly grassed over at the edges.

The issues before the learned Commissioner in the District Court included: whether Ms Tait had stepped in a hole as alleged; what was the duty of care owed by the Town of Mosman Park to Ms Tait; and whether the Town of Mosman Park was in breach of its duty of care.
The learned Commissioner's findings on the facts were that Ms Tait had stepped in a hole whilst running on the oval. The learned Commissioner accepted the evidence of Ms Tait and of the witness, Ms Gillett, and found that Ms Tait had stepped in a hole near the T‑ball diamond on the Fred Mann Oval and, as a result, fell and suffered the injury to her ankle as alleged. He further accepted, on the basis of the evidence, that the hole was eight to 12 inches wide and six to nine inches deep.
The learned Commissioner found that the hole was located in a slightly raised mound of grassed turf and whilst it was clearly visible from above, it was not visible from a distance. He found that there was no evidence as to what had caused the hole, or when it had first appeared.
The learned Commissioner held that the Town of Mosman Park was liable and that there was no contributory negligence on the part of Ms Tait. Judgment was entered for Ms Tait and damages of $154,050 awarded.

The appeal

The Town of Mosman Park appeals from the decision of the learned Commissioner on three grounds. In my view, it is only necessary to deal with the first, which alleges that the learned Commissioner erred in finding that the appellant had breached its duty of care to the respondent.
In my view, this ground should succeed, because the Commissioner erred in a number of respects in reaching his conclusion. He failed to consider the question of the likelihood of a risk such as the hole in

question in this case developing; he failed to articulate the nature of the inspection regime required to deal with such a risk; to the extent that he did identify an inspection regime which he considered appropriate, it was one which was unreasonable; and he failed adequately to consider the conflicting priorities and duties of the council, and what should reasonably be required of it in the light of those matters.

There were supplementary submissions of the respondent addressed to the question of whether there had been raised in this appeal an issue of a failure by the Commissioner adequately to disclose his reasoning process. It was submitted that there was no ground of appeal capable of raising this question, and it was submitted further that the principles upon which the Commissioner should proceed were not in dispute at trial, in any event. I do not find it necessary to consider this issue. It is my view that the Commissioner's reasons adequately reveal his decision‑making process for the purpose of dealing with this ground of appeal.

Relevant principles

In considering the proper approach to a case such as the present, I found it helpful to turn to the reasons of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512. In that case, their Honours had occasion to consider in detail the ordinary test of liability in negligence in the context of its application to a public authority (in that case, a highway authority) having control of land used by many members of the public, and the duties of such an authority in relation to inspection and repair. At [150] ‑ [151], in terms which are, in my view, equally applicable to the case of a local authority having control of a sports ground or oval, their Honours said:
"Where the state of a roadway, whether from design, construction, works or non‑repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.
The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case."
Their Honours noted at [162], that the formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority, including the "availability of matériel and skilled labour". In relation to the question of a duty of inspection, their Honours said, at [165]:
"Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them. "

Evidence and findings at trial

Against that background, it is desirable to refer in more detail to the evidence at trial and to the findings of the learned Commissioner. In relation to the question of the appellant's care for the public recreation grounds under its control, the Commissioner summarised the evidence at [16] and [17] of his reasons, which it is convenient to set out in full. They read:
"In relation to liability the defendant called its executive manager of technical services, Mr Martyn Glover, to give evidence. He said he would previously have been known as the shire engineer. He said the defendant occupies some 38 named parks (T133). He said the Mann Oval is the oldest oval in the Town of Mosman Park and is generally used for junior sports. He said (T134) the T‑ball club pays the defendant about $880 a year for the use of the oval. He identified exhibit 10 (T135) as a page out of the defendant's maintenance manual. He said (T136) up to four staff and a specialist mower worked at Mann Oval. Their duties included those described in exhibit 10. He went on to describe the defendant's inspection procedures. He explained how the defendant's staff carried out repairs or arranged for contractors to carry out repairs where required. He also identified exhibit 15 as the defendant's monthly report about work carried out at the Fred Mann Oval. Finally, he referred to exhibit 16 which he said are computer printouts for activities conducted at the oval by the defendant's staff (T138). Mr Glover went on to explain that since October 2000, the defendant now engages contractors to carry out maintenance at the Fred Mann Oval. He described the duties of the senior works supervisor, Brian Bridge whose main activity he described as looking after parks and gardens (T140). He said he inspected the area quite some days after the accident. The hole had been filled with yellow sand.
In cross‑examination, Mr Glover explained (T142) that council staff responsible for the Fred Mann Oval reported to a leading hand who reported to the senior works supervisor and ultimately to him. He said sprinkler heads frequently required replacement after damage through vandalism. Mr Glover stated there were no reticulation points near the hole. At T151 Mr Glover explained how the defendant's staff inspect the ground of the Fred Mann Oval visually (T151):
'All of the staff are directed. All the staff who are working on the site are directed to report any problems that are obvious on the ground and that's something they've done on a fairly regular basis. Examples are perhaps a build-up of the turf against the cricket pitch where through the winter years you put a rubber cover over the concrete cricket pitch, you get a build up of grass around the edges and the staff would report that that's above the concrete and we need to trim it off. If ever there's a sprinkler that's blown out then they would report that and we would repair that. Excessive wear in the goal squares – we would go and do repair work around that. Any number of issues they would report and they would report that back to their senior supervisor and the repairs would be carried out.'"
The Commissioner apparently accepted all of that evidence. There is no suggestion in his reasons that he did not find either Mr Glover or Mr Bridge a credible witness. He did not identify any logical inconsistencies or defects in the evidence which they gave. There was certain evidence to which he did not refer, which fleshed out a little the summary contained in [16] and [17]. It included that the mowing was carried out weekly by mowing contractors during the months of September to May (which covered the period when the appellant was injured). Mr Glover said that the oval in question had a "rating" as "active recreation ground", because there was sport and other active recreation carried out on it. He said that about six weeks after the accident (Mr Bridge thought this was a shorter time: perhaps two weeks), staff had noted that the hole at the site had been built up by persons who were not council staff so as to be a "bump" which was considered dangerous, and that it was then cut out and re‑turfed. He said that council staff had been raking it out to try to prevent excessive build‑up prior to the re‑turfing. Although none of that evidence was specifically referred to by the Commissioner, in the light of his general acceptance of the system as explained by Mr Glover and Mr Bridge, it is, I think, open to us to have regard to it.
It is also, I think, open to this Court to have regard to the evidence of the expert witness, Dr Ackland, who was called by the respondent. As Director of Sports Medicine Australia, he said that he was concerned with the prevention of injuries in sports and that his duties in that role included the consideration of surfaces of venues. In evidence‑in‑chief, he said that if it was part of the mower's job to inspect the turf (as Mr Glover said it was), then "a weekly mowing, if it involved inspection of the surface, would be sufficient". In cross‑examination, he agreed that, although in an ideal world a sporting field would have no undulations or holes, in a natural sporting surface that was impossible. In a passage which was not put to any of the defence witnesses, he also said in evidence that, given that it was the start of the T‑ball season, it would have been perhaps prudent to walk over the oval rather than sit on top of a mower for the purpose of inspection. I should add that there was no evidence as to the height or speed of the mower, although there was some evidence that mowing was carried out in a "cross pattern", which rather suggests that the mower would have covered the entire oval twice, in different directions, on each weekly mowing.
Under the heading "Did the plaintiff and the defendant inspect the T‑ball diamond on the Fred Mann Oval before play commenced on 11 October 2000?", the Commissioner found that the respondent did not inspect the ground because she assumed that it was safe. He found that the hole was a potential danger to the respondent, which was clearly correct. He then found at [28] as follows:
"I find the defendant did not inspect the ground in the vicinity of the T‑ball diamond before play commenced on 11 October 2000. I find the defendant at all material times had a maintenance regime in place for the Fred Mann Oval. I find the maintenance regime did not expressly include regular inspection of the T‑ball diamonds for the occurrence of holes in the ground surface. I find it would have been practical for the defendant's staff to carry out an inspection of the ground in the vicinity of the T‑ball diamond on 11 October 2000 and at all material times in the course of undertaking their duties at the Fred Mann Oval. The defendant gave no evidence that such regular inspection was impractical or expensive. I find it is likely any additional cost of inspection was negligible in the context of the defendant's overall budget. Notwithstanding the evidence does not reveal the cause or causes of the hole, I have found it was clearly visible from above. There is no suggestion the hole was of recent origin, and I find it is very likely regular inspection of the ground in the vicinity of the T‑ball diamond would have revealed the existence of the hole."
Under the heading "What was the duty of the defendant to the plaintiff?", the Commissioner set out some passages from Brodie v Singleton Shire Council, including portions of [150] ‑ [151], which I have already quoted. In [33], he expressed the view that the "ultimate issue" was whether the appellant was in breach of its duty to the respondent. He said that the determination of that issue "requires the Court to decide whether the [appellant] responded adequately to the risk of players such as the [respondent] being injured as the result of a hole in the surface of Fred Mann Oval". However, the Commissioner did not at that point, or indeed at any other, consider what was the likelihood of the risk to which the appellant was to respond, or articulate what type of inspection regime, or other maintenance regime, would have been an adequate response to that risk.
Under the heading "Was the defendant in breach of its duty to the plaintiff?", the learned Commissioner then concluded as follows:
"On the evidence and conclusions I have reached, in my opinion the magnitude of the risk the defendant exposed the plaintiff to on 11 October 2000 was such that it required the defendant to carry out regular inspection of the ground of the Fred Mann Oval and in particular the T‑ball diamond prior thereto, which inspection, given the size of the hole in question would as I have found, very likely have revealed its existence. In my opinion, it was reasonably foreseeable in the circumstances as I have found them that if the defendant did not inspect the ground regularly, such a hole might result in injury to a player like the plaintiff. There being no other competing or conflicting consideration relevant on the evidence, I find the defendant was in breach of its duty to the plaintiff."

The magnitude of the risk and the probability that it will occur

The learned Commissioner referred, in the passages he set out from Brodie v Singleton Shire Council, to the need to consider the magnitude of the risk and the degree of probability that it would occur. He found, and was plainly correct in finding, that the hole was a potential danger to the plaintiff and the class of persons to which she belonged. Further, although he did not expressly say so, the risk was a significant one, in the sense that a hole of this size and depth was likely to cause a significant injury to a person who, like the respondent, stepped into it while engaged in fast‑paced activity.
The Commissioner did not consider, however, the question of the probability of a hole of this type occurring. That was perhaps because there was no evidence directed at that issue. There was no evidence called by the respondent from a person with expertise in relation to grass or turf surfaces, who could speak of the likelihood of unevenness and, in particular, of holes of this size, being likely to occur. There was no evidence as to the likely age of the hole. The Commissioner found that the evidence did not reveal the cause, or causes, of the hole, or when it first occurred. Although he found there was no suggestion it was "of recent origin", equally there was no suggestion that it had been there for any particular length of time. There was no evidence suggesting that significant holes had caused any problem in the past.
The appellant, perhaps generously in the circumstances, accepted that, as a matter of commonsense, unevenness, including holes of various kinds, was likely to be something which would occur in grass surfaces in the absence of a regime of inspection and repair. However, it maintained that its system of inspection and repair was adequate. To the extent that the evidence touched on this at all, it did appear from the evidence of Mr Glover, to which I have referred, and of Mr Bridge, that the problem of build‑up of sand in the area of the hole in question had been detected and had been attended to by the appellant's staff within a relatively short period of time. Although Dr Ackland did not have any expertise in relation to maintenance of grassed surfaces in particular, his experience, such as it was, did not suggest that the probability of a significant hazard occurring was such that inspection on more than a weekly basis was necessary. This question, of course, is logically related to the question of what would have been an appropriate inspection regime.

Was the inspection regime envisaged by the Commissioner reasonable?

It is not entirely clear what the Commissioner considered would have been an appropriate inspection regime. In [34] of his reasons, as I have noted, he held that the risk was such that it required the defendant "to carry out regular inspection of the ground", and, in particular, the T‑ball diamond, but there is no indication in the Commissioner's reasons as to the regularity which he considered appropriate, or as to the method of inspection.
As I have noted, the evidence was that there was weekly inspection in connection with the mowing, carried out effectively by the person who was riding on the mowing machine at the time. Although the Commissioner found that the maintenance regime "did not expressly include regular inspection of the T‑ball diamonds for the occurrence of holes in the ground surface", it would appear that he meant no more by this than that there was not a person whose sole duty it was to carry out such an inspection.
Further, the Commissioner found that the appellant did not inspect the ground "before play commenced on 11 October 2000". That is strictly correct; the evidence suggests that the mowing had been carried out, in all probability, some time in the week preceding the training during which the respondent was injured.
It follows from that, that the Commissioner must have reached a view that inspection more frequently than on a weekly basis was required; or alternatively, perhaps that inspection required a person to be allocated to the specific task of looking at the oval (presumably by walking over it) for the purpose of looking for holes and for no other purpose. There are two difficulties with such a finding. The first is that, as I have noted, there is no evidence as to the probability of holes of this kind occurring, and therefore nothing to suggest that inspection more frequently than weekly, or by a person dedicated to that task alone, was necessary to meet that probability. The second difficulty is that since, as the Commissioner noted, there was no evidence establishing the age of the hole (except that perhaps it was "not recent"), there is nothing to suggest that the failure to provide such a regime was causally related to the occurrence and persistence of the hole in question.
I have earlier noted Dr Ackland's evidence that in his view a specific inspection prior to the first game of the season might have been prudent. However, the Commissioner made no finding in relation to that evidence, and does not appear to have based his findings as to an appropriate inspection regime on any need for particular inspection prior to the first use of a sporting ground in a season. If he had wished to do so, he would have faced the difficulty that that proposition was not put to the appellant's witnesses, and there was therefore no evidence before him as to whether, having regard to the appellant's other responsibilities for other grounds, and to the number of different activities carried out on the various grounds, that would have been a reasonable requirement.
An alternative way of viewing the finding that there was not a "regular inspection of the ground" was that the Commissioner did not accept that any person had the duty of looking at the ground during the course of mowing, and either repairing it or reporting hazards if any matters needing attention were encountered. However, such a finding would be inconsistent with the Commissioner's apparent acceptance of the evidence of Mr Glover (and Mr Bridge, whose evidence was to similar effect) in the passages which I have quoted.

The resources of the appellant

The only findings which the Commissioner made in this respect were that the appellant gave no evidence that "regular inspection" was impractical or expensive. He found that it was likely that any additional cost of inspection "was negligible in the context of the [appellant's] overall budget".
This finding does not appear to be based on any evidence. Indeed, if one assumes that, by "regular inspection", the Commissioner was intending to refer either to inspection at more frequent than weekly intervals, or by a person whose task was inspection alone, it was contrary to the only evidence on the subject. Mr Glover's evidence was that he was, broadly, in charge of parks, roads, drainage and the like. He had 23 staff. In addition, there was the mowing contractor; there may have been other contractors, but this issue was not explored in evidence. The council was responsible for 38 named parks, and there was no exploration in the evidence of what was involved in maintaining roads, drains and so on. There was nothing, therefore, in Mr Glover's evidence which would suggest that the staff employed by the council were other than fully engaged in maintaining, repairing and inspecting the parks, roads and drains for which he was responsible.
Mr Bridge, the senior works supervisor, in response to a suggestion that there should have been someone basically engaged in looking for holes in the ground, replied (AB 186):
"Well, I mean, we are only a small workforce, only a small council, and I mean, I have to rely on the people - feedback from my own employees and from the public, you know. You don't get time to sort of walk around an oval every couple of days and check for holes, you know. So I just - we just respond to complaints or whatever comes back from the workforce, you know. That's really about all you can do."
He explained that there were certain areas, such as the skate park, which employees were specifically required to inspect, but that was because such areas were subject to a high degree of vandalism, and therefore presumably, it was thought that there was a risk that hazards would occur very frequently. The Commissioner did not deal with that aspect of Mr Bridge's evidence. He was, in my view, in error in overlooking it. Alternatively, his error lay in rejecting that evidence, without any apparent reason to do so, when there was no evidence to the contrary. Neither Mr Bridge nor Mr Glover was cross‑examined with a view to suggesting that existing employees and contractors would have had time to inspect more frequently, or in more detail.
The Commissioner therefore could not, on the state of the evidence before him, have reached the view that existing staff were sufficient to carry out some more intensive inspection regime. Nor was it open to him to assume that it would have been within the resources of the council to employ another person for those specific tasks. There was no evidence as to how long such an inspection might take, given the size of the reserve; as to how many other parks and reserves might need like inspection; or as to the costs which would have been incurred in employing such a person. At first blush, it would appear that an addition of one more worker to a workforce of 23 would be a relatively significant expense, and would be justified only if there was a relatively high probability of hazards of this kind occurring.

Conclusion

If the Commissioner's conclusions had been reached without the extensive reference which he made to the evidence of Mr Glover, or if there had been any reason to consider he might not have accepted portions of the evidence of Mr Bridge or Mr Glover, this Court would have been in the unfortunate position of having to refer the matter back to him to make appropriate findings. However, it must be concluded, from the extensive and uncritical reference to the evidence of Mr Glover, that the learned Commissioner accepted him as an honest and accurate witness. Mr Bridge's evidence was broadly similar to that of Mr Glover. That being the case, it is open to this Court to make its own findings based upon their evidence.
That evidence was to the effect that there was a requirement that the mowers would inspect the surface of the oval on approximately a weekly basis at the relevant time, during the course of their mowing. It was their duty (and the duty of other maintenance crews, when they observed hazards) to either repair minor hazards which they noted, or to fill in a maintenance form, reporting hazards which they were not able to attend to. There was no evidence as to the probability of hazards such as this hole occurring. There was no evidence as to what was considered by other similar authorities to be an appropriate inspection and maintenance regime.
In those circumstances, there was no reason to conclude that the maintenance and inspection regime described by Mr Bridge and Mr Glover was other than an adequate response to the risk posed by the inevitable appearance, from time to time, of irregularities in the gross surface of recreation grounds. I would therefore allow the appeal, set aside the findings of the learned Commissioner, and in lieu thereof order that the respondent's claim be dismissed.
MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Wheeler JA. I agree with the orders she proposes. However, I intend to state my reasons for reaching that conclusion.
The respondent suffered personal injury as a result of stepping into a partially concealed hole in the grassed surface of the Fred Mann Oval ("Mann Oval") which is, and was at the material time, occupied and controlled by the appellant, the Town of Mosman Park. The learned

Commissioner found the appellant had breached its duty of care to the respondent who was awarded damages of $154,050.

The respondent claimed against the appellant in negligence and for breach of s 5 of the Occupiers' Liability Act 1985 (WA). The Commissioner's analysis and findings relate to, without differentiation, both claims. It was not contended that there is any material difference between the general law and statutory claim and I proceed on that assumption.
At the time of the accident on 11 October 2000 the respondent was an assistant coach of a children's T‑ball team engaged in its first training session of the season. In the course of the respondent running between first and second base near the T‑ball diamond, she stepped into the hole and injured her ankle.
The appellant contends the Commissioner erred in law in finding that the appellant breached its duty of care to the respondent (ground 1), in failing to exclude, or alternatively giving weight to, the evidence of an expert called by the respondent (Dr Timothy Ackland) on the question of whether the appellant had discharged its duty of care (ground 2) and, finally, in the provision made for past loss of earnings and future loss of earning capacity (ground 3). Grounds 1 and 2 overlap. It is unnecessary to address ground 3.

Findings at trial

The Commissioner's findings are as follows. The respondent stepped in a hole near the T‑ball diamond and suffered injury. The hole was eight to twelve inches wide and six to eight inches deep. It was located in a slightly raised mound of grassed turf and was clearly visible from above but not from a distance. The hole was not in the vicinity of the reticulation system. Otherwise, the evidence did not reveal the cause or causes of the hole, or when it first appeared. The hole was a potential danger to the respondent and the class of persons to which she belonged. The Commissioner continued (at [28]):
"I find the [appellant] did not inspect the ground in the vicinity of the T‑ball diamond before play commenced on 11 October 2000. I find the [appellant] at all material times had a maintenance regime in place for the Fred Mann Oval. I find the maintenance regime did not expressly include regular inspection of the T‑ball diamonds for the occurrence of holes in the ground surface. I find it would have been practical for the [appellant's] staff to carry out an inspection of the ground in the vicinity of the T‑ball diamond on 11 October 2000 and at all material times in the course of undertaking their duties at the Fred Mann Oval. The [appellant] gave no evidence that such regular inspection was impractical or expensive. I find it is likely any additional cost of inspection was negligible in the context of the [appellant's] overall budget. Notwithstanding the evidence does not reveal the cause or causes of the hole, I have found it was clearly visible from above. There is no suggestion the hole was of recent origin, and I find it is very likely regular inspection of the ground in the vicinity of the T‑ball diamond would have revealed the existence of the hole."
There is no finding (and no evidence) that the appellant caused, or was aware of, the hole in the surface of the Mann Oval. Thus, the alleged negligence consists of an omission rather than a positive act. I infer from the Commissioner's reasons that the appellant's duty was to take reasonable steps to ascertain the existence of dangers which might reasonably be suspected to exist (see Brodie v Singleton Shire Council (2001) 206 CLR 512 at [150]). That is, the appellant was under a duty in relation to dangers of which it knew or ought reasonably to have known: Jones v Bartlett (2000) 205 CLR 166 at [102]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.
The question the Commissioner posed for himself was whether the appellant responded adequately to the risk of players such as the respondent being injured as the result of a hole in the surface of the Mann Oval like that into which the respondent fell. There is no challenge to the correctness of that formulation of the issue.
The Commissioner continued at [34]:
"On the evidence and conclusions I have reached, in my opinion the magnitude of the risk the [appellant] exposed the [respondent] to on 11 October 2000 was such that it required the [appellant] to carry out regular inspection of the ground of the Fred Mann Oval and in particular the T‑ball diamond prior thereto, which inspection, given the size of the hole in question would as I have found, very likely have revealed its existence. In my opinion, it was reasonably foreseeable in the circumstances as I have found them that if the [appellant] did not inspect the ground regularly, such a hole might result in injury to a player like the [respondent]. There being no other competing or conflicting consideration relevant on the evidence, I find the [appellant] was in breach of its duty to the [respondent]."
The Commissioner's statement that the respondent was required to carry out regular inspection of the ground and in particular "the T‑ball diamond prior thereto" is clearly incomplete. I infer it is a reference to (and adoption of) the evidence of Dr Ackland to the effect that a safety audit of the relevant area ought to have been carried out by ground staff prior to the start of the T‑ball season in order to identify potential risks.
Further, I infer from the Commissioner's reasons that a reasonable inspection system would include regular inspection of the T‑ball diamond for the occurrence of holes in the ground's surface, including an inspection in the vicinity of the diamond on the day of the accident.

Whether a breach of duty

The classical statement of the correct approach at the breach stage of the negligence analysis is contained in the reasons of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40. In deciding whether there has been a breach of their duty of care, the Court "must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff". If the answer to that question is in the affirmative, it is then for the Court to determine what a reasonable man would do by way of response to the risks. Mason J continued (at pp 47 ‑ 48):
"The perception of the reasonable man's response calls for a 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 erroneous to focus on the particular harm that eventuated and the steps that could have been taken to avoid that harm from which a finding of negligence usually follows. The essential question is whether a defendant's failure to eliminate the relevant risk showed a want of reasonable care (Tame v State of New South Wales (2002) 211 CLR 317 at [98] ‑ [99] per McHugh J).
Proper inquiry at the breach stage of the negligence analysis involves identifying with some precision what a reasonable person would do by way of response to a reasonably foreseeable risk (Graham Barclay at [192]). In this case the alleged breach was the appellant's failure to have a proper system of inspection of the oval. That being the case, it was incumbent upon the respondent to demonstrate that there was some system of inspection which was an alternative to that which the appellant was using at the time of the accident which was free of or reduced the risk complained of and which was available in a practical sense: Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburnv Hadba [2005] HCA 31 at [13]. That formulation requires an eye to issues of causation; that is, a system that would or could have prevented the respondent's injury: Trustees of the Roman Catholic Church at [27].
The respondent was required to identify with precision what a reasonable person would do, either by reference to industry standards or practice and the financial or other impacts of the proposed system: Trustees of the Roman Catholic Church at [14].

The Commissioner made a number of methodological errors in his approach to the question of breach. Firstly, he focussed on the harm that eventuated (stepping into a hole near the T‑ball diamond) and how that harm could have been avoided (inspecting for holes at or near the diamond on the day of the accident and at other (unspecified) regular intervals). Secondly, he failed to make findings as to the magnitude of the risk of harm and the nature and extent of the appellant's existing system. Thirdly, he failed to identify with precision the alternative system that would allegedly eliminate or reduce the relevant risk yet purported to make a finding that the additional costs of the alternative system were negligible. These conclusions are best understood in the context of the evidence relating to systems and risk.

Systems and risk

Mr Martyn Glover and Mr Brian Bridge gave evidence concerning the appellant's system of maintenance and inspection of the parks under the appellant's control at the time of the accident. Mr Glover, the Executive Manager, Technical Services (formerly, the Shire Engineer), was responsible for, among other things, the parks. Mr Bridge was the appellant's Senior Works Supervisor. He was responsible for supervising the workforce engaged in maintaining the appellant's parks and reported to Mr Glover. The relevant evidence of Messrs Glover and Bridge was not challenged by the respondent and, for the reasons given by Wheeler JA, was accepted by the Commissioner.
The appellant occupied and controlled 38 parks, five of which were sporting ovals. The Mann Oval was used for junior sport, including football, cricket and T‑ball and as the playground for children attending the Mosman Park Primary School.
At the relevant time a crew of employees was dedicated to the works required to be performed at each of the appellant's parks. At the Mann Oval, the work was performed by a crew of four employees as well as a mowing contractor and a reticulation contractor. The contractors worked at all the appellant's parks.
A document entitled "Activity Detail" specified the activities carried out by the appellant at the Mann Oval at the relevant time. The activities included, inter alia, mowing the reserve on a weekly basis in September‑May, checking the reticulation fortnightly in October‑May, inspecting for vandalism bi‑monthly, inspecting the skate bowl weekly and checking the playground equipment fortnightly. The evidence is that activity regime was followed. The skate park was inspected weekly because of prior incidents of hazards being created by vandalism, needles and broken glass. The reticulation system was also vandalised from time to time by sprinkler heads being broken off.
In addition to the duties in the Activity Detail, the workers on site were directed that if they became aware of a problem requiring repair or attention, they were to undertake the repairs if they were able to do so and, if not, to report the problem for the attention of others.
The direction also applied to the mowing contractor. Mr Glover said in examination‑in‑chief that the mowing staff were directed to conduct an inspection of the surface while carrying out their mowing work. His evidence in cross‑examination is as follows:
"So if in the course of doing your mowing duties you come across something that needs to be repaired then the command from upstairs, from you, is to attend to it?---That's correct."
The mowing was done by means of a tractor dragging a mower. The turf was cut in a cross‑pattern (down and then across).
Mr Bridge's evidence was that there was no prior history of holes in the turf except where caused by a break in the reticulation system or a vandalised sprinkler. The respondent's case put to Mr Bridge was that the appellant should have specifically inspected the grass for holes in the ground. The question and answer in cross‑examination is as follows:
"You see, there is a suggestion, Mr Bridge, in one way and another, in this case that what you and the council should have been doing was looking for holes in the ground … What would you say about that?---Well, I mean, we are only a small workforce, only a small council, and I mean, I have to rely on the people - feedback from my own employees and from the public, you know. You don't get time to sort of walk around an oval every couple of days and check for holes, you know."
The respondent and the Commissioner relied on the evidence of Dr Ackland. At the time he gave evidence, Dr Ackland was an Associate Professor in the Department of Human Movement and Exercise Science at the University of Western Australia. His expertise was in the area of the biomechanics of sport. He described his expertise, as far as the respondent's case was concerned, as lying primarily in explaining the relationship between the accident and the respondent's musculoskeletal injury.
Dr Ackland had prepared a written report which was admitted into evidence over the appellant's objection. It is clear from the report that there was no relevant Australian or International standard that applied in this case and that he had no personal knowledge of industry practice. He stated in his report:
"… [I]t is my opinion that … a safety audit ought to have been carried out by grounds staff prior to the start of the Tee‑ball season in order to identify potential risks for the increased number of users of the oval. A close inspection of the playing surface and surrounding areas would have alerted grounds staff of the existence of this hole."
Dr Ackland did not disclose the factual basis (if any) or process of inference he relied on for this opinion. There are a number of pre‑conditions for the admissibility of expert evidence. Firstly, the subject matter must be of such a nature as to require a sufficient degree of specialised knowledge to render expert evidence admissible. Secondly, the witness must have relevant expertise in the area. Thirdly, the expert must either prove by admissible means the facts on which the opinion is based or explicitly state the assumptions as to the facts on which the opinion is based. Fourthly, the process of inference that leads to the opinion must be stated or revealed in a way that enables the conclusion to be tested and a judgment made about its reliability: Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; Pollock v Wellington (1996) 15 WAR 1; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
In my view, Dr Ackland's opinion on the question of breach was inadmissible because it was outside his area of expertise and he did not identify the facts and process of inference that led to his opinion. Further, I doubt whether the subject matter of the opinion is an appropriate area for expert evidence. However, it is unnecessary to determine that question.
It is interesting to note that Dr Ackland said in examination‑in‑chief that weekly mowing of the turf, if it involved inspection of the surface of the ground, would be a sufficient system for identifying hazards. However, in cross‑examination he offered the opinion that it would have been prudent for the ground staff to have walked around the area of the T‑ball diamond to ensure the surfaces were acceptable. The same objections apply to his oral evidence. It ought not to be given any weight.

The breach analysis

There is no evidence that the hole in question was a result of ordinary wear and tear associated with the uses to which the Mann Oval was put. To the contrary, the only evidence was that the risk of a partially concealed hole in the ground, unrelated to the reticulation system, was very small. There was no prior instance of it occurring.
The council had a system of inspecting the turf for hazards. Inspection would occur during weekly mowing of the Mann Oval. In addition, other workers were directed to act when they identified problems requiring repair or attention at the Mann Oval. Inspections of this nature may not result in identification of fully concealed holes. However, in this case the hole was only partially concealed. What evidence there is suggests the hole would or could have been identified in the course of inspecting the turf while mowing. If the evidence had established that the hole could not be so identified, other considerations apply as discussed below.
The Commissioner seemingly avoids the potential difficulties with issues of causation and practicality (encompassing matters of convenience, resources and cost) by identifying the relevant breach as the failure to inspect the area in the vicinity of the T‑ball diamond on the day of the accident. This approach has all the hallmarks of a hindsight analysis. In my view, there is no justification for singling out the day of commencement of training for the T‑ball season as requiring special attention in what would otherwise be an inspection regime at regular intervals. T‑ball is one of a number of activities carried out on the Mann Oval throughout the year. It is also used for cricket and football and, more importantly, is a playground for the adjacent primary school. It is wrong in principle to focus solely on the area and use of the diamond for T‑ball in determining whether the appellant's failure to eliminate the relevant risk showed a want of reasonable care. What is reasonable has to be determined by reference to all relevant uses and users of the ground (being those who are at risk of harm) at the time of the accident. In particular, there is no justification for distinguishing between users of the T‑ball diamond, even if it is the first training session of the season, from the school children who use it on a daily basis as a playground. Accordingly, what is reasonable is not determined by reference to some confined area of the ground (the T‑ball diamond) but the Mann Oval as a whole and, by extension, the other ovals under the control of the appellant.
We are then left to speculate about the detail of the respondent's alternative system and the frequency of inspections. With an eye to causation one might contemplate pedestrian coverage of the entire oval using a stick or other means to identify all holes, whether partially or wholly concealed, on a weekly or other suitably regular basis. That would clearly have significant cost implications for the appellant and its ratepayers and is prima facie unreasonable.
The respondent failed to demonstrate that there was some alternative system which was free of, or reduced, the risk complained of and was available in a practical sense. In my view, the respondent failed to establish that the appellant breached its duty of care to the respondent. Accordingly, I agree with the orders proposed by Wheeler JA.