Tweed Shire Council v Carly Eden Howarth (by her tutor Trent Howarth)

[2009] NSWCA 103

New South Wales

Court of Appeal

CITATION:	Tweed Shire Council v Carly Eden Howarth (by her tutor Trent Howarth) [2009] NSWCA 103 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	28 April 2009
JUDGMENT OF:	Giles JA at 1; Ipp JA at 27; Basten JA at 28
EX TEMPORE JUDGMENT DATE:	28 April 2009
DECISION:	(1) Grant leave to appeal and direct that the notice of appeal in the form of the draft amended notice of appeal be filed within seven days; (2) Appeal allowed; (3) Set aside the order dismissing the motion to add the father as a cross-defendant and the order that the defendant pay the costs of the plaintiff of that motion; (4) Order that the defendant be granted leave to file and serve a cross-claim against Derek Howarth in the form of the cross-claim proffered to the trial judge but with the addition of the further allegations mentioned in these reasons and the deletion of particular (k); (5) Order that the respondents to the motion pay the costs of the notice of motion; (6) Order that the respondents on appeal pay the costs of the applicant/appellant, and have a certificate under the Suitors Fund Act if otherwise qualified.
CATCHWORDS:	PROCEDURE - leave to file cross-claim - whether cross-claim futile - whether proposed cross-defendant owed duty of care to plaintiff - father of plaintiff - plaintiff aged 2 years 4 months - took her to premises while he did work at premises - adjoining drainage reserve with pond - no fencing - mere fact of parenthood did not give rise to duty of care - but relevant as part of circumstances - were other circumstances - arguable that owed duty of care and that there was breach - leave to file cross-claim.
CATEGORY:	Principal judgment
CASES CITED:	Hahn v Conley (1971) 126 CLR 276; Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52; McCallion v Dodd (1966) NZLR 710; St Marks Orthodox Coptic College v Abraham [2007] NSWCA 185.
PARTIES:	Tweed Shire Council - Appellant Carly Eden Howarth (by her tutor Trent Howarth) - Respondent
FILE NUMBER(S):	CA 40403/08
COUNSEL:	L King SC & S Glascott - Appellant D Baran - Respondent
SOLICITORS:	DLA Phillips Fox - Appellant Attwood Marshall Lawyers, Coolangatta, Queensland - Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20231/07
LOWER COURT JUDICIAL OFFICER:	Smart AJ
LOWER COURT DATE OF DECISION:	26 August 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Howarth v Tweed Shire Council [2008] NSWSC 901

CA 40403/08
SC 20231/07

GILES JA
IPP JA
BASTEN JA

Tuesday 28 April 2009

TWEED SHIRE COUNCIL v HOWARTH

Judgment

1 GILES JA: This is an application for leave to appeal, and if leave be granted an appeal, from the dismissal by Smart AJ of an application by Tweed Shire Council (“the Council”) for leave to file and serve a cross-claim against Mr Derek Howarth.

2 Mr Howarth and his wife live at Tweed Heads, within the Council’s local government area. They own an investment property close to their home, a duplex, in a block of units. The duplex is unit 2. There is a drainage reserve at the rear of the units, over which the Council has the care and control. The drainage reserve was part of a sub-division in 1993. A pond was created within the reserve, and the sub-division works involved piped stormwater drains into the pond. From one of the submissions it seems that as at March 1998 a post and rail fence ran along the boundary of the back yard of the units and the drainage reserve, but whether or not that be so the pond was not otherwise fenced off.

3 On 30 March 1998 Mr Howarth and his father, Mr Stewart Howarth, went to the duplex to lay turf in the front yard. Mr Howarth took with him his daughter, Carly, then aged two years and four months. While the Messrs Howarth were laying turf, Carly was playing under a sprinkler in the front yard between units 1 and 2. Mr Stewart Howarth noticed the Carly was no longer playing under the sprinkler. Mr Howarth looked for her at the front of the property, and Mr Stewart Howarth looked for her at the rear of the property. Mr Stewart Howarth found Carly face down in the pond. He said in a statement that he found her two to three minutes after noting her absence. An ambulance report recorded that she had been missing for approximately five minutes.

4 Carly was retrieved and given resuscitation. In proceedings brought by her, through a tutor, it is alleged that she suffered brain injury causing intellectual deficit from the effects of hypoxia. It is alleged in the proceedings that the Council owed children as a class of persons a duty of care to ensure that ponds, exposed areas of water, storm water drains and pools were adequately secluded by fences or other effective barriers to ensure that children will not enter the areas with the foreseeable consequence that they would suffer injury or drown, and that the Council had been negligent in failing to erect a fence or adequate barrier between the privately owned units and the drainage reserve areas, or erect signs clearly stating the presence of bodies of water, their location and the fact that they were not fenced and accessible to young children.

5 The application before Smark AJ was not concerned with the pleading or merits of Carly’s case against the Council. It is sufficient to note that the Council denies negligence and relies on the provisions of the Civil Liability Act 2002 concerning obvious risk.

6 In August 2008 the Council applied by notice of motion for leave to file and serve a cross-claim against Mr Derek Howarth, claiming for contribution pursuant to the Law Reform (Miscellaneous Provisions) Act 1946. The application was many months out of time, but the judge was satisfied that the delay had been explained in that only recently had the Council’s solicitor received from the plaintiff a liability report and statements of the Messrs Howarth from which she was able to consider Mr Howarth’s potential liability.

7 The Council proffered a proposed cross-claim, which repeated some factual allegations in the statement of claim and continued -

“6. At all material times the Plaintiff had attended 2 Penda Court, Cabarita in the Cross-Claimant’s shire (Residential Premises) with the Cross-Defendant and was at all material times under the care and charge of the Cross-Defendant.

7. At all material times the Cross-Defendant was the owner and occupier of the Residential premises.

8. In the circumstances the Cross-Defendant owed the Plaintiff a duty of care.

9. The Plaintiff was injured as a result of the negligence of the Cross-Defendant.
Particulars of Negligence

(a) Allowing the Plaintiff to leave the Residential Premises in which the Cross Defendant was working or attending without adult supervision where there was a pond in the land adjacent to the Residential Premises;

(b) Permitting or allowing the Plaintiff to approach and/or enter a pond in the land adjacent to the Residential Premises ”in which the Cross Defendant was working or attending;

(c) Failing to prevent the Plaintiff from approaching and entering a pond in the land adjacent to the Residential Premises in which the Cross Defendant was working or attending;

(d) Failing to properly supervise the Plaintiff;

(e) Failing to hold or in any other appropriate manner prevent the Plaintiff from walking into the land adjacent to the Residential Premises;

(f) Failing to keep any or any proper lookout;

(g) Failing to adequately supervise the activities of the Plaintiff;

(h) Failing to warn the Plaintiff of the dangers of approaching or entering the pond in the adjacent land;

(i) Failing to ensure the Plaintiff was supervised by a responsible adult at all times including while the Cross-Defendant was engaged by or with other maters while at the Residential Premises;

(j) Failing to fence or otherwise barricade the Residential Premises so as to prevent access by children into the adjacent land containing the pond;

(k) Failing to place a warning sign at the entrance from the Residential Premises into the adjacent land containing the pond.
10. In the event the Cross-Claimant is found to be liable to the Plaintiff, the Cross-Claimant claims contribution from the Cross-Defendant pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).”

8 The application before the judge came to be argued on the basis that it was also alleged in the cross-claim that Mr Howarth knew or ought to have known of the existence of the pond and the drainage reserve and knew or ought to have known that Carly could not swim.

9 Carly and Mr Howarth were jointly represented before the judge, and were jointly represented as respondents to the application for leave to appeal. It is not necessary to comment on whether this was appropriate.

10 The respondents submitted before the judge that leave should not be granted because it was futile. In the trial judge’s summary in his reasons -

“[Counsel for the respondents] submitted that in the circumstances disclosed the law did not impose a duty of care on the father. At the most the materials disclosed a momentary lack of supervision on the part of the father.”

11 The judge accepted that to establish futility it had to be demonstrated that there was no arguable duty of care resting on Mr Howarth in the circumstances. He recorded the submission, attributed to “the plaintiff”, that the Council had to allege a positive act on the part of a father which had the effect of placing a child in danger, but as I understand his reasons considered that submission inconsistent with St Marks Orthodox Coptic College v Abraham [2007] NSWCA 185. His Honour cited passages from the judgments in Hahn v Conley (1971) 126 CLR 276 and a passage from McCallion v Dodd (1966) NZLR 710, and again on my understanding of the reasons accepted that, while a father did not owe a duty of care to the father’s child simply because of his parenthood, he could owe a duty of care to the child in particular situations in which the fact of parenthood might be material.

12 After referring in summary to the allegations in the cross-claim, his Honour said -

“17. In my opinion, on an arguable basis, the circumstances of the particular situation in the present case as pleaded, including those foreshadowed, do not give rise to an arguable enforceable duty of care on the part of the father. The most that emerges, even on the ambulance report, is a short period of lack of supervision when the child took herself off. I do not consider any useful purpose would be served by allowing the facts to be more fully investigated as the essential facts seem tolerably clear.”

13 I will come to particular submissions on appeal, but two things should be said immediately.

14 First, it is difficult to see why the judge came to his conclusion in the first sentence of this paragraph. It is not clear that it was on a pleading basis. His Honour had earlier observed, in relation to the allegation in the proposed cross-claim that in the circumstances a duty of care was owed, that the description of the circumstances was sparse, but does not seem to have come to his conclusion as a matter of pleading. If he had been minded to do so, the proper course would have been to give leave to re-plead. I take the judge to have had regard to the circumstances as alleged and admitted in the statement of claim and the defence, as alleged and to be alleged in the cross-claim and as revealed in the statements of Messrs Howarth and the ambulance report. I have taken the facts in these reasons from those sources. But where is the explanation for why the circumstances, including the fact of parenthood, did not give rise to a duty of care in the particular situation?

15 Secondly, if the answer to this question is to be found in the second sentence of the paragraph, there is a running together of duty of care and breach of duty. The running together can be seen in the respondent’s submission as earlier recorded by the judge. However, unless the reference in para [17] to an enforceable duty of care was intended to bring within the first sentence of the paragraph the question of breach of duty as well as the existence of the duty of care, it was incorrect to run the two together. That would elide the step from duty of care to breach of duty. If there was no more than a short period of lack of supervision when Carly took herself off, that went to breach of duty. It did not negate a duty of care if in the circumstances a duty of care was owed.

16 The respondent’s submissions included that this Court should not interfere with the judge’s discretionary decision. That is misconceived. The judge refused leave because, and only because, he did not think there was arguably a duty of care owed by Mr Howarth to Carly and possibly, as I have indicated, on the basis of no arguable case of breach of a duty of care. Those are both matters which this Court can revisit without the constraints of interference with the exercise of a discretion.

17 The Council submitted that a duty of care was arguably owed because, being both an occupier of the duplex and Carly’s father, and knowing of the pool and that Carly could not swim, Mr Howarth took Carly to the duplex and she was there in his care while he and his father laid the turf. The pleading in the proposed cross-claim does not in terms refer to Mr Howarth being Carly’s father, the direct allegation in para [6] being that Carly was at all material times under the care and charge of Mr Howarth without any particular allegation that he was her father, but it was essentially an allegation that Mr Howarth was a person who, having taken Carly to the duplex, had her in his care and charge and for that reason owed her duty of care. To that there were to be added the proposed allegations and, I take the allegation that Mr Howarth knew of the pool to include that he knew that it was not effectively fenced. This seems to be a proper inference and one consistent with particulars of negligence (c), (e) and (j).

18 The respondents stressed that parenthood was not the source of a duty of care. The submissions went so far as that, even if a stranger who took Carly to the duplex in the manner in which Mr Howarth did owed a duty of care to her (which I think was all but conceded), because it was Mr Howarth, her father, who took her to the duplex, a duty of care was not owed. The lack of good sense in submissions in that respect is evident, and it is contrary to Hahn v Conley. In St Marks Orthodox Coptic College v Abraham there is cited at paragraph [31], which I set out a little later, the statement of Kirby J in Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52 at [129] that “Australian law does not recognise any principle of parental immunity in tort.” The submission was quite contrary to that position, and cannot be accepted.

19 There was much more here than a relationship of parent and child. Mr Howarth took Carly close to a source of danger to a small child if not well supervised, on the allegations in the proposed cross-claim a source of danger of which he knew or ought to have known. In my view, there is an arguable case that he thereby came under a duty to take reasonable care not to expose her to foreseeable harm. Reasonable care would include adequate supervision to guard against her wandering off while the turf was being laid and falling into the nearby pond.

20 In St Marks Orthodox Coptic College v Abraham, Ipp JA, with whom Basten JA and Young CJ in Eq agreed, said at para [31] that -

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

21 In that case the father took his nine year old son to school and left him there before the school’s supervision was in operation. His Honour said -

“35 Taking a nine-year old child from his home environment and leaving him at school is conduct that will usually involve a potential risk of harm to the child (which will vary in degree depending on the circumstances). In my view, any parent who performs such an act may owe a duty to the child to take reasonable care in not exposing the child to foreseeable harm in doing so. This duty, if it arises, will spring out of the particular situation: not the mere fact of the parent/child relationship. The duty may arise from the control that the parent (as guardian of the child) exercises over the child, the dependence of the child on the parent, the vulnerability of the child, the foreseeability of harm, and other factors that, according to the modern law of negligence, are relevant.

36 In my view, in the circumstances, Mr Abraham owed Christopher a duty to take reasonable care not to expose him to a risk of harm when he took Christopher to school on 23 August 2000.”

22 In the present case it is in my view arguable that taking Carly to the duplex involved a potential risk of harm, she being in need of supervision because of her tender years, and that Mr Howarth owed her a duty of care.

23 The respondents’ submissions in this Court continued the elision of the step from duty of care to breach of duty. It was submitted that it could not be found that Mr Howarth’s conduct was in the circumstances unreasonable, and that the short period of lack of supervision involved would not, based on Hahn v Conley, give rise to a duty of care or constitute a breach of that duty. So far as it was submitted that breach of a duty of care could not be found, in my opinion failing to keep supervision over Carly for up to five minutes was capable of making out failure to take reasonable care to guard against her wandering off and falling into the pond.

24 The respondent’s reminded us of Ipp JA’s acceptance in St Mark’s Orthodox Coptic College v Abraham at [51] that bringing up children can not be made risk–free, and that exposure from time to time to risks of harm is “inherent in the process of growing up, new experiences and maturing in an appropriate way”. While that contributed to the holding in that case that the father had acted reasonably, Carly was aged two years and four months. Whether there was breach of duty by Mr Howarth will depend on the facts as they more fully emerge, perhaps including the part played by Mr Stewart Howarth.

25 For these reasons, I respectfully do not agree with the judge. The case for filing the cross-claim was in my view a strong one, and the Council should be able to prosecute it. Leave to appeal should be granted. I can see no discretionary reason against granting leave to file and serve the cross-claim, save that particular (k) is clearly inappropriate and should be deleted.

26 I propose the following orders, in which in my reference to the orders set aside I have used language taken from the judge’s reasons -

1. Grant leave to appeal and direct that the notice of appeal in the form of the draft amended notice of appeal be filed within seven days.

2. Appeal allowed.

3. Set aside the order dismissing the motion to add the father as a cross-defendant and the order that the defendant pay the costs of the plaintiff of that motion.

4. Order that the defendant be granted leave to file and serve a cross-claim against Derek Howarth in the form of the cross-claim proffered to the trial judge but with the addition of the further allegations mentioned in these reasons and the deletion of particular (k).

5. Order that the respondents to the motion pay the costs of the notice of motion.

6. Order that the respondents on appeal pay the costs of the applicant/appellant, and have a certificate under the Suitors Fund Act if otherwise qualified.

27 IPP JA: I agree.

28 BASTEN JA: I agree.

29 GILES JA: Those will be the orders.

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