Warnock v State of Victoria & Anor
[2006] VSCA 205
•6 October 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3778 of 2005
| CHRISTOPHER WAYNE JAMES WARNOCK | |
| Appellant | |
| v. | |
| STATE OF VICTORIA | 1st Respondent |
| and | |
| FASHIONABLE SAIL SHADES PTY. LTD. | 2nd Respondent |
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JUDGES: | CALLAWAY, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 September 2006 | |
DATE OF JUDGMENT: | 6 October 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 205 | |
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Negligence – Trespasser fell from shade sail erected over a school playground – Charge to jury unbalanced by failure to state the plaintiff’s case – Trial judge failed to relate the law to the evidence – Duty of care to the plaintiff owed by the supplier of the shade sail – Evidence existed from which a reasonable jury could conclude that the supplier of the shade sail was in breach of its duty of care.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R.K.J. Meldrum, Q.C. with Mr A.D. Blackman | Constable Connor & Co. Pty. Ltd. |
| For the 1st Respondent | Mr J.L. Parrish, S.C. with Mr P.H. Solomon | Wisewoulds |
| For the 2nd Respondent | Mr D.G. Brookes | Phillips Fox |
CALLAWAY, J.A.:
This is an intellectually unsatisfying area of the law and, to make matters worse, the distinction is not always observed between questions of law, that are for the judge, and questions of fact, that are for the jury.[1] Even where the trial is by judge alone, it is important to distinguish between questions of law and questions of fact. As a matter of law, the second respondent owed a duty of care to the appellant. If, for example, the shade sail had been structurally unsound and fallen on the appellant, it would have been no answer that he was not a pupil at the school or that he was older than the children for whose shelter the sail was intended.
[1]Compare State of Victoria v. McIver (2005) 11 V.R. 458 at 463 [10] - [12] and Berrigan Shire Council v. Ballerini [2005] VSCA 159 at [7] – [8].
Could a reasonable jury conclude that the second respondent was in breach of that duty? The issue is not what steps the jury, if they were in the position of the second respondent, would have taken to avoid injury to the appellant. The issue is whether the steps the respondent took were within the range of reasonable responses to the risk. In considering that issue, in this case as in other cases, it is of vital importance to remember that inaction, or no further action, may be a reasonable response.
In my opinion, a reasonable jury could not conclude, on the evidence led at the trial, that the second respondent’s conduct was outside the range of reasonable responses to the risk and a finding of fact that it breached its duty of care to the appellant was not open. Indeed, I think that the claim against the second respondent is an example of the kind of claim that has brought the law of negligence into disrepute. As mine is a dissenting opinion about the evidence and there is to be a new trial, it is not expedient to say more.
I agree with Buchanan, J.A., for the reasons his Honour gives, that there should be a new trial as between the appellant and the first respondent and that the
usual order as to costs should be made, but I would not allow the second respondent to be vexed again.
BUCHANAN, J.A.:
On Sunday 13 May 2001, the appellant, then a few days short of his 14th birthday, fell from a shade sail covering playground equipment in the grounds of the Wodonga South primary school. As a result of the fall, he suffered a fractured lumbar vertebra.
The appellant brought proceedings against the first-named respondent (“the State”) as the occupier of the school and the second-named respondent (“Sail Shades”) as the supplier and installer of the shade sail, claiming damages in negligence for his injury. The trial was conducted before a judge and jury in the County Court. At the conclusion of the trial the jury returned a verdict for the defendants.
The appellant now contends that the trial judge failed to relate the law to the evidence and, in purporting to describe to the jury the cases advanced by the parties, failed to accurately or adequately describe the appellant’s case or the evidence upon which the appellant relied.
In order to evaluate these contentions, it is necessary to recount the evidence concerned with the question of liability.
In September 2000 the school council obtained from Sail Shades a design and a quotation for shade sails. The council accepted a proposal for four linked sails, each of 48 square metres, attached to metal poles on the perimeter of the playground. The sails met at a central vertical pole. The design showed the height of this pole as 5.5 metres sloping to 2.1 metres at one end and 3.5 metres at the other end of an overall rectangular shape. The council requested that the height of the poles be raised “to make sure that the sails could not be reached to be vandalised.” Accordingly, the design was altered by increasing the height of two 2.1 metre poles
to 2.8 metres and another 2.1 metre pole to 3.5 metres. A few days after the sails were installed, one of the poles was raised a further metre as a result of discussions between representatives of the council and Sail Shades.
The playground covered by the sails contained three towers made of steel linked by items of playground equipment. One tower was in the centre of the playground, another at the edge of the playground and the third was between the other two towers. The tower at the edge of the playground was 2.7 metres high, while the other towers were 2.5 metres high.
Soon after the sails were installed, there were reports of children climbing on to and playing on the sails. In November 2000 a nearby resident and two shop-keepers saw boys on the sails. A school councillor also observed boys on the sails. On 9 November 2000 the principal of the school in the school newsletter asked parents to notify the police if they saw any person vandalising the sails outside school hours. On 22 November 2000 the acting principal of the school wrote to a nearby resident and thanked her for telling a group of boys to get off the sails.
The appellant swore that he entered the school grounds through an unlocked gate with two friends. The gate was in a fence only one metre high. The appellant’s companions climbed on to one of the shade sails. The first of the two “shimmied” up a pole supporting the sails. The appellant said that he climbed to the top of one of the playground towers, and at that point the sail was at the height of his chest or waist. He pulled himself on to the sail. In cross-examination the appellant said that the sail had been lowered to the height of his chest or waist by the weight of his two companions. The appellant said that before the sail was lowered in this fashion, he “could nearly reach it.” The three boys ran around on the sails and slid from the top of the sail. The appellant likened the sails to a trampoline. The appellant said that when he was getting down from the sail, he lost his grip and fell on the base of his spine.
The appellant’s counsel called Dr Leonard Cubitt, a mechanical and structural engineer. Dr Cubitt gave evidence that he had inspected the school playground in May 2003. He said that there were a number of steps which could have been taken to prevent persons climbing on to the sails: removal of the towers; placing cones below the tops of the poles supporting the sails; attaching barbed wire to the poles; and increasing the height of the sails.
When he gave evidence in chief Dr Cubitt laboured under the misapprehension, which was apparently shared by the appellant and his counsel, that a pole holding up the sails had been extended by one metre after the accident to the appellant. Accordingly, he assumed that, by reason of the height of the poles, the sails were low enough to enable the appellant to climb on to the sails from one of the playground towers. He did not know that the sails had been lowered by the weight of boys who were already on the sails. Dr Cubitt also thought that there were only two steel towers below the sails when the accident occurred. He was not aware that a taller tower was present on the date of the accident. He agreed with counsel for the State that, with the extension to the pole, “it was essentially a safe structure” because “it would have been very difficult for children to climb on to the sail cloth.”
The trial judge was required to explain the law and relate the law to the evidence. In the present case it was necessary for the trial judge to determine and tell the jury whether the defendants owed duties of care to the appellant, to explain the concepts of breach of duty and causation and to direct the jury’s attention to the evidence that was relevant to those issues.
The question whether a duty of care existed was to be determined as a question of law by the judge.[2] The trial judge in this case left the question to the jury. He told the jury that whether a duty existed depended upon an examination of the relationship between the plaintiff and the defendants. Later, however, he said that “there is no dispute that [a duty of care] exists on the part of the [State].” His Honour’s instructions as to the content of a duty of care were limited to the statement that the defendants were required to take “the steps which were reasonably necessary in order to give [the appellant] the protection to which he is entitled by reason of the duty which arises.” His Honour read s.14B(3) of the Wrongs Act 1958 to the jury and said that the duty of the State was to take such care as in all the circumstance of the case was reasonable “to see that any persons on the premises will not be injured or damaged by reason of the state of the premises or things done in the premises”. As to the question of breach of duty by Sail Shades, his Honour said only:
“[Y]ou have to in relation to the second defendant be satisfied that the circumstances were such as to give rise to a duty of care on its part in relation to the manufacture and installation of the shade cloth, which they did not discharge, and thus were a cause of injury and loss and therefore guilty – so the plaintiff contends – of negligence giving rise to a liability.”
[2]See, for example, Dorset Yacht Club v. Home Office [1970] A.C. 1004.
In my opinion the trial judge’s directions on the question whether the defendants breached duties of care owed to the appellant fell short of the standards insisted upon by Sir Leo Cussen, which were described in these terms by the High Court in Alford v. Magee[3]:
“Sir Leo Cussen insisted always most strongly that it is of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case.”
The terms in which the trial judge explained the law with respect to the standard of care were general indeed and his Honour said nothing as to how the very broad proposition he formulated was to be applied to the facts of this case.
[3](1952) 85 C.L.R. 437 at 465.
In his charge to the jury the trial judge said that he proposed to give them a “thumbnail sketch” of the contentions advanced by each of the parties “because courts of authority have told trial judges such as myself that we owe it to the jury to explain to them the way in which the competing arguments meet each other, so as to assist them in – them being you – to reach a decision on the issues which fall for their determination.” His Honour said that the school “recognized what you might think would be the impossibility of making the premises secure from people who wished to gain entry – situated where they were and how they were; and relied upon the vigilance of neighbours and so forth to assist the school in protecting its shade cloth.” He repeated the evidence given by the appellant as to how he played on the sail and fell from it.
His Honour told the jury that there was “considerable disputation” as to the means by which the appellant got on to the sail. The trial judge pointed out that the appellant’s companions had not given evidence and said:
“They were witnesses, presumably, in the near proximity of the plaintiff and the sail at the times which are crucial to an understanding of how he got up there and he came down from there, which bears on the question as to whether or not Dr Cubitt’s opinion is correct, or that the time he saw it and the state that it was in, which was the state that it was in when the plaintiff fell, as far as we can tell, that the equipment was safe equipment. So in their absence, as I say, you cannot jump to any conclusion about what they might or might not have said, but there it is. The inference is there to be drawn they would not have assisted.” [4]
In my view it was not accurate to state that the manner in which the appellant gained access to the sails was a contentious issue which might have been resolved by evidence from the appellant’s companions. In examination in chief the appellant simply said that when he stood on one of the towers in the playground the sails were at “my chest, waist height.” In answer to more penetrating questions in cross-examination, he gave an account of the means by which the sails had been brought down to chest or waist height.
[4] According to the evidence of the appellant one of the boys who had climbed on to the sail with him had since died.
His Honour said that the evidence of Dr Cubitt was that “had he been called to the school that day to advise the school upon the safety of the equipment as displayed to his inspection, he would have said that it was safe.” His Honour reminded the jury that counsel for each of the respondents relied upon Dr Cubitt’s evidence to demonstrate that the sails were safe and accordingly neither had breached its duty of care to the appellant. The evidence of Dr Cubitt that the sails were essentially safe represented a set-back to the appellant’s case, but it was not necessarily a fatal blow. In order to give a balanced account of the parties’ positions, I am of the view that the trial judge was obliged to place that piece of Dr Cubitt’s evidence in context by referring to the evidence that on several occasions after the extension of the pole boys were seen on the sails and explain that Dr Cubitt did not know that the sail on to which the appellant climbed had been lowered by the weight of boys who climbed on to the sail ahead of the appellant.
In my opinion the charge was unbalanced and as a consequence the jury may well have failed to properly evaluate the plaintiff’s case. His Honour did not deal with the evidence of the appellant that he climbed on to the sail without any apparent difficulty. His Honour failed to mention that the school knew that boys were climbing on to and playing on the sails. His Honour did not refer to the evidence given by Dr Cubitt of the steps which could have been taken to prevent children from climbing on to the sails. Instead, his Honour emphasised the evidence of the engineer that the equipment he saw was safe.
Apart from his failure to refer to evidence that was relevant to the question whether there was a breach of duty owed to the appellant, the trial judge gave no account of any basis upon which it could be said that the respondents had breached their duty of care. In contrast, his Honour told the jury that the State and Sail Shades, relying upon the answers given by Dr Cubitt in cross-examination, contended that they had discharged their duty of care to the appellant by installing equipment which was safe. His Honour reminded the jury of the position taken by counsel for Sail Shades, saying:
“[T]here was no breach of duty on our part because we’re even further removed from the situation than was the school, which was contending with people being on the premises on a Sunday where it was unreasonable to expect that there would be a teacher to stand guard on this stuff day and night weekend in and weekend out.”
At the conclusion of the trial judge’s charge counsel for the appellant applied for an order discharging the jury on the ground that the trial judge had dealt only with the defendants’ arguments and thereby “completely skewed this charge in a way that is grossly unfair to the plaintiff.” Counsel chose not to seek a redirection. He said that the defects in the charge “couldn’t be fixed by a simple addition – because that would lead to an imbalance.”
Counsel for the respondents submitted that the appeal was doomed by the failure of the appellant’s counsel to take exception to the charge. In General Motors-Holden’s Pty. Ltd. v. Moularas[5] Barwick, C.J. said:
“Without attempting an exhaustive statement, it is established that, generally speaking, a criticism of the summing up which is capable of being cured at the trial must be taken at the trial and the judge asked to correct it. If this is not done in a case where it ought to be done a new trial on the basis of that criticism of the summing up will, in general, not be ordered. Again, the matter is not the subject of any hard and fast rule, because the Court retains a general discretion and is able in a proper case in the interests of justice to relax the requirement.”
[5](1964) 111 C.L.R. 234 at 242-3.
In the present case I do not consider that the defects in the trial judge’s summing up were capable of being cured. The appellant’s case should have been juxtaposed to the case of the respondents, not tacked on to the charge as an apparent afterthought. Further, relating the law to the facts required a major recasting of the summing up. In any event, I am of the opinion that the deficiencies in the charge were so important that they occasioned a substantial miscarriage of justice. As Winneke, P. said in Kenyon v. Barry Bros. Specialised Services Pty. Ltd.[6], failure to take exception does not necessarily lead to a refusal to set aside a verdict. “In the long run, the Court’s jurisdiction to order a new trial must depend upon the demands of justice.” In the present case I consider that justice requires a retrial of the appellant’s claim against the State.[7]
[6][2001] VSCA 3 at [18].
[7]Cf. R. v. NJM (2001) 126 A.Crim.R. 378 at 379 per Charles, J.A.
Whether a like order should be made with respect to the claim against Sail Shades depends upon the resolution of the issues raised by a notice of contention by that party. By the notice Sail Shades contends that the judgment in its favour should be affirmed on the ground that “given the state of the evidence at the completion of the trial, the learned trial judge should have determined that the facts did not disclose a justifiable finding against the second respondent.” It appeared from the course of argument that Sail Shades contends that it owed no duty of care to the appellant and, that, if it did owe a duty of care, there was not sufficient evidence to enable a finding to be made that the duty was breached.
One of the pre-requisites to establishing a duty of care is that there be a necessary degree of relationship between plaintiff and defendant, usually involving reasonable foreseeability of a real risk of injury to the class of persons of whom the plaintiff is a member. In the present case no evidence was led that Sail Shades knew that boys climbed on to the sails either at the Wodonga South primary school or elsewhere, although the school council sought the assistance of Sail Shades to prevent access to the sails by increasing the height of the poles to which the sails were attached. Nor was there any evidence of like accidents in other places involving sails supplied by Sail Shades. Nevertheless, in my view it was reasonably foreseeable that young persons would be attracted to the sails and minded to climb on to them. In Munnings v. Hydro Electric Commission[8], Windeyer J. said:
“A thing that is alluring to a child can have another bearing on negligence, for its very nature may make it foreseeable that it will in fact attract.”
[8](1971) 125 C.L.R. 1 at 35. See also Thompson v. Municipality of Bankstown (1952) 87 C.L.R. 619 at 633 per McTiernan, J.; Commissioner for Railways v. Cardy (1960) 104 C.L.R. 275 at 326-7 per Windeyer, J.; Southern Portland Cement Ltd. v. Cooper [1974] A.C. 623 at 640-1, 644-6.
The sails were accurately likened by the appellant to a trampoline. As Sail Shades installed the sails, it knew how accessible the playground was to members of the public. Unless steps were taken to prevent access to the sails, youths were likely to use them as a trampoline. I am also of the opinion that it was readily apparent that the sails constituted a hazard to those who climbed on to them in order to play, for there was nothing to prevent them from falling from the lowered edges of the sails. In my opinion Sail Shades did owe a duty of care to the appellant to guard against the risk of injury to which those playing on a flexible platform some distance from the ground were exposed.
I am also of the opinion that there was evidence from which a jury could have concluded that Sail Shades failed to discharge that duty by failing to take steps which a reasonable person would take in the circumstances by way of response to the foreseeable risk.
During the course of the trial counsel for the appellant amended the particulars of negligence alleged against the State in the statement of claim by adding the following:
“Upon the first defendant becoming aware that young people were climbing on to the sail cloth failing to take temporary precautions to prevent this by barring the access to the shade cloth.”
The amendment was evidently intended to refer to the cones which Dr Cubitt said should have been installed on the poles. No amendment was made to the particulars of negligence alleged against Sail Shades. The appellant chose to limit his case against Sail Shades to the allegation that it should have ensured that the sails were at a sufficient height to prevent children climbing on to them.
In my view it was open to the jury to conclude that Sail Shades should have increased the height of the sails, and that, if it had done so, the appellant could not have climbed on to the sails with the assistance of his friends. The precaution was inexpensive and practical. In my opinion the evidence that the school council requested that the height of the poles supporting the sails be increased did not entail the conclusion that Sail Shades had no role to play in determining the height of the poles.
For the foregoing reasons I am of the opinion that the appeal should be allowed, the judgment and orders made on 16 November 2005 set aside and the proceeding remitted to the County Court for retrial.
Counsel for the State submitted that if this Court was minded to set aside the judgment and order a retrial, either the plaintiff should pay the costs of the first trial or only the respondents’ costs of the first trial should abide the retrial. The submission was based upon the decision by counsel for the appellant at the trial to seek a discharge of the jury rather than a further charge to the jury. As I have said, in my view the defects in the charge were not readily repairable. Further, at trial counsel for both respondents submitted that the charge was appropriate. In my view the costs of the first trial should be determined by the judge before whom the proceeding is retried.
EAMES, J.A.:
I agree with the orders proposed by Buchanan, J.A. and with his reasons.
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