Friday 19 December 2003
ROSIE LUCIA AH TONG v WINGECARRIBEE SHIRE COUNCIL
RONALD KELVIN AH TONG v WINGECARRIBEE SHIRE COUNCIL
Judgment
1 GILES JA: I have had the advantage of reading the reasons of Ipp JA in draft. Drawing upon his Honour's reasons, with which I am in general agreement, in the following paragraphs I explain my own path to the orders his Honour proposes.
2 The claimants' proceedings rested on a duty to take reasonable care to avoid psychiatric injury to them, see for example Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449. The judge recorded that it was assumed in their favour that the opponent owed a duty to take reasonable care to avoid foreseeable risk of injury to persons using the Mt Gibraltar Reserve, citing in particular Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. The injury to which that case referred was not psychiatric injury where, as Tame and Annetts show, special considerations apply in determining the existence of the duty of care. However, the opponent properly acknowledged that the duty of care assumed in favour of the claimants was taken at the trial to have extended to a duty to take reasonable care to avoid psychiatric injury to them, and it did not depart from that stance in the applications.
3 As Tame and Annetts also show, there could be more or less to breach of the duty of care owed to the claimants than failure in a duty of care owed to Everard. The claimants contended for breach because the opponent did not fence off the quarries with cyclone wire, or alternatively did not erect a sign or signs in the picnic area alerting users of the area to the existence of cliff faces nearby. The former breach would be causative via Everard's conduct, in that it was said that the fence would have prevented Everard's access to the quarries' cliff faces and his fall. No doubt that is why a cyclone wire fence was proposed, rather than a lesser fence which may not have kept a six year old boy from the quarries. The latter breach would be causative via the claimants' conduct. A sign or signs may not have meant much to Everard, but it was said that the sign or signs would have caused the claimants to ensure that he did not go near the quarries.
4 For the reasons given by Ipp JA, the judge correctly held that breach by failure to fence off the quarries with cyclone wire had not been established.
5 The judge explained in two passages his holding that breach by failing to erect a warning sign or signs had not been established.
6 In the first passage the judge said -
"Plaintiff's counsel conceded in submissions that if I found the risk to be so obvious as to be self-evident then the plaintiff could not succeed. That will not necessarily always be so but I need not argue against the proposition in the circumstances of this case. I have come to the view that the risk was and is so obvious as to be self-evident. It does not matter whether the risk is expressed to be in terms of the possibility of cliff faces being in the Reserve, or in terms of risks to children if they get away from their parents in the bush, whether the risk to a child is confined to falling over a cliff, or more generally expressed in terms of the variety of risks of injury due to different possible causes. For the purposes of this case the risk should be articulated as the risk that a six year old child who wanders away from his parents might fall over a cliff. The plaintiff knew he was going to a mountain, he knew there was a drop to the township from the picnic area. That is sufficient in my view to make it obvious to the ordinary person that a child who wanders out of sight of his parents on Mt Gibraltar might fall over a cliff."
7 In the second passage the judge said -
"I am also of the opinion that the plaintiff has not made out his case that a reasonable response to the risk would be to erect signs. This is partly because in my view the risk is obvious. However, even if a different conclusion was reached on that aspect it seems to me that the plaintiff fails. I am far from persuaded as to the efficacy of any signs, whatever their content. The closer persons get to the cliffs, presumably there is a need for a greater number of signs at various points along or corresponding with the length of the cliff face. This raises issues of aesthetics, access and maintenance, and hence cost. Bearing in mind that no previous difficulty has apparently been experienced with these cliffs and the nature of the risk, the defendant could reasonably take the view that the magnitude of the risk is not high. In my view the defendant can reasonably take the approach that the erection of signs of whatever kind, wherever placed is not likely to alleviate the risk and the various costs, including aesthetic, of doing so outweigh any possible benefit. In my opinion the defendant can reasonably take the approach that designating and maintaining safe walking paths is the most efficacious method protecting Reserve users from the possibility of anyone inadvertently falling over a cliff because they could not find a safe walkway."
8 I do not think that, in referring to a risk that was obvious, the judge meant that the particular risk presented by the disused quarries was obvious. He began with a generalised risk of hazards in an area of bushland with which persons coming to the picnic ground would usually not be familiar, and considered that those persons would have recognised it. The judge then included in that generalised risk the hazard "that a child who wanders out of sight of his parents on Mt Gibraltar might fall over a cliff", so that it would be recognised that young children not kept under close control might be injured from that kind of hazard as well as other kinds of hazard. It was obviousness of risk in this sense, and with extension to the hazard of falling over a cliff, which caused his Honour to conclude that there was no need for the opponent to erect a sign or signs warning of the hazard presented by the quarries' cliff faces.
9 I agree that the opponent could reasonably expect persons coming to the picnic ground to be aware that there might be hazards of various kinds in the surrounding bushland: for example rough ground, fallen trees, and snakes. But in my view the disused quarries presented a risk of a different quality. As appears from the evidence of Mr Ah Tong cited by Ipp JA, the location was not one indicative of naturally formed cliffs. It stretches obviousness to take it to the hazard of an unattended child falling over a cliff when the appearance of the Reserve was as described by Mr Ah Tong, and there was no evidence that in fact the Reserve was particularly rough in terrain or marked by cliffs or other opportunities for falling. More to the point, the quarries were artificial features presenting cliff faces close to an evident, albeit rudimentary, walking track, not visible from the track. The picnic area invited families with young children to proximity to the quarries, and the track opened the possibility that children would be allowed to go unattended to where the hazard of the artificial cliff faces existed. This was much more than a generalised risk of possible hazards. It was a specific hazard, reasonably likely to be encountered by unattended children, but not indicated by the appearance of the bushland.
10 The judge thought also that a sign or signs would not be particularly efficacious and that the risk was not high, so that the financial and aesthetic cost outweighed the need for a sign or signs. It is necessary, of course, to avoid hindsight, and I acknowledge that in such judgmental matters there should not lightly be departure from the opinion of the trial judge. I have concluded, however, that the judge's opinion can not be upheld. There was no evidence of cost but it would be slight; as Ipp JA has indicted, there would not be great aesthetic impact. The risk of a fall was not remote, and the consequences could be severe. In the balancing exercise called for by Wyong Shire Council v Shirt (1980) 146 CLR 40, the response of a reasonable opponent in my view would have been to warn by a sign or signs at the picnic ground that the disused quarries were nearby, so that particular care could be taken by persons coming to the picnic ground including by close supervision of young children.
11 The judge then found that in any event breach by failure to erect a warning sign or signs was not causative. His Honour said -
"In my view the defendant has also made good its submission that any sign would not have caused the plaintiff to behave differently and therefore the absence of a sign did not cause the plaintiff injury. The plaintiff saw no cliff. He went for a walk a very short distance. He knew there was a designated walking track. He turned back and expected Everard to follow. He did not think he was exposing his son to danger. A sign pointing out generally that there were cliffs somewhere on the mountain would have made no difference, because in my view he knew that or suspected it already. A sign at the car part or picnic ground saying, for instance, 'Cliffs 100 metres from here' and pointing in their direction, would in my view have made no difference because the plaintiff never intended going near the drop to the township, did not go so near as even to see the clifftop, turned back after going a very short distance, expected Everard to follow and never thought that he was in any danger, until he realised Everard was not following. If he had thought Everard would wander away from him on top of the mountain I have no doubt he would never have gone there at all. But so long as Everard was with him, he was in no danger. In order words, the operative cause of the problem was not the existence of the cliffs, but the fact that Everard got away from the plaintiff. What could the defendant do about that?"
12 This should be read in the light of the passage earlier in his Honour's reasons -
"The plaintiff argues that a sign such as that now on the access road should have been placed there at the time, and that signs should have been placed in the picnic area alerting users to the existence of cliff faces nearby. The plaintiff says that the risk was hidden and not obvious. The sign now on the road has against a yellow diamond a representation in black of a person falling off a cliff with the words next to it: 'CLIFF EDGE', that all being beneath the words: 'General Warnings'. Clearly, by the fact that it is now there, it would have been easy enough for the defendant to put the sign up before.
As to other signs, nothing is before me as to precisely where such signs should have been placed, how many there should have been, nor precisely what they should have said. There is no direct evidence that if the plaintiff had seen such signs it would have made any difference to his behaviour ." (emphasis added)
13 The judge made a finding of fact, and Hoyts Pty Ltd v Burns (2003) 201 ALR 470 is a recent reminder that this Court should be cautious, to say the least, in reversing such a finding of fact. However, it seems to me that the judge's finding was flawed in three respects.
14 First, even if it were accepted that Mr Ah Tong knew or suspected "that there were cliffs somewhere on the mountain", the reasoning thereafter is astray. It pays no regard to any effect on Mr Ah Tong's supervision of Everard of a specific warning that the disused quarries were nearby.
15 Secondly, I do not think the judge was entitled to find that Mr Ah Tong knew or suspected that there were cliffs somewhere on the mountain. That was contrary to his evidence. There was no evidence that in fact there were cliffs somewhere on the mountain, other than the quarries' cliff faces. The generalised risk to which I have earlier referred may be accepted, but not the extension to knowledge or even suspicion of cliffs and still less to knowledge or suspicion of the particular hazard of the quarries' cliff faces.
16 Thirdly, in proceeding on the basis that there was no direct evidence that "such signs" would have made any difference to Mr Ah Tong's behaviour the judge appears to have overlooked the evidence -
"Q. Sir, if you had known there was a disused cliff [sic] in the area what would you have done?
A. We are very careful parents, Joshua [sic] is our eldest, we would have never exposed him to any risk at all even just a bush walk."
17 "Such signs" in the judge's reasons must have included not just the sign later erected at an unclear point on the road into the Reserve, but also what the judge referred to as "signs … placed in the picnic area alerting users to the existence of cliff faces nearby". This evidence engaged signs to that effect. Despite the odd reference to a "disused cliff", the substance of the question was clear, and despite the reference to Joshua rather than Everard (Everard was the elder) the answer was direct.
18 The evidence was not challenged in cross-examination. It was indirectly supported when Mr Ah Tong was asked in cross-examination whether he was "reasonably comfortable" in letting Everard "continue on by himself": he disagreed, and said, albeit obscurely, that "I would only allow him had I known for sure that the track would've gone back but I did not know the track would go - I assumed it went back, but I did not know for sure it went back."
19 The judge saw and heard Mr Ah Tong give his evidence, and had a trial judge's advantages. But I do not think that, when the evidence of Mr Ah Tong to which I have referred is taken into account, the judge's finding can remain. There must be allowance for the effect of the tragedy on Mr Ah Tong's later evidence of how he would have acted had there been a warning sign or signs. But his evidence was by no means at odds with how a caring parent would have acted, and in my opinion on the evidence at the trial causation was established.
20 I agree with the orders proposed by Ipp JA.
21 IPP JA: These reasons relate to two applications for leave to appeal and appeals against decisions by Dodd DCJ by which his Honour entered verdicts and judgment for the opponent in actions brought by the claimants against it, in negligence, for damages for mental trauma.
22 Dodd DCJ treated the claims of the claimants, Mr and Mrs Ah Tong, on the basis that each claim arose out of the same set of relevant circumstances and his reasons for judgment applied to each. The parties themselves accepted that the same set of relevant circumstances applied to each claim. I shall deal with the two matters in the same way.
23 The claimants are married to each other. Their claims arise out of the tragic death of their son, Everard, who died on 9 October 1997, aged six years, when he fell down a steep cliff formed by a disused quarry on the Mt Gibraltar Reserve near Bowral.
24 The parties have agreed that, subject to the opponent's liability being established, each claimant is entitled to an amount of $40,000 in respect damages.
25 Mr Maconachie QC, who together with Mr Polin represented the opponent, did not oppose the grant of leave to appeal in each case and I would grant leave.
26 The opponent was an owner of and had the care, control and management of the Mt Gibraltar Reserve. On this basis, his Honour held that the opponent owed the claimants a general duty to take reasonable care to avoid foreseeable risk of injury to them. The opponent did not dispute this finding.
27 The issues before this Court involved the scope of duty, whether it had been breached by the opponent and, if so, whether such breach had caused the claimants to suffer damage.
28 On 9 October 1997, the claimants, together with their two young boys, Everard and Joshua (who was then aged four years), drove from their home in Wollongong to Bowral to see the tulip festival that was being held there.
29 After having looked at some of the gardens on display, the claimants decided to have a picnic. They purchased some food and drove out of the town to look for a congenial place where they could enjoy their lunch. As they were driving outside the Bowral township, Mr Ah Tong noticed a sign indicating a turn-off to the Mt Gibraltar lookout. The claimants decided to have their picnic there. They drove up Oxley Drive towards Mt Gibraltar to the lookout site and turned off on to an access road to a dedicated picnic area adjacent to what is referred to in the documentary evidence as the Bowral lookout.
30 Mr Ah Tong said that the lookout site was "very welcoming". There were picnic facilities with tables and swings for the children, a parking area for cars, and toilets. The area of the site was relatively wide, grassed and "very pleasant". It was particularly suitable for use by families with young children.
31 Mr Ah Tong parked his car, and the family had lunch at the picnic area that was part of the lookout site. After lunch was over, the two children asked Mr Ah Tong to take them for a walk. Mr Ah Tong had earlier noticed a sign-posted walking track that went from the Bowral lookout down to the bottom of the mountain. Mr Ah Tong was not interested in walking down the mountain with the children and looked around for something more suitable.
32 He saw what he described as two "well-worn" tracks leaving the grassed area at the picnic site. The tracks were at different angles to the grassed area and he thought that they were part of a single circular track that left and returned to the picnic area. He thought that such a track would be suitable. He described it as a "standard bush walk path". He said, "there were children towards a later (sic) part of it". He was not asked to clarify what he meant by a "later part", but the inference is that at some time on the day in question he saw children on the track.
33 There were other tracks running through the grassed area. None of the tracks was fenced off and there was no area in the vicinity to which access was restricted. There were no signs indicating the presence of any danger.
34 In fact, unbeknown to the claimants, there were two disused quarries below the picnic area and lookout site. The top of the cliff of at least one of the quarries was in relatively close proximity to the track to which I have referred.
35 Mr Ah Tong, together with Joshua and Everard, began to walk along what Mr Ah Tong thought was a circular track. He thought that he would be walking to a clearing so that he could observe the township of Bowral from a different viewpoint.
36 I pause here to note that the evidence of the topography of the relevant area, that is, the lookout site as a whole, the picnic area, the different grassed areas, the track along which Mr Ah Tong, Everard and Joshua walked, the other tracks, and the cliffs of the quarries, was sadly lacking in detail. Mr Ah Tong was the only witness who testified at the trial. He did his best, no doubt, but the questions that he was asked in regard to these matters paid little attention to the need to create a reasonably comprehensible and accurate picture of the scene. Aspects such as the density of the bush throughout the area between the track along which the walk took place and the quarry cliffs, the visibility of the quarry cliffs from relevant points off the track, what was to be found at the end of the track, and the precise topographical relationship (including distances) between the quarry cliffs, the picnic area, the various tracks and where Everard was found, were either not dealt with at all or only touched upon. Photographs were tendered and received into evidence, but most were not identified, few were the subject of oral testimony and, therefore, few are of any help. Neither Mr Maconachie, nor Mr Baran (who represented the claimants), appeared at the trial, and understandably each had difficulty in answering many of the questions that were put to them by the Court on these issues. I shall do the best I can to describe the scene by reference to the material available. What follows is based on the sparse evidence that was led.
37 The track along which Mr Ah Tong and his children walked was only wide enough for one person to walk on. Accordingly, Mr Ah Tong walked with or carried Joshua, and Everard walked in front. They walked for about 50 metres from the point where they started.
38 The area into which they walked was grassed; in other words, adjacent to the track, on both sides, was a grassed area. This was a different grassed area to that of the picnic site. The grass alongside the track was about knee height. According to Mr Ah Tong, however, "the vegetation growth was only very slight in the areas that was [sic] well walked on".
39 Next to the grassed area was bush, which was "pristine" and "beautiful". The bush seems to have been so thick that one could not see for any distance through it. Mr Ah Tong said that he could see nothing beyond the bush.
40 Mr Ah Tong said that the slope of the land, whilst walking, was "mostly flat". He encountered a log lying across or alongside the track. At that point the track curved and there was a "little drop". This caused Mr Ah Tong to think that the track led to the base of Mt Gibraltar, to which he did not want to walk. He decided that it was time to return to the car. He told Everard that there could be snakes under the log and they should turn back. Mr Ah Tong turned around and told Everard to follow him and Joshua.
41 Mr Ah Tong walked back to the picnic area with Joshua in his arms. Joshua was talking to him and it is apparent that his attention was thereby distracted. When he returned to the picnic area he discovered that Everard was not behind him. He thought that Everard might have continued on the circular track and returned before him, but his wife told him that that was not the case. They immediately commenced searching frantically for Everard, but he was not to be found.
42 Mr Ah Tong retraced his steps and continued on the track a further 20 to 30 metres beyond where he had turned back with Joshua. He saw that at some point thereafter the track vanished.
43 He called Emergency Services and, as Dodd DCJ found, Everard was found at the foot of a 30 metre quarry cliff. He was attended to by ambulance officers but to no avail.
44 Mr Ah Tong was asked: "Compared to where you were walking where was the cliff"? He replied: "I would say it would be no more than 20 metres, 30 metres". Mr Ah Tong was not cross-examined on this evidence and it must be accepted that the quarry cliff was no more than 20 or 30 metres from the path that he and his children walked on.
45 The following exchange then occurred:
"Q. Was it twenty metres further on from where you didn't walk or was it twenty metres adjacent to where you had already walked?
A. I think it was both. It was a lot closer I think if it was adjacent. The cliff and the quarry I presume was curved, so there was a cliff ahead of the track, but as you went along there was also another cliff on this side of it."
46 Mr Ah Tong was also not cross-examined on this evidence. While it is not clear how much of this testimony is presumption and how much is based on what Mr Ah Tong observed, it is evidence that confirms the close proximity of the quarry cliff to the track.
47 Dodd DCJ observed that the claimants' case ultimately came down to two principal grounds of negligence. Firstly, the claimants contended that the opponent should have installed safety fences along the cliffs created by the quarry or quarries. Secondly, the claimants contended that the opponent should have erected a sign or signs in the picnic area warning of the proximity and direction of the disused quarries and their cliffs.
48 Dodd DCJ held that the claimants had not established that a reasonable response to the risk of injury was to fence the cliff face. He rejected the contention that the opponent was negligent in failing to fence the cliffs.
49 I consider that his Honour was entirely justified in this conclusion. The evidence was woefully inadequate in regard to this issue. In particular, there was no evidence as to the extent of the cliffs, the length of their perimeter, the extent and nature of fencing required, the efficacy of any fencing that might be erected, the cost thereof and how the fencing might affect the aesthetics of the environment. There was simply no evidential basis to assess the reasonableness of the fencing measure contended for by the claimants.
50 His Honour did not accept, for two main reasons, that the erection of signs would be a reasonable response to the risk constituted by the quarries. Firstly, he found that the risk was obvious. Secondly, he said that he was "far from persuaded as to the efficacy of any signs whatever their content". In the latter regard, he said:
"The closer persons get to the cliffs, presumably there is a need for a greater number of signs at various points along or corresponding with the length of the cliff face. This raises issues of aesthetics, access and maintenance, and hence costs."
51 In addition, his Honour found that a sign would not have caused Mr Ah Tong to behave differently. Therefore, he held, the absence of a sign did not cause the claimants' damage. He said:
"The plaintiff saw no cliff. He went for a walk a very short distance. He knew there was a designated walking track. He turned back and expected Everard to follow. He did not think he was exposing his son to danger. A sign pointing out generally that there were cliffs somewhere on the mountain would have made no difference, because in my view he knew that or suspected it already. A sign at the carpark or picnic ground saying, for instance, 'Cliffs 100 metres from here' and pointing in their direction, would in my view have made no difference because the plaintiff never intended going near the drop to the township, did not go so near as even to see a cliff top, turned back after going a very short distance, expected Everard to follow and never thought that he was in any danger, until he realised Everard was not following. If he had thought Everard would wander away from him on top of the mountain I have no doubt he would never have gone there at all. But so long as Everard was with him, he was in no danger. In other words, the operative cause of the problem was not the existence of the cliffs, but the fact that Everard got away from the plaintiff. What could the defendant do about that?"
52 Accordingly, his Honour found that the opponent was not in breach of its duty of care by omitting to provide warning signs at appropriate places at or near the picnic area.