Court of Appeal (WA)|2007-07-20|Before: Wheeler JA

ALINTA GAS NETWORKS PTY LTD -v- JAMES & ANOR [2007] WASCA 155 (20 July 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ALINTA GAS NETWORKS PTY LTD -v- JAMES & ANOR [2007] WASCA 155

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : JAMES -v- ALINTA GAS NETWORKS PTY LTD & ANOR [2006] WADC 6

Tort - Personal injury - Duty of care - Plastic gas pipes placed in bundle on verge in preparation for laying - One pipe moved from bundle onto the road 30 metres away - Motor cyclist injured after hitting pipe - Whether duty of care extended to take steps to minimise harm

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.

2 PULLIN JA: This is an appeal against the judgment of Commissioner Power, awarding damages for personal injury to the respondent.

3 The accident happened at night when the respondent drove his motor cycle north along Curtin Avenue in Cottesloe, turned left (west) into Forrest Street, paused to allow a vehicle coming towards him down Forrest Street to pass by, and then turned right (north) into Marmion Street. About five to 10 metres from the intersection the respondent, who was then travelling at about 30 kilometres an hour, collided with a plastic pipe. He fell off the motor cycle and was injured. A Dr Parkinson, who drove along shortly after this, following the same course as the respondent, saw the pipe on the road and saw the respondent on the road. He helped the respondent and then placed the pipe onto the eastern verge of Marmion Street.

4 The respondent sued the appellant alleging negligence by the appellant. The amended statement of claim contained an allegation that the appellant carried out works involving "laying plastic pipes of approximately 10 metre length below ground, and the [appellant] ... had left a bundle of pipes on the grass verge outside the house at 78 Forrest Street, Cottesloe in preparation for laying". The respondent pleaded that, on 26 November 1999, the collision occurred and alleged that the appellant was negligent in that it:

"Failed to secure the bundle of pipes to the ground or to each other in the bundle so as to avoid the risk of the pipes being moved or displaced by ... third persons or weather conditions, the risk of which the [appellant] knew or ought to have known of."

5 It was pleaded that, as a consequence of the negligence, the respondent sustained injuries.

6 Some facts were agreed by the parties. They were:

"1. The first defendant ordered pipes for delivery at the premises situated at 78 Forrest Street, Cottesloe, on 24 November 1999.

A bundle of pipes (not tied together) was placed on the verge at the premises at 78 Forrest Street, Cottesloe, on 25 or 26 November 1999 by the first defendant's agents.
As at the evening of 26 November 1999, the pipes remained at the premises at 78 Forrest Street, Cottesloe.
The premises at 78 Forrest Street, Cottesloe, are approximately 30 metres from the place of the accident."

7 The pipe was made of plastic, it was yellow in colour, it was five to six centimetres in diameter and eight to 10 metres long. The verge near the premises at 78 Forrest Street was the northern verge and it sloped down towards the carriageway at Forrest Street. The carriageway of Forrest Street sloped across the carriageway from north to south and the carriageway longitudinally sloped from west to east.

8 Apart from that, there was no evidence on many points which may have been relevant. There was no evidence of:

(e) the width of the carriageway in Forrest Street;

(f) the gradient of the slopes of the verge of the road either across the carriageway or longitudinally;

(g) whether the pipes were disturbed by weather conditions or whether the pipe into which the respondent drove his motor cycle was deliberately moved;

(h) the weather conditions which might have been responsible for movement of the pipe;

(i) how, if weather conditions had disturbed the pipe, the pipe could have rolled down Forrest Street and around the corner into Marmion Street;

(j) how the bundle of pipes might have been secured, whether by tape, by wrapping in plastic, by steel bands, by wire ties or by some other means;

(k) whether there had ever been circumstances where pipes had rolled onto roads before or had been shifted by third parties before;

There was no evidence about the weight of the pipes but, being plastic and of the dimensions mentioned above, it seems that they were light enough to be easily picked up and carried. Dr Parkinson had no difficulty in doing so.

9 The Commissioner acknowledged that there were a number of matters about which there was no evidence, some of which are listed above. He noted that there was no evidence about how much of the pipe was on Marmion Street prior to the collision; he noted that there was no evidence about how long the pipe had been on Marmion Street prior to the collision; about the manner in which the bundle of pipes were left unsecured on the verge at 78 Forrest Street or whether they were left in a way which might increase any propensity for one or more to roll down the verge; whether they were left lengthways or at right angles to the gradient; whether the pipe shifted from its original location to the place of the collision as a result of a single event, or whether it was moved by some deliberate act of a third party or criminal conduct on the part of some third party. The Commissioner noted that alternative explanations were available.

10 Notwithstanding these points, the Commissioner concluded that the bundle of pipes was "left in a location close to roadways carrying motor vehicle and other traffic" and that the "propensity for one or more of the pipes from the bundle to be moved in some way onto the surrounding roadways was increased by the failure to secure them to each other or to the ground in some way". The Commissioner said that if one or more pipes was moved and came to rest in Forrest Street or Marmion Street, it would very likely constitute a hazard to vehicular traffic. He concluded however, that the placement of the pipe as one of a bundle of unsecured pipes on the verge "and generally uphill from both [Forrest Street and Marmion Street] and their intersection made the movement of the pipe onto Marmion Street, at about the point of collision, something which was reasonably foreseeable".

11 The Commissioner then held that this gave rise to a duty of care owed by the appellant to take reasonable care to avoid a foreseeable risk of injury to road users, namely the risk of one or more of the pipes moving or being moved onto or coming to rest on one or more of the adjacent roadways. He concluded that the risk could have been avoided by securing the pipes in one of the ways alleged. He said that the "conduct of the [appellant] in placing the unsecured bundle of pipes where it did was ... conduct of a kind which was fraught with an unreasonable risk of danger to others such as the [respondent]". As a result, the Commissioner concluded that the appellant breached its duty of care to the respondent and that the breach caused the loss and damage claimed.

12 The Commissioner also held that there was no contributory negligence by the respondent because the respondent did not ride his motor cycle at a speed which was unsafe in the circumstances.

13 The appellant challenges the Commissioner's conclusion that the appellant had a duty of care to secure the bundle of pipes left on the verge to the ground or to each other. Further, the appellant's complaint that the Commissioner failed to determine the scope of the duty of care and how it was the bundle of pipes could have been secured to the ground or to each other in a way which would prevent the pipe being moved by third persons. The appellant also alleges that the Commissioner erred in finding that there had been a breach of duty by the appellant and in finding that the breach of duty caused the accident. There is also a complaint about the finding that there was no contributory negligence by the respondent. The respondent lodged a cross-appeal concerning aspects of the quantum of damages.

How did the pipe move from the verge at 78 Forrest Street?

14 The absence of evidence made it impossible to reach a conclusion that the pipe was shifted by weather conditions. Further, even if there had been evidence about storms or wind which might have been sufficient to dislodge the pipe from the bundle into Forrest Street, that left unanswered the question of how the pipe could have rolled down Forrest Street and then turned the corner into Marmion Street and travelled five to 10 metres along that street to reach its resting point. It seems highly unlikely that the pipe could have rolled on the verge to its resting point, because the evidence was that there was vegetation on the verge on the corner of Marmion and Forrest Streets which, by description and photographic evidence, would have been sufficient to stop a six centimetre diameter plastic pipe from rolling over the verge around the corner into Marmion Street. Furthermore, there was a photograph produced by the respondent showing his son at the location on the verge at 78 Forrest Street, which shows that in Forrest Street there was a concrete island and traffic sign mounted on the island which, if it existed at the time of the accident, would also have impeded the progress of the pipe from 78 Forrest Street to its resting place. In short, the suggestion that weather conditions were responsible for the relocation of the pipe was merely a pleaded assertion unsupported by evidence and highly unlikely as an explanation for the pipe ending up on the road in Marmion Street where the accident occurred.

15 It seems that the only possible explanation for the location of the pipe was that it was carried from its location in the bundle on the verge in Forrest Street to its resting place by the unauthorised action of a third person. It is not necessary to speculate whether this was the action of a member or members of a group of youths skylarking or the action of a person taking the pipe from the bundle intent on creating a hazard on the road or with any other motive.

Did the appellant owe a duty of care to the first respondent?

16 A person is only liable in negligence for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff in circumstances where the law imposes a duty to take such care: Sullivan v Moody (2007) 207 CLR 562 at [42]. Asking whether there existed between two parties a relationship sufficiently proximate to give rise to a duty of care gives little practical guidance to determine whether the duty exists in cases not analogous to cases in which duty has been established: Sullivan v Moody (supra) at [48]. Foreseeability of harm, whilst an essential ingredient to a cause of action in negligence, is not sufficient to establish a duty of care in cases not involving physical harm done to the plaintiff by the defendant.

17 This is not one of the established categories of case where there is no question about a duty of care arising. Examples of established categories are motorist and road user, employer and employee, doctor and patient, occupier and entrant. When a case arises which does not fit within one of the established categories, then a decision has to be made about whether the situation under consideration does give rise to a duty of care. See Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180.

18 However, it may be accepted that the circumstances are analogous to a motorist and other road user situation. The Commissioner was correct to conclude that the relationship between a motorcyclist on the road and the appellant gave rise to a duty of care owed by the appellant to the road user to take reasonable care to avoid a foreseeable risk of injury to road users.

19 The existence of a relationship giving rise to a duty of care does not determine the standard of care or the scope or "extent" of the duty of care. In other words, the conclusion that there is a duty of care does not say what the person under the duty must do to discharge that duty. This is usually covered by the expression "the standard of care". See Fleming, Law of Torts, 9th ed, Chap 7. This requires consideration to be given to what a reasonable person of ordinary prudence would do in the circumstances. That will determine the content of the duty and what has to be proved to establish a breach of duty. In Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, Gleeson CJ, Gaudron and Hayne JJ all noted that there was no dispute that the relationship between plaintiff and defendant gave rise to a duty of care. The facts there were that the owner of a shopping centre was sued by the employee of a tenant in the shopping centre who had been attacked and badly injured while walking to his car in the car park in circumstances where the shopping centre's floodlights had been turned off. Their Honours concluded that there was no doubt that the land owner owed a duty of care to occupiers but, as Hayne J explained at [102], "[t]he relevant question in the present case is not whether an occupier owes some duty of care to an entrant. The question is what is the extent of the duty which the occupier owes".

20 Exactly the same issue arises here. While the appellant owed a duty of care to the respondent, and while it may be acknowledged that the extent or content or standard of care required the appellant to take reasonable steps to prevent injury to motorcyclists as a result of negligence by the appellant in stacking the pipes so they could fall onto the road, the question at issue is whether that duty extended to oblige the appellant to guard against injury resulting from the unauthorised acts of third persons. In the Modbury Triangle case, Gleeson CJ made the following observations at [19] about that case:

"The appellant had no control over the behaviour of the men who attacked the first respondent, and no knowledge or forewarning of what they planned to do. In fact, nothing is known about them even now. For all that appears, they might have been desperate to obtain money, or interested only in brutality. The inference that they would have been deterred by lighting in the car park is at least debatable. The men were not enticed to the car park by the appellant. They were strangers to the parties."

"Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee [Chomentowski v Red Garter Restaurant Pty Ltd (1970) 92 WN (NSW) 1070; Public Transport Corporation v Sartori [1997] 1 VR 168; Fraser v State Transport Authority (1985) 39 SASR 57], school and pupil [Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman [1996] Aust Torts Reports 81-399], or bailor and bailee [Pitt Son & Badgery Ltd v Proulefco [1984] HCA 6; (1984) 153 CLR 644]. But the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle, which is that the common law does not ordinarily impose liability for omissions."

"The control and knowledge which form the basis of an occupier's liability in relation to the physical state or condition of land are absent when one considers the possibility of criminal behaviour on the land by a stranger."

21 Gleeson CJ accepted that there may be circumstances in which not only is there a foreseeable risk of harm from criminal conduct by a third party but, in addition, that the criminal conduct is attended by such a high degree of foreseeability and predictability that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable care to prevent it. See [30]. It is clear that Gleeson CJ was not limiting his comments to criminal activity because he referred in [28] to Donoghue v Stevenson [1932] AC 562 at 580, where Lord Atkins said that the general principle expresses a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by a third person.

22 This case is analogous to the Modbury Triangle case. Here the only likely explanation was that a third party took the pipe from its bundle, carried it around the corner and placed or threw it on the road. Nothing is known about the identity of the third party. There was no knowledge or forewarning that the pipe would be moved. The inference that they would have been deterred if the pipes were tied down or tied into a bundle is, as Gleeson CJ said in the Modbury Triangle case at [19], "at least debatable". The third party was not enticed to the bundle of pipes by anything the appellant did. There was no assumption of responsibility by the appellant for the acts of the third parties.

23 The Commissioner said at [207] that the risk could have been avoided by securing the pipes in one of the ways alleged. However, a submission to similar effect was unsuccessfully made in the Modbury Triangle case. Gleeson CJ, in rejecting the submission, said at [29] that the circumstances forming the basis of an occupier's liability were absent when one considers the possibility of criminal behaviour by a stranger. He continued:

"The principle involved cannot be ignored by pointing to the facts of the particular case and saying (or speculating) that the simple expedient of leaving the car park light on for an extra half hour would have prevented the attack on the first respondent. If the appellant had a duty to prevent criminal harm to people in the position of the first respondent, at the least it would have had to leave the lights on all night; and its responsibilities would have extended beyond that. Furthermore, the duty would extend beyond the particular kind of harm inflicted by the criminals in the present case. It would presumably include criminal damage to property. If the baseball bat had been used, not against the first respondent, but against his car window, or if the car had been stolen, the same principle would govern the case. The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable."

24 The same observations may be made here. It was a mistake by the Commissioner to reason that, because the risk could have been avoided by securing the pipes, a duty arose to prevent injury by the action of third parties.

25 The reasoning that the Commissioner employed would impose a duty on residents of Perth suburbs, who place rubbish bins or rubbish on the verge for council collection, to secure the bins or the rubbish in a way which would prevent of third parties moving the bins or rubbish into the roadway and creating a hazard to road users. Although it may be foreseeable that this might happen, the reasonable response of persons placing bins or rubbish on the verges is to do nothing to prevent such unauthorised activity. The same applies in this case.

26 As a result, the appellant's grounds of appeal complaining that the Commissioner erred in holding that the appellant was under a duty of care to prevent the pipe being moved by third persons should be upheld. Similarly the ground complaining about the finding that there was a breach of duty should also be upheld.

27 The appeal should be upheld. It is therefore not necessary to consider any other grounds of appeal, or the cross-appeal.

28 BUSS JA: The material facts and the reasoning of the learned Commissioner are summarised in the reasons of Pullin JA. I agree with Pullin JA that the appeal should be allowed. My reasons are as follows.

29 The appellant was the first defendant in the District Court proceedings, the first respondent was the plaintiff and the second respondent was the second defendant. The first respondent abandoned his claim against the second respondent on the last day of the trial. Although the appellant joined the second respondent as a party to the proceedings before this Court, no relief was sought against it by the appellant or the first respondent. The second respondent filed a notice to the effect that it did not intend to take part in the appeal.

Erred in law in determining that the appellant was negligent, and that the appellant's negligence caused the first respondent's injuries.
Erred in law in determining that the appellant had a duty of care to secure the bundle of pipes left on the verge at 78 Forrest Street to the ground or to each other in the bundle; and

2.1 In failing to determine the scope of the appellant's duty of care to the first respondent;

2.2 In failing to determine how the bundle of pipes could have been secured to the ground or to each other in the bundle, and in a way which would

have prevented the pipe being removed by third persons.

Erred in fact and law in determining that the appellant's breach of its duty of care to the first respondent caused the accident.

3.1 There was no, or insufficient, evidence to support the trial judge's determination that the accident was caused by the appellant's breach of its duty of care, if there was such a duty;

3.2 The trial judge should have determined that it was equally plausible that the accident was caused by the act of an unknown third party, for whose actions the appellant is not responsible, and that the first respondent had failed to prove his case on the balance of probabilities.

In the alternative to grounds 1 to 3, if the accident was caused by the appellant's negligence, the trial judge erred in fact and law in failing to determine that the first respondent was contributory [sic] negligent."

Appeal: the evidence with respect to the appellant's pipes

31 The evidence at trial with respect to the appellant's bundle of unsecured pipes on the verge of the premises at 78 Forrest Street, Cottesloe was as follows:

(a) on 24 November 1999, the appellant ordered pipes for delivery to 78 Forrest Street;

(b) on 25 or 26 November 1999, a bundle of pipes (not tied together) was placed on the verge at 78 Forrest Street;

(c) as at the evening on 26 November 1999 (the day of the accident), a bundle of pipes (not tied together) was on the verge at 78 Forrest Street;

(d) the appellant arranged for the pipes to be placed on the verge at 78 Forrest Street with the intention of installing them for underground gas reticulation;

(e) the premises at 78 Forrest Street were approximately 30 metres from the place of the accident; and

(f) the pipe which the first respondent struck (and which the learned Commissioner found came from the bundle of pipes placed on the verge at 78 Forrest Street) was made from plastic, yellow in colour, approximately 8 - 10 metres in length and had a diameter of approximately 5 - 6 centimetres.

(a) how the pipe which the first respondent struck was moved from the verge at 78 Forrest Street to the scene of the accident;

(b) the weight of the pipes (although it appears a single pipe could readily be picked up and carried);

(d) the manner in which the pipes might have been moved by weather conditions (for example, by the forces of wind or gravity);

(e) the propensity of the pipes to roll on the verge at 78 Forrest Street or generally;

(f) the number of pipes in the bundle or how the bundle was arranged before the accident;

(g) the number of pipes in the bundle or how the bundle was arranged after the accident;

(h) the prevailing weather conditions on or about 24, 25 or 26 November 1999;

(i) how the pipes could have been secured together or to the ground in order to prevent or reduce the risk of their being moved onto the road;

(j) whether the appellant's pipes had previously been moved by weather conditions from verges or other sites in the Perth metropolitan area to adjoining or nearby roads; or

(k) whether any of the appellant's pipes had previously been removed by third parties from verges or other sites in the Perth metropolitan area and placed on roads.

33 The appellant owed a duty to motorists (including the first respondent) using roads in the vicinity of the premises at 78 Forrest Street to exercise reasonable care to avoid a foreseeable risk of injury to those motorists arising from the placement of the bundle of unsecured pipes on the verge.

34 A risk of injury will be reasonably foreseeable if it is not far-fetched or fanciful. The risk may be reasonably foreseeable even though it is unlikely to occur or is remote. See Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 per Mason J at 48; Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty; The Wagon Mound (No 2) [1966] UKPC 1; [1967] 1 AC 617 at 641 - 643. The test of reasonable foreseeability, as stated in Shirt, must, of course, be applied without hindsight. The test is, however, undemanding. See Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at 64 [54]; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 480 - 481 [213].

35 It is unnecessary that a defendant should have foreseen the precise risk of injury or how it occurred. As McHugh J observed in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 578 [87]:

"It is sufficient that the risk is one of a class of risk that in a general way the defendant should have foreseen [Thompson v Bankstown Corporation [1953] HCA 5; (1953) 87 CLR 619 at 630, per Dixon CJ and Williams J; Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202 at 222, per Dixon CJ, McTiernan, Kitto and Taylor JJ]."

36 In my opinion, it was reasonably foreseeable that a third party, with a mischievous or malevolent intention, might remove one of the appellant's pipes from the verge and placed it on a road in the vicinity. Also, it was reasonably foreseeable that if one of the appellant's pipes was placed on a road, the pipe may cause a motor cyclist who collided with it to lose control of his or her vehicle and, as a result, suffer injury.

37 However, the evidence does not permit a finding to the effect that it was reasonably foreseeable that weather conditions at the material time might be a cause of one of the appellant's pipes being moved from the verge to the adjacent or a nearby road.

38 The standard of care (that is, the measure of the discharge of the duty of care) applicable to the appellant is what, if anything, a reasonable person in the appellant's position would have done, in the circumstances, by way of response to the foreseeable risk that a motor cyclist may suffer injury as a result of a third party removing one of the appellant's pipes from the verge and placing it on a road in the vicinity.

39 The determination of what, if anything, a reasonable person in the appellant's position would have done, to avoid the foreseeable risk of harm which I have identified, involves an assessment of what would have been reasonable and practicable for the appellant to have done. This enquiry is not to be undertaken in hindsight. Compare Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 at 361 [93]; Vairy at 461 - 463 [126] - [129]; Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 at 501 [50]. Reasonableness may require no response to a foreseeable risk. See Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at 246 - 247 [36]; Mulligan at 491 [3]; New South Wales v Fahy [2007] HCA 20 at [7], [57].

40 In my opinion, reasonableness did not require the appellant to secure the bundle of pipes, in the manner contended for by the first respondent, in order to eliminate or materially reduce the risk that a third party might remove one of the appellant's pipes from the verge and place it on a road in the vicinity (assuming, for present purposes, that securing the bundle would have had that effect). I am of that opinion for these reasons:

(a) As I have mentioned, there was no evidence that third parties had previously removed any of the appellant's pipes from verges or other sites in the Perth metropolitan area and placed them on roads.

(b) It is commonplace, if not universal practice, in the Perth metropolitan area for householders regularly to deposit rubbish, unwanted domestic items, and garden refuse on their residential verges for collection by local government authorities.

(c) The appellant's pipes are unlikely to be more attractive or accessible to a third party with a mischievous or malevolent intention than objects which householders regularly deposit on their residential verges.

(d) Although the appellant placed the unsecured bundle of pipes on the verge at 78 Forrest Street in the course of carrying on a commercial enterprise, that fact does not, in the circumstances referred to in (a), (b) and (c) above, constitute a material point of distinction between the appellant and householders.

(e) There was no contractual or special relationship between the appellant and the first respondent.

(f) The community's standards of reasonable behaviour did not, in the circumstances referred to in (a), (b), (c), (d) and (e) above, require the appellant to secure the bundle of pipes, in the manner contended for by the first respondent, in order to eliminate or materially reduce the risk of injury to the first respondent as a result of a third party's delinquent conduct (assuming, for present purposes, that securing the bundle would have had that effect). Compare Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 per Gleeson CJ at 268 - 269 [35] - [36].

The decision in New South Wales v Fahy [2007] HCA 20

41 In Fahy, there was discussion as to whether the correctness of Shirt (in particular, the well-known statement of principle of Mason J) should be reconsidered. The Court decided that the circumstances of the case before them did not require reconsideration of Mason J's statement of principle.

"There may be cases where courts have lost sight of the ultimate criterion of reasonableness, or have adopted a mechanistic approach to questions of reasonable foreseeability, risk management or risk avoidance. Complaints about failure to warn seem to give rise to problems of that kind. There have been occasions when judges appear to have forgotten that the response of prudent and reasonable people to many of life's hazards is to do nothing [cf Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460; Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341; 222 ALR 631; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 425 - 427 [2] - [8]]. If it were otherwise, we would live in a forest of warning signs. That, however, does not warrant reconsideration in this case of what was said by Mason J. In cases where the principles have been misapplied, that may have been the result of a failure to read the most frequently quoted passage in the context of the whole of Mason J's judgment."

43 Gummow and Hayne JJ stated, at [78], that there was no occasion, in the case before them, to reconsider the correctness of Shirt. Their Honours added:

"It is as well to say, however, that no persuasive argument was mounted in this case for the view that Shirt should now be reconsidered [John v Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417; Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at 71 [55], 101 - 106 [152] - [167]; Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 38 at 45 [38]]. It is a decision that has stood for more than 25 years and has been applied frequently both in courts of trial and appeal and in this Court. There may be cases when the principles stated in Shirt have not been applied accurately. In particular, arguments of the kind made, and rejected, in Vairy and in Mulligan v Coffs Harbour City Council [(2005) [2005] HCA 63; 223 CLR 486] may suggest a misunderstanding of the so-called 'calculus' that would seek to determine questions of breach in some cases by balancing the cost of a single warning sign against the catastrophic consequences of a particular accident. But the fact, if it be so, that Shirt has not always been applied properly does not provide any persuasive reason to reconsider its correctness."

44 Kirby J held, at [129] - [133], that Shirt correctly states the law and that the formulation stated by Mason J should not be re-expressed.

45 Callinan and Heydon JJ accepted, however, at [224], that the case for a reconsideration of Shirt is "very strong". A little later, their Honours said, at [226] - [227]:

"Just as it is not necessary for the decision of this case to overrule Shirt, so it is not necessary to consider what test should replace it. However, it is appropriate to say something brief on that subject. In the law of tort, of negligence particularly, absolute rigidity of principle in practice turns out to be impracticable. When it is sought to be imposed it so often proves incapable of sensible application. Accordingly, a flexible and realistic test should be substituted for a test of foreseeability of fancifulness or otherwise. The test that commends itself to us is the one stated by Walsh J at first instance in The Wagon Mound [No 2], that what should be foreseen is a risk that is 'significant enough in a practical sense' [Miller Steamship Co Pty Ltd v Overseas Tankship (UK) Ltd [1963] SR (NSW) 948 at 957].

Such a test would usually produce, we think, a similar result to that favoured by Barwick CJ in Caterson v Commissioner for Railways [(1973) [1973] HCA 12; 128 CLR 99 at 101 - 102], that an event should only be regarded as a foreseeable one for the purposes of the law of negligence if it is 'not unlikely to occur'. On balance however Walsh J's test has the advantage of greater practicality and flexibility."

46 Crennan J said, at [241], that the case before the Court did not provide an opportunity to consider whether the test in Shirt that a reasonable risk is one which is not "far-fetched or fanciful" is too "undemanding".

47 A defendant will be liable in negligence only if the damage which the plaintiff has suffered was caused by the defendant's negligent act or omission. The plaintiff must prove what would probably have eventuated had the defendant's negligence not occurred. It is not necessary, however, that the defendant's negligent act or omission be the sole cause of the plaintiff's damage. Causation will be established if the relevant act or omission materially contributed to the damage. A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential. See March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 per Mason CJ at 514; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 per McHugh J at 443 [24], 449 [44].

(a) it was reasonably foreseeable that weather conditions at the material time might be a cause of one of the appellant's pipes being moved from the verge to a road in the vicinity; and

(b) in the circumstances, the appellant had a duty to secure the bundle of pipes, in the manner contended for by the first respondent, to eliminate or materially reduce that risk,

the evidence at trial did not permit a finding to the effect that weather conditions in fact caused or materially contributed to the movement of the relevant pipe from the verge at 78 Forrest Street to the scene of the accident. The hypothesis that weather conditions were wholly or partly responsible for the movement of the pipe in question is mere speculation or conjecture. Compare Miller v Council of the Shire of Livingstone [2003] QCA 29 per McPherson JA at [3] - [4].

49 The appellant has made out grounds 1 and 3 of its grounds of appeal. It is unnecessary to consider grounds 2 and 4. I would allow the appeal.

50 The first respondent cross appealed on the issue of damages. The appellant's success in its appeal renders the cross appeal redundant. The cross appeal should therefore be dismissed.

ALINTA GAS NETWORKS PTY LTD -v- JAMES & ANOR [2007] WASCA 155 (20 July 2007)

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ALINTA GAS NETWORKS PTY LTD -v- JAMES & ANOR [2007] WASCA 155 (20 July 2007)

Cases Cited (20)