Coffs Harbour City Council v Polglase

Catchwords

[1939] HCA 20 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479[1987] HCA 7 Bankstown City Council v Zraika (2016) 94 NSWLR 159[2016] NSWCA 51 Boensch v Pascoe [2019] HCA 4994 ALJR 112 Brodie v Singleton Shire Council (2001) 206 CLR 512[2001] HCA 29 Burrum Corporation v RichardsonBurrum Corporation v Gehrmann (1939) 62 CLR 214[1939] HCA 30 C G Maloney Pty Ltd v Noon [2011] NSWCA 397 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1[1999] HCA 59 Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499[1985] HCA 75 Hahn v Conley (1971) 126 CLR 276[1971] HCA 56 Hoffmann v Boland [2013] NSWCA 158 Jones v Bartlett (2000) 205 CLR 166191 LGERA 292 Mulligan v Coffs Harbour City Council [2003] NSWSC 49(2003) Aust Torts Rep 81-696 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486[2005] HCA 63 Nagle v Rottnest Island Authority (1993) 177 CLR 423[1959] HCA 63 Raptis (A) & Son v South Australia (1977) 138 CLR 346[1977] HCA 36 Robertson v Swincer (1989) 52 SASR 356 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431

Judgment (35 paragraphs)

[1]

Bankstown City Council v Zraika (2016) 94 NSWLR 159; [2016] NSWCA 51 Boensch v Pascoe [2019] HCA 49; 94 ALJR 112 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 Burrum Corporation v Richardson; Burrum Corporation v Gehrmann (1939) 62 CLR 214; [1939] HCA 30 C G Maloney Pty Ltd v Noon [2011] NSWCA 397 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 Forster Homes for the Aged Trust v Great Lakes Shire Council [1976] 1 NSWLR 577 Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75 Hahn v Conley (1971) 126 CLR 276; [1971] HCA 56 Hoffmann v Boland [2013] NSWCA 158 Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 Kempsey Shire Council v Van Park Ltd [1995] NSWCA 237 Laresu Pty Ltd v Clark [2010] NSWCA 180 MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417; 191 LGERA 292 Mulligan v Coffs Harbour City Council [2003] NSWSC 49; (2003) Aust Torts Rep 81-696 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; [2005] HCA 63 Nagle v Rottnest Island Authority (1993) 177 CLR 423; [1993] HCA 76 Nikolich v Webb [2020] WASCA 169 Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council (No 2) [2019] NSWSC 1848 Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council (No 3) [2020] NSWSC 169 Randwick Municipal Council v Rutledge (1959) 102 CLR 54; [1959] HCA 63 Raptis (A) & Son v South Australia (1977) 138 CLR 346; [1977] HCA 36 Robertson v Swincer (1989) 52 SASR 356 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; [1998] HCA 5 Schiller v Mulgrave Shire Council (1972) 129 CLR 116; [1972] HCA 60 Seas and Submerged Lands Case (1975) 135 CLR 337; [1975] HCA 58 Sharp v Parramatta City Council [2015] NSWCA 260; 209 LGERA 220 St Alder v Waverley Local Council [2010] NSWCA 22; 172 LGERA 147 St Mark's Orthodox Coptic College v Abraham [2007] NSWCA 185 Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141 Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation (2014) 88 NSWLR 449; [2014] NSWCA 437 Townsend v Waverley Council [2001] NSWSC 384; 120 LGERA 224 Tweed Shire Council v Carley Eden Howarth (bht Trent Howarth) [2009] NSWCA 103 United States v Louisiana 394 US 11 (1969) Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15 Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74 Wentworth Park Sporting Complex Trust v Leichhardt Council [2003] NSWCA 162; 125 LGERA 440 Wheeler v Somerfield [1966] 2 QB 94 Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247; (2003) Aust Torts Rep 81-754 Texts Cited: A Lang, Crown Land in New South Wales (Butterworths, 1973) Category: Principal judgment Parties: Coffs Harbour City Council (First Appellant) Coffs Jetty Foreshore Reserve Trust (Second Appellant) Tedmund Polglase by his tutor Jeffrey Polglase (First Respondent) State of New South Wales (Second Respondent) Betty Whitton (Third Respondent) David Whitton (Fourth Respondent) Representation: Counsel: R Sheldon SC, S Walsh (First and Second Appellants) R McIlwaine SC, R Quickenden (First Respondent) N Chen SC, H Chiu (Second Respondent) M Hutchings, G Keesing (Third and Fourth Respondents)

[2]

Solicitors: Mills Oakley (First and Second Appellants) Whitelaw McDonald (First Respondent) Wotton + Kearney (Second Respondent) Sparke Helmore Lawyers (Third and Fourth Respondents) File Number(s): 2020/015003 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2019] NSWSC 1848 Date of Decision: 19 December 2019 Before: Cavanagh J File Number(s): 2014/281434

[3]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[4]

HEADNOTE [This headnote is not to be read as part of the decision] After the Coffs Harbour Jetty closed to the public in 1984 and fell into disrepair, the Coffs Harbour City Council agreed in 1990 to accept responsibility for it, provided it was brought up to a condition of full maintenance and safety by the State. The jetty was thereafter restored by the State during the 1990s for use as a public walkway. The design of the railings, including as to heritage, aesthetic and safety considerations, was raised during conservation meetings attended by both State and Council representatives. The restoration was complete in 1997, when the jetty was reopened to the public, but the jetty remained managed by the State until it was handed over to the Council in 2002 pursuant to s 153 of the Public Works Act 1912 (NSW). At the same time, the Trust was established as a reserve trust pursuant to the Crown Lands Act 1989 (NSW) to be trustee of the reserved land on which the jetty partly stood, and the Council was appointed to manage the Trust's affairs. Shortly before the handover, the State had corresponded with Council advising that the jetty's railing complied with Australian building standards applicable at the time of the restoration. In September 2011, a five-year-old boy, who had been walking with his grandparents, fell through the railing on the side of the jetty onto hard sand some 4 metres below, suffering serious injury. The railing consisted of a top rail, a middle rail and a kerb. A sign was placed at the entrance to the jetty, which stated relevantly: "USE OF THIS FACILITY MAY BE HAZARDOUS PLEASE BE CAREFUL". Neither grandparent was holding the boy's hand at the time of the accident, and both grandparents had turned away from him immediately prior to his fall. Council was aware of a series of previous accidents involving children falling or nearly falling from the jetty. This included a child falling on the weekend of the jetty's reopening in 1997 without serious injury, a child nearly falling in 1999, and a child falling in 2007, suffering serious injury. The boy by his tutor sued the Council, the Coffs Harbour State Park Trust and the State for negligence as occupiers. The boy also sued his grandparents for negligence in leading him into danger and failing to look after him. The Council cross-claimed against the State, alleging that the State was liable to the plaintiff in respect of the same damage by reason of the State's refurbishment and ownership of the jetty, but it was not alleged that the State owed a duty of care to the Council in relation to the design of the jetty's railing. The primary judge found the Council and the Trust liable, but dismissed the plaintiff's claims against the State and the grandparents. The Council and the Trust appealed, and the plaintiff sought leave to cross-appeal from an order of the primary judge as to costs. The principal issues in the appeal were: (i) Whether the Council or the Trust breached a duty of care owed by reason of occupation and control of the jetty, by failing to install additional railings or a mesh infill to prevent young children from falling from the jetty; (ii) Whether the risk warning placed at the jetty's entrance meant that no duty of care was owed to the plaintiff, by virtue of s 5M of the Civil Liability Act 2002 (NSW); (iii) Whether the State was liable to the plaintiff given its role in restoring the jetty and as a former occupier; and (iv) Whether the grandparents were liable to the plaintiff. The issue in the cross appeal was: (v) Whether the primary judge erred in failing to make an order that the Council and the Trust would be liable for the costs of the State and the grandparents on the statement of claim. The Court (Leeming JA, Basten and Macfarlan JJA agreeing) held, granting leave to appeal but dismissing the appeal, and dismissing the application for leave to cross-appeal: As to issue (i):

[5]

Judgment

BASTEN JA: I agree with Leeming JA.
MACFARLAN JA: I agree with Leeming JA.
LEEMING JA: On 30 September 2011, the plaintiff, then aged five, fell from the Coffs Harbour Jetty onto hard sand some 4 metres below, suffering serious injury. He had been walking with his grandparents. There were railings on each side of the jetty, which had been in place since it had been opened to the public in 1997. There was a gap of 395mm between the middle rail and the kerb, and a gap of 480mm between the top rail and the middle rail. The jetty had, since 2002, been subject to the care, control and management of either or both of the appellants, Coffs Harbour City Council and Coffs Coast State Park Trust. The latter was a reserve trust, established in 2002 pursuant to Pt 5 of the Crown Lands Act 1989 (NSW), whose affairs were managed by the Council. I shall return below to the distinctions between the Council and the Trust.
In 1984, after almost a century of use for cargo handling, the jetty had been closed to the public. In 1988 the jetty was listed by the Council as an item of environmental heritage, and in 1990 the Council agreed to accept responsibility for the jetty provided that it was first brought up to a state of full maintenance and safety by the State and that satisfactory legal arrangements could be put in place regarding the Council's legal liabilities which would flow from acceptance of responsibility for it. Thereafter the State proceeded, with the Council's involvement and subject to the Council's development consent, to restore the jetty for use as a public walkway. The restoration was complete in 1997, but there were delays in handing the jetty over to the Council, such that between 1997 and 2002, the jetty had been open to the public while being managed by the State.
The plaintiff sued the Council, the Trust, the State, and his grandparents. Speaking generally, the Council and Trust were sued as occupiers, the State was sued as a former occupier which had designed and constructed the railing, and the grandparents on the basis that they had taken their grandson into a place of danger and failed properly to look after him. There were no fewer than six cross-claims, but all were confined to claims for statutory contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), based on the defendants having breached a duty owed to the plaintiff. No cross-claim was brought by the Trust, while the Council's cross-claim against the State was confined to the State's liability to the plaintiff in respect of the same damage. In particular, it was not alleged that the State owed a duty of care to the Council or the Trust in relation to the design of the jetty's railing, or that it was liable based on representations made at the time of the handover.

[6]

The history of young children falling from the jetty

Tragically, there has been a series of accidents and near accidents involving young children falling from the jetty after its reopening on 11 October 1997. These were at the forefront of submissions of breach of duty by the Council, the Trust and the State. There was no factual controversy about any of the incidents, or that they had come to the knowledge of the Council.
First, on 12 October 1997, a young child fell from the jetty to the sand approximately 4.6m below, landing on her back; she apparently suffered no major injuries other than bruising and shock. The State gave consideration to placing additional metal strands along the railing, going so far as to estimate the cost of doing so. However, nothing came of this.
Secondly, on 15 May 1999, a small child who was walking near her mother was described as "suddenly [running] towards the railing and almost [falling] through". The author of a letter to the Council and the Department of Public Works said that fortunately he was nearby and was able to grab her before she fell through to the sand below. He wrote that "[t]he fall to the hard sand could have severely injured or even worse killed her". He added: "The question I have to ask is why there is no intermediate wire cables spaced between the railings to stop people from falling through either onto the sand or into the water (with the possibility of drowning). Regulations exist for public buildings, private dwellings, and other handrails. Is the State, or Local Government exempt from the regulations they impose on others?"
Thirdly, on 14 October 2007, a two-year-old child fell from the top of the stairs some three metres. His mother wrote that "[h]e had reached the top of the stairs only to reach out for the railing and fall straight through, approximately one stor[e]y high. He fractured his skull in two places, was unconscious and airlifted from Coffs Harbour Hospital to Prince of Wales Children's Hospital in Sydney." The mother was an intensive care nurse who said that she and the medical staff were amazed that he survived. Apparently the child was recovering, but the mother wrote: "This never would have occurred if the railing didn't have such a large gap and was child friendly. The jetty is promoted in all tourism brochures and is a major attraction to families, however completely unsafe. I urge your council to fix the railing and make it safe for all children."

[7]

The evidence concerning the accident on 30 September 2011

Mr David and Ms Betty Whitton are the plaintiff's maternal grandparents. On 30 September 2011, they were aged 68 and 64 respectively. They were on a family holiday with their grandson. They were staying at a motel in Coffs Harbour that night and were booked into a unit at Yamba the following day. The plaintiff's mother had intended to be with them, but had to have emergency surgery in Newcastle. On the afternoon of 30 September 2011, the grandparents decided to take the plaintiff for a walk onto the jetty and take a photo of him to send to his mother.
Ms Whitton said that she had walked out along the jetty in the past with her own children, and was aware that many families with small children walk or ride or play on the jetty. About a quarter of the way along the jetty, the three walked over to the left side and looked out at the people swimming. At that time the plaintiff was beside them. In her witness statement, dated 20 June 2017, Ms Whitton said: "After a while we were ready to move on. Before walking away from the jetty edge and while still close to Ted I half turned and out of the corner of my eye saw Ted as he was falling from the jetty. I screamed to anyone below to help Ted. David and I ran quickly back down the jetty and out onto the wet sand where Ted lay."
Ms Whitton was called by the plaintiff in his case, and adopted her statement. She was cross-examined briefly by her own counsel, to the effect that in the five years previous to 2011, she and her husband had decided to move to Newcastle to support their daughter and to have lots of contact with their grandchild, had taken him to and picked him up from pre-school and school, had him over for sleepovers at their house and had taken him to the park. Ms Whitton said that she regarded him as a "very gentle lovely little child, usually very obedient".
In cross-examination by Mr Sheldon SC for the Council and the Trust, she confirmed that she and her husband walked along the jetty with the plaintiff between them, and that neither was holding his hand. She accepted that they were walking roughly in the middle of the jetty, and that she appreciated that her grandson should not be standing near the edge of the jetty, because it looked dangerous.
Ms Whitton then accepted that the three of them walked to the edge of the jetty and that after a while her husband suggested something to the effect of "let's keep walking", following which she gave this evidence: "Q. And did you then, when he said that, turn towards your right? A. Yes, I think so. Q. Did you take a step? A. Yes. Q. Did you take more than one step? A. No, I believe I might have taken one or two steps and then I half turned around to follow David, and you know, would have said to Ted, 'Come on, let's go.' Q. You knew that something had happened to your grandson because you caught sight of some movement out of the corner of your eye. Is that right? A. That's correct."

[8]

History of the jetty

The State Heritage Register, maintained under Heritage Act 1977 (NSW), includes the Coffs Harbour Jetty. Its statement of significance commences: "Coffs Harbour jetty is the largest coastal timber jetty in New South Wales and is the only remaining large ocean jetty in New South Wales which dates from the nineteenth century. It was the largest timber jetty constructed by the Harbours and Rivers Section of the NSW Department of Public [W]orks between 1880 and 1895 and is the only surviving example of the three ocean jetties constructed on the North Coast."
The jetty was originally built by the colonial government and opened in 1892. Documents in evidence recorded that in 1906, 417 ships visited Coffs Harbour and further works were undertaken between 1911 and 1913 to build breakwaters and otherwise improve the jetty for ocean-going ships. Shipping peaked in the early 1950s, but declined after, in 1954, the North Coast Steam Navigation Company went into liquidation.
The jetty as completed in 1892 was 1,640ft long and 21ft 6in wide. From the outset, there was a railway track down its centre and from time to time various cranes were erected upon it. The jetty was widened and extended in 1912-1914; however, as shipping declined through the 1960s, maintenance costs increased and the jetty was run down. The conservation plan records that from July 1978, responsibility for the maintenance of the jetty was transferred from the Public Works Department to the Maritime Services Board, although the work was contracted out to the Department. In 1981, the cranes were removed from the jetty, because they were dangerous to the public, and in 1982 the railway track was removed to permit some of the decking to be replaced. Although there was conflicting evidence about this, the litigation was conducted on the basis that the jetty was closed for public access in 1984. The nature of earlier access to the public is unclear on the evidence.
On 31 December 1906, the jetty was gazetted as a "National Work" pursuant to s 17 of the Local Government (Shires) Act 1905 (NSW). Although the parties formally agreed that the effect of this was that the jetty was marked as a "heritage item", that seems most unlikely. The effect of the gazettal was to empower the Minister for Public Works to maintain, manage and administer the work. Upon the commencement of the Local Government Act 1919 (NSW) (which repealed the Local Government Act 1906 (NSW), which itself repealed the 1905 statute), the jetty was taken to be subject to the counterpart declaration under that statute: s 537(4). Under s 537 of the Local Government Act the jetty might "at any later time … be handed over, either temporarily or permanently, to the council", and would thereafter be managed, controlled, maintained, and administered by that council and would cease to be a "National Work". It will be seen that in 1997 and in 2002 it was the successor to that provision which was contemplated and invoked to effect the "handover" to the local council.

[9]

The restoration of the jetty

A large quantity of historical documents was tendered, which illustrated the involvement of the State government and the local Council in restoring the jetty and opening it to public access. An abbreviated summary will suffice.
The historical significance of the jetty was recognised in the Local Environmental Plan, and this informed the process of obtaining approval for and performing works to restore the jetty. Clause 36 of the Coffs Harbour Local Environmental Plan 1988 prohibited the demolition or renovation of items of environmental heritage, of which the "Timber Jetty within the Port of Coffs Harbour" was one. Any development, including demolition or renovation of the jetty, would require the consent of Coffs Harbour City Council.
Further, the North Coast Regional Environmental Plan 1988 included cl 36A, which provided that "[t]he council shall not grant a consent required by clause 36 in relation to heritage items specified or described in Schedule 2 unless the concurrence of the Director is obtained". The reference to the Director was to the Director of the Department of Urban Affairs and Planning, and cl 36A(2) required the Director, in deciding whether to grant concurrence, to take into consideration the views of the Heritage Council and, separately, a number of heritage aspects of the item and its site. This was amended, in December 2008, to replace the Director by the Council: State Environmental Planning Policy (Repeal of Concurrence and Referral Provisions) 2008, Sch 2, cl 2.9 [10]. Clause 36 extended to demolition or alterations of buildings or works which were heritage items (cl 36(1)(a)), and "Coffs Harbour jetty" was listed as one of the heritage items on Schedule 2.
Consideration was given to the dimensions to be restored (both the length and the width of the jetty had varied over its working lifetime). Eventually, by development application dated 11 December 1994, the Department of NSW Public Works applied for consent described as "Reconstruction of Coffs Harbour Jetty to Bent 83 and Demolition of the outer 91 metres" (the "bents" were elements of the structure). The estimated cost of work was $2.27 million. The application was accompanied by a conservation plan, which included the following policy (policy 61): "The design, materials and colour of any new handrail, or gates, should not form a dominant feature, nor detract from the visual character of the platform."

[10]

Concerns about handover

The Department of Land and Water Conservation wrote to the Department of Public Works and Services on 12 March 1997 as follows: "It is the understanding of this Office that upon completion of the current restoration works on the jetty at Coffs Harbour, that responsibility for the future care and maintenance of the structure will be transferred to Coffs Harbour City Council. Confirmation is required on the mechanism by which it is proposed to transfer this responsibility so that our records can be formally noted for future reference (as the Owners of the land on which the structure is constructed). Earlier discussions with Officers from your Coffs Harbour Office indicated that the jetty is currently a gazetted 'National Work'. The current work by your Department is being carried out as part of your Department's responsibility for the subject National Work. It is understood that upon completion of works, Coffs Harbour City Council will be gazetted as the body responsible for future care and maintenance of the Jetty. This Office is currently holding discussions with Council regarding the future control, planning and management of the adjoining foreshore areas. As the jetty is an integral part of this area, it is important for all parties to [be] aware of the various arrangements and responsibilities for the area. Your assistance in clarifying this matter would be greatly appreciated."
A draft notice of handing over of the National Work to the Council was prepared in July 1997, seeking to invoke s 153 of the Public Works Act 1912 (NSW). Evidently this was supplied to the Council, because in September 1997, it sought external legal advice concerning the proposed handover. The first item of advice concerned the "satisfactory legal arrangement regarding Council's legal liabilities that would flow from acceptance of responsibility for the Jetty". Advice was given by an external firm of solicitors the following month. The firm stated: "We do not believe it is in the interests of Council that the national work be handed over permanently. We believe Council should only agree that the hand over be temporary and that it be during the pleasure of the Minister and the Council. The Council should be in a position to terminate the arrangement at its pleasure and the Minister should be in a position to terminate the arrangement at his pleasure." The principal underlying concern appears to have been the risk of deterioration which might give rise to substantial restoration costs in the future.

[11]

Ownership, occupation and control of the jetty

The plaintiff's claim and the cross-claims, insofar as they involved the Council, the Trust and the State, turned on the liability expressed to be owed as an "owner and/or occupier" of the jetty, and as a person having "care, control and management" of the structure.
The Council's cross-claim against the State alleged that the State had the "ownership, care, control and management of the Jetty and surrounds" and alleged that by reason of the State's refurbishment and by reason of its ownership the State came under a duty of care to the plaintiff. The State admitted none of this, including a non-admission of its ownership of the Jetty.
These issues give rise to questions of some legal complexity, to which insufficient attention appears to have been paid in the course of the litigation. Although on the view I take it does not affect the outcome, it is desirable to commence with a fuller analysis of ownership, occupation, care, control and management of the governmental entities (the Council, the Trust and the State) than has been provided to date in this litigation.
By way of summary of what will follow: 1. at all times, the jetty has been erected on Crown land, vested in the State, notwithstanding the deemed vesting of a fee simple for the purposes of Pt 5 of the Crown Lands Act 1989 in the Trust after 2002; 2. what matters for the purposes of a duty of care imposed on a statutory authority is actual or de facto control and management, rather than ownership or occupation (the latter being an unhelpful term in the case of public land which is freely accessible by any member of the public); 3. between 1997 and 2002, the State government enjoyed actual control at least by reason of the gazettal of the jetty as a "National Work"; 4. after 2002, the Trust was charged with the care, control and management of the jetty, and the affairs of the Trust were managed by the Council. The jetty was also required to be maintained, managed and administered by the Council by reason of its being handed over pursuant to s 153 of the Public Works Act 1912 (NSW) (which is the successor to s 537 of the Local Government Act 1919).

[12]

Ownership of the jetty

The primary judge found, and there was no dispute as to the finding - despite the point being raised during the hearing - that the Trust owned the fee simple in the land. That was said to follow from s 100(1) of the Crown Lands Act 1989, which provided: "For the purposes only of this Part and a by-law under this Part, a reserve trust that, but for this section, would not have an estate in fee simple in the reserve has such an estate."
It will be seen that this "finding" is a conclusion of law. With respect, I do not consider that it is correct. It is desirable to address the matter, not merely because it has some small impact upon the analysis of duty, but mostly lest it cause confusion subsequently. This is so despite the fact that the Crown Land Management Act 2016 (NSW) takes a different approach and (generally speaking) extinguishes the deemed fee simple in reserve trusts: see Schedule 7, cl 7. As illustrated by this litigation nine years after the event, there are likely to be cases for many years arising from reserved Crown land before November 2016 when the current Act commenced.
Section 100(1) was a deeming provision, as is evident from its form, and is limited in its application to the purposes of Pt 5 of the Crown Lands Act and by-laws made under that Part. The limited nature of the estate was reflected in s 100(2), which stated that "[t]he reserve trust is not capable of alienating, charging, granting leases of or licences or easements in respect of, or in any way disposing of the whole or any part of the reserve, except in accordance with this Part". Other powers allowed the trust to lease land (with the Minister's consent and in the case of leases for a term exceeding 5 years, after notice had been given to the public) which comprised part of the reserve: ss 102 and 103. Neither the reservation of Crown land nor the creation of a reserve trust, caused the land to cease to be Crown land.
Reservation was and is distinct from dedication. Both processes had antecedents under the Crown Lands Consolidation Act 1913 (NSW) and earlier colonial legislation: see Randwick Municipal Council v Rutledge (1959) 102 CLR 54 at 74; [1959] HCA 63. That is the "important distinction" emphasised in A Lang, Crown Land in New South Wales (Butterworths, 1973), p 78.
Land that is dedicated (say, for a road) ceases to be Crown land (as noted in Wentworth Park Sporting Complex Trust v Leichhardt Council [2003] NSWCA 162; 125 LGERA 440 at [23]). Under the Crown Lands Act 1989, when land was reserved - a term which derived from being reserved from sale - dealings with it became subject to the provisions found in Pt 5 of the Crown Lands Act but it nonetheless remained vested in the Crown.

[13]

The effect of the permanent handing over to the Council

During the submissions on appeal, it was at one stage suggested that the gazettal of the jetty as a "National Work" might "vest" it in the Minister for Public Works. It will be recalled that the status of the jetty as a "National Work" came about from the exercise of power under s 17 of the Local Government (Shires) Act 1905, and the deeming effect of s 537(4) of the Local Government Act 1919. Section 3(1) of the Local Government (Consequential Provisions) Act 1993 (NSW) repealed s 537 of the 1919 Act, while s 4 inserted a new Pt 9 into the Public Works Act, including s 153, which at all relevant times provided: "(1) The Minister, with the agreement of a council, may, by notice published in the Gazette, declare that a national work is handed over, either temporarily or permanently, to a council. (2) A work which is handed over to a council is to be maintained, managed and administered by the council and ceases to be a national work while it is so maintained, managed and administered."
On their ordinary meaning, the words "is to be maintained, managed and administered" are not directed to ownership. Rather, they are directed to physical acts affecting the structure. Indeed, they are apt to impose an obligation: see Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 at [31]. But they say nothing of the title to the work or the land to which it is affixed. When this was raised during the hearing, I did not understand any contrary submission to be pressed.

[14]

The effect of the jetty extending beyond the low water mark

So far I have passed over the complicating effect of the fact that part of the jetty is erected on dry land, part on the inter-tidal zone, and part extends around 300m into the ocean. This gives rise to complexity of an entirely different order. Because it was not the subject of submission, and nothing turns on it, I shall be brief. Notwithstanding that the Seas and Submerged Lands Act 1973 (Cth) gave sovereignty to the Crown in right of the Commonwealth over the territorial sea from the low-water mark, that Act saved the rights of the States' jetties, wharves or other structures or works (s 15). However, that did not alter the fact that the Seas and Submerged Lands Case (1975) 135 CLR 337; [1975] HCA 58 held that, as a matter of common law, title to the seabed from the low-water mark vested in the Crown in right of the Commonwealth. Whether that applied to the area of "Coffs Harbour" is arguably not straightforward, having regard to the fact that the harbour is artificial, largely formed to the north of the jetty by building a breakwater between the coast and Muttonbird Island. An island may be treated as part of the mainland for the purpose of determining questions of this nature, as Mason J noted in Raptis (A) & Son v South Australia (1977) 138 CLR 346 at 385-386; [1977] HCA 36 by reference to United States v Louisiana 394 US 11 (1969). But the point is academic, because the Coastal Waters (State Title) Act 1980 (Cth) vested title to the property in the seabed in the State's coastal waters in the State, and although the jetty is long, it is entirely contained within the coastal waters.
Thus, the whole of the jetty was erected on land vested in the Crown in right of New South Wales, either Crown land which was made subject to a reserve trust in 2002, or (perhaps) unalienated Crown land on the seabed of the (in part artificial) harbour created by the seawall to the north of the jetty connecting the shore with Muttonbird Island. This appeal concerns that part of the jetty which was built above the low water mark - the place where the plaintiff fell, and the entrance to the jetty where any signage was to be placed if it were to be effective.

[15]

Occupation of the jetty

After its restoration in 1997, the jetty was open to all members of the public, 24 hours a day. It has long been recognised that "occupation" in such circumstances is an artificial concept.
Latham CJ said of the bathing enclosure which was the location of the accident in Burrum Corporation v Richardson; Burrum Corporation v Gehrmann (1939) 62 CLR 214 at 228; [1939] HCA 30 that the structure "cannot be 'occupied' in any ordinary sense. But it can be controlled and managed". His Honour added that "[t]he liability in the case of an 'occupier' of premises really depends upon his control and management, which create duties, varying in degree, to persons coming upon and using the premises."
Or, as Dixon J pithily put it in Aiken v Kingborough Corporation (1939) 62 CLR 179 at 203-204; [1939] HCA 20: "The control and management of such a structure [viz a jetty] spells occupation. The property remains in the Crown, and it might be thought that the occupation of the jetty by the council is merely occupation for and on behalf of the Government. ... But in any case it seems clear enough that the council's control and management gives it an independent authority; in other words, it is an occupier in its own right."
Thus "occupation" in this context is quite different from the occupation giving rise to tortious liability of a tenant under a lease of private land. It is best to turn to the legal question which most matters, namely, the control and management of the jetty.

[16]

Care, control and management of the jetty

A reserve trust was, despite its name, a body corporate: Crown Lands Act 1989, s 92(2). A reserve trust was "charged with the care, control and management" of the reserve: s 92(5). Section 37R of the Crown Lands Consolidation Act, inserted at the same time as s 37X by the Crown lands and Other Acts (Reserves) Amendment Act in 1974, was to identical effect. There is no reason to think that the statutory references to "care, control and management" differed from the "control and management" to which Latham CJ and Dixon J had referred in Burrum and Aiken.
The Minister chose to appoint an existing reserve trust, namely, "Coffs Coast State Park Trust" when the land on which the jetty was erected was reserved in 2002. That is to say, the land in respect of which the Coffs Coast State Park Trust was charged with the care, control and management thereby extended to the land on which the jetty was erected.
The Crown Lands Act identified four ways in which the affairs of a reserve trust were to be managed: s 92(6). The affairs could be managed (a) by the Minister, (b) by a trust board of between three and seven members appointed by the Minister pursuant to s 93, (c) by a corporation, including a Council, appointed by the Minister under s 95, or (d) by an administrator appointed under s 117. Pursuant to s 92(6)(c), the Minister had previously, in 2000, appointed Coffs Harbour City Council to manage the affairs of Coffs Coast State Park Trust: Government Gazette, 22 September 2000, pp 10723-4.
The consequence is that after 18 October 2002, the land on which at least the relevant part of the jetty was built remained Crown land, but was reserved for the purpose of port facilities and services. It was held on trust by the reserve trust known as "Coffs Coast State Park Trust". The affairs of that reserve trust were managed by the Council. In that way, the Council exercised, through its officers and employees and contractors, the care, control and management of the jetty.
Further, and separately from what flowed from the Crown Lands Act, the Council became subject to an obligation to maintain, manage and administer the jetty by reason of s 153(2) of the Public Works Act.
The Council and the Trust were represented by the same solicitors and counsel, and no point of distinction was made between them. In those circumstances, it is unnecessary and inappropriate to attempt to identify any differences in the duty owed by reason of the care, control and management of the jetty exercised by the Council and the Trust.

[17]

The duty based on care, control and management

Some care is necessary in relation to the source of a duty of care in relation to a public space which is subject to statutory control. In particular, it is not possible to rely upon the formulation of duty by Dixon J in Aiken v Kingborough Corporation at 210, despite its aptness to the facts of this case: "What then is the reasonable measure of precaution for the safety of the users of premises, such as a wharf, who come there as of common right? I think the public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care."
That statement does not stand as an exhaustive statement of the scope of the duty of care in subsequent decisions, which reflect the reformulation of occupiers' liability effected by Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7, and the duty upheld in Nagle v Rottnest Island Authority (1993) 177 CLR 423; [1993] HCA 76. See Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; [1998] HCA 5 at [49], [62]-[63], [74], [113]-[114] and [158]. In particular, the duty is not confined to risks which are hidden or not apparent.
Notwithstanding the expansion in the scope of the duty, what was said by Barwick CJ and Walsh J in Schiller v Mulgrave Shire Council (1972) 129 CLR 116; [1972] HCA 60 as to the source of the Council's duty in respect of Crown land which had been reserved for scenic purposes of which the Council had been appointed a trustee, remains apposite. As it happens, the statutory regime in Schiller, ss 180 and 181 of the Lands Act 1910 (Qld) (see at 120-121) resembles Pt 5 of the Crown Lands Act 1989 (NSW). Barwick CJ said at 120: "For my part, the capacity to care for and control the reserve was in this case the source of duty. Whilst it is convenient perhaps to refer to the respondent as the occupier of land, I would prefer to describe it as the trustee having the care, control and management of the reserve. The capacity for care, control and management derived from that trusteeship clearly extended in this case to the whole of the area. Consequently, in my opinion, the source of liability in this case is the statutory power and duty of care, control and management and not merely the occupation of land."

[18]

Explanation for the different outcome on duty in Mulligan

I am conscious of the different outcome as to duty reached in the litigation culminating in Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; [2005] HCA 63 (Mulligan HCA).
Mr Mulligan suffered serious injury whilst diving in Coffs Creek some small distance north of the jetty. The creek-bed where he sustained his injury was unalienated Crown land; however, to the north and south of the creek were reserves, described as "the Park Beach Reserve" and "The Jetty Reserve", and Mr Mulligan contended that warning signs should have been placed in those areas. There was a trial extending over 25 days in 2002 before Whealy J: Mulligan v Coffs Harbour City Council [2003] NSWSC 49; (2003) Aust Torts Rep 81-696, and an appeal to this Court (decided with another similar appeal): Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247; (2003) Aust Torts Rep 81-754.
Mr Mulligan sued the Council (in various capacities), the State (again in various capacities), the Coffs Harbour Jetty Foreshore Reserve Trust and its manager Mr Hambly (see Mulligan HCA at [44]). The various ways in which a duty was said to be owed by the Council and the State are summarised in [23] and [25] of Whealy J's judgment. The details of the ownership of the land may be found at [45]-[47] and [51]-[53] of his reasons. A claim against the Marine Park Authority, which had some management responsibilities for the creek bed, was abandoned at the conclusion of the proceedings: [2003] NSWSC 49 at [49].
The primary judge recorded at [21]: "Essentially, the duty of care asserted against each defendant arose from statutory or de facto aspects of care, control and management of the reserves and the creek. These were said to create duties analogous to those required of an occupier to entrants lawfully upon land or structures."
Whealy J found that there was a duty of care was owed by the Council, the State and the Trust (at [247], [256] and [261]). Because his Honour found that the duty was not breached, it was not necessary to identify that duty any further, or to distinguish between the Council, the State and the Trust. However, at [354], in the course of making contingent findings of apportionment, his Honour regarded the State as being more responsible than the Council, a finding which was overturned on appeal, for the reasons given at [330]-[331] as follows: "The only breach of the duty of care alleged against each defendant was its failure to erect a warning sign. Had that failure been such a breach, then the respective duties of care would have been satisfied by the erection of a warning sign by Coffs Harbour just inside the eastern boundary of its licensed area under the railway bridge and by the State interests and, in particular, the Trust, by erect[ing] one or two signs in an appropriate location upon the southern bank and, in particular, at the access point to that bank from the dirt path leading from the pathway/cycleway. In these circumstances, it seems to me that, again, the culpability of the defendants was equal. Accordingly, taking account of the factors to which I have briefly referred, I would consider it to be just and equitable that contribution between the defendants for the amount of the damages that would have been recoverable by Mr Mulligan, were he entitled thereto, ought to be borne as to 50% by Coffs Harbour and 50% by the State interests."

[19]

Breach of duty by the Council

In the remainder of this judgment, I shall for concision mostly refer to "the Council" rather than "the appellants" or "the Council and the Trust".
In this Court, the Council accepted that it owed a duty as formulated by the primary judge, but challenged the finding of breach. The primary judge gave careful attention to identifying the risk of harm as the risk of a child falling through the rails onto the hard sand below (at [153]) and held that the Council and the Trust, as occupiers of the jetty, were required to take reasonable precautions against that risk. At trial, the Council advanced defences based on ss 42 and 43A of the Civil Liability Act, but these were rejected and not pressed in this Court.

[20]

Reasons of the primary judge on breach

The primary judge found that the Council did not obtain its own building report or conduct a risk assessment subsequent to May 2002. It did write to the Department and received the response partly reproduced above indicating that the railing had been erected in compliance with AS1657-1992, and there was evidence that the railing was of a type commonly found on jetties, and consistent with competent professional practice: at [257]. The position concerning the standard was complicated, and ultimately the primary judge did not make a finding as to whether the railing complied. His Honour had before him the joint opinion of the experts that any decision to leave the handrail unaltered after 1997 was a decision not consistent with competent professional practice. To be fair, that opinion is so general in nature that it is difficult to understand precisely what the experts meant.
The most important conclusion was at [264]: "[I]f the Council had carried out its own assessment and obtained its own building report back in 2002 when Mr Quinn recommended it, it would have become aware either that there was no standard or guideline which applied such that its ability to carry out modifications was not in some way limited by a standard or code or that the very standard to which the Department had referred permitted another option for the railing, being infill, which would have made the railing safe. Its purported reliance on the advice of the Department in 2002 (for the purposes of this case) as a basis for maintaining that it was not required to do anything is misplaced. I accept the general proposition (advanced by the Council in its correspondence) that the Council is not required to respond to every complaint of an incident or injury within its municipality and bring about some change. However, all of the matters that I have identified and the consideration of s 5B of the CLA tend to suggest that, in the proper evaluation of what the exercise of reasonable care required, the Council failed to exercise reasonable care in failing to take those measures which would have prevented the plaintiff's accident."
The reasonable precautions were adding wire strands to narrow the gaps in the railing, or to use infill which would prevent children from falling through. The primary judge said at [268] that the Council did not follow the advice of its risk coordinator in 2002, namely, modifying the railing to make it safer, or carry out its own risk assessment or obtain its own building report, that the proper exercise of reasonable care required that these measures should have been taken long before the plaintiff's accident, and concluded that: "At the very least, the circumstances and significance of the ... accident in 2007 should have indicated to the Council that it needed to take steps to prevent a similar accident happening again. There were options available to it for closing the gaps which would have prevented the plaintiff's accident and in the circumstances the failure to take such preventative measures constituted a failure to take care."

[21]

The Council's submissions

The Council's primary submission was that it was entitled to rely on what the State had done. It said that the ultimate design was the result of a multi-factorial analysis, based on safety, aesthetic and heritage considerations, and that "apparently competent professional people, who his Honour accepted were competent in what they do, made decisions based on their qualifications and experience as to how this handrail should appear". The Council added that "absolute safety" was not the goal of the design process.
The Council also relied on the letter of 3 July 2002 which asserted that the railing complied with the standard: "the additional fact of which the council was seized of which goes to its behaviour was the assurances it received from time to time but in particular immediately before handover that the railing complied with the rules of the standards prevailing at the time of design but up to the point of handover."
Finally, it said that "there had been two accidents before handover and one after handover, the importance of that being the State of New South Wales was aware of both the 97 and 99 accident and did nothing about them". The submissions challenging the finding of breach were encapsulated in the following exchange: "BASTEN JA: This whole premise is that nothing's happened since, 1997, is it, that should have changed the Council's opinion? SHELDON: Yes, your Honour. Well, it's a little more subtle than that, your Honour ... Those things that did happen didn't change the risk, they merely reflected its existence. So what one should do as a matter of rational analysis, we submit, is if you knew there was a risk and you responded to it in a particular way, why - if the risk comes home, unless it comes home in a different way or comes home more often, or you can see a problem developing, why would you respond to it? BASTEN JA: Because you learn from experience. SHELDON: Yes, your Honour, but experience had informed the approach that was taken pre-1997, and experience presumably told those involved in the design that people were apt to fall from structures like this. And if they did, they could be injured indeed, seriously. Now, that risk came home. It came home infrequently. It came home during New South Wales' involvement as an occupier and, we submit on the evidence, as a designer. They did nothing about it. They told us that it was compliant at the time, and we - it was handed to us, at which point, there was an incident in 2007, and then Mr - Master Polglase fell. So the point that one gets to is that the frequency of accident actually declined once we took over the jetty."

[22]

Consideration

The Council is correct to submit that absolute safety is not the standard of care required by it; it was required to exercise reasonable care.
It is also true that the design of the railing was the outcome of a process involving considerations extending beyond the safety of young children, including the heritage considerations, and that it was undertaken by apparently competent people. While this contributes to the evaluation required by s 5B, it does not alter the answer. There was a known and indeed realised risk of young children suffering serious injury because of the gap in the railing and the height of the jetty above the surrounding land. It is difficult to see how heritage considerations would preclude installing additional strands of wire, or a mesh infill, and to be fair, the Council did not suggest that they did.
It is true that the taking of one precautionary measure may often exacerbate other risks on a site. Here there was the possibility of additional strands being used by young children to climb through the railing. But the relevant risk was not that a person who was minded to jump from the jetty would suffer injury. It was that a young child might fall from the jetty, with no intention to do so. Contrary to the Council's submission, it is no answer to point to the representation from the State that the railing complied with Australian standards. For one thing, standards change from time to time. For another, the standard may inform but cannot dictate the standard of reasonable care in any particular case: Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [110]. But most fundamentally, the Council's submission does not attend to the proposition that what is a reasonable response varies over time, depending upon the known history of the site. In more than a decade since the railing was constructed, the Council knew that young children had fallen, or nearly fallen, and on one occasion with very serious consequences.
True it is that there would be an additional cost of installation and some on-going maintenance costs, but both are relatively small. The jetty is a single, unique, structure; contrast what was said in Vairy at [80], [149] and [218] concerning the 27 km of coastline informing the content of the duty imposed on the Council in that case. And the evidence suggested that provision was apparently made by the Council for annual maintenance of the jetty in an amount of $72,000.

[23]

The risk warning

The sign at the entrance to the jetty, in the form it took on 30 September 2011, is shown in a picture taken by police investigating the plaintiff's fall:
It will be seen that the "general warnings" refer to diving and the possibility of shallow water, underneath which there are the words: "USE OF THIS FACILITY MAY BE HAZARDOUS PLEASE BE CAREFUL"
The primary judge addressed the reliance upon s 5M of the Civil Liability Act at [326]-[350]. His Honour identified the signage at the time, and correctly proceeded on the basis that the signs which replaced it at some later time were not relevant to the application of s 5M. His Honour noted, again correctly, that the defendants were entitled to rely upon the risk warning by reason of s 5M(2), the plaintiff being an incapable person and the warning having been given to the grandparents, in whose control he was (at [334]) and that all of the State, the Council and the Trust were able to rely on the risk warning because either the Council or the Trust was the occupier of the jetty: s 5M(6).
Sections 5M(1) and (5) provide as follows: "5M No duty of care for recreational activity where risk warning (1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff. … (5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk)."
At trial and on appeal, the Council relied upon Sharp v Parramatta City Council [2015] NSWCA 260; 209 LGERA 220, where this Court held that a sign which read "PERSONS USING THE PLATFORMS AND SPRINGBOARDS DO SO AT THEIR OWN RISK" was sufficient to satisfy s 5M(5) in relation to the risk of diving or jumping from the platform. The primary judge noted that "of course the only likely uses of the springboard [in Sharp] would be diving and jumping": at [342].
There were obvious risks to persons using the jetty who dived from it into potentially shallow water - risks which had materialised (on the evidence in this appeal) at least in October 1997 (injured knee) and in around 1977 (death) - and those risks were addressed by the warning. In order to satisfy s 5M(5), the Council contended that the risk of falling off the jetty and landing on the sand was a particular risk which was subject to the general warning at the bottom of the sign. The primary judge rejected this submission at [347]-[349]: "The recreational activity in which the plaintiff was engaged was simply walking along the jetty for enjoyment. There is nothing in the sign present on the day of the accident that provides a warning of the risk of a child falling through the railing (being the risk for the purposes of s 5M(3)), unlike the sign subsequently installed by 2016. In my view, the words in capital letters at the bottom of the sign and read in the context of the whole of the sign or even in isolation, do not constitute a warning that was given in a manner that was reasonably likely to result in people being warned of the risk (being the risk [to] the plaintiff of falling through the rails) before engaging in the recreational activity. The sign does not convey a warning, either generally or specifically, of the risk of a child falling through the railing. It does not matter whether Mr and Mrs Whitton could have checked the railing to see whether it would prevent the plaintiff from falling through or whether they might have observed that it might be dangerous for a child standing next to the railing whilst they were actually standing next to the railing. Section 5M of the CLA directs attention to the warning and not what people might know or observe themselves. The words relied on by the defendants are general. Indeed they are as general as possible - 'Use of this facility may be hazardous'. The words do not direct attention to any particular risk or activity. They do not direct attention to any hazard or even suggest that there is a hazard. It is necessary to make a finding of fact as to whether the warning constituted by the words was reasonably likely to result in people being warned of the relevant risk in this matter before engaging in the activity. In my view, they were not such as to result in people being warned of the relevant risk in this matter."

[24]

The liability of the State

In the alternative, the appellants submitted that if it were liable in negligence to the plaintiff, then so too was the State. "We submit there is a clear tension between the non-response by New South Wales and the non-response by the council but the latter being held to have been negligent".
The submission has an initial attraction. After all, there were two incidents with young children falling, or nearly falling, from the jetty while it was in the State's control, and the State had primary responsibility for the design of the railing.
However, expressed in that way the precise nature of the duty said to have been breached by the State may be obscured. Was it a duty as a designer of the railing, or was it a duty as an occupier for five years, during which time it should have altered the railing, which would in turn have prevented the plaintiff's injury a decade later? If the latter, then it may be noted that in the five years between 1997 and 2002 after the jetty was restored and while it was in the State's control, there was one incident when a young child fell, but was not seriously injured, and another in 1999 when a child almost fell. That contrasts with the position faced by the Council after 2007, when there had been three incidents in the decade since the structure had been restored and opened to the public, in the latest of which a child had been very seriously injured, fracturing his skull in two places and being air-lifted to hospital. The reasonable response of a successor occupier in 2010 was not necessarily the same as its predecessor in 2002. That is not to say that an occupier is entitled to wait for a catastrophic injury to occur before it responds to a known risk. It is merely to question the correctness of the Council's submission that if the Council were liable, so too should the State be liable.
However, as will be seen below, on appeal the Council disputed the appropriateness of dividing the different capacities in which the State had been involved, while the State maintained that the Council should not be permitted to advance a new case on appeal.
All this means that in order to resolve this ground, it is necessary to review how the Council advanced a case that the State was liable.

[25]

The case advanced at trial by the Council against the State

The main focus of both the Council and the State at trial was on defeating the plaintiff's allegations, rather than advancing their own cross-claims against each other. That is unsurprising, and is not intended by way of criticism; it may often make sound forensic sense not to spend too long in written or oral address on submissions which are premised upon being held liable. However, it means that the Council's submissions at the end of the trial were quite confined.
Nonetheless, there was a large issue dividing the Council from the State at trial. The Council maintained that it was "akin to a managing agent", and that it and the Trust were "in a position analogous to Jones v Bartlett [(2000) 205 CLR 166; [2000] HCA 56]" with "no reason to suspect that the jetty [was] in some way 'non-compliant' with a legal norm". The Council submitted that Public Works had represented that the relevant standard was AS1657-1992, and the safety fence complied with that standard. The Council submitted that "The position is very much one in which NSW exercised control and CHCC/Trust did as they were told, invoking the recognised practical limitation on our response: Laresu Pty Ltd v Clark [2010] NSWCA 180."
Further, the Council submitted that "NSW was the owner of the jetty, and remained the owner of the jetty after the handover", with a position "akin to that of a lessor of a lease terminable at will". It submitted that the State "took control of the restoration process, came up with the design for the handrail, (through the Heritage Council) gave heritage consent to the design and gave the instruction to construct the handrail in accordance with its design." The entirety of the Council's written submissions at trial on the duty owed by the State is contained in the preceding two sentences.
In the Council's oral submissions at trial, it was put that the handover, effected by s 153 of the Public Works Act, did not cause the State to cease to have ownership or control of the jetty. That led to the following exchange in final address: "SHELDON: If alienation in a wider sense was intended, then a less colloquial term would've been used than handed over, we would submit it's consistent with the terms in which land of this ilk and property of this ilk is dealt with by the Crown. It is consistent that it would not give ownership. It would give some lesser interest and retain its own ultimate ownership. If it ever came back into being a national work, it would then again fall back into the Minister's responsibility, and it could come back in as a national work if it wasn't maintained, managed or administered. HIS HONOUR: I suppose one way of looking at it is that as a matter of proper statutory construction, looking at s 153(2), it wouldn't actually be necessary to include s 153(2) if the Department was proposing to hand over complete responsibility to the council. It is, by virtue of s 153(2), the legislature is intending to, as it were, not define but explain what happens when a national work is handed over to a council with the use of the words 'Maintain, manage and administer'. That would be-- SHELDON: That's our submission. That's what we've said in writing. We've identified some other reasons why that's the preferable construction of the section. What we say ultimately, and all of this has been going to it, is that we were not the sole occupier of the jetty at the relevant time, and that the problem if there was one, was one which was well-known to the fourth defendant [the State], in relation to which the fourth defendant had decided upon a course."

[26]

The reasons of the primary judge on the State's liability

The plaintiff's pleaded case against the State was confined to it being "the owner and/or occupier of the jetty". The plaintiff's opening submissions against the State were unhelpful as to duty, but his closing submissions maintained that "[the State] owed a duty of care to young children to design and construct a guardrail that eliminated the identified risk". That went beyond the pleaded case, but reflected what had been advanced by the Council.
The primary judge addressed three bases on which the State was said to be liable at [270]: "[T]here appear to be three bases on which the State is said to be liable, albeit it is sued by the plaintiff only on the basis that it was the owner/occupier: (1) it was negligent in its design and construction of the railing; (2) it remained the occupier and in control of the jetty between 1997 and handover in 2002; and (3) it continued to have some control and is asserted to have remained an occupier/owner of the jetty as at the date of the plaintiff's accident."
That is an accurate, and perhaps indeed somewhat generous, encapsulation of the pleadings and submissions directed to the liability of the State.
The primary judge addressed each basis of liability. His Honour said at [300] that the observations of Windeyer J in Voli v Inglewood Shire Council (1963) 110 CLR 74 at 85; [1963] HCA 15 were relevant: "Secondly, the obligation of an architect who designs a building and supervises the building of it is not co-extensive with the obligation of the person who afterwards occupies it. The occupier may be liable for injuries to visitors caused by pitfalls and unusual dangers on the premises, resulting from such things as unlighted obstructions, slippery stairs, unguarded openings. But an architect is not liable merely because an unwarned visitor to the building he designed comes to harm there. It is the occupier's concern, by guarding, lighting, warning or otherwise, to protect persons against unexpected dangers that are there. Such dangers can exist although the premises themselves be well built and suitable for their purpose: see eg Bond v South Australian Railways Commissioner. Put shortly, an architect is not ordinarily liable because someone falls down in the building and is injured. He may be if the building falls down and someone is injured."

[27]

Submissions on appeal

The essence of the Council's submission on appeal was that while the primary judge addressed the bases of liability of designer and former occupier separately, there was error in failing to deal with a case based on all factors considered together. It maintained that: "The postulated duty attached to the acts and omissions of NSW as they occurred during the design and construction phase, its subsequent not inconsiderable period of occupation of the jetty after the refurbishment, adverse events occurring during that occupation and the foreseeable continuing exposure of members of the public to a risk of which it knew while still in the design phase. All of these matters were relevant to the reasonableness of the Council's 'response' and the liability of NSW."
The formulation of that submission, focussing simultaneously upon the Council's challenge to the finding of breach and its complaint that the State had not been found liable, reflects the way in which the Council's submissions in this Court were advanced.
The Council complained that the primary judge did not advert to the design case raised by the Council's cross claim, being that it was negligent to hand over the jetty with an inadequate or unsafe handrail, or that the State had remained in occupation for five years after the handrail was constructed. That accords with the emphasis given to the representation in the State's letter of 3 July 2002 to the Council that the handrail complied with Australian standards.

[28]

Consideration

The State's complaint that this is a new case is not without force. What the primary judge recorded about the plaintiff's lack of enthusiasm for a case against the State based on former occupation fairly reflects the transcript (23 September 2013, T193.47-194.3). The Council's submissions in reply reproduced above occurred only minutes after the plaintiff's senior counsel had declined to dispute (although not conceding) that the State could be liable as occupier after the jetty had been handed over (T197.39-46). They responded to the judge's question, and asserted, correctly, that the State had occupation and control prior to October 2002. But on no view was the submission which is now at the forefront of the Council's grounds of appeal developed in any detail or with any prominence at trial. It is to be borne in mind that the Council's primary submission against the State was that the State continued to be, in 2011, an occupier, which is in the teeth of a submission that the State was liable as a former occupier.
However, the submission is best addressed on its merits. I would not rule out the possibility of a duty owed by a former occupier to the plaintiff. Consider the facts of this case, but altered so that on 16 September 2011, a fortnight before the plaintiff's accident, the Council had ceased to have control and management of the jetty having been replaced by a new governmental entity.
But that is far removed from the actual position in this case, where the Council's control and management had been in place for nine years, and it had been actively involved in the restoration of the jetty before then in part on the basis that it would assume liability for it.
One may pass over precisely how the duty owed by the State as designer of the railing was altered by reason of the delayed handover of the jetty. The critical question remains breach. Looking at all the circumstances prospectively, before the plaintiff's injury, would a reasonable person in the position of the State which had designed and constructed the railing and retained control and management for a further five years have taken precautions in that period? The critical facts that occurred in those ensuing five years were the incident on the Sunday of the opening weekend and the near-incident two years later.
I do not consider that the fact that the State, as it turned out, continued to retain control and management for five years alters the finding that there was no breach of duty by it. The evidence does not permit an accurate understanding of the reason for the delays between opening in 1997 and handover in 2002, save that the Council (understandably) preferred to enjoy the benefit of the restored jetty without any of its ongoing costs or risks for as long as possible. The indications are that the handover was anticipated to occur shortly after the jetty was re-opened. Further, and without belittling the potential for harm from the incident on the Sunday after opening, and the near-incident reported in 1999, there were no actual instances of serious harm from the railing in the period the State was in occupation.

[29]

Liability of the grandparents

The primary judge addressed the liability of the plaintiff's grandparents at [351]-[383]. His Honour identified the "key points to emerge from [Ms Whitton's] cross-examination" as follows: "(a) that she considered that the jetty was dangerous (although precisely why she considered it was dangerous was not explained and nor was she asked to elaborate during cross examination); (b) that neither she nor her husband were holding the plaintiff's hand as they walked along the jetty or whilst they were standing at the side looking over and through the railing; (c) that whilst they were standing looking over into the railing, they were so close to each other as to be touching each other; (d) that she and her husband turned away momentarily, calling the plaintiff to come with them; (e) that her impression of the plaintiff was that he was normally an obedient child; and (f) that she had only moved a few feet when she observed him falling out of the corner of her eye (again, I take this to mean that she observed him in the air, rather than actually in contact with or falling through the railing)."
The primary judge recorded that the plaintiff's statement of claim alleged that in recognition of the risk at the edge of the jetty, the grandparents told the plaintiff to come away from the edge of the jetty and led the plaintiff by hand as they walked along its length. The primary judge recorded at [355] that those two allegations of fact were not supported by the evidence. Issue was taken with that when the appeal was heard. It was accepted that there was no evidence of their holding the plaintiff's hand, but that there was evidence of their telling him to come away from the edge of the jetty. On the view I take, nothing turns on this.
The primary judge said at [357]: "As the plaintiff outlined his case against Mr and Mrs Whitton, it is that they should have either been holding his hand at all times whilst he was in proximity to the edge of the jetty or they should have been watching him and being so close to him that they could have taken hold of him. In those circumstances, the conduct amounting to negligence (in the plaintiff's case), could only be their momentary movement away from the railing without being in physical contact with the plaintiff and without having their eyes on him."
No issue was taken with the accuracy of that formulation of the plaintiff's case.

[30]

Costs

Following a hearing on 28 February 2020 on a panoply of issues raised by the parties seeking Sanderson or Bullock orders, or special orders based on the non-acceptance of Calderbank letter, the primary judge gave an ex tempore judgment: Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council (No 3) [2020] NSWSC 169. His Honour ordered that the Council and the Trust pay the costs of the plaintiff. The primary judge also ordered that the Council and the Trust pay the costs of the State and the grandparents on the cross-claims, and, in respect of the cross-claim involving the grandparents, on an indemnity basis from 30 August 2016. His Honour ordered that the plaintiff pay the costs of the State and the grandparents of the statement of claim.
The Council and the Trust have appealed from the order requiring them to pay the grandparents' costs of the cross-claims on an indemnity basis from 30 August 2016, and the plaintiff has appealed from the failure to make a Sanderson order whereby the Council and Trust would be liable for the costs of the State and the grandparents on the statement of claim.
One aspect of the chronology bears upon both issues. The Council was joined in the original statement of claim filed in 2014. The Council joined the grandparents by cross-claim filed in May 2016. In March 2017, the plaintiff filed an amended statement of claim joining the grandparents as the fifth and sixth defendants.

[31]

The Council/Trust's appeal in respect of the indemnity costs order

The primary judge ordered the Council to pay the grandparents' costs of the cross-claims, on an indemnity basis, from 30 August 2016, based on a Calderbank letter dated 2 August 2016. This gives rise to a short point, although there was perhaps some divergence between the written and oral submissions.
It was common ground that the grandparents' offer was a genuine offer of compromise. It proposed that the cross-claim be dismissed with no order as to costs, and that the parties enter into a deed of release and indemnity. The primary judge did not in terms find that it was unreasonable for the Council to reject the grandparents' offer. In written submissions, emphasis was given to the limited material available from the grandparents in August 2016, and the fact that their proximity to the plaintiff only became apparent when a subsequent statement was served. Orally, it was said: "Our point on that which only relates to whether we were obliged to pay the Whittons' costs on an indemnity basis, our only point on that is, they were brought into and kept in the proceedings by the plaintiff. So his Honour did not apply a test of unreasonableness to the question of the basis on which we should pay their costs. We were entitled to have that applied. In our submission, in circumstances where they were going and were a party in any event, it was not unreasonable for us to maintain our cross claim against them. That is the extent of that point."
But that is slightly inaccurate, as counsel very properly acknowledged. The grandparents were joined by the Council, many months before they were added to the amended statement of claim. At the time the Calderbank letter was sent and rejected, the grandparents' were only joined as cross-defendants to the Council's cross-claim. If that is the extent of the point, no error is made out. Insofar as the Council's appeal extends to the need to conclude that it was unreasonable for the Council to have rejected the offer, I consider that this is implicit in the reasoning of the primary judge, noting that it was a valid Calderbank letter, therefore amounting to a genuine compromise, which "sets out the basis on which [the grandparents] contend they will be successful".
Part (quite possibility the majority) of the costs of the grandparents will have been incurred in the course of responding to the plaintiff's claim and, simultaneously, to the Council's cross-claim. Part may be exclusively referable to one or other of those claims. Nothing in these reasons is to be understood as bearing upon any apportionment as may be required to quantify the effect of the costs orders relating to the grandparents' costs.

[32]

Plaintiff's cross-appeal as to costs

The primary judge rejected the plaintiff's application that the Council and Trust pay the costs of the State and the grandparents. His Honour identified the principles in Gould v Vaggelas (1985) 157 CLR 215 at 229; [1985] HCA 75 by Gibbs CJ: "In my respectful opinion, however, the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or overcaution."
The primary judge dealt with the costs of the State and of the grandparents separately. In relation to the State, his Honour noted that there was no evidence that the Council and Trust did anything prior to the commencement of the proceedings which induced, encouraged or caused the plaintiff to join the State. His Honour found that it was reasonable to join the State, but concluded there was nothing more as required by Gould and subsequent decisions. His Honour said at [20]-[21]: "I do not say that there can never be a situation where the conduct of an unsuccessful defendant post-joinder could not be considered as part of the court's discretion in ordering costs. The first and third defendants denied liability, denied the existence of a duty of care and denied that they were occupiers at the relevant time, as did the fourth defendant. Again, it seems to me that these were at least arguments available at the time. It does not seem to me that by denying liability the first and third defendants acted in such an unreasonable, improper or exceptional way that that its post-joinder conduct should be brought to bear in terms of the making of a costs order. In the circumstances, the plaintiff has not established that there was something about the conduct of the first and third defendants which caused him to join the fourth defendant or that there was something exceptional or untoward or unusual, if I use those general terms, about the conduct of the first and third defendants after joinder that necessarily should result in the first and third defendants being responsible for the fourth defendant's costs. The order that I will make in respect of the fourth defendant's costs is that the plaintiff pay the fourth defendant's costs."

[33]

The requirement of leave to appeal

The Council and Trust proceeded on the basis that their appeal extended, as of right, to the challenge to the separate orders as to costs made for separate reasons after a further hearing. That accords with what was held in Wheeler v Somerfield [1966] 2 QB 94 but may not be correct, as explained in C G Maloney Pty Ltd v Noon [2011] NSWCA 397 at [104]-[106] and noted in AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346 at [72]. It is appropriate to follow the same course as was adopted in C G Maloney Pty Ltd v Noon, and grant leave to the Council and the Trust to appeal against the orders for costs in the court below, if such leave be necessary.
There was no dispute but that the plaintiff requires leave to cross-appeal from the costs orders. Although I have considered the submissions on their merits, that has confirmed that there is no basis for a grant of leave. Hence the appropriate order is that leave be refused.

[34]

Orders

For those reasons, the appeal should be dismissed and the application for leave to cross-appeal should be refused. As presently advised, costs should follow the event, noting that the issues arising on the cross-appeal were severable (and led to separate written submissions in the white folder). If there is a basis for a different exercise of the discretion as to costs, any party may apply within the period specified by UCPR r 36.16.
I propose the following orders:
Grant leave to the Council and the Trust to appeal against the orders for costs in the court below, if such leave be necessary.
Appeal dismissed.
Application for leave to cross-appeal dismissed.
The appellants (the Council and the Trust) to pay the respondents' costs of the appeal.
The cross-appellant (the plaintiff) to pay the cross-respondents' costs of the cross-appeal.

[35]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2020

(2014) 86 NSWLR 499

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