Hornsby Shire Council v Salman

CA 220 Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 Tapp v Australian Bushmans Camp Draft & Rodeo Association Limited (2022) 273 CLR 454; [2022] HCA 11 Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Venues NSW v Kane [2023] NSWCA 192 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 Category: Principal judgment Parties: Hornsby Shire Council (Appellant) Kathie Beatrice Salman (Respondent) Representation: Counsel: R Sheldon SC (Appellant) D A Lloyd SC / E P Anderson (Respondent)

Solicitors: Mills Oakley (Appellant) Gerard Malouf & Partners (Respondent) File Number(s): 2023/451422 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: Salman v Hornsby Shire Council (No 2) [2023] NSWDC 527 Date of Decision: 29 November 2023 Before: Abadee DCJ File Number(s): 2022/81971

[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.]

HEADNOTE [This headnote is not to be read as part of the judgment] Hornsby Shire Council (the Council) is responsible for the care, control, inspection, management and maintenance of Lessing Playground (the playground) within Lessing Park (the park) in Hornsby. In the playground, a swing-set is located on a blue wet pour surface (the wet pour area) which is surrounded by an area covered with mulch and bark pieces (the mulch area). On 28 February 2021, Kathie Salman (the respondent) attended the park and, when walking towards the swings where her nephew was swinging, rolled her ankles and fell as she stepped from the mulch area to the wet pour area. She identified that, although she was not paying attention to where she was walking, the ground between the two surfaces was uneven and that was what caused her to fall. The respondent brought proceedings against the Council in the District Court, alleging it breached the duty of care which it owed her by failing to ensure that the level of mulch did not fall below the level of the wet pour area. In support of her case, the respondent tendered an expert report of Denis Cauduro which extracted parts of two Australian playground standards (the standards) which set out the Council's maintenance obligations in relation to the playground. Mr Cauduro opined that the mulch area "was not maintained correctly in accordance with the Australian Standards, creating potential trip/fall hazards". The respondent also tendered two inspection reports of the park which the Council had commissioned in 2020 (the Playfix reports) which stated that the mulch was low and "needs to be built up to the level of the wet pour rubber to eliminate any trip points". Abadee DCJ (the primary judge) found the Council had breached its duty of care causing the respondent to suffer injuries and ordered the Council pay $283,200 in damages (after allowing a discount of 15% for contributory negligence). The Council appealed on the following grounds: (1) the primary judge erred in identifying the risk of harm (ground 1); (2) the primary judge erred in applying the standards (ground 2); (3) the primary judge erred in finding the height differential between the wet pour area and the mulch area was not readily discernible (ground 3); (4) the primary judge erred in failing to find the risk of harm was obvious (ground 4); (5) the primary judge erred in finding there was a causal relationship between the level of bark in the mulch area and the respondent's injury (ground 6); (6) the primary judge erred in failing to find that a reasonable person in the position of the Council would have considered the risk of harm did not require a response (ground 7); (7) the primary judge should have found the Council did not breach its duty of care (ground 8); and (8) the primary judge reversed the onus of proof by imposing the burden on the Council to prove the cost of responding to any risk (ground 9). The Court held (Adamson JA, White JA agreeing, Basten AJA dissenting) dismissing the appeal: per Adamson JA, White JA agreeing: Ground 1: alleged error in identifying the risk of harm (1) The primary judge did not err in identifying the risk of harm: at [12] (White JA). (2) The Council's submission as to the proper formulation of the risk of harm is inconsistent with the way in which its case was conducted in the Court below. It is not open to the Council to formulate the risk of harm differently on appeal: at [91], [93] (Adamson JA). Smits v Roach (2006) 227 CLR 423; [2006] HCA 36; Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, applied. Ground 2: alleged error in applying the standards (3) The Council did not challenge Mr Cauduro's opinion that the standards applied in the court below. Its failure to do so has forensic consequences which this Court ought not undermine: at [101]-[103] (Adamson JA). Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, applied. Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168, cited. (4) The Playfix reports were expressed to have been prepared "in accordance with" Standard 4685. By retaining Playfix to inspect the playground and make the reports, it can be inferred that the Council accepted that standard applied: at [101] (Adamson JA). (5) The standards were concerned with the safety of playgrounds. Unevenness of a surface, including a height differential, falls squarely within the category of "trip hazards" with which Standard 4685 is concerned: at [104] (Adamson JA). Ground 3: alleged error in finding the height differential was not readily discernible (6) This ground is not made out. The primary judge had the advantage of seeing and hearing the respondent's evidence (as the only witness who observed the state of the playground at the time of her fall) and, considering photographic evidence of the playground taken at a later time, accepted her evidence that that the height differential was not readily discernible. It would be wrong of this Court to overturn this finding merely on the basis of photographic evidence: at [108]-[112] (Adamson JA). Ground 4: alleged error in failing to find the risk of harm was obvious (7) Whether a risk is obvious is an assessment which must be made in all the circumstances. It was open to the primary judge to find that the risk was not obvious, taking into account that it was foreseeable that pedestrians approaching the playground would be focussed on (as the respondent was) a child: at [113]-[115] (Adamson JA). Ground 6: alleged error in finding causation (8) The risk which ensued was not so divorced from the risk of tripping addressed in the Playfix reports as to breach the causal chain: at [122] (Adamson JA). Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19; Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169, cited. Ground 7: alleged error in failing to find a reasonable person in the Council's position would have considered the risk of harm did not require a response (9) A reasonable person in the position of the Council would have acted on the advice contained in the Playfix reports: at [23]-[24] (White JA). Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29; Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161, distinguished. (10) The Council did not do what was advised in the Playfix reports and by Mr Cauduro and adduced no evidence explaining its inaction. Had the Council done what was advised, they would have reduced the risk of "tripping" in the narrow sense but also would have reduced the risk of harm identified by the primary judge. This ground is not made out: at [123]-[128] (Adamson JA). Ground 8: alleged error in finding breach of duty of care (11) This error is addressed when considering grounds 2 and 7 and is not made out: at [129] (Adamson JA). Ground 9: alleged reversal of onus of proving reasonableness of precautions (12) Mr Cauduro estimated the costs of the precautions to be $300. He was not cross-examined about this and the Council did not give their own evidence of the cost of precautions. Thus, it was open to the primary judge to accept that the precautions proposed were, at least with respect to cost, reasonable: at [130]-[132] (Adamson JA). per Basten AJA (in dissent): (13) The Court must form its own view as to whether any precaution was required. That involves the court exercising common sense based on experience, like a jury: [144]. There is no need to find "error" on the part of the trial judge: [152]. Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 applied. (14) The fact of the change in surface was obvious. Users taking reasonable care for their own safety could not have failed to realise that the nature of the surface was changing and that the new surface was at a higher level: at [157]. (15) The primary judge's findings as to the precaution the Council should have taken were problematic. The underlying proposition was that the slope was a hidden hazard: at [166], [168]. (16) Significant, if not dispositive, weight should be given to the absence of evidence of the "risk" which materialised in this case ever having materialised before: [178]. Different levels of adjoining surfaces do not give rise to a risk against which precautions are required (either for children or adults) within a playground: [159], [179]. Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29; Venues NSW v Kane [2023] NSWCA 192 discussed. (17) Grounds 1, 3, 7 and 8 should be upheld: at [179].

JUDGMENT

1. WHITE JA: The appellant, the Hornsby Shire Council ("the Council"), appeals from a judgment of the District Court (Abadee DCJ) for the respondent (Ms Salman) in the sum of $283,200 plus costs (Salman v Hornsby Shire Council (No 2) [2023] NSWDC 527).
2. Ms Salman's claim arose from an injury she suffered when she fell at a children's playground in Lessing Park on 28 February 2021. The place at which she fell is depicted in the photograph reproduced at [139] in the reasons of Basten AJA.
3. Adamson JA would dismiss the appeal. Basten AJA would allow the appeal. I agree with Adamson JA that the appeal should be dismissed and with her Honour's reasons. I would add the following observations, which assume familiarity with their Honours' reasons.
4. There was no issue with the primary judge's formulation of the Council's duty of care (at [31]), which was to exercise reasonable care so that the area was safe for pedestrians and other users, citing Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; [1987] HCA 7.
5. Where there is a reasonably foreseeable real risk of injury, the measure of the discharge of the duty is what a reasonable person would do by way of response to the risk (Hackshaw v Shaw (1984) 155 CLR 614 at 662-663; [1984] HCA 84, cited with approval in Australian Safeway Stores Pty Ltd v Zaluzna at 488).
6. The primary judge said: "[32] As explained in its Counsel's final submissions, the Council disputed duty of care on the sole premise that Ms Salman did not keep a proper lookout. It relied upon the observation of Callinan J in Ghantous v Hawkesbury City Council (2001) 206 CLR 512 (at [355]) to support the contention that the occupier's duty of care only extended to entrants looking after their own interests. However, as Ms Salman's counsel submitted, with reference to observations of the plurality in Brodie v Singleton (2001) 206 CLR 512 at [163], not only should some allowance be made to inadvertence, but some dangers may not readily be perceived, inter alia, because of the nature of the danger, or the surrounding area."
7. In Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42, Gummow J said (at [46]-[47]): "[46] A road authority such as the RTA is not obliged to exercise reasonable care in the abstract; still less is it obliged to ensure that a road be safe in all the circumstances. So much was recently reaffirmed in Leichhardt Municipal Council v Montgomery. Such an expression of the duty's scope has an obvious and direct consequence when assessing breach. As Gaudron, McHugh and Gummow JJ stated in Brodie: 'In dealing with questions of breach of duty, whilst there is to be taken into account as a "variable factor" the results of "inadvertence" and "thoughtlessness", a proper starting point may be the proposition that the persons using the road will themselves take ordinary care.' (Citations omitted.) Their Honours went on to observe that persons exercising reasonable care will be able to avoid injury in some situations, whereas others will present 'a foreseeable risk of harm even to persons taking reasonable care for their own safety'. [47] The RTA's duty of care was owed to all users of the bridge, whether or not they took ordinary care for their own safety; the RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct in diving from the bridge. However, the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe 'for users exercising reasonable care for their own safety'. The essential point is that the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones. In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves."

The grounds of appeal

1. The Council appeals on the following grounds: "1 His Honour erred in identifying of the risk of harm for the purposes of the Civil Liability Act, 2002: a. Generally; b. In that his Honour did not identify a single risk of harm; c. In that his Honour did not consider the level of risk by reference to a person exercising reasonable care for their own safety. 2 His Honour erred in finding the Australian Standard addressed a relevant risk having regard to the circumstances in which the Respondent was injured. 3 His Honour erred in finding the height differential between the two areas of the soft fall section was not readily discernible, contrary to the Respondent's evidence. 4 His Honour erred in failing to find the risk of harm would have been obvious to a reasonable person in the position of the Respondent and erred in the application of the provisions of the Civil Liability Act, 2002 relating to obvious risk. 5 His Honour did not give adequate or proper reasons and the reasons are internally inconsistent. 6 His Honour erred in concluding there was a causal relationship between the level of soft fall bark material and the Respondent's injury. 7 His Honour erred in failing to find that a reasonable person in the position of the Appellant would have considered the risk of harm, when correctly identified, did not require a response. 8 His Honour should have found the Appellant was not in breach of the duty of care it owed the Respondent. 9 His Honour reversed the onus of proof by imposing the burden on the Council of proving the cost of response."

The applicable principle

1. I propose to set out the detail of what occurred in the Court below because several of the matters raised on behalf of the Council in this Court were not raised before the primary judge or differed from the way in which the Council conducted its defence of Ms Salman's claim. It is frequently the case that, on appeal, more experienced counsel are briefed. Those counsel may, had they been instructed at first instance, have conducted the case differently from the way it was in fact conducted. In particular, they may have challenged evidence which was ultimately accepted by the primary judge and it is possible that a different result might have been achieved, had a different forensic strategy been adopted in the Court below. This is not to criticise the Council's trial counsel or its counsel on appeal but merely to observe that the conduct of a torts case involves many forensic decisions about which reasonable minds might differ.
2. However, for reasons given in more detail below, the applicable principle to be applied in this Court is as articulated in Coulton v Holcombe (1986) 162 CLR 1 at 7; [1986] HCA 33 (Gibbs CJ, Wilson, Brennan and Dawson JJ) as follows: "To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish."

The topography of the area where Ms Salman fell

1. The Council admitted that it was responsible for the care, control, construction, erection, inspection, management, maintenance and repair of the playground. It was not in dispute that there were swings in the playground on the wet pour area, which was surrounded by an area which was covered with mulch and bark pieces (the mulch area). Both the wet pour area and the mulch area were regarded as "soft-fall" surfaces.
2. The wet pour area was, in substance, a shallow mound made of "soft fall rubber", with sloping edges where it joined the mulch area. If the mulch was topped up to the level of the wet pour area, the ground was relatively even, but if it was not, the level of the mulch area was lower, leaving the side of the slope of the wet pour area exposed.

Ms Salman's evidence

1. Ms Salman gave evidence and was cross-examined. She said that on 28 February 2021 she attended a family barbecue in the park. At some point in the afternoon, she walked towards the swing located on the wet pour area where her nephew was swinging (with the intention of pushing him on the swing). However, she fell as she stepped from the mulch area to the wet pour area. Her evidence was that she "took a step up on that spongy rubber surface, [she] rolled [her] right ankle, and as [she] put [her] left foot down to catch [her] balance … [she] rolled [her] left ankle outwards as well and basically fell flat on [her] face forwards.". When she got up, she looked to see what had caused her to fall and identified "a big dip in the rubber surface, so it wasn't even ground".
2. In cross-examination, Ms Salman agreed that the reason she rolled her right ankle was that she was not paying attention to where she was walking. She also agreed that she did not "trip"; that she inadvertently rolled her right foot and ankle on the wet pour surface; that she knew of the presence of the mulch; and that there was a change in the surface, which would not provide a firm footing. She agreed that there was some mulch on the wet pour area and that children might kick up the mulch for fun. Ms Salman also accepted that she did not look to see where she was placing her foot at the change in surface.
3. Ms Salman said that, about a fortnight after the fall, she and her husband returned to the park and took photographs of the area where she had fallen. In cross-examination, she agreed that it was obvious from the photographs that there were two different surfaces: the surface she was walking on (the mulch area) and the surface she was about to walk on (the wet pour area). She also agreed that if she had had a "proper look", she would probably have realised that there was a difference in height between the two areas but she explained that she had assumed that the two areas would be "all level".
4. Mr Salman also gave evidence, which is not material to the issues on appeal.

Denis Cauduro's evidence

1. The expert report of Denis Cauduro dated 10 August 2022 was admitted over the Council's objection: Salman v Hornsby Shire Council [2023] NSWDC 506. The Council did not challenge the ruling in its appeal. The Executive Summary at the commencement of the report expressed his conclusion as follows: "The Plaintiff suffered a loss of balance and fall incident, when she was walking within a playground area and he[r] foot collapsed off the sharp sloped edge of the soft fall and bark chip junction. The Playground area had not been regularly maintained by the Defendant and allowed the bark chip surface to compact and become lower than the adjoining soft fall area. The Defendant did not maintain the playground area in accordance with Australian Standards."
2. Mr Cauduro said, at 2.2.2: "From the information provided within the briefing material and the Plaintiff, the soft fall area and junction of the bark chip area had not been maintained. The lack of maintenance and inspection of the playground area does not comply with the following Australian Standards: • AS 4685.0:2017 Playground equipment and surfacing. • AS/NZS 4486.1:1997 Playgrounds and playground equipment."
3. Mr Cauduro extracted parts of AS 4685.0:2017 Playground equipment and surfacing (Standard 4685) and AS/NZS 4486.1:1997 Playgrounds and playground equipment (Standard 4486) in his report. No objection was taken by the Council to the failure to tender the whole of the standards.
4. The part extracted from Standard 4685 included the following. Paragraph 7.1, entitled, "General requirements", included sub-paragraph 7.1.1 (entitled "Trip hazards"), which provided that "[s]urfacing shall be free of trip hazards."
5. Paragraph 7.3, entitled "Loose-fill materials" provided in cl 7.3.1: "The impact absorbing capabilities of any type of loose-fill will depend on the material type and depth. Loose-fill is extremely susceptible to scuffing and displacement, which may result in material becoming too shallow to provide the required impact attenuation. Loose-fill shall therefore be regularly inspected, and topped up as necessary, in order to ensure the correct material is maintained. In addition, these surfaces require maintenance tasks, such as raking, de-compaction and the removal of litter, sticks, syringes or other potential hazards."
6. Paragraph 8.5 referred to the need for regularity of inspections of the surface area for playground equipment. It contained cl 8.5.5, entitled "Comprehensive annual inspection" which said that, in addition to checking all items (referred to in cl 8.5.4 of the Standard), the inspection was intended to "establish the overall level of safety of the equipment, foundations and playground surfaces". The note to cl 8.5.5 read: "Appendix B contains examples of factors that should be included in a comprehensive inspection."

(Emphasis added.)

1. Mr Cauduro expressed the following opinions in his report: "4 .7 The costs of maintaining and repairing the playground surface area (such as maintaining the surface level between the soft fall and the bark chips), from my experience of organising and managing construction of playgrounds would have been no more than $300.00 and could have been completed within 4 hours. The area could and should have been barricaded to prevent persons using the swing and walking within the surrounding area, until the area was made safe and rectified to Australian Standards. … 4.16 It is my opinion that the soft fall/ba[r]k chip area to the playground area should be regarded as having been unsafe and a risk to health, and therefore unfit for its intended purpose. This is because the soft fall was not maintained correctly in accordance with the Australian Standards, creating potential trip/fall hazards within the area. … 4.18 Among the reasonable preventative measures that could (and in my opinion should) have been implemented by the Defendant, I would include appropriate combinations of actions from the following list - a list that is not intended to be exhaustive: (a) Conduct regular inspections of the playground area, record and maintain and worn or damaged areas, in accordance with the Australian Standards; (b) Top up the compacted bark chip area to ensure it is level with the soft fall area; …"
2. Mr Cauduro was required for cross-examination. The Council's trial counsel's challenges to his evidence were limited to the following: 1. that Mr Cauduro's assumption that Ms Salman had tripped was incorrect; 2. Mr Cauduro's assessment of the angle of the "slope" of the wet pour area where Ms Salman fell; 3. that the photographs which Mr Cauduro took in June 2022 (16 months after the accident) could not reflect the condition of the slope at the time of Ms Salman's fall; and 4. his expertise (which elicited that he had not only visited other playgrounds but that he had also built playgrounds and that the majority of his work since 2016 had been providing expert forensic reports).
3. The Council's trial counsel did not challenge Mr Cauduro's opinion that the playground did not comply with the standards outlined in his report. Nor was Mr Cauduro challenged on his assessment of the costs of levelling the mulch area with the wet pour area in paragraph 4.7 of his report, which he estimated to be "no more than $300". Nor was it put to Mr Cauduro that there was, in effect, little point in trying to maintain the mulch area at the same level as the wet pour are because children would kick the mulch anyway and thereby create a height differential between the surfaces of the two areas.

Documents tendered in Ms Salman's case

1. The documents tendered in Ms Salman's case included two inspection reports of the park, which the Council had commissioned from Playfix Pty Ltd (Playfix), dated 10 July 2020 and 18 November 2020 (the Playfix reports). In both reports, Playfix indicated that its reports were in accordance with, relevantly, Standard 4685. Both of its reports included the following statement with respect to the relevant area: "The undersurface soft fall material is low and needs to be replenished. The undersurface material needs to be built up to the level of the wet pour rubber to eliminate any trip points created by the low level of the undersurfacing material."
2. A priority of "3" was allocated to this item in both reports. While no key explaining the priority numbers appears in the report, it can be inferred from other items that "3" was the greatest priority, at least of the items referred to in the reports as no higher priority was allocated to any other item.

The Council's case at first instance

1. The Council tendered documents relating to work orders for maintenance of the park. It was not suggested that of the work orders any related to the work identified by Playfix. The Council called no witnesses on liability.
2. The balance of the parties' evidence related to quantum and is not relevant to this appeal.
3. In its written submissions in the Court below, the Council's submission concerning Mr Cauduro's opinion that the playground did not comply with Standard 4486 and Standard 4685 was as follows: "Mr Cauduro's reliance upon [Standard 4486] from [4] of his report, page 10, and to [Standard 4685] at [4.3] on page 15 of his report, together with the Work Health & Safety Regulations he referred to at [4.10] on page 24 and at [4.11] on page 25 of his report, are all subject to the provisions of the Civil Liability Act 2002 and caselaw."

The primary judge's reasons

1. The primary judge's findings are as follows. The paragraph references are references to the judgment.
2. The primary judge set out the preliminary facts about Ms Salman being in the park and wanting to swing her nephew ([6]). His Honour found that when Ms Salman crossed the mulch area to get to the wet pour area, she approached it at an angle ([28]). She was walking a regular pace and was focussed on her nephew ([11]). When she stepped from the mulch area to the wet pour area, she did not appreciate that there was a difference in height between them ([51]). Although she anticipated a change of surface, she assumed, incorrectly, that the mulch area and the wet pour area were the same height ([11], [27]). She accepted that, had she taken a proper look, she would have noticed the height differential between the mulch area and the wet pour area (and altered her gait accordingly). After she had fallen, she noticed that there was a "dip" in the mulch area as compared with the wet pour area ([27]). There was a difference in level between the mulch area and the top of the wet pour area "where the slope started downward" ([29]).
3. As she stepped from the mulch area to the blue surface, Ms Salman's right ankle rolled outwards. In an attempt to recover her balance, she put her left foot down, with the consequence that her left ankle rolled as well and she lost her balance, falling forward, flat on her face ([7], [28]).
4. The primary judge summarised Mr Cauduro's evidence at [13] as follows: "(a) There was information available to the Council to know that there were potential trip and fall hazards; (b) The soft fall/bark chip area was unsafe and a risk to health as it was not maintained in accordance with Australian Standards. (c) There was a significant risk of a potentially injurious trip or fall; (d) Reasonable preventative measures that could have been implemented included: regular inspections of the playground area; topping up the compacted bark chip area to ensure it is level with the soft fall area; barricading the swing area until maintenance work was completed (and assessed as being safe); and displaying notices prominently in the area about the need for a higher than usual level of care. (e) If the surface area of the soft fall area had met maintenance standards, consistent with the Australian Standards, or a proper risk assessment in accordance with WHS Regulations, it is unlikely that the plaintiff would have tripped and lost her balance."

Alleged error in describing the risk of harm (ground 1)

1. In support of this ground, the Council argued that the primary judge's formulation of the risk of harm did not capture the true risk of harm, which was the risk associated with the sloping surface. It contended that the primary judge ought to have found that the risk of harm was the risk "that a person could roll their ankle walking on the sloping surface causing injury". It submitted: "The bark/mulch is irrelevant to this risk and to what happened. The Respondent knew the surfaces were different and that the poured surface would be spongy. The soft fall area was permanent and so would slope even if it was covered by bark, which would necessarily be shallower as it approached the relatively flat surface on top of the soft fall area."
2. The primary judge accurately summarised the submissions of both parties and the differences in their respective formulations of the risk of harm in [36]-[39] of his Honour's reasons extracted above. The Council's present submission is at odds with the way in which its case was conducted in the Court below, by which the Council is bound Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [46] (Gleeson CJ, Heydon and Crennan JJ); Coulton v Holcombe at 7-8; Water Board v Moustakas (1988) 180 CLR 491 at 497-498; [1988] HCA 12; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645-646 (Mason P, Priestley JA agreeing).
3. Mr Lloyd SC, who appeared with Mr Anderson on behalf of Ms Salman, identified the prospect that, had the Council formulated the risk of harm differently at first instance to incorporate the precise mechanism of the fall, she may have chosen to lead evidence which dealt with that specifically, for example, by leading biomechanical evidence. In circumstances where a proposed change by one party might, if it had been made at trial, have led to evidence being called or the case being conducted differently by the other party, the change ought not be allowed on appeal: Coulton v Holcombe at 7-8.
4. For this reason, ground 1 must fail because it is not open to the Council to formulate the risk of harm differently on appeal.
5. There are, however, further reasons why the ground ought fail, including that the risk formulated by the Council on appeal is too specific as it incorporates the precise mechanism of the fall. While more detailed formulations of risk may be necessary in some cases, "the risk does not need to descend to the precise detail of the mechanism by which an injury was suffered if that detail is unnecessary to establish a breach of duty": Tapp v Australian Bushmans Camp Draft & Rodeo Association Limited (2022) 273 CLR 454; [2022] HCA 11 at [110], [117]-[119] (Gordon, Edelman and Gleeson JJ).

Alleged error in applying Standard 4486 and Standard 4685 (ground 2)

1. The Council submitted that the trial judge was in error in applying the standards referred to in the judgment because they were concerned with a different risk than the one which ensued in the present case. It submitted that the standards were directed at maintaining the level of mulch in the mulch area at a sufficient level to ensure that it qualified as a "soft fall" area and, to the extent to which Standard 4685 was concerned with the level of the surface, it was concerned only with "trip hazards" (see 7.1.1). The Council submitted that, as Ms Salman did not trip, the standards referred to by Playfix and Mr Cauduro were inapplicable.
2. I reject this submission. In the Court below, the Council did not challenge Mr Cauduro's opinion that the standards applied (although it challenged other aspects of his evidence) either in its cross-examination of him (which did not address the standards) or in its submissions (which merely observed that it was the Act that governed whether the Council was negligent, not whether it was in breach of the standards). Further, the Playfix reports established that the Council retained Playfix to conduct inspections, including of the playground. The Playfix reports were business records within the meaning of s 69 of the Evidence Act 1995 (NSW). The reports purported to have been prepared "in accordance with" Standard 4685. By retaining Playfix to inspect the playground and report the results of such inspections, it can be inferred that the Council accepted that Standard 4685 applied and was relevant to its responsibility with respect to the playground. The Council did not submit that this inference was not open; nor did it call the author or authors of the reports to gainsay the inference.
3. Mr Lloyd's submissions in this Court to this effect reflected the well-established principles of adversarial litigation articulated in Coulton v Holcombe in the passage extracted above. The hearing before the primary judge was no mere "preliminary skirmish". The Council's failure to challenge the matters set out above, either in cross-examination or submissions or by calling its own witnesses, has forensic consequences which this Court ought not undermine by accepting Mr Sheldon's submissions that the standards do not apply or that compliance would be futile because the mulch will be disturbed anyway. This is not a case where Ms Salman (or the primary judge) ought to have otherwise appreciated that these matters were challenged: cf. State Rail Authority v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 at [58] (Basten JA).

Alleged error in finding that the height differential was not readily discernible, contrary to Ms Salman's evidence (ground 3)

1. Ms Salman's evidence, which was accepted by the primary judge, was that she was not aware of the height differential between the mulch area and the wet pour area and assumed there to be none. She accepted that, had she taken better care, (and not been so focussed on her nephew), it would have been discernible. The primary judge accepted Ms Salman's submission that the height differential was neither "readily discernible" ([34]), nor "manifestly discernible", nor obvious ([49]-[52]).
2. When considering Ms Salman's evidence, the primary judge also had regard to the photographic evidence, before making this finding. The primary judge expressly referred to Blacktown City Council v Hocking [2008] NSWCA 144; [2008] Aust Torts Reports 81-956 in which this Court highlighted the need for caution when seeking to interpret photographic or video evidence at [149], [166]-[173] (Tobias JA, Spigelman CJ, Beazley, Giles and Campbell JJA agreeing).
3. It is also significant that the Playfix reports identified the height differential as a trip hazard, from which it can be inferred, first, that there was a height differential and, second, that Playfix did not regard it as "obvious" to a pedestrian (which was why it was a trip hazard). It is plain from the Playfix reports that their author or authors carried out a "comprehensive inspection" of the playground as required by Standard 4685 for the purposes of compiling the reports to Council. Those carrying out the inspection must have observed the height differential between the mulch area and the wet pour area, as well as taking photographs of the scene to be included in the reports. Playfix's role was to check compliance with Standard 4685 and to inspect the playground for that purpose. Unlike parents or carers, Playfix's primary focus was on the safety of the playground, not on the equipment (in the case of the children) or the children (in the case of the parents or carers).
4. The finding that the height differential, though discernible, was not manifestly so, reflected the primary judge's advantage in seeing and hearing Ms Salman give evidence. She was the only witness called who observed the state of the wet pour area and the mulch area at the time of her fall. The wording of the ground contains the allegation that Ms Salman's evidence, properly construed, was that the height differential was readily discernible. I do not consider this to be a fair reading of her evidence. Furthermore, because of the caution required when interpreting photographs, it would be wrong of this Court to overturn this finding merely on the basis that the Court considered (if it be so) the difference in height to be manifestly discernible from the photographs.

Alleged errors in failing to find that the risk of harm was obvious and in the application of the Act to an obvious risk (ground 4)

1. This ground is related to ground 3 (addressed above) and my reasons set out above for that ground also apply to ground 4. Whether a risk is obvious is an assessment which must be made in all the circumstances. What is obvious in one environment may not be obvious in another. In finding that the risk of harm was not obvious, the primary judge was entitled to take into account (as his Honour did) that pedestrians approaching the playground had to cross from the mulch area to the wet pour area and that it was foreseeable that such pedestrians would be focussed on (or distracted by) a child or children in the playground, as Ms Salman was.
2. That a risk may be discernible, does not make it readily discernible, much less obvious since the surrounding circumstances must be taken into account. For example, a hole in a floor may be obvious but where it is in an area where people, whether or not familiar with the location, regularly pass, such as a workplace or a shopping centre or public street, allowance must be made for inadvertence, as was said in Brodie. It is not enough to conclude that the hole or other hazard would be obvious to someone paying close attention. I am not persuaded that the Council has established error in the primary judge's finding that the risk was not an obvious risk for the purposes of Division 4 of Part 1A of the Act.
3. Accordingly, it is not necessary to address the consequences of the alleged error. It is sufficient to conclude that it was open to the primary judge to find that Ms Salman was not aware of the risk and had therefore discharged the onus which fell on her under s 5G(1) of the Act, and displaced the presumption which would otherwise have applied if the risk had been obvious.

Alleged inadequacy of reasons (ground 5)

1. Mr Sheldon confirmed that this ground was not separately pressed as a "stand-alone" ground and that, to the extent to which criticism was made of the primary judge's reasons, this could be addressed by reference to the other grounds in which such criticisms were made.

Alleged error in finding a causal connection between the level of the mulch area and Ms Salman's injury (ground 6)

1. The primary judge's key finding as to causation is at [89] (referred to above).
2. The Council submitted that the primary judge did not find that, if the mulch area had been topped up as advised by Playfix, it would have been at a level which covered the slope of the wet pour area on 28 February 2021, when Ms Salman fell, thereby preventing the fall. Further, it submitted that even if the mulch had been topped up, it would have been compacted by the weight of passing pedestrians or dispersed by the weather or by the activities of children.
3. This submission would appear to be at odds with the primary judge's finding at [89] and must, for that reason, be rejected.
4. Further, as noted above, the Council did not cross-examine Mr Cauduro on this basis in the Court below or otherwise challenge Ms Salman's case on that basis. The proposition that Playfix's repeated recommendations (which were endorsed by Mr Cauduro) would, in any event, have been futile to address the risk ought not be accepted, having regard to the way in which the Council conducted its case before the primary judge.
5. The Council also submitted that the risk of falling would be greater if the mulch were topped up because this would "obscure the true cause of the fall" (the slope on the wet pour area) and become even more uneven after use. As this submission was not made at first instance, it ought not, for the reasons already given, be entertained on appeal.
6. For completeness on the issue of causation, I accept Mr Lloyd's submission that it could not be said (and was not said in the Court below) that the risk which ensued was so divorced from the risk of tripping addressed in the Playfix reports as to breach the causal chain: see Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 (in which the consequences of a risk of which the surgeon failed to warn the patient were not compensable in circumstances where, had the warning been given, the patient would have proceeded with the operation); Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169; [2015] Aust Torts Reports 82-227 at [203] (Macfarlan JA and Sackville AJA) (in which Precision was held not to be liable for a breach of duty that was unrelated to its failure to detect the hazard that materialised).

Alleged error in failing to find that a reasonable person in the Council's position would have considered that the risk of harm, when correctly identified, did not require a response (ground 7)

1. In the seven months prior to the accident, the Council had received two reports from Playfix in relevantly identical terms, advising it that the mulch area was low and needed to be replenished to be built up to the level of the wet pour area "to eliminate any trip points created by the low level" of the undersurfacing material". For the reasons set out above, it can be inferred that Council retained Playfix to ensure that it complied with, at least, Standard 4685, and also that it fulfilled the duty of care which it owed to users of the park, including Ms Salman. Without evidence to support it, any inference that, in retaining Playfix to prepare its reports, the Council was doing no more than engaging in a solemn farce or indulging in window-dressing, cannot rationally be drawn.
2. The Council's response to these reports was not to do that which Playfix had advised. It adduced no evidence as to the reason for its inaction (such as that the cost would have been too much or that its officers disagreed with Playfix's assessment that the height differential created "trip points"). In these circumstances, it can be inferred that such evidence would not have assisted the Council's case.
3. The Council submitted that the Playfix reports do not identify the sloped surface of the wet pour area under the mulch area as a risk. This is beside the point. Playfix recommended that the mulch area be topped up to bring it up to the level of the wet pour area. If this had been done, the "slope" would have been "filled in" by the mulch, thereby creating the reasonably level surface which Playfix advised was required.
4. I accept Mr Lloyd's submission that it is no answer to Ms Salman's case on breach to adopt a narrow construction of "trip points", as used in the Playfix reports or "trip hazards" in the Standards. Had the Council done what Playfix advised it to do, the mulch area would have been about level with the wet pour area. This would have not only reduced the risk of "tripping" in the narrow sense but also would have reduced the risk of harm identified by the primary judge at [39] and would have, as the primary judge found, prevented Ms Salman's fall.
5. The evidentiary foundation for Ms Salman's submission that the Council could not, consistently with the duty of care which it owed to those using the playground (either as observers or primary users of the equipment), do nothing was strong. It was supported by the Playfix reports (which the Council had commissioned) and Mr Cauduro's evidence which was relevantly unchallenged. The Council adduced no evidence to the contrary. Further, the Council submitted that Mr Cauduro's evidence did not support a finding of breach because he did not identify the slope as being either inappropriate or dangerous. This has been answered above: the solution recommended by Mr Cauduro was the same as the one which Playfix advised the Council was required. The area needed to be filled in to make the surface at the joining of the mulch area and the wet pour area relatively level.

Alleged error in finding the Council breached its duty of care (ground 8)

1. This alleged error has already been addressed when considering grounds 2 and 7. For the reasons given in respect of those grounds, ground 8 has not been made out.

Alleged reversal of onus of proof regarding the cost of taking the precautions for which Ms Salman contended (ground 9)

1. The Council submitted that the primary judge erroneously imposed the burden of proving the cost of the alleged reasonable precautions on the Council. This ground is a reference to the primary judge's observation at [70] that the Council had not given evidence of the cost of precautions for the purpose of suggesting that it was prohibitive or disproportionate.
2. As is evident from the narrative of the way the trial was conducted, Mr Cauduro estimated the costs of the precautions to be $300 (paragraph 4.7 of his report). He was not cross-examined about this or asked how frequently the cost would be incurred. There was, thus, evidence before the primary judge which was adduced in Ms Salman's case as to this matter. As the Council did not challenge that evidence, either by cross-examining Mr Cauduro or by adducing its own evidence of cost, it was open to the primary judge to accept that the precautions proposed were, at least with respect to cost, reasonable.
3. For these reasons, ground 9 is not made out.

Conclusion

1. As none of the grounds of appeal has been made out, I would dismiss the appeal. Although the parties have not yet been heard on costs, I am not aware of any reason why costs ought not follow the event in accordance with the general rule: r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW).
2. Since preparing these reasons I have had the benefit of reading the additional reasons of White JA in draft, with which I agree.

Proposed orders

1. For the reasons given above, I propose the following orders: 1. Dismiss the appeal. 2. Order the appellant to pay the respondent's costs of the appeal.
2. BASTEN AJA: The respondent, Kathie Beatrice Salman (who is the plaintiff in the Court below and is conveniently referred to in that capacity) "rolled" her ankle at a children's playground operated by the appellant, Hornsby Shire Council. She was successful at trial and obtained a judgment in the sum of $283,200. [1] The Council challenged the finding of liability: it did not deny owing a duty of care to the plaintiff as a person lawfully present on the playground in a local park, but it denied breach of that duty. In my view, the appeal should be upheld and the judgment below set aside.
3. The circumstances of this case invite attention to the proper means of assessing "reasonableness", in considering whether a defendant has failed "to exercise reasonable care and skill", for the purposes of the definition of "negligence" in s 5 of the Civil Liability Act 2002 (NSW), and in determining whether "a reasonable person in [the position of the Council] would have taken" a particular precaution against the risk, pursuant to s 5B(1)(c). The common law principle, which is to be adopted in applying the statutory test, also engages a reasonableness test, namely that the surface "be safe not in all circumstances but for users exercising reasonable care for their own safety". [2]
4. The matters to be applied in considering the test in s 5B(1)(c) of the Civil Liability Act, namely that "a person is not negligent in failing to take precautions against a risk of harm unless … in the circumstances, a reasonable person in the person's position would have taken that precautions", include (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, and (c) the social utility of the activity that creates the risk of harm: s 5B(2).
5. The accident occurred when the plaintiff stepped from a mulched area surrounding the playground equipment onto the blue spongy rubberised base which was immediately under and surrounding the equipment. The point at which this occurred is illustrated in the following photograph. [3]
6. The photograph was taken two weeks after the accident, but it was common ground that it reflected the situation faced by the plaintiff when she stepped onto the edge of the blue spongy rubberised surface. The immediate question is whether, viewing the matter prospectively, the Court should be affirmatively satisfied that there was a hazard which it would be unreasonable for the Council to have ignored.

Consideration of facts

1. The Statement of Claim (par 8) identified the relevant risk as the risk of injury to a person "walking through the Park and stepping onto an uneven surface". The relevant precaution was identified as a failure to maintain the loose fill to the level of the surface of the blue spongy material. That proposition invited attention to the effect of taking such a precaution. It would have diminished the difference in levels between the blue spongy surface and the surrounding mulched area. The hypothesis was that because the sloping area at the end of the blue spongy surface would then have been covered by loose-fill, the plaintiff would not have rolled her ankle if she had stood on it. That proposition never rose above the level of the hypothetical; it was not self-evidently true. Further, because the plaintiff did not in fact trip, but placed her foot on the higher level, it is by no means clear that reducing the disparity in levels would have avoided the risk which materialised.
2. No doubt the risk satisfied the undemanding test of foreseeability, but applying the reasoning in Richmond Valley Council v Standing, one would conclude that the risk was not shown to be other than insignificant, for the purposes of s 5B(1)(b).
3. With respect to s 5B(2)(b), the "likely seriousness of the harm" which might have been foreseen, if the risk materialised, was low. A fall by a person approaching the blue spongy surface would likely involve a forward movement onto the softest area in the vicinity. Even the mulch was a soft-fall surface. It is hard to imagine a less dangerous out-door surface, except perhaps dry sand.
4. So far as social utility was concerned, the level of utility served by a children's playground was high. That was an important consideration, because playgrounds involve numerous risks of harm, particularly for children, but, indeed, for any person who may be in the vicinity of a moving swing or another piece of equipment. No such risk, of a kind which would have required careful consideration by the appellant, materialised.
5. The risk entailed moving from one kind of surface to another. Because the fact of the change in surface was obvious, no warning was required. Users taking reasonable care for their own safety could not have failed to realise that the nature of the surface was changing and that the new surface was at a higher level, as the plaintiff accepted in cross-examination, although the relevant test is objective and not subjective. (The reason why the test is objective is because the question must be addressed prospectively from the point of view of the party said to be negligent in failing to take a precaution.)

Judgment below

1. With these matters in mind, it is convenient to address the reasoning of the trial judge. The reasoning is carefully and comprehensively set out, making it an easy task to identify the critical passages relevant for present purposes. They fall within a section headed "Absence of reasonable precautions being taken?", commencing at [58].
2. The judge's task was not made easier by a pleading which purported to identify some 35 particulars of negligence. Such pleadings are not to be encouraged. The apparent inability of the pleader to confine the plaintiff's case suggests a lack of confidence in the case, combined with the hope that a scattergun approach will hit the mark at some point. The trial judge was able to limit his consideration to two particulars expressed in the following terms: "• 'failure to repair the height differential (being the area where the artificial surface met the surrounding surface made up of mulch/bark), and other dangerous sections of the Park, in a timely fashion or at all' (particular (l)) • 'failure to highlight the floor surface where the artificial surface met the surrounding floor surface made up of bark/mulch' (particular (u))."
3. Neither particular was well-expressed: the first appeared to assume that there should be no height differential between the two areas identified; the reference to "other dangerous sections of the park" was verbiage which should not have been included. The second particular, referring to "the floor surface" suggests a misuse of a pleading precedent, and should have referred to "the ground"; it should also have identified what was meant by "highlight".
4. Having identified those two particulars as material, the judge then identified the specific precautions sought by the plaintiff and the relevant criteria in s 5B(2)(a)-(d), which were explained in the following terms: [12] "63 Asked during the course of closing submissions to identify what specific precautions the Council should reasonably have taken, Counsel for Ms Salman settled upon the following: (1) The Council should have extended the 'wet pour' (blue spongy surface) across all of the soft-fall section covering the playground (ie subsuming the mulch part of that area); (2) The Council should have highlighted the height differential. This the Council could have achieved if it painted the slope section of the wet pour area; (3) The Council should have responded to reports received about the low level of the mulch by replenishing the mulch. 64 Counsel for Ms Salman also submitted, with regard to s 5B(2)(a)-(d) that: (a) The probability of personal injury was high if someone fell when traversing the soft fall floor surface of the playground. (b) The burden of taking precautions to avoid the risk of harm was slight: it merely required the undersurface of the soft fall area to be replenished and/or properly maintained or subject to adequate risk assessment. Such measures were not likely to be expensive. (c) Council should have constructed the soft area entirely of wet pour material, as it had done at other parks in its municipality (depicted in Exhibit H1-H3). (d) The accident did not arise from a socially useful, but risky activity, but rather from hazards associated with different surfaces upon which children (and others) would traverse in order to get to and from the playground equipment in the park."

Conclusions

1. The notice of appeal alleged error in that the trial judge, (i) in identifying the risk of harm, "did not consider the level of risk by reference to a person exercising reasonable care for their own safety" (ground 1); (ii) "erred in finding the height differential between the two areas of the soft fall section was not readily discernible …" (ground 3); (iii) "erred in failing to find that a reasonable person in the position of the [Council] would have considered the risk of harm, when correctly identified, did not require a response" (ground 7), and (iv) generically, "should have found the [Council] was not in breach of the duty of care it owed the Respondent" (ground 8). These grounds should be upheld.
2. A finding of breach of duty in the present case is, in my view, not open because it would be inconsistent with the Court's exercise of its proper function in applying its experience and commonsense to one of the most obvious and common situations experienced in day-to-day living. The cases referred to above, from Ghantous on, illustrate the application of that function in circumstances similar to the present case. They are not "precedents", but illustrations from which the nature of the exercise can be inferred.
3. When these factual questions were left to juries, carefully reasoned judgments were not to be found. Transparency has come at the expense of common sense. Experts are relied on where none is needed; expert evidence has proved, not merely otiose, but a distraction. The fact that a precaution could be taken is in this case self-evident and merely preliminary to the question as to whether it was unreasonable not to take it. That factual question should be answered in the negative: the respondent failed to prove a breach of duty.
4. The Court should make the following orders: 1. Allow the appeal and set aside the judgment and orders (1) and (2) made in the District Court on 29 November 2023. 2. In lieu thereof, order that the Statement of Claim filed 22 March 2022 be dismissed with costs. 3. Order that the respondent pay the appellant's costs in this Court.

Endnotes

1. Salman v Hornsby Shire Council (No 2) [2023] NSWDC 527 (Abadee DCJ) ("Salman").
2. Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 at [163] (Gaudron, McHugh and Gummow JJ); Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [47] (GummowJ); recently applied to the statutory formulation in Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161 at [16] (Meagher JA, Mitchelmore and Kirk JJA agreeing).
3. The plaintiff stepped onto blue spongy surface about a metre to the left (from the viewer's perspective) of the person depicted.
4. Salman at [7].
5. See fn 2 above.
6. [1968] 2 All ER 343 at 345.
7. With whom Gleeson CJ at [8]; Gaudron, McHugh and Gummow at [163], [167]; and Hayne J at [339] agreed; with Kirby J writing to similar effect at [244]-[248].
8. See fn 2 above.
9. (2002) 127 LGERA 237.
10. (2005) 223 CLR 422; [2005] HCA 62 at [7].
11. Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [17-[18] (Kiefel CJ), [32], [40]-[41] (Gageler J), [85] (Nettle and Gordon JJ), [153] (Edelman J).
12. The copy of the judgment in the appeal papers had mis-numbered paragraphs; the error had been corrected on Caselaw.
13. [2023] NSWCA 192.
14. Venues NSW at [66]-[67] (Leeming JA, Adamson JA agreeing). 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: 27 June 2024