The Council's submissions on appeal .
24 In extensive written submissions the Council argued that:
1. some of the trial judge's findings of fact could not be justified;
2. he had been wrong in finding that a duty of care existed;
3. he had been wrong in holding that the Council was in breach of any duty of care to the plaintiff;
4. he was wrong in finding any relevant causal connection between the acts and/or omissions of the Council and the injury suffered by the plaintiff;
5. the trial judge was wrong in his apportionment of fault; and, finally,
6. his assessment of the plaintiff's damages was unjustifiably high.
25 1. Challenges to fact finding. Although my opinion of this case does not make it necessary for me to come to any firm conclusion about the claimed errors of fact made by the trial judge, I will mention them briefly.
26 The main factual matters argued for the Council were whether the judge was right in finding (or assuming) that the piece of metal was a detonator, in inferring that the detonator had been embedded in the ground for some time and in accepting that the detonator was visible on a less than rigorous observation.
27 On one view of the case, the first of these questions might be of some importance. If the piece of metal was something itself designed to explode then, among other things, the plaintiff's case in its causal aspects would be advanced by one step. If on the other hand it was an object which exploded not because it was designed to do so but because of the force of the petrol explosion, then the Council is one step further away from the plaintiff so far as causal connection is concerned.
28 There was no expert evidence from either side to help the court in forming an opinion whether it was more likely than not that the metal pellets which injured the plaintiff came from the shattering of an explosive as distinct from a non-explosive object. The description of the object itself by the plaintiff (the only eye-witness who became a court witness) gives little help in deciding this question. The varying statements in the hospitals' records for the couple of days after the accident show that there was no fixed view amongst the various record makers of what it was that had exploded. There is no evidence whether the doctor who told the plaintiff it was a detonator had any factual knowledge about the object, or technical expertise, which might lend some weight to his statement.
29 On the materials before the court, it may possibly be legitimate to infer that it is (barely) more likely than not that the metal object was itself some form of explosive object, whether detonator, shot gun cartridge or some other device. However, I have not formed any firm view on this matter.
30 As to the length of time it had been in the ground, I think there was probably sufficient material to enable the trial judge to make the challenged finding.
31 On the question whether the object itself was visible on less than rigorous observation, I earlier said why I think in the relevant sentence, "detonator" was a slip for "string". If it was not, then I think the judge was in error.
32 2. Duty of care. I began these reasons by saying that I think this appeal must succeed. The reasons for this could be explained in a number of different ways. Dealing with the case in the way in which the Council formulated its submissions, it seems probable to me that the appeal could properly be upheld for each of the reasons relied on by the Council, set out in par 24 above and numbered 2, 3 and 4, that is, that the plaintiff did not establish a relevant duty of care, or any breach if there was a duty of care or any causal connection between the Council's actions/omissions and the plaintiff's injury, if there were both duty and breach.
33 The ideas behind the Council's duty, breach and causality arguments overlap. There is an ever growing mass of materials, both judicial and academic, attempting to explain the different ideas which are thought to lie behind the three branches of the conventional trio. I will not embark on yet another essay in the field, but will confine myself to stating summarily my reasons for thinking there are two ways by which, in the present case, the duty of care aspect could be approached, each leading to the same result. After doing this I will also deal with the duty question directly by reference to foreseeability.
34 In passing I note that for judges in Australia in the hierarchy of authority headed by the High Court who want to gain a reasonably quick appreciation of what is involved in the duty of care question, it is sufficient to read what is said about it in the Law of Torts, Fleming, 9th edn, 1998, Romeo (see par 20 above) and the series of subsequent High Court decisions on negligence, together with the opinion of Mahoney P in Trustees of the Roman Catholic Church for the Dioceses of Bathurst v Koffman (1996) Aust Torts R 81-399 at pp 63587-63591. Mahoney P's opinion in Koffman is particularly helpful on the aspect of the duty of care I am concerned with here. (I confine the reading list in this way because of constraints of authority and of time, and I intend no criticism of the wealth of other excellent material that exists, much of it very recent. In particular, the Symposium on the "Third Restatement of Torts" published in Number 3 of vol 54 of the "Vanderbilt Law Review" pp 639-1465 contains exhaustive discussion of problems in negligence and duty of care theory.)
35 I noted earlier that although the trial judge went through the six standard questions advocated by Kirby J in Romeo, the first of which was "Is a duty of care established?" he did not refer to what Kirby J mentioned a little later in his reasons in Romeo as three matters necessary for consideration in answering the question whether a duty of care was established. The first of those matters was foreseeability. I also noted earlier that although there has not been acceptance by a majority of the High Court of all three matters listed by Kirby J, there does not seem to be any controversy about the first one which, by footnote 189 at 192 CLR 476, he indicated was based on what a majority of the High Court (Mason, Wilson, Deane and Dawson JJ) said in Australian Safeway Stores Limited v Zaluzna (1987) 162 CLR 479. Brennan J, the fifth judge in the case, dissented.
36 That case has two particular features relevant to the present appeal. One is the foreseeability point just mentioned; the other its decision about the nature of the duty of care in negligence cases against occupiers.
37 In Australian Safeway, the majority judges, after discussing the question whether an occupier's duty to entrants was a special duty different from the ordinary duty of care, concluded that it should not be so regarded, saying:
"We think it is wholly consistent with the trend of recent decisions of this Court touching the law of negligence, both in this area of an occupier's liability towards entrants on his land and in the areas which were the subject of consideration in San Sebastian Pty Ltd v The Minister and Cook v Cook, to simplify the operation of the law to accord with the statement of Deane J in Hackshaw
'... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.'
In the circumstances of the present case, the fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the [occupier] to take reasonable care to avoid a foreseeable risk of injury to the [entrant]" (at 488)
38 With the help of the computer searches which are now available I have tried to check High Court decisions since Australian Safeway to see if there has been any departure from the chief holding in that case that the ordinary general duty of care is as appropriate in a negligence action against an occupier as in any other negligence action. So far as I have been able to see, that proposition remains fully accepted and acted on in the High Court and is accordingly binding on all Australian courts. The need to be careful about this is the presence in the passage from Australian Safeway cited in the preceding paragraph of an endorsement of what Deane J had said in Hackshaw, namely that a prerequisite of the ordinary duty of care was that there be the necessary degree of proximity of relationship. Since Australian Safeway was decided, the High Court has turned away from proximity as a criterion in the way used by Deane J. The passage cited must therefore be read subject to what the High Court has subsequently said concerning proximity. That qualification however does not affect the continuing authority of the main proposition established by Australian Safeway that there is no special duty of care owed by occupiers.
39 Since Australian Safeway, a variation in approach has become apparent in the way questions concerning the duty of care and the standard of care are pleaded, argued and decided. In some cases the duty of care is stated as very general, as when the majority in Australian Safeway itself, in the passage cited in par 37 above said the duty was "to take reasonable care to avoid a foreseeable risk of injury to the [entrant]". In the cases where duty is alleged in this general way, and an issue develops about it, it becomes necessary to deal with the standard of care required by the defendant to fulfil the duty, bearing in mind the particular circumstances of the plaintiff and of the way the plaintiff suffered injury. By contrast, in some other cases the duty is alleged with much more particularity, and the statement of the standard of care (sometimes called the scope or content of the duty of care) is subsumed within the allegation of the duty in the particular case.
40 In Koffman Mahoney P gave a helpful overview of the history of the duty of care concept and also an insightful (if I may respectfully say so) description of the approach which adopts a general statement of the duty of care the content of which is then supplied for the particular case by the standard of care (which he referred to as "the obligation to do or not do particular things" (at 63588)).
41 The different ways of approach I have described appear in Hayne J's discussion of the topic in Modbury Shopping Centre v Anzil (2000) 75 ALJR 164 at 182-3 under the heading "The scope of a duty of care". After referring to what McHugh J had said in Perre v Apand Pty Limited (1999) 198 CLR 180 to the effect that in deciding negligence cases, general ideas of justice and morality should not be used unless more concrete reasons, rules or principles failed to provide a persuasive answer, Hayne J continued:
" [101] ... The present case is one in which resort to more concrete reasons, rules and principles helps to resolve the problems it presents. The rules and principles to which reference must be made concern the liability of occupiers to entrants upon their premises and the obligations of a person to control the conduct of another.
[102] Noting that the appellant and first respondent could, respectively, be described as the occupier of land and an entrant upon that land does not wholly resolve the duty of care issue. There can be no dispute that an occupier of land owes some duty of care to those who enter it. But detecting that the parties stood in a relationship where one owed some duty of care to the other by no means exhausts the first in the traditional trilogy of issues in an action for damages for negligence: duty, breach and damage. The relevant question in the present case is not whether an occupier owes some duty of care to an entrant. The question is what is the extent of the duty which the occupier owes.
[103] Because the extent of a duty falls for decision in relation to ''concrete facts arising from real life activities' ( Perre (1999) 198 CLR 180 at 211 [80], per McHugh J) it will not always be useful to begin by examining the extent of a defendant's duty of care separately from the facts which give rise to a claim. That may be possible, and useful, in a simple case (like motorist and injured road user) where the duty of care and its content are well established. In other cases, however, it may lead to an insufficiently precise formulation of the duty which obscures the issues that require consideration. That lack of precision may lie in formulating the duty too narrowly: for example, by asking did the defendant owe a duty of care to fence the part of the cliffs in its reserve from which the plaintiff fell? It may also, as in this case, lie in formulating the duty too broadly: for example, by asking did the defendant owe any duty of care to the plaintiff
[104] ... Ordinarily it may be expected that it will be sufficient to state the duty of care by reference to these two matters: the kind of damage suffered and the class of which the plaintiff is a member. Even that, however, may not suffice in some cases.
[105] In cases such as the present, where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by the want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend."
42 Adopting this approach, it may not matter if the duty is stated generally and its content treated separately, or if the duty is stated with particularity; the substance of the plaintiff's argument will be the same; the only difference may be that the former approach will focus on the breach element of the tort and the latter on the duty element.
43 If in the present case the approach is adopted of stating the duty with particularity, which is more or less what the plaintiff did, see par 14 above, (it was further elaborated in particulars later), the plaintiff's argument would have to be that the Council was bound to have a system of inspection of the area of the park close to the playground which would ensure that pieces of string were promptly removed. In my opinion this argument would fail. It was not shown that the Council knew of the presence of the piece of string on the ground. It was not shown that the existence of the piece of string on the ground would have led anybody to suspect that attached to it underground was a possibly dangerous object. I do not think (and this is a matter of evaluation) that it can reasonably be said that the Council ought to have known of the existence of the piece of string near the playground. Thus, on this approach I do not think that the plaintiff showed that the Council was subject to the particular duty which, in the circumstances, the plaintiff had to allege in order to succeed.
44 On this approach, the plaintiff fails to show the first conventional requirement necessary to establish his cause of action and questions of breach and causation do not arise.
45 If the approach is taken of stating a general duty, which the Council undoubtedly owed to the plaintiff, then the standard of care which the plaintiff would have to allege as giving content to the duty would be in substance the same as that which I described in par 43 when dealing with the particular duty approach. The plaintiff would then fail, for the same substantial reasons as given when dealing with the particular duty approach, to show breach of the general duty because he would fail to show that the Council was required to exercise a standard of care of the level which the plaintiff had to assert in the circumstances.
46 I return to direct consideration of the question of foreseeability. The trial judge early in his reasons stated that the existence of a duty of care was in issue and that "[o]ther issues were was the risk foreseeable and causation and breach of the duty of care". However, he never explicitly returned to the question of foreseeability. In answering Kirby J's first question, he simply said yes, there was a duty of care, without reference to foreseeability.
47 On the facts of this case, I do not think it can be said that there was a foreseeable risk of the kind of thing happening to persons of the class which included the plaintiff which in fact happened to him. It is in my view outside either ordinary or foreseeable experience either that there will be detonators below the surface of the ground attached to pieces of string in suburban parks or that there will be dangerous objects below such surfaces attached to harmless visible objects.
48 In the appeal it was argued for the plaintiff that the piece of string was in itself an object foreseeably dangerous to infants and that this was enough to create a duty in the Council to see to the removal of the object; it was then submitted that its being close to a children's playground where infants went meant that the Council was in breach of its duty to that class of entrant and that the plaintiff was entitled to rely on that breach of duty
49 There are problems with this argument both at the duty stage and the breach stage. The problem at the duty stage is that it does not seem to me accurate to class a piece of string as falling into the category of foreseeably dangerous objects to infants or young children. I therefore think this version of the duty argument fails
50 3. Breach of duty. For reasons earlier given, if the plaintiff established a general duty of care, then in my view, he did not establish a breach of it.
51 The plaintiff's first duty argument which I dealt with above was based on the proposition that the piece of string lying in the park near the playground was foreseeably dangerous to infants and young children, so that the Council had a duty to prevent its being there or remove it. In regard to this I have said I do not think the requisite foreseeability existed, but that if it did there was a problem for the plaintiff in persuading the court of breach.
52 The breach problem was that the plaintiff was relying on the breach of duty to a class of entrant of which he was not a member. High authorities take the view that this is a derivative use of the breach idea which is not available to a person not in the class to whom the duty was owed: see Fleming, (cited above, par 34) at 158-161; see also Ashrafi Persian Trading Co Pty Limited v Ashrafinia [2001] NSWCA 243 at [74] and [76]-[77].
53 4. Causal connection. The High Court in March v Stramare (E. & M.H.) Limited [1991] 171 CLR 506 laid down the proper approach to questions of causation. The judges in the case were Mason CJ and Deane, Toohey, Gaudron and McHugh JJ. The critical paragraph in Mason CJ's reasons was as follows:
"Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact - to be determined by the application of the 'but for' test - and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing: see Fleming, Law of Torts , 7th ed (1987), pp 172-173; Hart and Honoré, Causation in the Law , 2nd ed (1985), p 110. It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments: see Fleming, p 173. However, this approach to the issue of causation (a) places rather too much weight on the 'but for' test to the exclusion of the 'common sense' approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn (1954) 91 CLR at p 277 'it is all ultimately a matter of common sense' and '[I]n truth the conception in question [ie causation] is not susceptible of reduction to a satisfactory formula' (1954) 91 CLR at p 278." (at 515)
54 Although, arguably, this passage does not make it fully explicit, it seems to me quite clear that Mason CJ was recognising (indeed, insisting) that the question whether the necessary causal connection existed in a particular case involved more than a simply factual inquiry but also necessarily included an evaluative element.
55 Toohey J agreed generally with Mason CJ's reasons in the case and made it clear that he understood the passage in the same way as I have, by saying:
"Where negligence is in issue, causation is essentially a question of fact, in the sense explained by the Chief Justice, into which considerations of policy and value judgments necessarily enter." (at 524)
56 Gaudron J agreed both with Mason CJ and Deane J (at 525).
57 Deane J had said:
"For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility whether an identified negligent act or omission of the defendant was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it …" (at 522)
58 The use of "should" at the end of this passage makes it clear that Deane J also recognised the evaluative element in deciding questions of causation.
59 McHugh J also explained, in some detail, (at 530-531 and throughout his reasons) that a policy choice was involved in deciding questions of causation.
60 On the version of the facts in the present case most favourable to the plaintiff, it seems to me that the approach to the question of causation explained by the High Court in March leads quite clearly to the conclusion that the Council should not be regarded as having caused, in any sense relevant to the plaintiff's cause of action, the damage that he suffered when the Coke bottle exploded. He had left the park taking with him an object he had found there of which there was no evidence the Council had any knowledge or any reason to have knowledge. He and his friend had made this object part of a device obviously dangerous, even if the object found in the park had not been put in it, by using some materials that had no connection with the park or the Council.
61 In my opinion any connection between the Council and what happened to the plaintiff was so slight that it could not justify the court saying that the Council materially contributed to the plaintiff's injuries. In my opinion, sad though it is for the plaintiff, the only persons at fault for his injuries were himself and his friend. The decision to light the piece of paper had nothing to do with the Council, except in some philosophical or scientific sense of "cause" which is not the sense of "cause" used in cases such as this.