NSWNSWSC

Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council

[2019] NSWSC 1848

Supreme Court of NSW|2019-09-23|Before: Cavanagh J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-09-23

Before

Cavanagh J

Catchwords

(2012) 191 LGERA 182 Brown v Hewson [2015] NSWCA 393 Council of the Shire of Muswellbrook v Lettice & Anor
New South Wales v Lettice & Anor [2000] NSWCA 359 Dobler v Kenneth Halverson
Dobler v Kurt Halverson (by his tutor) [2007] NSWCA 335 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
[2003] HCA 51 Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113

Source

Original judgment source is linked above.

Catchwords

(2012) 191 LGERA 182 Brown v Hewson [2015] NSWCA 393 Council of the Shire of Muswellbrook v Lettice & AnorNew South Wales v Lettice & Anor [2000] NSWCA 359 Dobler v Kenneth HalversonDobler v Kurt Halverson (by his tutor) [2007] NSWCA 335 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317[2003] HCA 51 Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113(2010) 267 ALR 752 Glasgow Corporation v Muir [1943] AC 448 Goode v Angland (2017) 96 NSWLR 503[2017] NSWCA 311 Guiney v Australand Holdings Ltd & OrsCastlehaven Sales No 2 (trading as Castlehaven Realtors & Ors v Guiney & Ors [2008] NSWCA 44 Hahn v Conley (1971) 126 CLR 276[1971] HCA 56 Hoffmann v Boland [2013] NSWCA 158[2013] Aust Torts Reports ¶82-134 Howmet Ltd v Economy Devices Ltd & Ors [2016] EWCA Civ 847 Laresu Pty Ltd v Clark [2010] NSWCA 180[2010] Aust Torts Reports ¶82-068 Luxton v Vines (1952) 85 CLR 352[1952] HCA 19 Macquarie Hastings Council v Mooney [2014] NSWCA 156(2014) 201 LGERA 314 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254[2000] HCA 61 Mulligan v Coffs Harbour City Council & Ors [2003] NSWSC 49[2003] Aust Torts Reports ¶81-689 Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1

Judgment (27 paragraphs)

[1]

Introduction

On 30 September 2011, the plaintiff, who was at the time five years of age, sustained severe injuries, including a brain injury, when he fell through a railing on the Coffs Harbour Jetty ("the jetty") situated at Coffs Harbour in the State of New South Wales.
The plaintiff originally commenced proceedings on 25 September 2014 against only four defendants, being: 1. Coffs Harbour City Council ("the Council"); 2. Coffs Jetty Foreshore Reserve Trust; 3. Coffs Coast State Park Trust ("the Trust"); and 4. State of New South Wales ("the State").
The plaintiff subsequently discontinued the proceedings against the second defendant.
By way of an amended statement of claim filed on 9 March 2017, the fifth and sixth defendants, Betty ("Mrs Whitton") and David Whitton ("Mr Whitton"), the plaintiff's grandparents, were joined to the proceedings.
The plaintiff alleges that his accident was caused by the negligence of each of the defendants. It is the Plaintiff's claim that there was negligence in the design and construction of the railing affixed to the jetty during its restoration in the 1990s and that the railing should have been altered in some way prior to his accident to make the jetty safe for use by children. He also asserts that his grandparents were negligent in their care of him.
The issues in the proceedings are complex. The issues include questions relating to: 1. The nature and extent of the duty of care owed by the State arising out of the restoration of the jetty in the mid-1990s and any continuing responsibility in respect of the jetty at the time of the plaintiff's accident; 2. The nature and extent of any duty of care owed by the Council in circumstances in which the jetty was handed over to the Council in 2002; 3. The existence and scope of any duty of care owed by Mr and Mrs Whitton arising out of the responsibility they took on when they were caring for the plaintiff at the time of the accident; and 4. The application of various provisions of the Civil Liability Act 2002 (NSW) ("the CLA") including sections 5B, 5C, 5D, 5F, 5G, 5H, 5K, 5M, 5N, 5O and sections 41, 42 and 43A.
It is appropriate, particularly in a case of this type, to have regard to the observations of McHugh J in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [34] ("Dovuro"): "34. If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community or, in cases of expertise, of the experts in that particular community. To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute. That is not to say that a defendant will always escape liability by proving that his or her conduct was in accord with common practice. From time to time cases will arise where, despite the common practice in a field of endeavour, a reasonable person in the defendant's position would have foreseen and taken steps to eliminate or reduce the risk that caused harm to the plaintiff. But before holding a defendant negligent even though that person has complied with common practice, the tribunal of fact had better first make certain that it has not used hindsight to find negligence. Compliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently. And the evidentiary presumption that arises from complying with common practice should be displaced only where there is a persuasive reason for concluding that the common practice of the field of activity fell short of what reasonable care required."
Those words seem particularly apt in a claim by the plaintiff against his grandparents arising out of their care of him and claims against the local Council and the State which are said to be supported by expert evidence which was not the subject of any challenge. The result of these proceedings is reflective of his Honour's observations.

[2]

The proceedings

The essential allegation made by the plaintiff [1] is that at 3.45pm on 30 September 2011 he was walking along and/or situated on the jetty when he fell through a railing fence affixed to the jetty, falling a distance of over 4 metres onto hard sand below. A photo of the jetty taken by the Council's risk coordinator on 4 October 2011 is below:
He sues each of the Council, the Trust and the State on the basis that they were the owners and/or occupiers of the jetty at all relevant times. "All relevant times" is not specified in the Amended Statement of Claim. There is a dispute as to who owned and occupied the jetty and when it might have been so owned or occupied by any of those three defendants. Although only the relationship of occupier/owner was pleaded as being the basis of the existence of a duty of care, the plaintiff also pursued a negligent design case.
I should emphasise that the following terms have all been used interchangeably by the parties and in the documents and the expert reports to mean the same thing: fence, railing fence, guardrail, safety fence, safety rail, handrail, and balustrade. In reality, the rails along each side of the jetty were erected as a physical barrier rather than as a handrail to assist people walking along the jetty. For the purposes of any standards and the Building Code of Australia ("BCA"), the railing is more a balustrade than a handrail but the various persons referred to in the documents have tended to use the terms interchangeably with the result that a range of words or terms are used in this judgment to reflect the same thing.
The plaintiff, who is currently 13 years of age, did not give evidence. He sustained severe injuries. The hearing proceeded as a hearing on liability only, the Court having ordered that the issue of liability and damages be separately determined.
The only oral evidence came from Mrs Whitton. Mrs Whitton was called in the plaintiff's case. The plaintiff also tendered paras 1 to 9 of her statement dated 20 June 2017, [2] which had been prepared by her solicitors.
She was asked some limited questions in chief and then cross-examined. No other witnesses were called.
Expert reports were admitted into evidence from Dr John Cooke, Mr Warwick Keirnan and Mr Andrew Patterson, without oral evidence from any of the experts.

[3]

The events leading to the accident

There is an issue as to the precise mechanics of the fall. Leaving aside the information contained in the COPS reports, the only factual evidence is from Mr and Mrs Whitton.
Mrs Whitton is the maternal grandmother of the plaintiff and is currently 72 years of age. She said in her statement dated 20 June 2017 [3] that she and Mr Whitton were on the way to Yamba for a family holiday when they met up with the plaintiff and his paternal grandparents, Debbie and Jeffrey Polglase (being the plaintiff's tutor in these proceedings) at the Caribbean Motel, Coffs Harbour. The plaintiff had been with his paternal grandparents on a holiday in Darlington Park and it seems that there was to be a change of grandparents looking after the plaintiff at that time.
The plaintiff's mother, Fiona, was due to travel with Mr and Mrs Whitton but she had to have emergency surgery. After checking into the motel room, Mr and Mrs Whitton decided to go for a walk along the jetty and take a photo of the plaintiff to send to the plaintiff's mother. Mrs Whitton recalled that the plaintiff's mother had a photo of her holding the plaintiff on the jetty when he was a baby.
Mrs Whitton asked the plaintiff to change from his thongs to a pair of canvass shoes, as they would be more comfortable for him. They then proceeded to walk across the road and then a further distance of approximately 400 metres to the jetty.
Mrs Whitton said in her statement that she had walked out along the jetty in the past with her own children although she admitted in cross-examination that that had been many years earlier. She said that she was aware that many families with small children walk or ride or play on the jetty as it was highlighted as a major tourist attraction. She said that she had seen children looking over the edge and leaning on the rails.
They were about one quarter of the way along the jetty when the events leading to the accident occurred. Mrs Whitton said in her oral evidence that the plaintiff was in the middle, between her and her husband, as they were walking along. They walked over to the left side of the jetty and looked out at people swimming. After a while, they were ready to move on. In para 9 of her statement, she says that before walking away from the jetty edge and while still close to the plaintiff, she half turned and out of the corner of her eye saw the plaintiff as he was falling from the jetty. She screamed to anyone below to help him and ran quickly back down the jetty onto the sand where the plaintiff lay.

[4]

The mechanics of the fall

Immediately prior to his fall, the plaintiff was standing with Mr and Mrs Whitton at some point adjacent to the railing to their left as they walked along. The vertical drop to the hard sand below was 4.08 metres.
It was not suggested to Mrs Whitton that the plaintiff was attempting to climb up onto the railing or doing anything with the railing other than just standing there. Neither Mrs Whitton nor Mr Whitton saw through which part of the two gaps in the railing the plaintiff fell. There is no direct evidence of how he came to fall in the sense of observations by any other witnesses.
Bearing in mind his position as observed by Mr and Mrs Whitton immediately prior to the fall and that his fall must have commenced in the time that it took Mrs Whitton to turn away and walk one or two paces and that he was only five years old at the time, I infer from the evidence that he fell through the railing at a point between the top railing and the kerb or decking. There would not have been time for the plaintiff to have climbed up and over the top rail and fallen off the top rail. The circumstances give rise to a reasonable and definite inference, being that he fell under rather than over the top rail.
Whether he fell between the top and middle rail or the middle and bottom kerb is more controversial.
The distance between the top rail and the middle rail is agreed by the experts to have been 480mm. The gap between the middle rail and kerb was 395mm.
It is agreed that there was sufficient space for the plaintiff to fall between the top and middle rails as well as between the middle rail and kerb.
In para 28 of his statement, Mr Whitton says that at the time the plaintiff was about 110cms tall which he says would have made the top of his head level with the top rail when he was standing on the deck.
When last seen, the plaintiff was standing on the timber decking (not the raised kerb) with his arms outstretched holding onto the middle rail.
There is no direct evidence as to whether he fell through the upper or lower gap. He may have tripped on the kerb as he was turning to follow his grandparents and slipped underneath the middle rail. He might have taken a step forward and placed his foot on the kerb and lent over the middle rail to look at the water below just at the point when his grandparents turned away. He may have just bent down and placed his knees on the kerb and placed his head below the middle rail and fallen.

[5]

The Coffs Harbour jetty

The Coffs Harbour jetty was constructed in 1892. On 31 December 1906, it was gazetted as a national work in the sense that it became a heritage item.
It is situated near the centre of the Coffs Harbour port, projecting from the foreshore area in a south-easterly direction into the harbour. A crane was erected at the end of the jetty for loading. It had a single 3ꞌ6ꞌꞌ railway track down its centre for nearly 100 years of its existence prior to its restoration in the mid-1990s.
Cargo handling over the jetty reached its peak in the 1930s. The jetty was extended on two occasions, the last time being immediately after the Second World War. Use of the jetty for exports reached its peak in the early 1950s. In the 1960s, shipping to Coffs Harbour declined and maintenance work on the jetty was correspondingly reduced. By the 1970s, its condition was too poor for regular use by ships. As commercial cargo out of Coffs Harbour declined, the importance of fishing and recreational vessels increased. In the 1970s the Public Works Department ("the Department") built a safe harbour for fishing and pleasure craft near Mutton Bird Island, adjacent to the northern breakwater.
From July 1978, the responsibility for maintenance of the jetty was transferred from the Department to the Maritime Services Board, although the maintenance work was actually carried out by the Department. In 1982, the railway track was removed and in 1984, both cranes situated on the jetty were removed. The jetty fell into disuse. In 1984, it was closed to the public.
In 1988, the Council listed the jetty as an item of environmental heritage, preventing any demolition or renovation without the consent of Council. In 1990, the then Department of Lands wrote to Council regarding Council accepting ongoing responsibility for the jetty. On 6 November 1990, the Council wrote to the Department of Lands agreeing to accept responsibility, provided that the jetty was first brought up to a state of full maintenance and safety by the Department and that satisfactory legal arrangements could be put in place regarding Council's legal liabilities which would flow from acceptance of responsibility for the jetty. [8] The Department then commenced the process of restoring the jetty for its intended use as a public walkway.

[6]

Restoration of the jetty

A period of community consultation took place and a steering committee was formed, comprising representatives of various government departments as well as the Council. As set out in the steering committee report, [9] the Council agreed to accept responsibility for all ongoing maintenance associated with the restored structure, subject to the State meeting the once-off cost of the restoration.
In 1991, the Ministerial Taskforce proposed that the part of the jetty that had been extended in the 1940s (by 91 metres) be demolished and the shortened jetty be restored. A development application was made in the joint names of the Department and the Council on 11 December 1991. A conservation plan was completed by 14 December 1994 ("the Conservation Plan"). As part of this process, it was agreed that the wider jetty would be preserved because of its heritage significance and that lighting, handrails and a firefighting service should be added because of public safety concerns.
According to the Conservation Plan, [10] few timber jetties remained in New South Wales by the 1990s. As at the time of the commencement of the restoration, the jetty was listed as an item having environmental heritage but was not subject to any conservation order under the Heritage Act 1977 (NSW). It is one of the few ocean jetties remaining in Australia. As noted in the Conservation Plan, it is the layout of the structure rather than the fabric that is significant.
It is the most prominent landmark in Coffs Harbour. It was described in the Conservation Plan as the focal point of Coffs Harbour, not only visually but also socially. The authors described it as being equivalent to a town square. After restoration it was promoted as a tourist attraction and a major attraction for families. The compatible uses of the jetty as set out in the Conservation Plan [11] include passive recreational use and limited hospitality, retail and tourism uses.
In his memo dated 22 October 1997, [12] that being around the time of completion of the restoration, the Council's risk coordinator observed that the jetty would become one of the city's popular attractions, open 24 hours a day and that it would also become one of the major risk areas for litigation including personal injury.
Subsequent to the completion of the Conservation Plan, the Department set about the process of restoring the jetty.

[7]

The design of the railing

The restoration was undertaken by the State and its officers were ultimately responsible for the design, construction and installation of the railing which was erected on each side of the restored jetty and remained in place at the time of the accident.
Whilst the restoration of the jetty was undertaken by the State, representatives of the Council were involved at all stages. This included the Mayor and Deputy Mayor being members of the Steering Committee; the development application being submitted in the joint names of the Department and the Council; the Council requesting a fence along the sides; and the Council attending pre-partnering meetings and being part of the partnering process which included discussion as to the design of the railing/fence/balustrade. It was always intended that the jetty would be handed over to the Council after restoration.
The jetty was not restored to allow commercial or maritime use, other than the stairs leading down to the small platform on one side where small craft might tie up. It was restored so that it could be used as a public walkway. As the community consultation report makes clear, it would be a place where families could go.
Attached to the project report no. 1 dated 30 October 1995 [15] is an artist's impression of the restored jetty, particularly of the stairs leading down to the platform at water level at which pleasure craft might drop off persons. The railing depicted in the artist's impression is different from that which was ultimately constructed. The tender specifications completed in October 1995 include a specification in respect of railing. [16] The specification required posts and rails with galvanised fencing wire. This was not the railing ultimately constructed.
On 12 December 1995, the Department, through its State Projects division, provided comments in respect of the timber handrail, noting that the new handrails should not detract from the visual character of the jetty platform and that a lighter handrail would be less intrusive to the jetty's platform; that, for example, the mid-rail could be wire rather than timber. [17]
On 29 January 1996, Joy Singh, an architect employed by the State working in the Heritage Group of the State Projects division, commented on the handrails, noting that they appeared bulky and may be confused as being part of the original structure. She suggested that a more appropriate solution would be a timber top-rail, rectangular in section with stainless steel (marine grade) vertical supports and mid-rail wires.

[8]

Responsibility for the jetty on reopening

Although it was intended that the jetty would be handed over to the Council on completion of the restoration works, this did not occur. There was a delay in the establishment of the reserve trust and there were issues as to the mechanics of the handover. The Council resolved on 18 December 1997 to defer the handover until the Maintenance Report had been prepared, costings could be assessed and the legal conditions of the handover could be reviewed.
The State remained responsible for the jetty until handover on 18 October 2002. The Council ultimately agree to reimburse the State in respect of maintenance costs incurred by the State during the period between reopening and the handover.

[9]

Responsibility for the jetty after the handover

There is a dispute between the Council and the Trust (jointly represented) and the State, as to responsibility for the jetty after handover in 2002. Whilst the Council and the Trust accept that they had some responsibility, they say that their responsibility was limited to ongoing "maintenance" and other administrative matters. They say that the State remained an owner and occupier and had partial ongoing control of the jetty.
The State submits that subsequent to handover to the Council, it had no responsibility at all in respect of the jetty. It says that it did not occupy the jetty and it had no control over the jetty.
Although the plaintiff alleges that the State was the owner and/or occupier of the jetty, [22] presumably meaning at the date of the plaintiff's accident, the plaintiff did not address the basis on which it is said to have remained an occupier. The competing positions were addressed by the Council and the State.
The Council submitted that the State continued to have a degree of control over the jetty and that the obligations of the Council were necessarily confined by the limitations of the handover to the Council as set out in s 153 of the Public Works Act 1912 (NSW) (now titled the Public Works and Procurement Act 1912 (NSW)). That is, it was submitted that the obligation of the Council was only to "maintain" the jetty, not to upgrade or change it or alter its structure.
The Council sought to emphasise that there is a distinction between maintaining and changing or upgrading. As such, it said, the State still had a degree of control over the jetty, such that it could also be considered to be an occupier of the jetty and owe an ongoing duty of care as an occupier at the time of the plaintiff's accident.
The State points out that not only was there a handover to the Council in accordance with s 153 of the Public Works Act but that there was a handover of control and responsibility for the land on which the jetty was affixed, such that the Trust was conferred an estate in fee simple on the land for the purposes of providing care, control and management of the land within which the jetty was situated and thus the jetty itself.
Not that it is determinative but it is notable that there is no evidence of any document or communication between the Council and the State regarding the jetty following the handover in 2002. That is, the Council did not tender even one document demonstrating the State's ongoing responsibility or acceptance of any responsibility.

[10]

Expert evidence

Reports from three experts were admitted, being: 1. Reports of Dr John Cooke dated 24 September 2015 and 22 December 2016; [23] 2. Reports of Mr Warwick Keirnan dated 1 June 2016 and 6 June 2019; [24] and 3. Report of Mr Andrew Patterson dated 31 May 2016. [25]
In addition, Dr Cooke and Mr Keirnan met in conclave and prepared a joint report dated 27 August 2019. [26]
In the joint report they provided answers to 56 questions. Mr Patterson did not participate in the conclave or sign the joint report. I understand that illness prevented him from doing so. None of the experts gave oral evidence. The objections to their reports were very much related to limiting the use of the matters of fact or assumptions they made. As I said to the parties, I will not be treating their list of assumptions as evidence of the fact.
Some parts of the expert reports are confusing, even though there is substantial agreement between Dr Cooke and Mr Kiernan identified in the joint report. As I have said, no party wished to challenge anything they said but that leaves some uncertainty in the effect of some of their comments. A good example of this is the joint opinion that any decision to leave the handrail unaltered after installation in 1997 was an act that would not have been widely accepted in Australia by peer professional opinion as competent professional practice. I am not sure whether this is a reference to the practice of an engineer, an architect, a project manager, a property manager or is just a general reference to the Department or the Council.
It is difficult to understand whether references to the railing being designed in accordance with a standard are meant to be opinions as to how things were done, assumptions or statements of fact based on documents.
It might be said that, to a certain extent in their primary reports, the experts strayed into matters for the Court but I would treat their opinions as to how the accident occurred as a matter of assumption and their views as to foreseeability are not relevant.
The purpose of expert evidence in a case in which the circumstances of the accident can be determined having regard to the lay evidence is to assist the Court on issues relating to proper building/engineering/architectural practice, the applicability of relevant standards and guidelines and the availability of preventative measures. I emphasise that in a negligence action, the question of breach must be determined prospectively and opinions of experts as to how they might have made the railing safe and secure are really only opinions as to how it might have been done should the exercise of reasonable care have required that some preventative measure be taken in all of the circumstances.

[11]

Mr Patterson's evidence

Whilst the plaintiff did not object to the admission of Mr Patterson's report, I am inclined to give his opinion less weight in circumstances in which he did not participate in the conclave. It is not known whether he might have altered his opinion or, in some way, modified his views if he was afforded an opportunity to discuss matters with his fellow experts. Further, the information with which he was provided was quite limited. It included little by way of background material and included only one of Dr Cooke's reports. He appears to have placed weight, perhaps a little too much weight, on what he observed happening on the jetty at the time that he attended to inspect the jetty.
Having said that, there are matters of significance contained in Mr Patterson's report, including that: 1. He says that there were no Australian Standards and regulations or bylaws which were applicable to the design and installation of handrails/fencing at the jetty at the time that the work was carried out. 2. He agrees with Dr Cooke that the conservation works of the jetty did not fall within Class 10 of the BCA. 3. He considers that a more substantial fence could be a detriment to the heritage value of the structure and a disconnect between the safety aspects and modern materials of such a fence and the slightly elevated risk levels in walking on the old industrial timber deck. 4. He says that the use of the old PWD (Department) standard two-rail handrail (being the rail installed in-situ at the time of the accident) is very widespread and common practice throughout New South Wales and Australia.
He then goes on to say that the structure is patently and obviously not meant to be childproof but that the installation of the higher than normal timber kerb combined with the mid-rail would mean that children walking on the jetty or standing at the rail would be adequately prevented from falling. The basis of that opinion is unclear as the gaps between the rails are wide enough to allow children to fall through.
Mr Patterson's ultimate conclusion is that neither the State nor the Council contravened any rules, building codes or standards in erecting or maintaining the fence system at the jetty.
He goes on to suggest that if the Council was required to demolish the existing two-rail fence and hardwood kerb and install a childproof fence, the capital cost would be in the order of $400,000 with an increased annual maintenance burden of about $10,000 per annum. There would also be a significant loss of amenity.

[12]

Dr Cooke's evidence

Dr Cooke was asked to opine on the basis of assumptions both that: 1. the plaintiff fell between the bottom railing and the top railing; and 2. the plaintiff fell between the bottom railing and the deck.
I do not interpret his evidence as being limited only to the bottom gap.
Dr Cooke accepts that the works to the jetty did not fall within Class 10 of the BCA but states that the balustrade provisions in the BCA are indicative of good building practice. As he says, the provisions in BCA clause D2.16 are designed to prevent children falling through gaps and balustrades and climbing balustrades. An opening in a balustrade must not permit a 125mm sphere to pass through. Plainly the gaps are much wider than that.
Dr Cooke also points to Section 5.5 of the Design Guidelines for Wharves and Jetties (Public Works (NSW), August 1990) which refers to rails being important where decks are above shallow water where severe injuries could result from pedestrians falling from the deck. He points out that AS1657-1992 was current at the time the works were carried out, but it was superseded by AS4997-2005 Guidelines for the Design of Maritime Structures.
Dr Cooke suggests that, for compliance with AS1657-1992, continuous guard railing was required. By this he means that in order to comply, clause 3.4.1 requires the rail to be a monolithic structure. There is reference to the space between the top rail and the floor being provided with infill (clause 3.4.2). Infill may be fabricated from a number of materials including expanded metal mesh or any other material.
Dr Cooke opines that to satisfy the objective "to enable safe pedestrian access", the balustrade design should have been safe for all classes of users including young children able to walk unaided.
He goes on to opine that the design option that should have been adopted was one which included mesh infill which would have prevented the fall, either, as he says, between the top rail and intermediate rail or between the bottom rail and the kerb.
In his primary reports, Dr Cooke thus opines that, although there was no mandatory standard which applied, both the BCA and AS1657-1992 would have provided a guide to good practice. In order to ensure that the jetty was safe for use by children, infill could have been installed in the gaps in the railing. This is an option referred to in AS1657-1992.

[13]

Mr Keirnan's evidence

Mr Kiernan is a consulting civil engineer. He prepared a report dated 1 June 2016 at the request of the State. He was asked to address a number of specific matters. [29]
He notes that the original design of the hand rails was prepared by a firm of consulting engineers, Erwin Johnson & Partners. He refers to the partnership meetings and discussions regarding the heritage architect and the revised drawings on which I have already commented. He concludes that the final drawing from which the rail is based was prepared by a Department engineer and was approved by a more senior one, based on AS1657-1992, which was considered by them to be the most relevant design standard. He says that each engineer formed the view that the BCA did not apply to the jetty.
He emphasises the difference between a balustrade and a hand rail. He notes that AS1657-1992 includes the definition of a guard rail being a structure to prevent a person from falling off a platform, walkway or landing. He opines that, as the BCA generally refers to buildings rather than non-habitable buildings and structures, AS1657-1992 would be the preferred standard. He then says that on the assumptions he has been asked to make, AS1657-1992 was adopted as the appropriate design standard.
Mr Kiernan opines, without setting out the basis for the opinion, that the design of the rail would have been carried out whilst the construction was under way in 1996 and thus AS1657-1992, AS1428-1 and the BCA would have been considered. It is not clear from the source documentation when the BCA and the standards were considered. He notes that there were two options available under AS1657-1992, being the hand rail as built and, in the alternative, with mesh infill between the kerb and the intermediate rail.

[14]

The joint report

The joint report is extensive in that the experts answered 56 questions. It is not necessary for me to merely set out the answers to all of those questions. I have had regard to the content of both the primary reports and the joint report. It is notable that the experts agree that: 1. at the time of the restoration work there was no standard, regulation or bylaw applicable to the design and installation of the guard railing for the jetty; 2. as such, neither the State nor the Council contravened any rules, regulations or standards in erecting and maintaining the fence system as built at the jetty; 3. compliance with the BCA was not mandatory because the jetty was not a class of structure to which the BCA applied; 4. however, the balustrade provisions in the BCA are indicative of good building practice and include a design requirement for a balustrade to prevent children falling through the balustrade. The building regulations and Australian Standards distinguish between a balustrade and a handrail. A balustrade is a protective guard along the open side of a walkway whereas a handrail provides support for stair users; 5. the provisions in BCA clause D2.16 are designed to prevent children falling through gaps and balustrades and climbing balustrades; 6. at the time of the restoration, relevant design guidelines for the jetty were provided in the Design Guidelines for Wharves and Jetties (Public Works (NSW), August 1990); 7. similarly, at the time of the restoration works, AS1657-1992 was an Australian Standard relevant to the safe construction of the jetty; 8. the Design Guidelines for Wharves and Jetties (Public Works (NSW), August 1990) provides guidance on the design of balustrades in situations where children have access; 9. the vertical drop from the deck level to the jetty to the hard sand was approximately 4.08 metres; and 10. for compliance with AS1657-1992 clause 3.2, continuous guard railing was required. AS1657-1992 clause 3.4.1 requires that guard railing be constructed in accordance with one of several alternative designs, relevantly including: "(a) A top rail, supported by posts, at a vertical height of 900-1100 mm above standing level with one or more intermediate rails, having a maximum distance of 450 mm between the rails or between the lowest rail and the toeboard where fitted. Where a toeboard is not fitted, the maximum distance between the lowest rail and the floor shall not be greater than 560 mm. Alternatively, the space between the top rail and the floor may be provided with suitable infill (see Clause 3.4.2) fixed to the top rail and to the floor, toeboard or a bottom rail not more than 80 mm above the floor."

[15]

The risk of harm

In Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59], Gummow J emphasised that in a negligence action it is only by the correct identification of the risk that one can assess what a reasonable response to that risk would be. This is given statutory force in the CLA.
Assuming that a duty of care is owed by a particular defendant, the first step in the proper application of s 5B of the CLA is the identification of the risk of harm. As set out in s 5B(1), "A person is not negligent in failing to take precautions against a risk of harm unless …". Only once the risk of harm has been properly identified can the Court consider whether the risk was foreseeable, not insignificant and whether a reasonable person would have taken the precautions suggested: see also Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102] ("Uniting Church v Miller"); Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; (2014) 201 LGERA 314 at [52].
Unlike the question of breach which must always be considered prospectively, in identifying the risk of harm the Court may have regard to what actually happened. Further, the risk of harm may be identified generally or more specifically; it is not to be confined to the precise set of circumstances which are alleged to have occurred, although it must encompass those circumstances: Uniting Church v Miller at [118] (Leeming JA).
In Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [106] ("Perisher Blue"), the Court held that it was generally unnecessary and undesirable to define the relevant risk with too much particularity but particularity can be called for in some circumstances, as without particularity, one cannot determine what, if any reasonable precautions ought to have been taken, in order to avoid the risk.
In his Amended Statement of Claim the plaintiff did not identify the relevant risk of harm. I asked the parties to address the issue in their submissions. The plaintiff identified the risk of harm as being falling through the railing onto the hard sand below. The Council and the State identified the risk of harm more generally as falling from the jetty and being injured. Mr Sheldon, Senior Counsel for the Council and Trust, submitted that to adopt the plaintiff's description would be to apply hindsight rather than foresight and would be paying too much regard to what actually happened.

[16]

Liability of the Council and the Trust

The State undertook the restoration works, albeit on at least the understanding that the Council would assume responsibility for the jetty on completion of the restoration.
The Council was made aware of the design and structure of the railing and agreed to it as part of its involvement in the partnering meetings and other processes in the 1990s. The Council had an interest in ensuring that the restored structure was properly designed and constructed. As is plain from the correspondence, its interest was both in respect of the safety of the jetty and the ongoing costs relating to the maintenance of the jetty.
I do not consider that the Council should be liable in respect of any negligent design for the following reasons: 1. Firstly, the Council and Trust are sued as the owners and occupiers of the jetty at all relevant times. Prior to handover to the Council, it could not be said that the Council was an owner or occupier. The Trust did not exist at the time of restoration of the jetty. 2. Secondly, whilst the process of restoration involved consultation between the State and the Council, the jetty remained a national work up until 2002. It was the State that was responsible for the jetty, in control of the jetty and which was carrying out the restoration. Further, the State's architect, Ms Singh, and construction manager, Mr Clancy, were the professional persons most involved in the design of the railing. Questions of the Council being vicariously liable for the conduct of persons employed by it during the restoration phase do not arise on the pleadings and such a finding would not be available on the evidence in any event.

[17]

Liability of the Council and Trust as occupier

The Council and Trust were sued as occupiers. It is not in dispute that a duty of care was owed to the plaintiff. The control by a statutory body of premises used by the public constitutes "occupation" by that body.
As has been emphasised in considering the liability of a statutory authority such as the Council, which is said to be an occupier of premises or in this case a structure, the essential question is what the content of the duty of care was in a particular case: see, for example, Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308; (2006) 150 LGERA 11 at [32] ("Shellharbour v Rhiannon Rigby").
As was said by Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 at [102], the relevant question is not whether the occupier owes some duty of care, but what is the extent of the duty of care which the occupier owes.
In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; [1998] HCA 5 at [152] ("Romeo"), Hayne J said: "152. It has now long been held by this Court that the position of an authority, such as the Commission, which has power to manage, and does manage, land which the public use as of right is broadly analogous to that of an occupier of private land. It is the management of the land by the authority which provides the necessary relationship of proximity between authority and members of the public." (Footnote omitted.)
Again, in Romeo, when referring it to the content of the duty of care, Kirby J said (at [123]): "The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and [advertence] of the entrants."
The plaintiff belongs to a class of persons who it might reasonably have been anticipated would use the jetty after it was restored. The duty of care required the Council to consider whether the jetty was reasonably safe for users including children, in circumstances in which the jetty was a public walkway and major tourist attraction.
The issue in this matter is what the exercise of reasonable care on the part of the Council required in the circumstances. The circumstances include the knowledge and considerations of the Council prior to the plaintiff's accident.

[18]

The events after restoration and the knowledge of the Council

The jetty was reopened on 11/12 October 1997. On that day (12 October), a seven-year-old girl (Miss Marr) fell through the railing onto the hard sand below. She was walking along holding onto the middle rail when she slipped, causing her to roll between the middle rail and the kerb onto the beach below, a distance of approximately 4.6 metres. Having regard to that measurement, it seems likely that Miss Marr fell somewhere in the same vicinity as the plaintiff. She sustained injury.
The Department reported the accident to its insurer. The circumstances of the accident led to Mr Clancy of the Department preparing a report on the railing (see below).
The Council became aware of this accident shortly after it occurred as there is a reference to the accident in the risk assessment subsequently conducted by the Council and the Council also forwarded documents relevant to this accident to its insurer when notifying the insurer of the 2007 Travaskis accident (which I will come to).
On 20 October 1997, the Council's risk coordinator, Mr Quinn, carried out a risk inspection of the Coffs Harbour jetty. [31] This was after Miss Marr's accident, although there is no evidence that it was conducted because of the accident. He sent a memo to the directors. Present at the risk inspection was the Director of Engineering (Mr Davidson who had been involved throughout the project), the Works Manager, the Risk Coordinator and a representative of Jardine's Insurance.
Mr Quinn noted that following the reopening of the jetty it would be one of the city's popular attractions and it would be open 24 hours a day. He also noted that it would probably become one of the Council's major risk areas for litigation from personal injury and property loss or damage. As he said, after discussion with the insurance broker, there were a number of areas of concern. It is plain from a consideration of those areas of concern that Mr Quinn and the other representatives of the Council identified a number of issues or features of the jetty which could give rise to potential injury and liability or loss. As he said, informal discussions were taking place with the Department and many of the items would be addressed by the Department prior to handover. Mr Quinn even identified the defects which might give rise to slight injuries such as a jagged uneven concrete finish or protruding nails.

[19]

Breach of duty

The particulars of breach of duty of care raised against each of the Council, the Trust and the State are identical.
The plaintiff pleads 15 particulars of negligence which might be summarised as relating to a failure to investigate and detect the alleged problems with the railing, failing to respond to events and complaints, failing to modify the railings, allowing the gaps to exist, failing to warn and generally allowing the jetty to be used in an unsafe state.
As set out in s 5B of the CLA, a person is not negligent in failing to take precautions against a risk of harm unless: 1. the risk was foreseeable; 2. the risk was not insignificant; and 3. in the circumstances a reasonable person in the person's position would have taken those precautions.
I have already identified the risk of harm. No party suggested that the risk of the plaintiff falling through the railing (whether onto the hard sand or water below) was not foreseeable or disputed that that risk was "not insignificant".
Whilst the requirement that the risk be "not insignificant" must be satisfied and the requirement must be considered rather than merely merged with the question of foreseeability, it has been held that the requirement is not much more demanding than the question of foreseeability which arises in s 5B(1)(a) of the CLA: see Shaw v Thomas [2010] NSWCA 169; [2010] Aust Torts Reports ¶82-065 at [44].
In my view, the risk of harm, being the risk of the plaintiff falling through the railing onto the hard sand below (or even just falling through the railing) was foreseeable within the meaning of s 5B(1)(a) and not insignificant within the meaning of s 5B(1)(b) of the CLA.
There is an issue as to whether, in the circumstances, a reasonable person in the position of the Trust and/or Council would have taken precautions against the risk of harm.
In determining this, it is necessary to have regard to s 5B(2) of the CLA. The Court is to consider (amongst other relevant things): 1. the probability that the harm would occur if care were not taken; 2. the likely seriousness of the harm; 3. the burden of taking precautions to avoid the risk of harm; and 4. the social utility of the activity that creates a risk of harm.
The factors listed in s 5B(2) of the CLA are not exhaustive and it is permissible to have regard to any other relevant factors depending on the particular circumstances of the case. However, the Court is required to take account of the factors set out in paras (a), (b), (c) and (d).

[20]

Sections 42 and 43A of the CLA

It is appropriate to deal with ss 42 and 43A(2) of the CLA on which the Council and the Trust rely.
Although the Council, the Trust and the State pleaded reliance on s 43A of the CLA, no submissions were made by the parties in support of that defence. There is no evidence that the three defendants were exercising or failed to exercise a special statutory power within the meaning of s 43A: see, for example, Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited (2009) 77 NSWLR 360; [2009] NSWCA 263 at [368]-[370] ("Refrigerated Roadways").
There is also an issue as to whether Part 5 of the CLA, which includes s 42, could apply to the Trust.
As set out in s 92 of the Crown Lands Act (which was in force at all times relevant to this matter), the Reserve Trust is constituted by the Act as a corporation. It has the functions conferred on it by or under the Act. It is charged with the care, control and management of the Reserve. The Council was appointed under s 95 of the Crown Lands Act to manage the affairs of the Trust.
In these circumstances, the Trust has all the functions of the Council under the Local Government Act 1993 (NSW) in relation to the Reserve. Should it have been necessary to do so for the purposes of determining any defence under s 42 of the CLA, I would have concluded that the Trust fell within the definition of public or other authority in s 41 of the CLA. The Trust is capable of being sued and is sued. It is managed by the Council and has all the functions of a Council because the Council is the manager of the Trust: s 98 of the Crown Lands Act.
Having said that it is difficult to see how s 42 of the CLA could apply for the benefit of the Trust in circumstances in which the Council is the manager of the Trust and, in this case, although the jetty sits on the land the subject of an estate in fee simple in favour of the Trust, it is the condition of the jetty rather than the actual land which is in issue. The jetty was handed over to the Council.
For all relevant purposes the Council exercised management and control over the jetty. It is the functions exercised by and the resources of the Council which are relevant for the purposes of s 42 of the CLA.
Section 42 of the CLA requires the Court to apply the principles set out in paras (a)-(d) in determining questions of duty and breach. Section 42 concerns the manner in which the public or other authority exercises its functions: As stated by Campbell JA in Refrigerated Roadways at [390]-[399], s 42(a) is concerned with the resources that are reasonably available to the authority for the purposes of exercising its functions and s 42(b) is concerned with the general allocation of those resources by the authority. The general allocation is not open to challenge.

[21]

Reasonable Precautions

It is not an answer to the plaintiff's claim merely to assert that the Council did everything it could prior to the jetty being handed over to it to make sure that the State ensured the jetty complied with all relevant standards and undertook all appropriate maintenance and restoration works.
Nor, in all the circumstances, is it an answer to the plaintiff's claim to suggest that the Council believed that the railing complied with appropriate standards or codes, although that is a relevant factor in determining whether the Council exercised reasonable care.
I interpret the email exchange of May 2002 to mean that Mr Quinn had considered the safety aspects of the railing and considered that they needed to be made safer. I have already rejected the Council's submissions that it had no responsibility in respect of making such changes.
However, the fact (if it be the fact) that the railing complied with relevant standards is certainly relevant to any assessment of whether the Council discharged its duty of care in the circumstances, although it is not determinative: Council of the Shire of Muswellbrook v Lettice & Anor; New South Wales v Lettice & Anor [2000] NSWCA 359 at [8].
On the evidence before me, the Council did not obtain its own building report or conduct a risk assessment subsequent to May 2002 despite the risk coordinator's recommendations. Yet, it did write to the Department and did receive a response indicating that the railing had been erected in compliance with AS1657-1992. The Council's expert, Mr Patterson, said that the railing was of a type commonly found on jetties. Mr Kiernan said that the design was consistent with competent professional practice.
There is considerable emphasis on the Australian Standards/codes in the expert reports. As was observed in Brown v Hewson [2015] NSWCA 393 at [137], whilst non-compliance with standards can amount to evidence of negligence, such non-compliance does not, of itself, establish negligence or indeed liability on another basis. On the other hand, compliance with an applicable standard will normally be a relevant factor in considering breach of duty of care but it is only one factor to be considered.
The applicability of and compliance or non-compliance with any particular standard has some relevance in this matter for a number of different reasons. The Council is relying on the representation made by the Department in support of its proposition that it did not fail to exercise care in not doing anything about the railing. Yet, all of Mr Patterson, Dr Cooke and Mr Keirnan say that there were no Australian Standards, nor NSW regulations, nor by-laws which were applicable to the design and installation of the railing for the jetty refurbishment at the time that the work was carried out.

[22]

Liability of the State

Having regard to the submissions, there 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.
The State disputes that it is liable on any of these three bases. Its primary submissions are that: 1. it was not negligent in the performance of its design and construction work and in any event it relies on s 5O of the CLA as a defence; 2. it did not fail to act with care whilst it remained responsible for the jetty between 1997 and 2002 and in any event it could not have a liability to the plaintiff for anything it did or did not do in that period; 3. it had no relevant control over the jetty after handover.
I have already accepted that the State had no relevant control of the jetty as at the time of the plaintiff's accident.
As for any suggestion that it could be liable to the plaintiff because it was in control of the jetty during the five-year period after completion of the restoration, it is not entirely clear that the plaintiff is pursuing such a case. It pleaded a case against the State on the basis that it was an occupier, presumably meaning at the time of the accident. I raised with Mr McIlwaine [51] that the State had submitted that it could not have any liability as an occupier of the jetty once occupation and control had been handed over to the State. Mr McIlwaine tended to agree but submitted that the State still had a liability for the defect that it created. The plaintiff's written submissions focus on the design and construct allegations against the State.
If the plaintiff was intending to run a case (which would be a novel case), that an earlier occupier of the structure owed a duty of care to the plaintiff and should be liable in negligence to the plaintiff arising out of its period of earlier occupation, it might have been the subject of pleadings and submissions supported by some authority. It was not.
There may be many reasons why such a proposition would be unlikely to be accepted. The proposition that an occupier which divests itself of control of premises or a structure nearly ten years before a person attends on those premises would be liable to that person for a defect in the premises would seem novel. This is particularly so in circumstances in which the subsequent occupier was aware of the defect.

[23]

Negligence in design

It is not necessary that I merely repeat the principles to which I have referred in relation to the proper application of s 5B of the CLA in dealing with the liability of the Council. The work involved in the design of a building or structure is carried out by experts in certain fields or disciplines. Irrespective of whether the State has discharged its onus under s 5O having regard to the expert evidence on which it relies, evidence that the conduct of those responsible for the design was consistent with competent practice is relevant in assessing any breach of duty of care. Whilst the State bears the onus of establishing its s 5O defence, the plaintiff bears the onus of establishing that there was negligence in the design of the railing.
The State disputed that it owed any duty of care to the plaintiff, even in respect of the performance of its obligations as the designer of the railing. However, as was held in Voli v Inglewood Shire Council & Anor (1963) 110 CLR 74 at 84; [1963] HCA 15 ("Voli"), an architect may be liable for the reasonably foreseeable consequences of careless or unskilful conduct in the design or construction of a building even to a person who, after the building has been finished and taken over by another person, lawfully enters it and comes to harm. I do not consider that Howmet Ltd v Economy Devices Ltd & Ors [2016] EWCA Civ 847 alters that principle.
In Guiney v Australand Holdings Ltd & Ors; Castlehaven Sales No 2 (trading as Castlehaven Realtors & Ors v Guiney & Ors [2008] NSWCA 44 at [16], Mason P said: "16. It is well established that a person who negligently manufactures goods or builds a structure is liable for the tort of negligence if a consumer or user in reasonable contemplation suffers reasonably foreseeable personal injury in consequence (Voli v Inglewood Shire Council [1963] HCA 15; (1962) 110 CLR 74 at 85; Bryan v Maloney (1994) 182 CLR 609 at 622-3, 625-6; Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16, (2004) 216 CLR 515 at 532-3[28]-[29], 539[51], 544[66]). Voli shows that it matters not that the building is taken over on completion without anyone being aware of the defect (see [1963] HCA 15; 110 CLR 74 at 83)."
However, the observations of Windeyer J in Voli at 85 are also 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 e.g. 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." (Footnote omitted.)

[24]

Section 5M of the CLA

The Council, the Trust and the State rely on s 5M of the CLA as a defence to the plaintiff's claim against them. They say that a risk warning within the meaning of s 5M was provided and thus they did not owe a duty of care to the plaintiff and cannot be liable. As the only cause of action pleaded against the defendants is a cause of action in negligence then it must follow that if any or all of the defendants did not owe a duty of care to the plaintiff then that defendant could not be liable to the plaintiff.
The defendants point to the sign which was positioned at or adjacent to the entrance to the jetty on the day of the plaintiff's accident. The sign is shown in a photograph annexed to the COPS report C45718627. [57] The evidence does not establish when the sign was erected or by whom it was erected but, based on the COPS report, it was there on the day of the accident on the left side of the jetty railing as persons would walk onto the jetty, situated at a slight angle facing outwards from the jetty.
As depicted in the sign, users of the jetty are warned to observe the warning and information symbols. There are two general warnings, with photographs and words, being in respect of shallow water and shallow depths. At the bottom of the sign are the words, "USE OF THIS FACILITY MAY BE HAZARDOUS. PLEASE BE CAREFUL".
The defendants submit that the words in capital letters constitute a risk warning within the meaning of s 5M of the CLA.
At some stage between the time of the accident and the attendance in 2016 by Mr Patterson, the expert retained by the Council, the sign was changed. It was changed to include more specific warnings, in particular, a picture or warning as to "the edge" and a warning as to supervision of children. Photos of the two signs are below (the second sign was not in place at the time). Image 2 - 2011 Warning Sign (34.9 KB, rtf) Image 3 - 2016 Warning Sign (39.8 KB, rtf)
It is also apparent from the photos annexed to Dr Cooke's report that there was a sign there in 2007 which did not contain the general warning and the same sign which did not contain the general warning was there in 2014. I am not sure how it came about that the sign present in 2007 and again in 2014 contained the general warning in capital letters but the sign there in 2011 did not.

[25]

Liability of Mr and Mrs Whitton

Mr and Mrs Whitton were accustomed to caring for the plaintiff having, like many grandparents, seemingly cared for him on a regular basis for the first five years of his life. There is no evidence that he had been involved in any earlier incidents or problems and nor is there any evidence of any general want of care or supervision on their part.
Mrs Whitton was called in the plaintiff's case and thus not cross-examined on behalf of the plaintiff. Only a few questions were asked of her by her own counsel. She was cross-examined by Mr Sheldon . The key points to emerge from her cross-examination were: 1. 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); 2. 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; 3. that whilst they were standing looking over into the railing, they were so close to each other as to be touching each other; 4. that she and her husband turned away momentarily, calling the plaintiff to come with them; 5. that her impression of the plaintiff was that he was normally an obedient child; and 6. 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).
I have already referred to those parts of Mr Whitton's statement that were admitted into evidence.
It is alleged that Mr and Mrs Whitton were each familiar with the jetty before going there on the day of the accident and they decided to take the plaintiff to the jetty. It is alleged that it should have been apparent to them that the railing on the jetty was not such as would prevent a child, such as the plaintiff, from getting between the railings and that the jetty was some distance above the beach, such that, if the plaintiff were to fall, injury could result.
The plaintiff alleges that in recognition of the risk they told the plaintiff to come away from the edge of the jetty and led the plaintiff by the hand as they walked out along the jetty. [58] Those two allegations of fact are not supported by the evidence.

[26]

Conclusion

The plaintiff succeeds only against the Council and the Trust. There will then be a verdict in favour of the plaintiff against the first and third defendants.
The proceedings against the State and Mr and Mrs Whitton are dismissed.
All cross-claims are dismissed.
I direct that the proceedings be returned to the Registrar's list for further management for the assessment of damages.

[27]

Endnotes

para 14 of the Amended Statement of Claim.
Ex 28.
Ex 28.
T.53.
T.55.
Ex 1D3.
Exs 21 and 22.
Ex 1D1(5).
Ex 1D1(50).
Ex 4D1(10).
Page 64.
Ex 4D1(303).
Ex 4D1(158).
Ex 4D1(311).
Ex 1D1(95).
Ex 1D1(114).
Ex 1D1(168).
Ex 1D1(CB 166).
Ex 4.
Ex 1D1(30-568).
Ex 4.
Amended statement of claim para 6.
Exs 23 and 24.
Exs 4D2 and 3.
Ex 1D2.
Ex 25.
Ex 24 para 26.
Ex 24 paras 28, 33.
Ex 4D2 pp 2-3.
Ex 25.
Ex 8.
Ex 8.
Ex 1D1(187 A).
Ex 1D1(192).
Ex 1D1(187A).
Ex 10.
Ex 11.
Ex 12.
Ex 13.
Ex 14.
Ex 15.
Ex 1D1(230).
Ex 4D1(467).
Ex 4D1(471).
Ex 18.
Ex 19.
Ex 4D1(483).
Written submissions para 105.
Ex 1D1(58).
Ex 4D1(453).
(T.193).
(T.143).
(T.145-50).
Ex 4.
Ex 23 paras 45-6.
Ex 4.
Ex 22.
Amended statement of claim para 17.7.
Amended statement of claim para 17.10.
T.177. 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: 19 December 2019

Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council

At a glance

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Judgment (27 paragraphs)

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Cases Cited (63)

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