(k) Failing to place a warning sign at the entrance from the Residential Premises into the adjacent land containing the pond.
10. In the event the Cross-Claimant is found to be liable to the Plaintiff, the Cross-Claimant claims contribution from the Cross-Defendant pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)."
8 The application before the judge came to be argued on the basis that it was also alleged in the cross-claim that Mr Howarth knew or ought to have known of the existence of the pond and the drainage reserve and knew or ought to have known that Carly could not swim.
9 Carly and Mr Howarth were jointly represented before the judge, and were jointly represented as respondents to the application for leave to appeal. It is not necessary to comment on whether this was appropriate.
10 The respondents submitted before the judge that leave should not be granted because it was futile. In the trial judge's summary in his reasons -
"[Counsel for the respondents] submitted that in the circumstances disclosed the law did not impose a duty of care on the father. At the most the materials disclosed a momentary lack of supervision on the part of the father."
11 The judge accepted that to establish futility it had to be demonstrated that there was no arguable duty of care resting on Mr Howarth in the circumstances. He recorded the submission, attributed to "the plaintiff", that the Council had to allege a positive act on the part of a father which had the effect of placing a child in danger, but as I understand his reasons considered that submission inconsistent with St Marks Orthodox Coptic College v Abraham [2007] NSWCA 185. His Honour cited passages from the judgments in Hahn v Conley (1971) 126 CLR 276 and a passage from McCallion v Dodd (1966) NZLR 710, and again on my understanding of the reasons accepted that, while a father did not owe a duty of care to the father's child simply because of his parenthood, he could owe a duty of care to the child in particular situations in which the fact of parenthood might be material.
12 After referring in summary to the allegations in the cross-claim, his Honour said -
"17. In my opinion, on an arguable basis, the circumstances of the particular situation in the present case as pleaded, including those foreshadowed, do not give rise to an arguable enforceable duty of care on the part of the father. The most that emerges, even on the ambulance report, is a short period of lack of supervision when the child took herself off. I do not consider any useful purpose would be served by allowing the facts to be more fully investigated as the essential facts seem tolerably clear."
13 I will come to particular submissions on appeal, but two things should be said immediately.
14 First, it is difficult to see why the judge came to his conclusion in the first sentence of this paragraph. It is not clear that it was on a pleading basis. His Honour had earlier observed, in relation to the allegation in the proposed cross-claim that in the circumstances a duty of care was owed, that the description of the circumstances was sparse, but does not seem to have come to his conclusion as a matter of pleading. If he had been minded to do so, the proper course would have been to give leave to re-plead. I take the judge to have had regard to the circumstances as alleged and admitted in the statement of claim and the defence, as alleged and to be alleged in the cross-claim and as revealed in the statements of Messrs Howarth and the ambulance report. I have taken the facts in these reasons from those sources. But where is the explanation for why the circumstances, including the fact of parenthood, did not give rise to a duty of care in the particular situation?
15 Secondly, if the answer to this question is to be found in the second sentence of the paragraph, there is a running together of duty of care and breach of duty. The running together can be seen in the respondent's submission as earlier recorded by the judge. However, unless the reference in para [17] to an enforceable duty of care was intended to bring within the first sentence of the paragraph the question of breach of duty as well as the existence of the duty of care, it was incorrect to run the two together. That would elide the step from duty of care to breach of duty. If there was no more than a short period of lack of supervision when Carly took herself off, that went to breach of duty. It did not negate a duty of care if in the circumstances a duty of care was owed.
16 The respondent's submissions included that this Court should not interfere with the judge's discretionary decision. That is misconceived. The judge refused leave because, and only because, he did not think there was arguably a duty of care owed by Mr Howarth to Carly and possibly, as I have indicated, on the basis of no arguable case of breach of a duty of care. Those are both matters which this Court can revisit without the constraints of interference with the exercise of a discretion.
17 The Council submitted that a duty of care was arguably owed because, being both an occupier of the duplex and Carly's father, and knowing of the pool and that Carly could not swim, Mr Howarth took Carly to the duplex and she was there in his care while he and his father laid the turf. The pleading in the proposed cross-claim does not in terms refer to Mr Howarth being Carly's father, the direct allegation in para [6] being that Carly was at all material times under the care and charge of Mr Howarth without any particular allegation that he was her father, but it was essentially an allegation that Mr Howarth was a person who, having taken Carly to the duplex, had her in his care and charge and for that reason owed her duty of care. To that there were to be added the proposed allegations and, I take the allegation that Mr Howarth knew of the pool to include that he knew that it was not effectively fenced. This seems to be a proper inference and one consistent with particulars of negligence (c), (e) and (j).
18 The respondents stressed that parenthood was not the source of a duty of care. The submissions went so far as that, even if a stranger who took Carly to the duplex in the manner in which Mr Howarth did owed a duty of care to her (which I think was all but conceded), because it was Mr Howarth, her father, who took her to the duplex, a duty of care was not owed. The lack of good sense in submissions in that respect is evident, and it is contrary to Hahn v Conley. In St Marks Orthodox Coptic College v Abraham there is cited at paragraph [31], which I set out a little later, the statement of Kirby J in Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52 at [129] that "Australian law does not recognise any principle of parental immunity in tort." The submission was quite contrary to that position, and cannot be accepted.
19 There was much more here than a relationship of parent and child. Mr Howarth took Carly close to a source of danger to a small child if not well supervised, on the allegations in the proposed cross-claim a source of danger of which he knew or ought to have known. In my view, there is an arguable case that he thereby came under a duty to take reasonable care not to expose her to foreseeable harm. Reasonable care would include adequate supervision to guard against her wandering off while the turf was being laid and falling into the nearby pond.
20 In St Marks Orthodox Coptic College v Abraham, Ipp JA, with whom Basten JA and Young CJ in Eq agreed, said at para [31] that -
"31 In my opinion, the ratio of Hahn v Conley was that, while the mere existence of a parent/child relationship does not bring about a duty of care on the part of a parent towards a child, the circumstances of a particular situation may give rise to such a duty. As Kirby J said in Harriton v Stephens [2006] HCA 15 ; (2006) 226 CLR 52 (at 92, [129]), citing Hahn v Conley , "Australian law does not recognise any principle of parental immunity in tort."
21 In that case the father took his nine year old son to school and left him there before the school's supervision was in operation. His Honour said -
"35 Taking a nine-year old child from his home environment and leaving him at school is conduct that will usually involve a potential risk of harm to the child (which will vary in degree depending on the circumstances). In my view, any parent who performs such an act may owe a duty to the child to take reasonable care in not exposing the child to foreseeable harm in doing so. This duty, if it arises, will spring out of the particular situation: not the mere fact of the parent/child relationship. The duty may arise from the control that the parent (as guardian of the child) exercises over the child, the dependence of the child on the parent, the vulnerability of the child, the foreseeability of harm, and other factors that, according to the modern law of negligence, are relevant.