Hetherington v Belyando Shire Council
[2006] QCA 209
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- Notable Unreported Decision
- Hetherington v Belyando Shire Council[2006] QCA 209
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Hetherington v Belyando Shire Council[2006] QCA 209
Hetherington v Belyando Shire Council[2006] QCA 209
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 9 June 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 May 2006 |
JUDGES: | Jerrard JA, White and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | 1.Appeal dismissed 2.Appellant to pay respondent’s costs of and incidental to the appeal, assessed on the standard basis |
CATCHWORDS: | TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – STANDARD OF CARE – REASONABLE FORESEEABLILITY OF DAMAGE – PARTICULAR CASES – DUTY OF OCCUPIER - where infant appellant’s thumb was crushed between gate and post while playing near gate that provided access to sporting field – where respondent association (occupier) left gate open to allow deliveries to be made to canteen on sport days – where mother was supervising appellant – where respondent accepts it owes a duty of care to lawful entrants – where respondent accepted the risk of injury to a child posed by the gate was a reasonably foreseeable risk – where primary judge held that a reasonable person in the respondent’s position would avoid risk of injury from unlocked gate by locking gate immediately after vehicles entered sporting grounds, or at least ensuring gate was locked “when it would not be expected that children were being supervised by their parents or another responsible adult” – where primary judge held there was no breach by respondent association as occupier because the respondent was entitled to rely on parental supervision to protect child from harm – whether trial judge properly described properly the relevant duty in her alternative formulations of it – whether trial judge erred in concluding that respondent’s reliance on parental supervision of children was sufficient to avoid breaching its duty of care Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R 1; [2002] QCA 60; Appeal No 4953 of 2001, 19 March 2002, considered David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185, considered Mulligan v Coffs Harbour City Council (2005) 221 ALR 764; [2005] HCA 63; S502 of 2004, 21 October 2005, considered Neindorf v Junkovic (2005) 222 ALR 631; [2005] HCA 75; A36 of 2005, 8 December 2005, considered Phipps v Rochester Corporation [1955] 1 QB 450, considered Thompson v Woolworths (Qld) Pty Ltd (2005) 214 ALR 452; [2005] HCA 19; B54 of 2004, 21 April 2005, considered Wyong Shire Council v Shirt (1979-80) 146 CLR 40, considered |
COUNSEL: | M Horvath for the appellant D V L McMeekin SC for the respondent |
SOLICITORS: | Smiths Lawyers for the appellant Grant & Simpson for the respondent |
[1] JERRARD JA: This appeal is against a decision of the District Court delivered 23 August 2005, which dismissed the claims by the infant plaintiff Preah Hetherington against both the Belyando Shire Council and the Moranbah Hockey Association for damages for injuries Preah sustained on the evening of 22 August 1998, when standing next to an unlocked gate on the hockey grounds conducted and occupied by the Moranbah Hockey Association, on land owned and maintained by the Belyando Shire Council. The appeal is limited to the dismissal of the claim against the Hockey Association. The parties had agreed quantum at $50,000, which sum, had the plaintiff succeeded, would have needed sanctioning.
[2] The facts are not complex. On 22 August 1998 the then three year old plaintiff was playing in the hockey grounds near an open gate. Her left thumb was crushed when it was caught between the gate and a gatepost, apparently when other children were swinging the gate open and closed. The plaintiff was at those grounds that day with her father, mother, and six year old brother; her father and mother were each playing hockey fixtures at the grounds.
[3] The grounds were surrounded by a fence; the gate in question was next to the car park, which was outside the fenced area. That area is part of a large sporting ground owned and maintained by the Council. The Council had erected the fencing and the gates in about 1981. The gate had a padlock and the respondent association had one of the keys to it. On match days, the association conducted a canteen on the hockey grounds. The gate had been opened to allow deliveries to be made to the canteen. It was probable that the person conducting the canteen that day had driven through the open gate to stock the canteen earlier in the day, and did not lock the gate after her. The association admitted in its pleadings that it used the gate to control access to the grounds, and that on days when hockey was played it opened and closed the gate. The gate was locked shut when the grounds were vacant, to prevent “hoons” from driving onto the area around the clubhouse.
[4] The gate was used by the association’s staff and patrons of the hockey grounds, when open, because it was easier with their gear to use the open gate, than to enter the grounds through a turnstile next to the gate. There were some 100 or more people using those grounds on the night of the incident. There had been no prior incident of injury with the gate, which had been present in that condition for almost 25 years, and no evidence that anyone had ever suggested to the association that the gate ought to be locked on game days, or had complained of a risk of injury if it was not locked.
[5] The plaintiff’s mother was exercising supervision over the plaintiff that evening and was well aware that the gate was unlocked, and that older children were swinging on it and standing on it. The association did not purport to assume responsibility for supervising children at the hockey grounds, and the plaintiff’s mother did not expect the association to do so. The plaintiff’s mother was the parent exercising supervision over the plaintiff at the time of the injury because the plaintiff’s father was playing his hockey match.
[6] The plaintiff’s mother had seen the plaintiff “very near” the gate and probably only a metre and a half away from it, and had seen her twice in that area. The last occasion was within five to seven minutes of the accident occurring. There were six to eight children there, including her two; the others ranged in age from five to 14. Preah was just watching the other children when her mother last checked on her before the incident; her mother told both children not to go on the gate, or outside the fence into the car park.
[7] The accident would not have happened had the gate been locked, and the unlocked gate posed a danger to young children lingering around the gate while other children were playing with it and moving it. The respondent association knew that children came onto the hockey field to play their own hockey games, and also that children came there with their parents when their parents were playing fixtures.
[8] The respondent association did not dispute that it owed a duty of care to lawful entrants, such as the plaintiff[1], nor that the risk of a small child catching his or her finger in a catch point of a gate was not far fetched or fanciful, and hence was a relevantly foreseeable one,[2] nor that if its negligent conduct materially contributed to the injury occurring, that it was an answer to say that someone else, such as the plaintiff’s mother, had been negligent.[3]
[9] The learned primary judge posed the question for the judge to answer as being what a reasonable person, in the position of the association, would do by way of response to the risk.[4] The respondent accepted that as the correct question. The learned judge answered it by holding that reasonable care required that the risk be avoided by ensuring the gate was locked immediately after a vehicle had entered or left the grounds, or at least ensuring the gates were locked “when it could not be expected that children were…being supervised by their parents or other responsible adults.”[5] The judge went on to hold that there was no breach of duty by the association as occupier, because the association was entitled to rely on her parents’ supervision of the plaintiff to keep her safe from harm. Mrs Hetherington’s evidence (the plaintiff’s mother and her litigation guardian) was that she had assumed responsibility for the safety of her children at all times while their father was playing hockey, and knew there was a risk if they played at or near the gate.
[10] The appellant’s counsel argued that the first finding by the learned judge, requiring that the gate be locked, was correct; and that the association had breached the obligation of reasonable care described in that finding. He argued that the second part of that finding, namely the alternative conclusion that the respondent should at least ensure that the gates were locked when it could not expect children to be supervised, imposed a different, separate standard of care, lower than the first; and that it overlooked that there might be children who were unsupervised by adults in the area. The appellant contended that the respondent’s breach of the first standard of care described had at least contributed to the plaintiff’s injury.
[11] The appellant’s argument included that the respondent’s reliance on the decisions in David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185, and Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R 1[6], essentially distracted the learned trial judge from the correct answer to the proper question which the learned judge had posed. That was because reference to those cases had distracted the judge to the view that the plaintiff had been injured because of a failure by her parents to properly supervise her. I consider those cases are relevant to the conclusion to which the learned trial judge came in this matter, namely that it was a sufficient response to the risk the gate posed to small children to rely on supervision of them by their parents to protect them from that risk.
[12] In David Jones (Canberra) Pty Ltd v Stone the judgments in the High Court made relevant observations about the position of an occupier of premises to which small children are given access, when accompanied by an adult. Barwick CJ wrote, regarding the facts of that case, that:
“Whilst it can properly be said that an occupier in such circumstances as the present cannot look to the adult to secure the safety of the child in its use of the premises to the exclusion of any responsibility of itself as occupier derived from the invitation or the permission to enter the store, neither the ambit of the invitation or the permission nor what constituted an unusual or concealed danger can be determined as if the invitation or permission had been extended to the child alone and unattended. Clearly, in either case it was to the child in the company of the mother that the invitation or permission was extended.”[7]
Owen J wrote that:
“....I think it is relevant to have regard to the fact that the invitation to use the escalator was, in the case of children, limited to its use only if accompanied by an adult in the sense of being under adult control;…”[8]
[13] Walsh J cited statements by Devlin J (as he then was) in Phipps v Rochester Corporation [1955] 1 QB 450 at 468, that a general principle ought not to be adopted that adults and children are to be treated alike; and that “the responsibility for the safety of little children must rest primarily upon the parents”[9], with which statement Walsh J agreed, adding that did not mean an occupier was necessarily relieved of all responsibility, and might still be responsible for injury caused to a child by an unusual danger. He then wrote:
“But when it is claimed that an injury was so caused and that the occupier should have taken steps to prevent it, the protection which the child may be expected to receive from [its] parent or guardian must be taken into account.” [10]
[14] Mr McMeekin SC, for the respondent on the appeal, reminded the Court of the other observations by Devlin J in Phipps v Rochester Corporation, approved by the Full Court of South Australia in Rabbit v Roberts & Ors[11] that:
“Exceptional cases apart, the responsibility for the safety of little children must rest primarily upon the parents; it is their duty to see that such children are not allowed to wander about by themselves, or at the least to satisfy themselves that the places to which they allow their children to go unaccompanied are safe for them to go to. It would not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after their children from their own shoulders to those of persons who happen to have accessible bits of land. Different considerations may well apply to public parks or to recognised playing grounds where parents allow their children to go unaccompanied in the reasonable belief that they are safe.”[12]
[15] The appellant did not suggest that there was any evidence of the association allowing small children into the grounds without a sufficient accompanying adult guardian. That distinguishes this case from the one hypothesized in those last remarks of Devlin J, and from the one considered in Bates v Stone Parish Council [1954] 1 WLR 1249.
[16] Mr McMeekin’s submissions reminded the Court of the observation in Mulligan v Coffs Harbour City Council (2005) 221 ALR 764[13], namely that the High Court had recently said in Thompson v Woolworths (Qld) Pty Ltd (2005) 214 ALR 452[14] that reasonableness may require no response to a foreseeable risk, and that householders do not ordinarily place notices at their front doors warning entrants of all the dangers that await them if they fail to take reasonable care for their safety. Mr McMeekin also referred this Court to the decision in Neindorf v Junkovic (2005) 222 ALR 631[15] and the statement there by Gleeson CJ to the effect that the response of most people to many hazards in and around their premises is to do nothing, and that whether in a particular case that is a reasonable response is simply a question of fact.
[17] The respondent also supported the learned judge’s conclusions by the argument that Mrs Hetherington was in a much better position than it was to assess the hazard; she had seen her daughter near the gate, seen that other children had been swinging on it, was in a position to see how much supervision there was, if any, in the area other than by herself, and presumably knew her own child well and her child’s proclivities. There was no evidence that the respondent knew any of those matters. Yet despite her much better knowledge, Mrs Hetherington did not remove the plaintiff child from the area, did not direct other children to stop swinging on the gate, did not ask that the gate be locked, and did not remain in the area supervising the children. The respondent stressed that it was not contending Mrs Hetherington was negligent; but that a mature adult with the plaintiff’s interests strongly at heart who could be expected to be aware of the risk of injury, assessed that risk as one which could safely be taken.
[18] The respondent referred too to the well-known test posed by Mason J in Wyong Shire Council v Shirt (1979-80) 146 CLR 40:
“The perception of the reasonable [person’s] response [to the risk of injury] calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable [person] placed in the defendant’s position.”[16]
[19] In that regard, the respondent described its other (conflicting) responsibilities, which included a need to provide reasonable access to staff making deliveries to the canteen, and reasonable access to patrons with sporting gear, numbering on the night in question, in the order of 100 people. Then there was its responsibility to conduct sporting events throughout the day and night, rather than caring for children. There was no evidence that these playing grounds or clubhouse were an area to which children went unaccompanied.
[20] The correct principles were not in issue in this case and I consider the learned judge properly described the relevant duty in her alternative formulations of it. The conclusion which the learned judge came was an appropriation application of those principles and the duty. I would dismiss the appeal, and order that the appellant pay the respondent’s costs of and incidental to the appeal, assessed on the standard basis.
[21] WHITE J: I agree with Jerrard JA for the reasons that he gives that this appeal must be dismissed.
[22] The learned primary judge applied the correct test and properly concluded that the mother of the injured child had assumed responsibility for her safety at all times whilst the child’s father was playing hockey. She plainly knew of the risk to the child if she played near the gate and had been content to leave her in proximity to it only a short time prior to the child sustaining the crush injury to her hand.
[23] PHILIPPIDES J: I have had the advantage of reading the decision of Jerrard JA and I agree, for the reasons stated therein, that the learned primary judge was correct in finding that the respondent had not breached the duty of care that it owed the appellant, and that the appeal should be dismissed with costs.
Footnotes
[1] Citing Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 487.
[2] Citing Wyong Shire Council v Shirt (1979-80) 146 CLR 40 at 47-48, per Mason J.
[3] Citing March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
[4] Citing Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at 472-473 per Gleeson CJ.
[5] At reasons for judgment [67], AR 239.
[6] [2002] QCA 60; Appeal No 4953 of 2001, 19 March 2002.
[7] David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185 at 190-191.
[8] David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185 at 196.
[9] Phipps v Rochester Corporation [1955] 1 QB 450 at 472.
[10] David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185 at 202.
[11] Rabbit v Roberts & Ors, unreported judgment of Supreme Court of South Australia (Full Court), SCGRG 366 of 1993; S5906, 11 December 1996.
[12] Phipps v Rochester Corporation [1955] 1 QB 450 at 472.
[13] Mulligan v Coffs Harbour City Council (2005) 221 ALR 764 at [3] per Gleeson CJ and Kirby J; [2005] HCA 63; S502 of 2004, 21 October 2005.
[14] (2005) 214 ALR 452 at 460 at [36]; 79 ALR 904 at 911 [36]; [2005] HCA 19; B54 of 2004, 21 April 2005.
[15] [2005] HCA 75; A36 of 2005, 8 December 2005.
[16] Wyong Shire Council v Shirt (1979-80)146 CLR 40 at 47-48.