Negligence—Civil Liability Act principles revisited: public authorities and carers

Justice Cavanagh of the NSW Supreme Court handed down his decision in Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council (No 2) [2019] NSWSC 1848, just before the Christmas break. You can access His Honour’s judgment in full here.

Sparke Helmore acted for the successful Fifth and Sixth Defendants, respectively Mrs Betty and Mr David Whitton (Mr and Mrs Whitton) who were the carers of the infant Plaintiff at the relevant time.

The background

The case involved a claim for personal injury whereby the Plaintiff, Tedmund Polglase, while in the care of Mr and Mrs Whitton fell approximately 4 metres through a railing on the Coffs Harbour Jetty (the Jetty) onto hard sand below suffering serious and at the time life-threatening injuries, including a brain injury. At the time of the Plaintiff was aged 5 and a half years.

The Plaintiff commenced proceedings against Coffs Harbour City Council (the Council), the Coffs Jetty Foreshore Reserve Trust (the Second Defendant), the Coffs Coast State Park Trust (the Trust) and the State of New South Wales (the State), all as owners and occupiers of the Jetty at the relevant times. As against these parties, the Plaintiff alleged the design and construction of the railing affixed to the Jetty was negligent and not safe for children.

The Trust was appointed the trustee of the relevant area in February 2003. At all material times, the Council was the appointed manager for the Trust. Subsequently, on 27 June 2017 the Plaintiff discontinued proceedings against the Second Defendant.

The Council issued a cross claim against Mr and Mrs Whitton and the Plaintiff’s tutor also sued his grandparents alleging they were negligent in their care of him at the time of the accident.

The provisions and the issues

The issues between the parties were:

• 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.
• 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.
• The existence and scope of any duty of care owed by Mr and Mrs Whitton arising out of the responsibility they took on when caring for the Plaintiff at the time of the accident.
• The application of various provisions of the Civil Liability Act 2002 (NSW) (CLA) including sections 5B, 5C, 5D, 5F, 5G, 5H, 5K, 5M, 5N, 5O and sections 41, 42 and 43A.

The judgment

The Plaintiff succeeded only against the Council and the Trust. Proceedings against the State and Mr and Mrs Whitton were dismissed.

The key components of the Court’s judgment were as follows:

• The risk of harm, being the risk of the Plaintiff falling through the railing of the Jetty was foreseeable within the meaning of section 5B of the CLA and there was a probability that harm would occur if care was not taken.
• Causation was established the Council breached its duty to the Plaintiff by failing to take preventative measures. The Council was advised by a risk co-ordinator as early as 2002 to modify the railing to make it safer, carry out its own risk assessment or obtain its own building report. There were options available to the Council for closing the gaps, which would have prevented the Plaintiff’s accident but they were not taken. The Council did not establish that there was a financial burden of taking such precautions in accordance with section 42 of the CLA.
• The Court accepted the State had no relevant control of the Jetty at the time of the Plaintiff’s accident. The design and construction of the railing at the time of the State’s occupancy was consistent with relevant codes and standards. At the time of design, the potential risk of children falling through the railing was not raised and the State was not on notice of any risk. The State did not act unreasonably by putting in place a design consistent with railings commonly used at the time. The Plaintiff did not succeed against the State.
• The Plaintiff was engaged in recreational activity at the time of his accident the Jetty was a public open space generally used for enjoyment, relaxation or leisure. This satisfied the meaning of recreational activity as per section 5K of the CLA.
• The Jetty featured a sign which warned users against shallow water and shallow depths. At the bottom of the sign were the words, “USE OF THIS FACILITY MAY BE HAZARDOUS. PLEASE BE CAREFUL”. The sign did not convey a warning, either generally or specifically, of the risk of a child falling through the railing. In addition, the sign did not direct attention to any particular or specific risk, activity or hazard. The Court was not satisfied that a risk warning was made out in accordance with section 5M of the CLA.
• The exercise of reasonable care by Mr and Mrs Whitton did not require them to be holding the Plaintiff’s hand or take hold of the Plaintiff’s hand in the moments he started to move away from the railings. The Plaintiff was of school age as opposed to being of pre-school age or less. The Plaintiff did not give any indication he might move closer to the railing or do anything other than follow the instructions of his grandparents. The Court was not convinced Mr and Mrs Whitton failed to supervise the Plaintiff and indicated there could hardly be any expert evidence as to what the person in the positions of Mr and Mrs Whitton could have done differently.

What does it all mean?

The decision steps through the various CLA defences and serves as a reminder that in order for a warning to be classified as a risk warning under section 5M the substance and effect of the warning must be specific to the risk itself.

The decision also reinforces the Court’s reluctance to impose a duty of care on individual carers which goes beyond conduct, including an ability to react, expected of ordinary members of the community. In this regard the Court recognises the balance between foresight and hindsight and does not seek to ‘punish’ lay persons for acts or omissions seen through the prism of hindsight.

The duty of care imposed on lay persons can be contrasted with the duty of care imposed on public authorities such as Councils; the Court while reluctant to impose strict duties on a public authority will carefully examine a public authority’s arguments that it does not have the means or resources to carry out preventative work in accordance with the recommendations in earlier risk assessments.