Public safety trumps historical aesthetics—Court of Appeal revisits the CLA

In the recent personal injury case of Coffs Harbour City Council v Polglase [2020] NSWCA 265, the Court of Appeal’s Decision reinforces a reluctance to impose a duty of care on individual carers, which goes beyond conduct expected of ordinary members of the community.

The Background

The case involved a claim for personal injury by Tedmund Polglase (the Plaintiff)—aged five and a half years at the time of the accident.  The Plaintiff was in the care of Mr and Mrs Whitton (the Whittons), the Plaintiff’s grandparents, and fell approximately four metres through a railing on the Coffs Harbour Jetty (the Jetty) onto hard sand below. The Plaintiff suffered serious and, at the time, life-threatening injuries, including a brain injury.

The Plaintiff commenced proceedings against Coffs Harbour City Council (the Council), the Coffs Jetty Foreshore Reserve Trust (the Reserve Trust), 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 Reserve Trust.

The Council issued a cross claim against the Whittons and the Plaintiff’s tutor also sued the Whittons alleging they were negligent in the care of their grandson at the time of the incident.

Judgment at first instance

The Plaintiff succeeded only against the Council and the Trust by the Primary Judge (the Primary Judge). Proceedings against the State and the Whittons were dismissed.

The following were the key components of the Primary Judge’s judgment:

• The risk of harm, being the risk of the Plaintiff falling through the railing of the Jetty, was foreseeable within the meaning of s 5B of the Civil Liability Act 2002 (CLA) and there was a probability that harm would occur if care was not taken.
• Causation was established and it was found that the Council breached its duty to the Plaintiff by failing to take preventative measures despite being advised it should make modifications to the Jetty.
• The Plaintiff did not succeed against the State, as the Primary Judge accepted the State had merely constructed the Jetty in line with the relevant standards and had no relevant control of the Jetty at the time of the accident.
• The Primary Judge determined that the sign featured on the Jetty stating “USE OF THIS FACILITY MAY BE HAZARDOUS. PLEASE BE CAREFUL” s 5M of the CLA.
• The Primary Judge dismissed the claim against the Whittons on the basis they did not fail to supervise the Plaintiff.

Issues on Appeal

The Council and the Trust appealed the first instance judgment contending the Primary Judge erred:

• in finding the Council and Trust had breached their duty of care
• in his construction of s 5M of the CLA
• in finding that the sign at the Jetty failed to provide a risk warning pursuant to
• in failing to find the State and the Whittons had breached their duty of care.

The Plaintiff cross-appealed on the basis the Primary Judge erred in failing to make an order that the Council and the Trust would be liable for the costs of the State and the Whittons on the Statement of Claim.

Court of Appeal Judgment

The Court of Appeal (Justices Leeming, Basten and Macfarlan) dismissed the Appeal. The Judgment was written by Justice Leeming with Justices Basten and Macfarlan agreeing. The Decision was handed down on 23 October 2020.

The Court of Appeal found:

• The relevant risk was that a young child might fall from the Jetty. The Council knew of this risk for over a decade, since a similar incident occurred prior to 2011.
• A risk warning may be general, but it must be a warning of risks which concerned the particular risk concerned and it must warn of the general nature of the particular risk. The risk warning placed at the Jetty’s entrance did not warn of the general nature of the particular risk which had eventuated, namely, the risk of children falling from the Jetty onto hard sand. Accordingly, the Council was not entitled to rely on s 5M of the CLA.
• The Council was subject to an obligation to maintain, manage and administer the Jetty by reason of s 153(2) of the Public Works Act. It follows that the Council had power to alter the railing and to install a warning sign by reason of its management and control of the Jetty.
• Notwithstanding the State’s role in restoring the Jetty and as a former occupier, the State did not breach its duty of care to the Plaintiff in circumstances where the Council retained control and management of the Jetty for around nine years prior to the incident. In addition, the Council was also involved in the Jetty’s restoration on the basis it would subsequently assume total liability for it.
• The Primary Judge was entirely correct in finding the Whittons, as the Plaintiff’s grandparents, had not been negligent. Even if one was to assume the Whittons owed the Plaintiff a duty of care because the Jetty (or the edge of the Jetty) was a place of danger, a reasonable person in their position would not necessarily have firmly held the Plaintiff’s hand or ensured that it was impossible for him to suddenly approach and pass through the railing. The principles in precedent “carer’s cases” such as Hahn v Conley (1971) 1226 CLR 276; [1971] HCA 56 Hoffman and Boland [2013] NSWCA 158 were applied and not altered.
• The Primary Judge was correct in ordering the Council to pay the Whitton’s costs of the cross-claims on an indemnity basis from 30 August 2016, based on a valid “Calderbank” letter issued on 2 September 2016. The Court of Appeal agreed the Calderbank was a genuine compromise and offer which set out the basis upon which the Whittons contended they would be successful.
• The Primary Judge did not err in failing to find the Council and Trust had done anything prior to the commencement of proceedings which encouraged or caused the Plaintiff to join the State or the Whittons. As such, the Plaintiff’s leave to cross-appeal the costs orders made against it at the first instance was refused.

What does it all mean?

The Court of Appeal’s Decision confirms how critical it is to ensure the substance and effect of any warning is specific to the risk itself in order for it to withstand the requirements of s 5M of the CLA.

The Decision also reinforces the Court’s reluctance to impose a duty of care on individual carers which goes beyond conduct, including a moment’s inattention or ability to react, expected of ordinary members of the community. Again, the Court’s decision 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, particularly as it has the means and resources to carry out preventative work and maintenance of a public area. The Court of Appeal was very precise in determining Councils have a continuing obligation to manage and administer a public area over which it has control.