Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coffs Harbour City Council v Polglase [2020] NSWCA 265 Hearing dates: 17 September 2020 Decision date: 23 October 2020 Before: Basten JA at [1]; Macfarlan JA at [2]; Leeming JA at [3]. Decision: 1. Grant leave to the Council and the Trust to appeal against the orders for costs in the court below, if such leave be necessary. 2. Appeal dismissed. 3. Application for leave to cross-appeal dismissed. 4. The appellants (the Council and the Trust) to pay the respondents' costs of the appeal. 5. The cross-appellant (the plaintiff) to pay the cross-respondents' costs of the cross-appeal. Catchwords: NEGLIGENCE - public authorities - Council and Trust had care, control and management of jetty - young child fell through gap in jetty's railing and sustained serious injury - history of young children falling through railing to Council's knowledge - whether Council breached duty of care by failing to install additional railings or a mesh infill to prevent such falls - whether risk warning at jetty entrance meant no duty of care was owed - jetty built on Crown land and railing designed and constructed by State - State retained control of jetty for five years prior to handover to Council and Trust some nine years before plaintiff's injury - whether State also liable as joint tortfeasor - whether grandparents walking with young grandson breached a duty of care - consideration of relationship between State, Council and Trust - consideration of significance of ownership, occupation, and care control and management of land for purposes of duty of care and breach COSTS - plaintiff succeeded against Council and Trust but failed against State and grandparents - trial judge declined to make Bullock or Sanderson order in respect of State's and grandparents' costs - whether error in failing to find that Council caused plaintiff to join other parties - non-acceptance of Calderbank letter - whether trial judge erred in making partial indemnity costs order Legislation Cited: Civil Liability Act 2002 (NSW), Pt 1A, ss 5B, 5D, 5F, 5M, 42, 43A Coastal Waters (State Title) Act 1980 (Cth) Crown Land Management Act 2016 (NSW), Sch 7, cl 7 Crown Lands Act 1989 (NSW), Pt 5, ss 92, 93, 95, 100, 102, 103, 117 Crown Lands and Other Acts (Reserves) Amendment Act 1974 (NSW) Crown Lands Consolidation Act 1913 (NSW), Pt IIIB, ss 37R, 37X Heritage Act 1977 (NSW), s 57 Lands Act 1910 (Qld), ss 180, 181 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Local Government Act 1906 (NSW) Local Government Act 1919 (NSW), s 537 Local Government (Consequential Provisions) Act 1993 (NSW), ss 3, 4 Local Government (Shires) Act 1905 (NSW), s 17 Public Works Act 1912 (NSW), s 153 Seas and Submerged Lands Act 1973 (Cth) State Environmental Planning Policy (Repeal of Concurrence and Referral Provisions) 2008, Sch 2, cl 2.9 [10] Uniform Civil Procedure Rules 2005 (NSW), r 36.16 Cases Cited: Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128 AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346 Aiken v Kingborough Corporation (1939) 62 CLR 179; [1939] HCA 20 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Bankstown City Council v Zraika (2016) 94 NSWLR 159; [2016] NSWCA 51 Boensch v Pascoe [2019] HCA 49; 94 ALJR 112 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 Burrum Corporation v Richardson; Burrum Corporation v Gehrmann (1939) 62 CLR 214; [1939] HCA 30 C G Maloney Pty Ltd v Noon [2011] NSWCA 397 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 Forster Homes for the Aged Trust v Great Lakes Shire Council [1976] 1 NSWLR 577 Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75 Hahn v Conley (1971) 126 CLR 276; [1971] HCA 56 Hoffmann v Boland [2013] NSWCA 158 Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 Kempsey Shire Council v Van Park Ltd [1995] NSWCA 237 Laresu Pty Ltd v Clark [2010] NSWCA 180 MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417; 191 LGERA 292 Mulligan v Coffs Harbour City Council [2003] NSWSC 49; (2003) Aust Torts Rep 81-696 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; [2005] HCA 63 Nagle v Rottnest Island Authority (1993) 177 CLR 423; [1993] HCA 76 Nikolich v Webb [2020] WASCA 169 Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council (No 2) [2019] NSWSC 1848 Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council (No 3) [2020] NSWSC 169 Randwick Municipal Council v Rutledge (1959) 102 CLR 54; [1959] HCA 63 Raptis (A) & Son v South Australia (1977) 138 CLR 346; [1977] HCA 36 Robertson v Swincer (1989) 52 SASR 356 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; [1998] HCA 5 Schiller v Mulgrave Shire Council (1972) 129 CLR 116; [1972] HCA 60 Seas and Submerged Lands Case (1975) 135 CLR 337; [1975] HCA 58 Sharp v Parramatta City Council [2015] NSWCA 260; 209 LGERA 220 St Alder v Waverley Local Council [2010] NSWCA 22; 172 LGERA 147 St Mark's Orthodox Coptic College v Abraham [2007] NSWCA 185 Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141 Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation (2014) 88 NSWLR 449; [2014] NSWCA 437 Townsend v Waverley Council [2001] NSWSC 384; 120 LGERA 224 Tweed Shire Council v Carley Eden Howarth (bht Trent Howarth) [2009] NSWCA 103 United States v Louisiana 394 US 11 (1969) Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15 Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74 Wentworth Park Sporting Complex Trust v Leichhardt Council [2003] NSWCA 162; 125 LGERA 440 Wheeler v Somerfield [1966] 2 QB 94 Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247; (2003) Aust Torts Rep 81-754 Texts Cited: A Lang, Crown Land in New South Wales (Butterworths, 1973) Category: Principal judgment Parties: Coffs Harbour City Council (First Appellant) Coffs Jetty Foreshore Reserve Trust (Second Appellant) Tedmund Polglase by his tutor Jeffrey Polglase (First Respondent) State of New South Wales (Second Respondent) Betty Whitton (Third Respondent) David Whitton (Fourth Respondent) Representation: Counsel: R Sheldon SC, S Walsh (First and Second Appellants) R McIlwaine SC, R Quickenden (First Respondent) N Chen SC, H Chiu (Second Respondent) M Hutchings, G Keesing (Third and Fourth Respondents) Solicitors: Mills Oakley (First and Second Appellants) Whitelaw McDonald (First Respondent) Wotton + Kearney (Second Respondent) Sparke Helmore Lawyers (Third and Fourth Respondents) File Number(s): 2020/015003 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2019] NSWSC 1848 Date of Decision: 19 December 2019 Before: Cavanagh J File Number(s): 2014/281434 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the decision] After the Coffs Harbour Jetty closed to the public in 1984 and fell into disrepair, the Coffs Harbour City Council agreed in 1990 to accept responsibility for it, provided it was brought up to a condition of full maintenance and safety by the State. The jetty was thereafter restored by the State during the 1990s for use as a public walkway. The design of the railings, including as to heritage, aesthetic and safety considerations, was raised during conservation meetings attended by both State and Council representatives. The restoration was complete in 1997, when the jetty was reopened to the public, but the jetty remained managed by the State until it was handed over to the Council in 2002 pursuant to s 153 of the Public Works Act 1912 (NSW). At the same time, the Trust was established as a reserve trust pursuant to the Crown Lands Act 1989 (NSW) to be trustee of the reserved land on which the jetty partly stood, and the Council was appointed to manage the Trust's affairs. Shortly before the handover, the State had corresponded with Council advising that the jetty's railing complied with Australian building standards applicable at the time of the restoration. In September 2011, a five-year-old boy, who had been walking with his grandparents, fell through the railing on the side of the jetty onto hard sand some 4 metres below, suffering serious injury. The railing consisted of a top rail, a middle rail and a kerb. A sign was placed at the entrance to the jetty, which stated relevantly: "USE OF THIS FACILITY MAY BE HAZARDOUS PLEASE BE CAREFUL". Neither grandparent was holding the boy's hand at the time of the accident, and both grandparents had turned away from him immediately prior to his fall. Council was aware of a series of previous accidents involving children falling or nearly falling from the jetty. This included a child falling on the weekend of the jetty's reopening in 1997 without serious injury, a child nearly falling in 1999, and a child falling in 2007, suffering serious injury. The boy by his tutor sued the Council, the Coffs Harbour State Park Trust and the State for negligence as occupiers. The boy also sued his grandparents for negligence in leading him into danger and failing to look after him. The Council cross-claimed against the State, alleging that the State was liable to the plaintiff in respect of the same damage by reason of the State's refurbishment and ownership of the jetty, but it was not alleged that the State owed a duty of care to the Council in relation to the design of the jetty's railing. The primary judge found the Council and the Trust liable, but dismissed the plaintiff's claims against the State and the grandparents. The Council and the Trust appealed, and the plaintiff sought leave to cross-appeal from an order of the primary judge as to costs. The principal issues in the appeal were: (i) Whether the Council or the Trust breached a duty of care owed by reason of occupation and control of the jetty, by failing to install additional railings or a mesh infill to prevent young children from falling from the jetty; (ii) Whether the risk warning placed at the jetty's entrance meant that no duty of care was owed to the plaintiff, by virtue of s 5M of the Civil Liability Act 2002 (NSW); (iii) Whether the State was liable to the plaintiff given its role in restoring the jetty and as a former occupier; and (iv) Whether the grandparents were liable to the plaintiff. The issue in the cross appeal was: (v) Whether 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 grandparents on the statement of claim. The Court (Leeming JA, Basten and Macfarlan JJA agreeing) held, granting leave to appeal but dismissing the appeal, and dismissing the application for leave to cross-appeal: As to issue (i): 1. The relevant risk was that a young child might fall from the jetty. The Council knew of this risk, and that it had materialised, for over a decade prior to the accident in 2011. In those circumstances, it was no answer to an allegation of breach that the State had advised Council prior to handover that the railing complied with Australian standards. Although heritage considerations contributed to the evaluation required by s 5B of the Civil Liability Act 2002 (NSW), it was difficult to see how heritage considerations would preclude installing additional wiring or a mesh infill on the railing: at [1], [2], [106]-[110]. Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 applied. Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 referred to. As to issue (ii): 2. Section 5M(5) of the Civil Liability Act constrains the duty-denying operation of s 5M(1) by requiring a warning "of the general nature of the particular risk". The warning must be given in a manner reasonably likely to result in people being warned of the risk before engaging in the activity: at [1], [2], [117]-[118]. Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128; and Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 applied. 3. The warning did not warn of the general nature of the particular risk which eventuated, namely, the risk of children falling from the jetty onto hard sand. Read as a whole, the sign was directed rather to the risk of diving from the jetty into water of variable depth. Section 5M could not be relied upon to defeat the Council's duty of care: at [1], [2], [119]. Sharp v Parramatta City Council [2015] NSWCA 260; 209 LGERA 220 distinguished. As to issue (iii): 4. The jetty was at all times erected on Crown land, vested in the State. Section 100(1) of the Crown Lands Act was a mere deeming provision, which deemed the Trust to have an estate in fee simple in the reserved land on which the jetty was partly built only for the purposes of Pt 5 of that Act. As distinct from land dedicated under the Act, which ceased to be Crown land, land the subject of a reservation remained vested in the Crown: at [1], [2], [56]-[66], [69]-[70]. Forster Homes for the Aged Trust v Great Lakes Shire Council [1976] 1 NSWLR 577; Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation (2014) 88 NSWLR 449; [2014] NSWCA 437; Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74; St Alder v Waverley Local Council [2010] NSWCA 22; 172 LGERA 147; and Kempsey Shire Council v Van Park Ltd [1995] NSWSC 91 applied; Randwick Municipal Council v Rutledge (1959) 102 CLR 54; [1959] HCA 63; and Wentworth Park Sporting Complex Trust v Leichhardt Council [2003] NSWCA 162; 125 LGERA 440 referred to. 5. The effect of the permanent handing over of the jetty to the Council pursuant to s 153 of the Public Works Act was not to vest title to the jetty in the Council. Rather, the handing over was apt to impose an obligation on the Council to maintain, manage and administer the jetty: at [1], [2], [67]-[68]. 6. "Occupation" of the jetty was an artificial concept in circumstances where the jetty was open to all members of the public at all times. The legal question which most mattered was who had control and management of the jetty. From the point at which the land on which the jetty stood was reserved and the jetty was handed over to the Council in 2002, the Council exercised the care, control and management of the jetty, with power to take precautions such as altering the railings or installing warnings. By contrast, the State could not be taken to have control or management of the jetty at the time of the accident in 2011 for the purposes of imposing a duty of care: at [1], [2], [71]-[97]. Burrum Corporation v Richardson; Burrum Corporation v Gehrmann (1939) 62 CLR 214; [1939] HCA 30; and Aiken v Kingborough Corporation (1939) 62 CLR 179; [1939] HCA 20 applied. Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; [2005] HCA 63 distinguished. 7. The primary judge's conclusion that there was no breach of duty by the State was sound in circumstances where the Council had had control and management of the jetty for some nine years before the accident, and had been involved in the jetty's restoration on the basis that it would subsequently assume liability for it: at [1], [2], [144]-[149]. As to issue (iv): 8. The primary judge was correct to conclude that the grandparents had not been negligent. Even assuming they owed a duty to the plaintiff because 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 it was impossible for him to pass through the railing: at [1], [2], [160]-[162]. Hahn v Conley (1971) 126 CLR 276; [1971] HCA 56; Hoffmann v Boland [2013] NSWCA 158; St Mark's Orthodox Coptic College v Abraham [2007] NSWCA 185; Tweed Shire Council v Carley Eden Howarth (bht Trent Howarth) [2009] NSWCA 103; and Robertson v Swincer (1989) 52 SASR 356 referred to. As to issue (v): 9. It had not been shown that the primary judge erred in failing to find that the Council and Trust had done anything prior to commencement of proceedings which induced, encouraged or caused the plaintiff to join the State or the grandparents, including in circumstances where the plaintiff maintained that both the Trust and the State were the owner or occupier of the jetty: at [1], [2], [170]-[178]. Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75 applied. Judgment 1. BASTEN JA: I agree with Leeming JA. 2. MACFARLAN JA: I agree with Leeming JA. 3. LEEMING JA: On 30 September 2011, the plaintiff, then aged five, fell from the Coffs Harbour Jetty onto hard sand some 4 metres below, suffering serious injury. He had been walking with his grandparents. There were railings on each side of the jetty, which had been in place since it had been opened to the public in 1997. There was a gap of 395mm between the middle rail and the kerb, and a gap of 480mm between the top rail and the middle rail. The jetty had, since 2002, been subject to the care, control and management of either or both of the appellants, Coffs Harbour City Council and Coffs Coast State Park Trust. The latter was a reserve trust, established in 2002 pursuant to Pt 5 of the Crown Lands Act 1989 (NSW), whose affairs were managed by the Council. I shall return below to the distinctions between the Council and the Trust. 4. In 1984, after almost a century of use for cargo handling, the jetty had been closed to the public. In 1988 the jetty was listed by the Council as an item of environmental heritage, and in 1990 the Council agreed to accept responsibility for the jetty provided that it was first brought up to a state of full maintenance and safety by the State and that satisfactory legal arrangements could be put in place regarding the Council's legal liabilities which would flow from acceptance of responsibility for it. Thereafter the State proceeded, with the Council's involvement and subject to the Council's development consent, to restore the jetty for use as a public walkway. The restoration was complete in 1997, but there were delays in handing the jetty over to the Council, such that between 1997 and 2002, the jetty had been open to the public while being managed by the State. 5. The plaintiff sued the Council, the Trust, the State, and his grandparents. Speaking generally, the Council and Trust were sued as occupiers, the State was sued as a former occupier which had designed and constructed the railing, and the grandparents on the basis that they had taken their grandson into a place of danger and failed properly to look after him. There were no fewer than six cross-claims, but all were confined to claims for statutory contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), based on the defendants having breached a duty owed to the plaintiff. No cross-claim was brought by the Trust, while the Council's cross-claim against the State was confined to the State's liability to the plaintiff in respect of the same damage. In particular, it was not alleged that the State owed a duty of care to the Council or the Trust in relation to the design of the jetty's railing, or that it was liable based on representations made at the time of the handover. 6. The primary judge heard a trial over four days, confined to liability. In careful reasons, which passed lightly and concisely over matters not in issue and appropriately focussed attention on the points which mattered, his Honour found the Council and the Trust liable, but otherwise dismissed the claims: Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council (No 2) [2019] NSWSC 1848. There was no apportionment between the Council and the Trust, reflecting the fact that they were represented by the same solicitors and counsel and their interests were perceived to be identical. 7. The principal issues arising on the appeal, the plaintiff's cross-appeal, and the State's notice of contention, are as follows: 1. Did the Council or the Trust breach a duty of care owed by reason of occupation and control of the jetty by failing to install additional railings or a mesh infill to prevent young children falling from the jetty? 2. Did a risk warning placed at the entrance to the jetty mean that no duty of care was owed to the plaintiff? 3. Was the State liable to the plaintiff in light of its role in restoring the jetty and as former occupier? 4. If the State was otherwise liable to the plaintiff, then did the Council establish that the State's breach prior to 2002 was causally connected with the damage under each of s 5D(1) and (2) of the Civil Liability Act 2002 (NSW)? 5. Was the State, if liable to the plaintiff, entitled to a defence under s 42 of the Civil Liability Act? 6. Did the grandparents owe a duty of care to the plaintiff, and if so, was it breached and did it cause his injury? 1. The appeal and cross-appeal also challenge various special orders as to costs, made following a separate hearing. 2. The most efficient course is first to summarise the evidence and findings relating to four relatively uncontroversial matters which bear upon those issues: 1. the tragic history of young children falling off the jetty to the Council's knowledge; 2. the events of 30 September 2011; 3. the history of the jetty including the way in which the railing came to be designed and installed; and 4. the delayed handover of the jetty in 2002 from the State to the Council and the newly created Trust. 1. It will then be convenient to analyse the ownership, occupation, and control of the jetty in 2011, in more detail than has hitherto occurred, and thereafter to address in turn each of the issues arising in this Court. The history of young children falling from the jetty 1. Tragically, there has been a series of accidents and near accidents involving young children falling from the jetty after its reopening on 11 October 1997. These were at the forefront of submissions of breach of duty by the Council, the Trust and the State. There was no factual controversy about any of the incidents, or that they had come to the knowledge of the Council. 2. First, on 12 October 1997, a young child fell from the jetty to the sand approximately 4.6m below, landing on her back; she apparently suffered no major injuries other than bruising and shock. The State gave consideration to placing additional metal strands along the railing, going so far as to estimate the cost of doing so. However, nothing came of this. 3. Secondly, on 15 May 1999, a small child who was walking near her mother was described as "suddenly [running] towards the railing and almost [falling] through". The author of a letter to the Council and the Department of Public Works said that fortunately he was nearby and was able to grab her before she fell through to the sand below. He wrote that "[t]he fall to the hard sand could have severely injured or even worse killed her". He added: "The question I have to ask is why there is no intermediate wire cables spaced between the railings to stop people from falling through either onto the sand or into the water (with the possibility of drowning). Regulations exist for public buildings, private dwellings, and other handrails. Is the State, or Local Government exempt from the regulations they impose on others?" 1. Thirdly, on 14 October 2007, a two-year-old child fell from the top of the stairs some three metres. His mother wrote that "[h]e had reached the top of the stairs only to reach out for the railing and fall straight through, approximately one stor[e]y high. He fractured his skull in two places, was unconscious and airlifted from Coffs Harbour Hospital to Prince of Wales Children's Hospital in Sydney." The mother was an intensive care nurse who said that she and the medical staff were amazed that he survived. Apparently the child was recovering, but the mother wrote: "This never would have occurred if the railing didn't have such a large gap and was child friendly. The jetty is promoted in all tourism brochures and is a major attraction to families, however completely unsafe. I urge your council to fix the railing and make it safe for all children." 1. Fourthly, on 30 September 2011, the plaintiff fell, once again, through the gap in the jetty's railing. The evidence concerning the accident on 30 September 2011 1. Mr David and Ms Betty Whitton are the plaintiff's maternal grandparents. On 30 September 2011, they were aged 68 and 64 respectively. They were on a family holiday with their grandson. They were staying at a motel in Coffs Harbour that night and were booked into a unit at Yamba the following day. The plaintiff's mother had intended to be with them, but had to have emergency surgery in Newcastle. On the afternoon of 30 September 2011, the grandparents decided to take the plaintiff for a walk onto the jetty and take a photo of him to send to his mother. 2. Ms Whitton said that she had walked out along the jetty in the past with her own children, and was aware that many families with small children walk or ride or play on the jetty. About a quarter of the way along the jetty, the three walked over to the left side and looked out at the people swimming. At that time the plaintiff was beside them. In her witness statement, dated 20 June 2017, Ms Whitton said: "After a while we were ready to move on. Before walking away from the jetty edge and while still close to Ted I half turned and out of the corner of my eye saw Ted as he was falling from the jetty. I screamed to anyone below to help Ted. David and I ran quickly back down the jetty and out onto the wet sand where Ted lay." 1. Ms Whitton was called by the plaintiff in his case, and adopted her statement. She was cross-examined briefly by her own counsel, to the effect that in the five years previous to 2011, she and her husband had decided to move to Newcastle to support their daughter and to have lots of contact with their grandchild, had taken him to and picked him up from pre-school and school, had him over for sleepovers at their house and had taken him to the park. Ms Whitton said that she regarded him as a "very gentle lovely little child, usually very obedient". 2. In cross-examination by Mr Sheldon SC for the Council and the Trust, she confirmed that she and her husband walked along the jetty with the plaintiff between them, and that neither was holding his hand. She accepted that they were walking roughly in the middle of the jetty, and that she appreciated that her grandson should not be standing near the edge of the jetty, because it looked dangerous. 3. Ms Whitton then accepted that the three of them walked to the edge of the jetty and that after a while her husband suggested something to the effect of "let's keep walking", following which she gave this evidence: "Q. And did you then, when he said that, turn towards your right? A. Yes, I think so. Q. Did you take a step? A. Yes. Q. Did you take more than one step? A. No, I believe I might have taken one or two steps and then I half turned around to follow David, and you know, would have said to Ted, 'Come on, let's go.' Q. You knew that something had happened to your grandson because you caught sight of some movement out of the corner of your eye. Is that right? A. That's correct." 1. Ms Whitton did not accept that she was a couple of metres from her grandson when she moved away from the rail. The sixth defendant, Mr David Whitton, served a witness statement, aspects of which were tendered. It included the following description: "11. As we walked out along the jetty Ted was between Betty and I, and at no time was Ted any further than 2 metres from me. We had been on the jetty for about 5 minutes and we reached a point about 40 – 50 metres from the jetty entry, Betty put Ted's jacket on as there was a coolish breeze blowing. We then moved to the northern rails and were looking northward watching people walking on the beach and some swimming. 12. My wife was on the western side of Ted and I was on his eastern side. To the best of my recollection Ted was standing with his feet on the jetty deck (not the hob or curb), and he was looking down between the top and middle rail at the swimmers while holding on to the middle rail. Betty was talking to Ted, and pointing things out to him. 13. After a while I suggested we move on, and I turned to the right to start walking, momentarily losing sight of Ted, but knowing that Betty was close to him, and assuming that the protective fence was safe. Almost immediately she screamed and called out that Ted had fallen. She looked down and saw Ted and called out to people to help him." 1. Mr Whitton did not otherwise give evidence. There was no other testimonial evidence as to the circumstances of the plaintiff's fall. The primary judge found that when the grandparents and their grandson were standing at the rail, they were close together and maybe touching one another and that when they moved from the rail, Ms Whitton thought that the child was following them and had only moved a few feet when she observed him falling out of the corner of her eye: [33]. 2. The primary judge found at [34] that the vertical drop to the hard sand below the jetty where the plaintiff fell was 4.08m and at [36] that he fell under, rather than over, the top rail. His Honour said that he was unable to determine whether he fell through the gap between the top rail and the middle rail, or between the middle rail and the kerb, but both gaps were sufficient to allow him to pass through them without any hindrance or difficulty. His Honour said at [42]: "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." History of the jetty 1. The State Heritage Register, maintained under Heritage Act 1977 (NSW), includes the Coffs Harbour Jetty. Its statement of significance commences: "Coffs Harbour jetty is the largest coastal timber jetty in New South Wales and is the only remaining large ocean jetty in New South Wales which dates from the nineteenth century. It was the largest timber jetty constructed by the Harbours and Rivers Section of the NSW Department of Public [W]orks between 1880 and 1895 and is the only surviving example of the three ocean jetties constructed on the North Coast." 1. The jetty was originally built by the colonial government and opened in 1892. Documents in evidence recorded that in 1906, 417 ships visited Coffs Harbour and further works were undertaken between 1911 and 1913 to build breakwaters and otherwise improve the jetty for ocean-going ships. Shipping peaked in the early 1950s, but declined after, in 1954, the North Coast Steam Navigation Company went into liquidation. 2. The jetty as completed in 1892 was 1,640ft long and 21ft 6in wide. From the outset, there was a railway track down its centre and from time to time various cranes were erected upon it. The jetty was widened and extended in 1912-1914; however, as shipping declined through the 1960s, maintenance costs increased and the jetty was run down. The conservation plan records that from July 1978, responsibility for the maintenance of the jetty was transferred from the Public Works Department to the Maritime Services Board, although the work was contracted out to the Department. In 1981, the cranes were removed from the jetty, because they were dangerous to the public, and in 1982 the railway track was removed to permit some of the decking to be replaced. Although there was conflicting evidence about this, the litigation was conducted on the basis that the jetty was closed for public access in 1984. The nature of earlier access to the public is unclear on the evidence. 3. On 31 December 1906, the jetty was gazetted as a "National Work" pursuant to s 17 of the Local Government (Shires) Act 1905 (NSW). Although the parties formally agreed that the effect of this was that the jetty was marked as a "heritage item", that seems most unlikely. The effect of the gazettal was to empower the Minister for Public Works to maintain, manage and administer the work. Upon the commencement of the Local Government Act 1919 (NSW) (which repealed the Local Government Act 1906 (NSW), which itself repealed the 1905 statute), the jetty was taken to be subject to the counterpart declaration under that statute: s 537(4). Under s 537 of the Local Government Act the jetty might "at any later time … be handed over, either temporarily or permanently, to the council", and would thereafter be managed, controlled, maintained, and administered by that council and would cease to be a "National Work". It will be seen that in 1997 and in 2002 it was the successor to that provision which was contemplated and invoked to effect the "handover" to the local council. 4. It was also agreed that on 30 September 2011, the jetty was situated on land comprising Lot 546 DP 45226 and extended over part of Lot 21 DP 850150. The actual deposited plans were not in evidence. It was agreed that the "footprint" of the jetty was located on Lot 546 of DP 45226. (It is not possible from the materials to confirm whether that deposited plan extended hundreds of metres into the waters of Coffs Harbour, although nothing turns on this.) The restoration of the jetty 1. A large quantity of historical documents was tendered, which illustrated the involvement of the State government and the local Council in restoring the jetty and opening it to public access. An abbreviated summary will suffice. 2. The historical significance of the jetty was recognised in the Local Environmental Plan, and this informed the process of obtaining approval for and performing works to restore the jetty. Clause 36 of the Coffs Harbour Local Environmental Plan 1988 prohibited the demolition or renovation of items of environmental heritage, of which the "Timber Jetty within the Port of Coffs Harbour" was one. Any development, including demolition or renovation of the jetty, would require the consent of Coffs Harbour City Council. 3. Further, the North Coast Regional Environmental Plan 1988 included cl 36A, which provided that "[t]he council shall not grant a consent required by clause 36 in relation to heritage items specified or described in Schedule 2 unless the concurrence of the Director is obtained". The reference to the Director was to the Director of the Department of Urban Affairs and Planning, and cl 36A(2) required the Director, in deciding whether to grant concurrence, to take into consideration the views of the Heritage Council and, separately, a number of heritage aspects of the item and its site. This was amended, in December 2008, to replace the Director by the Council: State Environmental Planning Policy (Repeal of Concurrence and Referral Provisions) 2008, Sch 2, cl 2.9 [10]. Clause 36 extended to demolition or alterations of buildings or works which were heritage items (cl 36(1)(a)), and "Coffs Harbour jetty" was listed as one of the heritage items on Schedule 2. 4. Consideration was given to the dimensions to be restored (both the length and the width of the jetty had varied over its working lifetime). Eventually, by development application dated 11 December 1994, the Department of NSW Public Works applied for consent described as "Reconstruction of Coffs Harbour Jetty to Bent 83 and Demolition of the outer 91 metres" (the "bents" were elements of the structure). The estimated cost of work was $2.27 million. The application was accompanied by a conservation plan, which included the following policy (policy 61): "The design, materials and colour of any new handrail, or gates, should not form a dominant feature, nor detract from the visual character of the platform." 1. A memorandum dated 27 March 1995 noted that on 14 March 1995 the Council resolved to support the development application and also recommended that "Council consider in its management plan for $72,000 in 1996/97 and 1997/98 for maintenance of the reconstructed Jetty". The document stated that "[t]he estimated cost of maintenance is $72,000 per year over the next 20 years". Development consent was granted on 1 May 1995 to reconstruct the jetty to Bent 83 and to demolish the outermost 91 metres. However, no part of the claim against the Council was based on its position as the body which granted development consent (the difficulties confronting such a claim may be seen from MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417; 191 LGERA 292 at [90]-[101] and [205]-[222]). 2. A memorandum from the Assistant Government Architect, dated 9 June 1995, noted that "Heritage Council approval was reluctantly given on the strength of the argument related to cost relevant to the extent of wharf retained" and noted that "[a]ny proposal to demolish more of the jetty is highly unlikely to be approved by the Heritage Council". 3. In October 1995 a tender document was prepared, which included requirements for handrailing by reference to Drawing No 6A. That drawing does not appear to have been tendered. A letter from the Department of Public Works and Services to the Department of Urban Affairs and Planning dated 11 December 1995 advised that: "The safety requirements for handrails and pedestrian lighting have been allowed for via aesthetic handrail and lighting column design. The attached sketches show the restored jetty." 1. The sketches show a handrail with a large gap between the decking and the rail. This was criticised by an architect retained on the project, Ms Singh. Her letter dated 29 January 1996 identified handrails as the first issue: "The proposed new handrails appear bulky and may be confused as being part of the original structure. While the handrail located at the boat harbour has merit, a more appropriate solution would be a timber top rail, rectangular in section, with stainless steel (marine grade), vertical supports and mid-rail wires. This is a lighter solution, would appear distinctly new, while in keeping with the structure." 1. The minutes of a series of meetings described as "Coffs Harbour Jetty Conservation" record participation from the Department of Public Works and contractors. Of the nine meetings of "Coffs Harbour Jetty Conservation" held between 8 February 1996 and 23 June 1997 for which minutes were tendered, called either "Project Meetings" or "Partnering Meetings", representatives of Coffs Harbour City Council attended all but one. It is clear that the fence design was raised, at least twice, at these meetings. By letter dated 13 May 1996, the Department of Urban Affairs and Planning complained to NSW Public Works and Services concerning changes proposed at the meetings, without notice, and that it was necessary to obtain approval from the Heritage Council by reason of cl 36A of the North Coast REP. 2. By November 1996, Mr Jeff Clancy, Construction Manager at the Department of Public Works and Services, had designed a proposed safety fence, with metal poles and a mid-level wire some 450mm above the deck, and 500mm below the top rail. This was sent to the architect, who by letter dated 25 November 1996, stated that the intention of the handrail was to "[p]rovide safety to the public by complying with building codes" as well as "[m]aintaining the 'platform' quality of the jetty by means of introducing a structure as light as possible". Ms Singh said that the proposed design was acceptable on heritage grounds. 3. The fence was discussed at the meeting on 9 December 1996: "Pobase suggested that fence posts be installed mid way between the bents and that 2 posts be installed between these mid posts, visually it would be more attractive, it would also mean that the posts would be closer together, hence stu[r]dier fence, particularly with the deformation of rails." 1. It seems that the contractor was asked to submit a revised price for "Supply and Install handrailing" based on that proposal. If that occurred, it appears not to have been in evidence. There is no suggestion that the implementation of this aspect of the fence design gave rise to any heritage issues. 2. The evidence records that the demolition work of the extremity of the jetty was complete in July 1996 with restoration work occupying the second half of 1996 and the first nine months of 1997. Concerns about handover 1. The Department of Land and Water Conservation wrote to the Department of Public Works and Services on 12 March 1997 as follows: "It is the understanding of this Office that upon completion of the current restoration works on the jetty at Coffs Harbour, that responsibility for the future care and maintenance of the structure will be transferred to Coffs Harbour City Council. Confirmation is required on the mechanism by which it is proposed to transfer this responsibility so that our records can be formally noted for future reference (as the Owners of the land on which the structure is constructed). Earlier discussions with Officers from your Coffs Harbour Office indicated that the jetty is currently a gazetted 'National Work'. The current work by your Department is being carried out as part of your Department's responsibility for the subject National Work. It is understood that upon completion of works, Coffs Harbour City Council will be gazetted as the body responsible for future care and maintenance of the Jetty. This Office is currently holding discussions with Council regarding the future control, planning and management of the adjoining foreshore areas. As the jetty is an integral part of this area, it is important for all parties to [be] aware of the various arrangements and responsibilities for the area. Your assistance in clarifying this matter would be greatly appreciated." 1. A draft notice of handing over of the National Work to the Council was prepared in July 1997, seeking to invoke s 153 of the Public Works Act 1912 (NSW). Evidently this was supplied to the Council, because in September 1997, it sought external legal advice concerning the proposed handover. The first item of advice concerned the "satisfactory legal arrangement regarding Council's legal liabilities that would flow from acceptance of responsibility for the Jetty". Advice was given by an external firm of solicitors the following month. The firm stated: "We do not believe it is in the interests of Council that the national work be handed over permanently. We believe Council should only agree that the hand over be temporary and that it be during the pleasure of the Minister and the Council. The Council should be in a position to terminate the arrangement at its pleasure and the Minister should be in a position to terminate the arrangement at his pleasure." The principal underlying concern appears to have been the risk of deterioration which might give rise to substantial restoration costs in the future. 1. Later that month, on 22 October 1997, a memorandum from Mr Quinn, the Council's Risk Co-ordinator, referred to the imminent reopening of the jetty and stated: "Regrettably, because of the nature of the structure and its locality above the Harbour and Jetty Beach, it will probably become one of Council's major risk areas for litigation, from personal injury and property loss or damage." 1. A memorandum from the Department of Public Works and Services dated 24 November 1997 recorded that the jetty was reopened on the weekend of 11-12 October 1997 but that at approximately 2.30pm on Sunday 12 October 1997, the first accident occurred. 2. The Council had already been concerned at the possibility of injury from jumping or diving from the jetty. In October 1997, there was a report of a person injuring his knee from jumping from the jetty. The same document recorded that there had been a death twenty years earlier from a jumper from the jetty landing on a person in the water. The immediate response was a resolution by the Council in November 1997 which was not in evidence, but which was described by Mr Clancy as "Council resolution 'not taking over the jetty'". Precisely what happened thereafter is unclear on the evidence. The jetty was not handed over for some five years, during which there was the second incident of a near-fall by a young child. There was also the litigation involving Mr Mulligan, arising out of a serious injury a few hundred metres north of the jetty, in Coffs creek, which will be mentioned below. 3. Ultimately, the Minister for Public Works declared that the jetty was handed over permanently to the Council pursuant to s 153 of the Public Works Act 1912 (NSW): Government Gazette, 18 October 2002, p 8949. On the same day, the Minister for Land and Water Conservation pursuant to s 87 of the Crown Lands Act reserved the Crown land contained in Lot 546 DP 45226 for "Public Purpose: Port Facilities And Services" and appointed "Coffs Coast State Park Trust" as the trustee of the reserve trust: Government Gazette, 18 October 2002, p 8816. 4. Shortly before the changes in status effected by the gazettals of 18 October 2002, there had been correspondence between the Council and the State concerning the railings, which was given some prominence in the Council's submissions in this Court. The General Manager wrote to the State concerning compliance with the current safety design criteria. The response included the following: "I refer to your letter of the 18th June 2002 in which you seek some specific advice regarding the technical specifications of the Coffs Harbour Jetty. As you are aware the refurbishment of the Jetty was completed in 1997, under the project management of DPWS, and on the understanding that on completion responsibility for care and control of the structure would transfer to the Coffs Harbour City Council. As part of the refurbishment a detailed Operations and Maintenance Manual was prepared by DPWS and provided to Council in late 1997. ... Refurbishment of the jetty was designed to comply with prevailing standards at the time of design. I believe from discussions with Mr Geoff Firkin of your Council that you require specific information in regard to the Jetty Handrails and Security lighting. I am advised that these comply with the requirements of AS1657-1992 and of AS3000-1996 respectively." 1. I will return to this below, but it may be noted that no part of the Council's cross-claim against the State involved a claim based on a misrepresentation. That request followed some emails internal to the Council, including from Mr Quinn, who asked in May 2002: "Have the Building Inspectors provided a report on the existing handrails and their compliance or not with an Australian Standard? I would like to do an inspection first. Its been a few years since Council last inspected the Jetty." 1. The primary judge found having regard to the above (and other) evidence the following at [197]: "Having regard to the documentation set out, it follows that as at the date of the handover in October 2002 the Council, through its Risk Coordinator, Mr Quinn, its Director of Engineering, Mr Davidson and Mr Firkin knew that: (1) there had been two incidents involving children that had been the subject of reports to the Department and/or Council; (2) following the first incident, the Department had prepared a report on options for making the railing safer and, in particular, ensuring that children could not fall through the gaps in the railing; (3) the Department had done nothing in response to that report. If there had been any further meetings, discussions, reports or inspections undertaken, I would have expected that they would have been discovered and tendered in these proceedings. Mr Quinn, Mr Davidson and/or Mr Clancy might have been able to assist in terms of giving evidence what happened, following Mr Clancy's report. I would not infer anything happened, absent evidence to that effect; (4) a member of the public, Mr Helwig, had raised a possible solution to the problem (that is, the risk of children falling through the railing) subsequent to the second incident which was similar to the solution raised by Mr Clancy in 1997; (5) the Department had responded to Mr Helwig (the letter was copied to Mr Davidson) suggesting that it may be appropriate for the Department to discuss any action which may make the jetty safer with the Council; (6) there had been no discussion or follow up between the Council and the Department, albeit that there might have been some discussion between Mr Quinn and others and Mr Firkin referred to Mr Quinn's recommendation regarding the safety rail. Mr Quinn had recommended changes to the railing to make them safe (based on the email from Mr Firkin); (7) Mr Quinn had also wanted the Council's building inspectors to prepare a report and suggested that there should be a further inspection, presumably of the same type as he conducted in October 1997 for the purposes of identifying risks. I infer that neither of those two things happened; and (8) the Department believed, as it said in its letter of 3 July 2002, that the handrails (its word) complied with the requirements of AS1657–1992 and AS3000–1995. It is this representation from the Department that is relied on by the Council as an important part of its defence. There is no evidence of any further consideration of the safety of the railing and the jetty itself between handover in October 2002 and notification of [the accident in 2007]." 1. (For completeness, I note that the Council made a small point on appeal as to what could be inferred from Mr Quinn's May 2002 email, and whether (because it preceded handover) it could contribute much to the issue of breach by the Council, which will be passed over because on the view I take nothing turns on it.) Ownership, occupation and control of the jetty 1. The plaintiff's claim and the cross-claims, insofar as they involved the Council, the Trust and the State, turned on the liability expressed to be owed as an "owner and/or occupier" of the jetty, and as a person having "care, control and management" of the structure. 2. The Council's cross-claim against the State alleged that the State had the "ownership, care, control and management of the Jetty and surrounds" and alleged that by reason of the State's refurbishment and by reason of its ownership the State came under a duty of care to the plaintiff. The State admitted none of this, including a non-admission of its ownership of the Jetty. 3. These issues give rise to questions of some legal complexity, to which insufficient attention appears to have been paid in the course of the litigation. Although on the view I take it does not affect the outcome, it is desirable to commence with a fuller analysis of ownership, occupation, care, control and management of the governmental entities (the Council, the Trust and the State) than has been provided to date in this litigation. 4. By way of summary of what will follow: 1. at all times, the jetty has been erected on Crown land, vested in the State, notwithstanding the deemed vesting of a fee simple for the purposes of Pt 5 of the Crown Lands Act 1989 in the Trust after 2002; 2. what matters for the purposes of a duty of care imposed on a statutory authority is actual or de facto control and management, rather than ownership or occupation (the latter being an unhelpful term in the case of public land which is freely accessible by any member of the public); 3. between 1997 and 2002, the State government enjoyed actual control at least by reason of the gazettal of the jetty as a "National Work"; 4. after 2002, the Trust was charged with the care, control and management of the jetty, and the affairs of the Trust were managed by the Council. The jetty was also required to be maintained, managed and administered by the Council by reason of its being handed over pursuant to s 153 of the Public Works Act 1912 (NSW) (which is the successor to s 537 of the Local Government Act 1919). Ownership of the jetty 1. The primary judge found, and there was no dispute as to the finding – despite the point being raised during the hearing – that the Trust owned the fee simple in the land. That was said to follow from s 100(1) of the Crown Lands Act 1989, which provided: "For the purposes only of this Part and a by-law under this Part, a reserve trust that, but for this section, would not have an estate in fee simple in the reserve has such an estate." 1. It will be seen that this "finding" is a conclusion of law. With respect, I do not consider that it is correct. It is desirable to address the matter, not merely because it has some small impact upon the analysis of duty, but mostly lest it cause confusion subsequently. This is so despite the fact that the Crown Land Management Act 2016 (NSW) takes a different approach and (generally speaking) extinguishes the deemed fee simple in reserve trusts: see Schedule 7, cl 7. As illustrated by this litigation nine years after the event, there are likely to be cases for many years arising from reserved Crown land before November 2016 when the current Act commenced. 2. Section 100(1) was a deeming provision, as is evident from its form, and is limited in its application to the purposes of Pt 5 of the Crown Lands Act and by-laws made under that Part. The limited nature of the estate was reflected in s 100(2), which stated that "[t]he reserve trust is not capable of alienating, charging, granting leases of or licences or easements in respect of, or in any way disposing of the whole or any part of the reserve, except in accordance with this Part". Other powers allowed the trust to lease land (with the Minister's consent and in the case of leases for a term exceeding 5 years, after notice had been given to the public) which comprised part of the reserve: ss 102 and 103. Neither the reservation of Crown land nor the creation of a reserve trust, caused the land to cease to be Crown land. 3. Reservation was and is distinct from dedication. Both processes had antecedents under the Crown Lands Consolidation Act 1913 (NSW) and earlier colonial legislation: see Randwick Municipal Council v Rutledge (1959) 102 CLR 54 at 74; [1959] HCA 63. That is the "important distinction" emphasised in A Lang, Crown Land in New South Wales (Butterworths, 1973), p 78. 4. Land that is dedicated (say, for a road) ceases to be Crown land (as noted in Wentworth Park Sporting Complex Trust v Leichhardt Council [2003] NSWCA 162; 125 LGERA 440 at [23]). Under the Crown Lands Act 1989, when land was reserved – a term which derived from being reserved from sale – dealings with it became subject to the provisions found in Pt 5 of the Crown Lands Act but it nonetheless remained vested in the Crown. 5. Were there any doubt about that, there is ample authority for the true effect of s 100 and its predecessor, s 37X(1) of the Crown Lands Consolidation Act 1913 (NSW). 6. Section 37X of the Crown Lands Consolidation Act appeared in Pt IIIB of that Act, inserted by the Crown Lands and Other Acts (Reserves) Amendment Act 1974 (NSW). Section 37X was considered in Forster Homes for the Aged Trust v Great Lakes Shire Council [1976] 1 NSWLR 577, shortly after its enactment, where Waddell J said at 580: "Part IIIB of the Act is concerned with the 'Management of and dealings with dedicated or reserved lands and certain other lands'. Section 37X(1) does no more, I think, than reinforce the powers conferred on trustees with respect to the management of a reserve by, for instance, s 37R, which charges the trustees with the care control and management of the reserve, and by by-laws made under s 37II. Nothing in Pt IIIB has the consequence that the land has ceased to be vested in the Crown." (emphasis added) 1. That was the ratio of the decision, which was an appeal against the levying of rates on land reserved from sale for the purpose of "homes for the aged". The land was held to be "land owned by the Crown" and thus exempt from rates. 2. Not only does Pt 5 of the Crown Lands Act 1989 follow the same form and language as Pt IIIB of the Crown Lands Consolidation Act 1913, but also there is authority to that effect. In Townsend v Waverley Council [2001] NSWSC 384; 120 LGERA 224, Barrett J, after referring to the earlier legislation, said at [20]: "The Act of 1989 thus follows the pattern of earlier legislation. It enacts that a reserve trust has an estate in fee simple in the relevant reserve for the purposes of Part 5 of that Act itself and a by-law under that Part. The statute is not the source of an estate in fee simple for any other purpose, with the result that such an estate cannot be said to exist when some different statute or other legal context is under consideration. The statutory fiction, if it may be so described, does not even exist for all purposes of the Crown Lands Act 1989 itself." 1. Subsequently, the fact that the trust did not own reserved land, which continued to be Crown land, was pointed out in Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation (2014) 88 NSWLR 449; [2014] NSWCA 437 at [90] and Weber v Greater Hume Shire Council (2019) 100 NSWLR 1; [2019] NSWCA 74 at [33]. The limited nature of the deemed estate in fee simple was emphasised by Bryson J and Handley AJA, respectively, in Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 at [9] and St Alder v Waverley Local Council [2010] NSWCA 22; 172 LGERA 147 at [28]. Any other position is inconsistent with this Court's decision in Kempsey Shire Council v Van Park Ltd [1995] NSWCA 237 (Sheller, Powell and Cole JJA, 19 October 1995). 2. For those reasons, I am unable to accept that the legal analysis should proceed on the basis that the Trust owned the fee simple in the land on which the jetty had been constructed. The limited deeming effected by s 100(1) of the Crown Lands Act did not extend to the law of negligence. The effect of the permanent handing over to the Council 1. During the submissions on appeal, it was at one stage suggested that the gazettal of the jetty as a "National Work" might "vest" it in the Minister for Public Works. It will be recalled that the status of the jetty as a "National Work" came about from the exercise of power under s 17 of the Local Government (Shires) Act 1905, and the deeming effect of s 537(4) of the Local Government Act 1919. Section 3(1) of the Local Government (Consequential Provisions) Act 1993 (NSW) repealed s 537 of the 1919 Act, while s 4 inserted a new Pt 9 into the Public Works Act, including s 153, which at all relevant times provided: "(1) The Minister, with the agreement of a council, may, by notice published in the Gazette, declare that a national work is handed over, either temporarily or permanently, to a council. (2) A work which is handed over to a council is to be maintained, managed and administered by the council and ceases to be a national work while it is so maintained, managed and administered." 1. On their ordinary meaning, the words "is to be maintained, managed and administered" are not directed to ownership. Rather, they are directed to physical acts affecting the structure. Indeed, they are apt to impose an obligation: see Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 at [31]. But they say nothing of the title to the work or the land to which it is affixed. When this was raised during the hearing, I did not understand any contrary submission to be pressed. The effect of the jetty extending beyond the low water mark 1. So far I have passed over the complicating effect of the fact that part of the jetty is erected on dry land, part on the inter-tidal zone, and part extends around 300m into the ocean. This gives rise to complexity of an entirely different order. Because it was not the subject of submission, and nothing turns on it, I shall be brief. Notwithstanding that the Seas and Submerged Lands Act 1973 (Cth) gave sovereignty to the Crown in right of the Commonwealth over the territorial sea from the low-water mark, that Act saved the rights of the States' jetties, wharves or other structures or works (s 15). However, that did not alter the fact that the Seas and Submerged Lands Case (1975) 135 CLR 337; [1975] HCA 58 held that, as a matter of common law, title to the seabed from the low-water mark vested in the Crown in right of the Commonwealth. Whether that applied to the area of "Coffs Harbour" is arguably not straightforward, having regard to the fact that the harbour is artificial, largely formed to the north of the jetty by building a breakwater between the coast and Muttonbird Island. An island may be treated as part of the mainland for the purpose of determining questions of this nature, as Mason J noted in Raptis (A) & Son v South Australia (1977) 138 CLR 346 at 385-386; [1977] HCA 36 by reference to United States v Louisiana 394 US 11 (1969). But the point is academic, because the Coastal Waters (State Title) Act 1980 (Cth) vested title to the property in the seabed in the State's coastal waters in the State, and although the jetty is long, it is entirely contained within the coastal waters. 2. Thus, the whole of the jetty was erected on land vested in the Crown in right of New South Wales, either Crown land which was made subject to a reserve trust in 2002, or (perhaps) unalienated Crown land on the seabed of the (in part artificial) harbour created by the seawall to the north of the jetty connecting the shore with Muttonbird Island. This appeal concerns that part of the jetty which was built above the low water mark – the place where the plaintiff fell, and the entrance to the jetty where any signage was to be placed if it were to be effective. Occupation of the jetty 1. After its restoration in 1997, the jetty was open to all members of the public, 24 hours a day. It has long been recognised that "occupation" in such circumstances is an artificial concept. 2. Latham CJ said of the bathing enclosure which was the location of the accident in Burrum Corporation v Richardson; Burrum Corporation v Gehrmann (1939) 62 CLR 214 at 228; [1939] HCA 30 that the structure "cannot be 'occupied' in any ordinary sense. But it can be controlled and managed". His Honour added that "[t]he liability in the case of an 'occupier' of premises really depends upon his control and management, which create duties, varying in degree, to persons coming upon and using the premises." 3. Or, as Dixon J pithily put it in Aiken v Kingborough Corporation (1939) 62 CLR 179 at 203-204; [1939] HCA 20: "The control and management of such a structure [viz a jetty] spells occupation. The property remains in the Crown, and it might be thought that the occupation of the jetty by the council is merely occupation for and on behalf of the Government. ... But in any case it seems clear enough that the council's control and management gives it an independent authority; in other words, it is an occupier in its own right." 1. Thus "occupation" in this context is quite different from the occupation giving rise to tortious liability of a tenant under a lease of private land. It is best to turn to the legal question which most matters, namely, the control and management of the jetty. Care, control and management of the jetty 1. A reserve trust was, despite its name, a body corporate: Crown Lands Act 1989, s 92(2). A reserve trust was "charged with the care, control and management" of the reserve: s 92(5). Section 37R of the Crown Lands Consolidation Act, inserted at the same time as s 37X by the Crown lands and Other Acts (Reserves) Amendment Act in 1974, was to identical effect. There is no reason to think that the statutory references to "care, control and management" differed from the "control and management" to which Latham CJ and Dixon J had referred in Burrum and Aiken. 2. The Minister chose to appoint an existing reserve trust, namely, "Coffs Coast State Park Trust" when the land on which the jetty was erected was reserved in 2002. That is to say, the land in respect of which the Coffs Coast State Park Trust was charged with the care, control and management thereby extended to the land on which the jetty was erected. 3. The Crown Lands Act identified four ways in which the affairs of a reserve trust were to be managed: s 92(6). The affairs could be managed (a) by the Minister, (b) by a trust board of between three and seven members appointed by the Minister pursuant to s 93, (c) by a corporation, including a Council, appointed by the Minister under s 95, or (d) by an administrator appointed under s 117. Pursuant to s 92(6)(c), the Minister had previously, in 2000, appointed Coffs Harbour City Council to manage the affairs of Coffs Coast State Park Trust: Government Gazette, 22 September 2000, pp 10723-4. 4. The consequence is that after 18 October 2002, the land on which at least the relevant part of the jetty was built remained Crown land, but was reserved for the purpose of port facilities and services. It was held on trust by the reserve trust known as "Coffs Coast State Park Trust". The affairs of that reserve trust were managed by the Council. In that way, the Council exercised, through its officers and employees and contractors, the care, control and management of the jetty. 5. Further, and separately from what flowed from the Crown Lands Act, the Council became subject to an obligation to maintain, manage and administer the jetty by reason of s 153(2) of the Public Works Act. 6. The Council and the Trust were represented by the same solicitors and counsel, and no point of distinction was made between them. In those circumstances, it is unnecessary and inappropriate to attempt to identify any differences in the duty owed by reason of the care, control and management of the jetty exercised by the Council and the Trust. The duty based on care, control and management 1. Some care is necessary in relation to the source of a duty of care in relation to a public space which is subject to statutory control. In particular, it is not possible to rely upon the formulation of duty by Dixon J in Aiken v Kingborough Corporation at 210, despite its aptness to the facts of this case: "What then is the reasonable measure of precaution for the safety of the users of premises, such as a wharf, who come there as of common right? I think the public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care." 1. That statement does not stand as an exhaustive statement of the scope of the duty of care in subsequent decisions, which reflect the reformulation of occupiers' liability effected by Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7, and the duty upheld in Nagle v Rottnest Island Authority (1993) 177 CLR 423; [1993] HCA 76. See Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; [1998] HCA 5 at [49], [62]-[63], [74], [113]-[114] and [158]. In particular, the duty is not confined to risks which are hidden or not apparent. 2. Notwithstanding the expansion in the scope of the duty, what was said by Barwick CJ and Walsh J in Schiller v Mulgrave Shire Council (1972) 129 CLR 116; [1972] HCA 60 as to the source of the Council's duty in respect of Crown land which had been reserved for scenic purposes of which the Council had been appointed a trustee, remains apposite. As it happens, the statutory regime in Schiller, ss 180 and 181 of the Lands Act 1910 (Qld) (see at 120-121) resembles Pt 5 of the Crown Lands Act 1989 (NSW). Barwick CJ said at 120: "For my part, the capacity to care for and control the reserve was in this case the source of duty. Whilst it is convenient perhaps to refer to the respondent as the occupier of land, I would prefer to describe it as the trustee having the care, control and management of the reserve. The capacity for care, control and management derived from that trusteeship clearly extended in this case to the whole of the area. Consequently, in my opinion, the source of liability in this case is the statutory power and duty of care, control and management and not merely the occupation of land." 1. Walsh J said at 124: "When land to be used for public purposes is placed under the control of a statutory body then, whether the measure of its duty to persons using the land is or is not identical with that of an occupier of private land, the fact that it has control and that it alone has the means of securing the users of the land against injury provides a basis for holding that a duty of care is cast upon it ..." 1. The emphasis on control and management of a reserve may also be seen in much of the reasoning in this area. Thus the joint judgment in Nagle v Rottnest Island Authority at 426 stated that "[n]o other person exercised any relevant control over the Reserve in the Board's area of responsibility"; see also Romeo at [14]-[15], [48], [120] and [152]. In Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62, Gummow J's reasons on duty at [80]-[92] concluded with the statement that "to the extent that the Council owed Mr Vairy a duty of care requiring a warning, that duty must have been founded upon the concept of control", while the joint judgment in Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 stated at [102] that: "the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance." 1. None of the decisions mentioned above concerned the Civil Liability Acts. The ultimate issue in a case after 2002 based on an alleged failure to take reasonable care is apt to be whether a person in the position of the defendant statutory authority would have taken a particular precaution: Civil Liability Act 2002 (NSW), s 5B(1)(c). In a case such as the present where (a) the State owns the Crown land, while (b) care, control and management is vested in the Trust, whose affairs are managed by the Council, and (c) the Council is separately obliged to maintain, manage and administer the jetty, attention is directed in the first instance to which of the governmental entities was obliged to manage the safe use of the jetty and had the power to take precautions (such as altering the railing or installing warnings) if warranted. I am not suggesting that control and management is necessarily sufficient to establish duty, but it does seem to me that in the absence of any control or management it will ordinarily be impossible to make out an action for negligence. 2. Evidently, one person with control and management was the Council. The Council had power to alter the railing and to install a warning sign by reason of its management of the affairs of the reserve trust, and because of its obligations to maintain, manage and administer the jetty. This was what in fact occurred. The sign was designed and installed by the Council. The Council budgeted to spend tens of thousands of dollars each year repairing and maintaining the jetty. 3. It may be accepted that the Trust also had care, control and management over the jetty, pursuant to s 92(5) of the Crown Lands Act. That may be a somewhat abstract proposition, insofar as the Trust (so far as the evidence reveals) could only act through another artificial person, namely, the Council. But it is not necessary in this appeal separately to consider the position of the Trust and the Council which managed the Trust's affairs. 4. Conversely, what control or management function did the State have? It owned the land, and it could, subject to the provisions of the Crown Lands Act, take steps which would culminate in the revocation of the reservation. A submission was made during the appeal, but it was largely undeveloped, that the State exercised control through the Heritage Council. True it is that the listing of the jetty on the State Heritage Register engaged the prohibitions in s 57 of the Heritage Act 1977, recently considered in Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141. But I would be disinclined without more to accept the submission that the State should be taken, for the purposes of imposing a duty of care, to have control or management of the jetty in 2011, noting that the function of the Director of the Department of Urban Affairs and Planning as concurrence authority had ceased in December 2008. In light of what is said below in addressing the Council's appeal challenging the failure to find breach of duty by the State, it will not be necessary, in order to resolve this appeal, to delineate more precisely the position of the State. 5. Finally, a question could, in principle, arise as to the interrelationship between the statutes which confer powers and impose duties on statutory authorities, and the provisions of the Civil Liability Act. But no submissions were directed to this question, and so far as I can see, there is no tension between the powers and duties imposed by statute (notably, s 153 of the Public Works Act and s 92(5) of the Crown Lands Act) and any of the provisions of Pt 1A of the Civil Liability Act. Rather, the statutes pursuant to which the statutory authorities are created and their powers conferred operate "in the milieu of the common law", as modified by the Civil Liability Act (to use Gaudron J's words in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 at [26]), and there is no occasion for separate consideration to be given to the interaction between those statutes. Explanation for the different outcome on duty in Mulligan 1. I am conscious of the different outcome as to duty reached in the litigation culminating in Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; [2005] HCA 63 (Mulligan HCA). 2. Mr Mulligan suffered serious injury whilst diving in Coffs Creek some small distance north of the jetty. The creek-bed where he sustained his injury was unalienated Crown land; however, to the north and south of the creek were reserves, described as "the Park Beach Reserve" and "The Jetty Reserve", and Mr Mulligan contended that warning signs should have been placed in those areas. There was a trial extending over 25 days in 2002 before Whealy J: Mulligan v Coffs Harbour City Council [2003] NSWSC 49; (2003) Aust Torts Rep 81-696, and an appeal to this Court (decided with another similar appeal): Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247; (2003) Aust Torts Rep 81-754. 3. Mr Mulligan sued the Council (in various capacities), the State (again in various capacities), the Coffs Harbour Jetty Foreshore Reserve Trust and its manager Mr Hambly (see Mulligan HCA at [44]). The various ways in which a duty was said to be owed by the Council and the State are summarised in [23] and [25] of Whealy J's judgment. The details of the ownership of the land may be found at [45]-[47] and [51]-[53] of his reasons. A claim against the Marine Park Authority, which had some management responsibilities for the creek bed, was abandoned at the conclusion of the proceedings: [2003] NSWSC 49 at [49]. 4. The primary judge recorded at [21]: "Essentially, the duty of care asserted against each defendant arose from statutory or de facto aspects of care, control and management of the reserves and the creek. These were said to create duties analogous to those required of an occupier to entrants lawfully upon land or structures." 1. Whealy J found that there was a duty of care was owed by the Council, the State and the Trust (at [247], [256] and [261]). Because his Honour found that the duty was not breached, it was not necessary to identify that duty any further, or to distinguish between the Council, the State and the Trust. However, at [354], in the course of making contingent findings of apportionment, his Honour regarded the State as being more responsible than the Council, a finding which was overturned on appeal, for the reasons given at [330]-[331] as follows: "The only breach of the duty of care alleged against each defendant was its failure to erect a warning sign. Had that failure been such a breach, then the respective duties of care would have been satisfied by the erection of a warning sign by Coffs Harbour just inside the eastern boundary of its licensed area under the railway bridge and by the State interests and, in particular, the Trust, by erect[ing] one or two signs in an appropriate location upon the southern bank and, in particular, at the access point to that bank from the dirt path leading from the pathway/cycleway. In these circumstances, it seems to me that, again, the culpability of the defendants was equal. Accordingly, taking account of the factors to which I have briefly referred, I would consider it to be just and equitable that contribution between the defendants for the amount of the damages that would have been recoverable by Mr Mulligan, were he entitled thereto, ought to be borne as to 50% by Coffs Harbour and 50% by the State interests." 1. It was significant in that litigation that, at the time of the accident, the reserve trust was being managed not by the Council, but by an officer in the Department of Lands, based in Grafton (see at [53] in Whealy J's judgment). Further, there was no "National Work" which had been handed over to the Council giving rise to separate statutory obligations of maintenance, management and administration. 2. That outcome has no bearing upon the legal analysis concerning the plaintiff's fall from the jetty, where the source of the Council's duty is the control and management flowing from (a) its being appointed manager of the Trust and (b) the jetty being handed over to it, neither of which was present in the Mulligan litigation. Breach of duty by the Council 1. In the remainder of this judgment, I shall for concision mostly refer to "the Council" rather than "the appellants" or "the Council and the Trust". 2. In this Court, the Council accepted that it owed a duty as formulated by the primary judge, but challenged the finding of breach. The primary judge gave careful attention to identifying the risk of harm as the risk of a child falling through the rails onto the hard sand below (at [153]) and held that the Council and the Trust, as occupiers of the jetty, were required to take reasonable precautions against that risk. At trial, the Council advanced defences based on ss 42 and 43A of the Civil Liability Act, but these were rejected and not pressed in this Court. Reasons of the primary judge on breach 1. The primary judge found that the Council did not obtain its own building report or conduct a risk assessment subsequent to May 2002. It did write to the Department and received the response partly reproduced above indicating that the railing had been erected in compliance with AS1657-1992, and there was evidence that the railing was of a type commonly found on jetties, and consistent with competent professional practice: at [257]. The position concerning the standard was complicated, and ultimately the primary judge did not make a finding as to whether the railing complied. His Honour had before him the joint opinion of the experts that any decision to leave the handrail unaltered after 1997 was a decision not consistent with competent professional practice. To be fair, that opinion is so general in nature that it is difficult to understand precisely what the experts meant. 2. The most important conclusion was at [264]: "[I]f the Council had carried out its own assessment and obtained its own building report back in 2002 when Mr Quinn recommended it, it would have become aware either that there was no standard or guideline which applied such that its ability to carry out modifications was not in some way limited by a standard or code or that the very standard to which the Department had referred permitted another option for the railing, being infill, which would have made the railing safe. Its purported reliance on the advice of the Department in 2002 (for the purposes of this case) as a basis for maintaining that it was not required to do anything is misplaced. I accept the general proposition (advanced by the Council in its correspondence) that the Council is not required to respond to every complaint of an incident or injury within its municipality and bring about some change. However, all of the matters that I have identified and the consideration of s 5B of the CLA tend to suggest that, in the proper evaluation of what the exercise of reasonable care required, the Council failed to exercise reasonable care in failing to take those measures which would have prevented the plaintiff's accident." 1. The reasonable precautions were adding wire strands to narrow the gaps in the railing, or to use infill which would prevent children from falling through. The primary judge said at [268] that the Council did not follow the advice of its risk coordinator in 2002, namely, modifying the railing to make it safer, or carry out its own risk assessment or obtain its own building report, that the proper exercise of reasonable care required that these measures should have been taken long before the plaintiff's accident, and concluded that: "At the very least, the circumstances and significance of the ... accident in 2007 should have indicated to the Council that it needed to take steps to prevent a similar accident happening again. There were options available to it for closing the gaps which would have prevented the plaintiff's accident and in the circumstances the failure to take such preventative measures constituted a failure to take care." The Council's submissions 1. The Council's primary submission was that it was entitled to rely on what the State had done. It said that the ultimate design was the result of a multi-factorial analysis, based on safety, aesthetic and heritage considerations, and that "apparently competent professional people, who his Honour accepted were competent in what they do, made decisions based on their qualifications and experience as to how this handrail should appear". The Council added that "absolute safety" was not the goal of the design process. 2. The Council also relied on the letter of 3 July 2002 which asserted that the railing complied with the standard: "the additional fact of which the council was seized of which goes to its behaviour was the assurances it received from time to time but in particular immediately before handover that the railing complied with the rules of the standards prevailing at the time of design but up to the point of handover." 1. Finally, it said that "there had been two accidents before handover and one after handover, the importance of that being the State of New South Wales was aware of both the 97 and 99 accident and did nothing about them". The submissions challenging the finding of breach were encapsulated in the following exchange: "BASTEN JA: This whole premise is that nothing's happened since, 1997, is it, that should have changed the Council's opinion? SHELDON: Yes, your Honour. Well, it's a little more subtle than that, your Honour ... Those things that did happen didn't change the risk, they merely reflected its existence. So what one should do as a matter of rational analysis, we submit, is if you knew there was a risk and you responded to it in a particular way, why - if the risk comes home, unless it comes home in a different way or comes home more often, or you can see a problem developing, why would you respond to it? BASTEN JA: Because you learn from experience. SHELDON: Yes, your Honour, but experience had informed the approach that was taken pre-1997, and experience presumably told those involved in the design that people were apt to fall from structures like this. And if they did, they could be injured indeed, seriously. Now, that risk came home. It came home infrequently. It came home during New South Wales' involvement as an occupier and, we submit on the evidence, as a designer. They did nothing about it. They told us that it was compliant at the time, and we - it was handed to us, at which point, there was an incident in 2007, and then Mr - Master Polglase fell. So the point that one gets to is that the frequency of accident actually declined once we took over the jetty." Consideration 1. The Council is correct to submit that absolute safety is not the standard of care required by it; it was required to exercise reasonable care. 2. It is also true that the design of the railing was the outcome of a process involving considerations extending beyond the safety of young children, including the heritage considerations, and that it was undertaken by apparently competent people. While this contributes to the evaluation required by s 5B, it does not alter the answer. There was a known and indeed realised risk of young children suffering serious injury because of the gap in the railing and the height of the jetty above the surrounding land. It is difficult to see how heritage considerations would preclude installing additional strands of wire, or a mesh infill, and to be fair, the Council did not suggest that they did. 3. It is true that the taking of one precautionary measure may often exacerbate other risks on a site. Here there was the possibility of additional strands being used by young children to climb through the railing. But the relevant risk was not that a person who was minded to jump from the jetty would suffer injury. It was that a young child might fall from the jetty, with no intention to do so. Contrary to the Council's submission, it is no answer to point to the representation from the State that the railing complied with Australian standards. For one thing, standards change from time to time. For another, the standard may inform but cannot dictate the standard of reasonable care in any particular case: Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [110]. But most fundamentally, the Council's submission does not attend to the proposition that what is a reasonable response varies over time, depending upon the known history of the site. In more than a decade since the railing was constructed, the Council knew that young children had fallen, or nearly fallen, and on one occasion with very serious consequences. 4. True it is that there would be an additional cost of installation and some on-going maintenance costs, but both are relatively small. The jetty is a single, unique, structure; contrast what was said in Vairy at [80], [149] and [218] concerning the 27 km of coastline informing the content of the duty imposed on the Council in that case. And the evidence suggested that provision was apparently made by the Council for annual maintenance of the jetty in an amount of $72,000. 5. I conclude that no error has been established in the finding of breach. A reasonable person in the position of the Council, charged with the care, control and management of the jetty, and knowing of the actual and potential injuries suffered by young children prior to 2011, not least from the correspondence received by witnesses to those incidents, would have taken the step of installing additional strands of wire or a mesh infill to prevent that risk materialising with the catastrophic consequences that occurred in 2011. A reasonable person in the position of the Council would have done so no later than 2007, after the third incident. That accords with the views of the experts, and with ordinary human experience. The risk warning 1. The sign at the entrance to the jetty, in the form it took on 30 September 2011, is shown in a picture taken by police investigating the plaintiff's fall: 1. It will be seen that the "general warnings" refer to diving and the possibility of shallow water, underneath which there are the words: "USE OF THIS FACILITY MAY BE HAZARDOUS PLEASE BE CAREFUL" 1. The primary judge addressed the reliance upon s 5M of the Civil Liability Act at [326]-[350]. His Honour identified the signage at the time, and correctly proceeded on the basis that the signs which replaced it at some later time were not relevant to the application of s 5M. His Honour noted, again correctly, that the defendants were entitled to rely upon the risk warning by reason of s 5M(2), the plaintiff being an incapable person and the warning having been given to the grandparents, in whose control he was (at [334]) and that all of the State, the Council and the Trust were able to rely on the risk warning because either the Council or the Trust was the occupier of the jetty: s 5M(6). 2. Sections 5M(1) and (5) provide as follows: "5M No duty of care for recreational activity where risk warning (1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff. … (5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk)." 1. At trial and on appeal, the Council relied upon Sharp v Parramatta City Council [2015] NSWCA 260; 209 LGERA 220, where this Court held that a sign which read "PERSONS USING THE PLATFORMS AND SPRINGBOARDS DO SO AT THEIR OWN RISK" was sufficient to satisfy s 5M(5) in relation to the risk of diving or jumping from the platform. The primary judge noted that "of course the only likely uses of the springboard [in Sharp] would be diving and jumping": at [342]. 2. There were obvious risks to persons using the jetty who dived from it into potentially shallow water – risks which had materialised (on the evidence in this appeal) at least in October 1997 (injured knee) and in around 1977 (death) – and those risks were addressed by the warning. In order to satisfy s 5M(5), the Council contended that the risk of falling off the jetty and landing on the sand was a particular risk which was subject to the general warning at the bottom of the sign. The primary judge rejected this submission at [347]-[349]: "The recreational activity in which the plaintiff was engaged was simply walking along the jetty for enjoyment. There is nothing in the sign present on the day of the accident that provides a warning of the risk of a child falling through the railing (being the risk for the purposes of s 5M(3)), unlike the sign subsequently installed by 2016. In my view, the words in capital letters at the bottom of the sign and read in the context of the whole of the sign or even in isolation, do not constitute a warning that was given in a manner that was reasonably likely to result in people being warned of the risk (being the risk [to] the plaintiff of falling through the rails) before engaging in the recreational activity. The sign does not convey a warning, either generally or specifically, of the risk of a child falling through the railing. It does not matter whether Mr and Mrs Whitton could have checked the railing to see whether it would prevent the plaintiff from falling through or whether they might have observed that it might be dangerous for a child standing next to the railing whilst they were actually standing next to the railing. Section 5M of the CLA directs attention to the warning and not what people might know or observe themselves. The words relied on by the defendants are general. Indeed they are as general as possible — 'Use of this facility may be hazardous'. The words do not direct attention to any particular risk or activity. They do not direct attention to any hazard or even suggest that there is a hazard. It is necessary to make a finding of fact as to whether the warning constituted by the words was reasonably likely to result in people being warned of the relevant risk in this matter before engaging in the activity. In my view, they were not such as to result in people being warned of the relevant risk in this matter." 1. I respectfully agree. Section 5M(5) imposes a constraint upon the duty-denying operation of s 5M(1). A risk warning may be general, but it must be a warning of risks which include the particular risk concerned, and it must also warn of the general nature of the particular risk. It is not necessary for the warning to delineate precisely each separate obstacle or hazard which may be encountered: Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128 at [27], Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 at [115]. However, as was noted in the latter case, the purpose is that the warning is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. 2. Although s 5M is less than explicit on the level of generality which is permissible, it is clear that the closing words in brackets in s 5M(5) are constraining. They are to be construed so as to give them work to do. 3. Mr Sheldon's submission was that the general risk to which the warning adverted encompassed the specific risk which eventuated in this case: "The risk of falling from it is encompassed within the risks entailed by walking on the jetty". I do not agree. The sign must be read as a whole. Read as a whole, the sign was directed to the risk of diving from the jetty into water whose depth varied with the tide. There is nothing in the warning alerting the reader to a quite different risk, one which is potentially very dangerous for young children, namely, falling from the wharf more than four metres onto hard sand. The risk warning did not warn of the general nature of the particular risk – the risk of a young child falling through the railing onto the hard sand below – which eventuated in this case and in respect of which the Council seeks to deploy s 5M to defeat what would otherwise be its duty of care. 4. No part of this appeal concerned whether the railing on the jetty presented an obvious risk within the meaning of s 5F of the Civil Liability Act (many of the authorities concerning this are helpfully considered in Nikolich v Webb [2020] WASCA 169 at [60]-[110]). Although some of the defences placed reliance on that section, the Court was told that it had been abandoned at trial (it may be noted that s 5F does not itself provide a defence). The liability of the State 1. In the alternative, the appellants submitted that if it were liable in negligence to the plaintiff, then so too was the State. "We submit there is a clear tension between the non-response by New South Wales and the non-response by the council but the latter being held to have been negligent". 2. The submission has an initial attraction. After all, there were two incidents with young children falling, or nearly falling, from the jetty while it was in the State's control, and the State had primary responsibility for the design of the railing. 3. However, expressed in that way the precise nature of the duty said to have been breached by the State may be obscured. Was it a duty as a designer of the railing, or was it a duty as an occupier for five years, during which time it should have altered the railing, which would in turn have prevented the plaintiff's injury a decade later? If the latter, then it may be noted that in the five years between 1997 and 2002 after the jetty was restored and while it was in the State's control, there was one incident when a young child fell, but was not seriously injured, and another in 1999 when a child almost fell. That contrasts with the position faced by the Council after 2007, when there had been three incidents in the decade since the structure had been restored and opened to the public, in the latest of which a child had been very seriously injured, fracturing his skull in two places and being air-lifted to hospital. The reasonable response of a successor occupier in 2010 was not necessarily the same as its predecessor in 2002. That is not to say that an occupier is entitled to wait for a catastrophic injury to occur before it responds to a known risk. It is merely to question the correctness of the Council's submission that if the Council were liable, so too should the State be liable. 4. However, as will be seen below, on appeal the Council disputed the appropriateness of dividing the different capacities in which the State had been involved, while the State maintained that the Council should not be permitted to advance a new case on appeal. 5. All this means that in order to resolve this ground, it is necessary to review how the Council advanced a case that the State was liable. The case advanced at trial by the Council against the State 1. The main focus of both the Council and the State at trial was on defeating the plaintiff's allegations, rather than advancing their own cross-claims against each other. That is unsurprising, and is not intended by way of criticism; it may often make sound forensic sense not to spend too long in written or oral address on submissions which are premised upon being held liable. However, it means that the Council's submissions at the end of the trial were quite confined. 2. Nonetheless, there was a large issue dividing the Council from the State at trial. The Council maintained that it was "akin to a managing agent", and that it and the Trust were "in a position analogous to Jones v Bartlett [(2000) 205 CLR 166; [2000] HCA 56]" with "no reason to suspect that the jetty [was] in some way 'non-compliant' with a legal norm". The Council submitted that Public Works had represented that the relevant standard was AS1657-1992, and the safety fence complied with that standard. The Council submitted that "The position is very much one in which NSW exercised control and CHCC/Trust did as they were told, invoking the recognised practical limitation on our response: Laresu Pty Ltd v Clark [2010] NSWCA 180." 3. Further, the Council submitted that "NSW was the owner of the jetty, and remained the owner of the jetty after the handover", with a position "akin to that of a lessor of a lease terminable at will". It submitted that the State "took control of the restoration process, came up with the design for the handrail, (through the Heritage Council) gave heritage consent to the design and gave the instruction to construct the handrail in accordance with its design." The entirety of the Council's written submissions at trial on the duty owed by the State is contained in the preceding two sentences. 4. In the Council's oral submissions at trial, it was put that the handover, effected by s 153 of the Public Works Act, did not cause the State to cease to have ownership or control of the jetty. That led to the following exchange in final address: "SHELDON: If alienation in a wider sense was intended, then a less colloquial term would've been used than handed over, we would submit it's consistent with the terms in which land of this ilk and property of this ilk is dealt with by the Crown. It is consistent that it would not give ownership. It would give some lesser interest and retain its own ultimate ownership. If it ever came back into being a national work, it would then again fall back into the Minister's responsibility, and it could come back in as a national work if it wasn't maintained, managed or administered. HIS HONOUR: I suppose one way of looking at it is that as a matter of proper statutory construction, looking at s 153(2), it wouldn't actually be necessary to include s 153(2) if the Department was proposing to hand over complete responsibility to the council. It is, by virtue of s 153(2), the legislature is intending to, as it were, not define but explain what happens when a national work is handed over to a council with the use of the words 'Maintain, manage and administer'. That would be-- SHELDON: That's our submission. That's what we've said in writing. We've identified some other reasons why that's the preferable construction of the section. What we say ultimately, and all of this has been going to it, is that we were not the sole occupier of the jetty at the relevant time, and that the problem if there was one, was one which was well-known to the fourth defendant [the State], in relation to which the fourth defendant had decided upon a course." 1. As against the State, the Council's closing submissions amounted to the following two sentences: "[T]here's no doubt that at the time immediately before October 2002, [the State] was in occupation and had control and had in fact manufactured the railing. So that to suggest that there's a correlation between that decision of Howmet [Ltd v Economy Devices Ltd [2016] EWCA Civ 847] and this case is to ignore all those authorities and perhaps the starkest of which is Bryan v Moloney, which recognised that if you've put the problem into play, your liability will come home when and if the injury is suffered." 1. The primary judge rejected the case that the State remained an occupier, and the Council was akin to a managing agent. The Council does not challenge that rejection. For the reasons given more elaborately above, concerning the effect of the establishment of the reserve trust and the operation of s 153, that is an appropriate course for the Council to take. The Council was subjected to duties as manager of the affairs of the reserve trust which was charged with the care, control and management of the land on which the jetty stood, and the duty under s 153 of the Public Works Act to maintain, manage and administer the jetty. The reasons of the primary judge on the State's liability 1. The plaintiff's pleaded case against the State was confined to it being "the owner and/or occupier of the jetty". The plaintiff's opening submissions against the State were unhelpful as to duty, but his closing submissions maintained that "[the State] owed a duty of care to young children to design and construct a guardrail that eliminated the identified risk". That went beyond the pleaded case, but reflected what had been advanced by the Council. 2. The primary judge addressed three bases on which the State was said to be liable at [270]: "[T]here 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." 1. That is an accurate, and perhaps indeed somewhat generous, encapsulation of the pleadings and submissions directed to the liability of the State. 2. The primary judge addressed each basis of liability. His Honour said at [300] that the observations of Windeyer J in Voli v Inglewood Shire Council (1963) 110 CLR 74 at 85; [1963] HCA 15 were 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 eg 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." 1. The primary judge rejected the submission that the State was negligent in creating the danger, meaning the design and choice of the type of railing. There was an exchange of expert opinion on this issue, which the primary judge analysed at [302]-[313], noting that it was necessary to resolve a dispute where none of the experts had been cross-examined. His Honour gave careful reasons for preferring the opinion of Mr Kiernan at [314]-[323], no aspect of which is challenged. 2. The second basis for liability on the part of the State was as a former occupier, for the period 1997-2002. The primary judge addressed this at [273]-[275]. His Honour said at [273]: "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 (T.193) 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." 1. The primary judge noted at [274] that if the plaintiff had been intending to run a novel case that an earlier occupier owed a duty to the plaintiff arising out of its prior occupation, it might have been the subject of pleadings and submissions supported by some authority, and that it was not. 2. The primary judge concluded at [275] that "[t]he 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." 3. The third basis was that the State remained, in 2011, an owner and occupier and had a measure of control. This too was rejected, finding that the Council occupied the jetty after 2002. There is no challenge to this finding on appeal. Submissions on appeal 1. The essence of the Council's submission on appeal was that while the primary judge addressed the bases of liability of designer and former occupier separately, there was error in failing to deal with a case based on all factors considered together. It maintained that: "The postulated duty attached to the acts and omissions of NSW as they occurred during the design and construction phase, its subsequent not inconsiderable period of occupation of the jetty after the refurbishment, adverse events occurring during that occupation and the foreseeable continuing exposure of members of the public to a risk of which it knew while still in the design phase. All of these matters were relevant to the reasonableness of the Council's 'response' and the liability of NSW." 1. The formulation of that submission, focussing simultaneously upon the Council's challenge to the finding of breach and its complaint that the State had not been found liable, reflects the way in which the Council's submissions in this Court were advanced. 2. The Council complained that the primary judge did not advert to the design case raised by the Council's cross claim, being that it was negligent to hand over the jetty with an inadequate or unsafe handrail, or that the State had remained in occupation for five years after the handrail was constructed. That accords with the emphasis given to the representation in the State's letter of 3 July 2002 to the Council that the handrail complied with Australian standards. Consideration 1. The State's complaint that this is a new case is not without force. What the primary judge recorded about the plaintiff's lack of enthusiasm for a case against the State based on former occupation fairly reflects the transcript (23 September 2013, T193.47-194.3). The Council's submissions in reply reproduced above occurred only minutes after the plaintiff's senior counsel had declined to dispute (although not conceding) that the State could be liable as occupier after the jetty had been handed over (T197.39-46). They responded to the judge's question, and asserted, correctly, that the State had occupation and control prior to October 2002. But on no view was the submission which is now at the forefront of the Council's grounds of appeal developed in any detail or with any prominence at trial. It is to be borne in mind that the Council's primary submission against the State was that the State continued to be, in 2011, an occupier, which is in the teeth of a submission that the State was liable as a former occupier. 2. However, the submission is best addressed on its merits. I would not rule out the possibility of a duty owed by a former occupier to the plaintiff. Consider the facts of this case, but altered so that on 16 September 2011, a fortnight before the plaintiff's accident, the Council had ceased to have control and management of the jetty having been replaced by a new governmental entity. 3. But that is far removed from the actual position in this case, where the Council's control and management had been in place for nine years, and it had been actively involved in the restoration of the jetty before then in part on the basis that it would assume liability for it. 4. One may pass over precisely how the duty owed by the State as designer of the railing was altered by reason of the delayed handover of the jetty. The critical question remains breach. Looking at all the circumstances prospectively, before the plaintiff's injury, would a reasonable person in the position of the State which had designed and constructed the railing and retained control and management for a further five years have taken precautions in that period? The critical facts that occurred in those ensuing five years were the incident on the Sunday of the opening weekend and the near-incident two years later. 5. I do not consider that the fact that the State, as it turned out, continued to retain control and management for five years alters the finding that there was no breach of duty by it. The evidence does not permit an accurate understanding of the reason for the delays between opening in 1997 and handover in 2002, save that the Council (understandably) preferred to enjoy the benefit of the restored jetty without any of its ongoing costs or risks for as long as possible. The indications are that the handover was anticipated to occur shortly after the jetty was re-opened. Further, and without belittling the potential for harm from the incident on the Sunday after opening, and the near-incident reported in 1999, there were no actual instances of serious harm from the railing in the period the State was in occupation. 6. Thus, although the primary judge did not (in circumstances I have sought to explain) give separate consideration to whether the State's continued occupation until 2002 after the jetty had been restored and reopened to the public, his Honour's conclusion that there was no breach of duty by the State remains sound. 7. By a notice of contention, the State sought to uphold the judgment in its favour based on s 5M (no differently from the Council) and also on the bases of s 5D and s 42 of the Civil Liability Act. The State said that (a) factual causation had not been made out, because it had not been shown that Heritage Council approval would have been obtained to allow the alteration, (b) if the current occupier was liable for a risk, then a former occupier should not fall within the scope of liability for the purpose of s 5D(1)(b), and (c) the State relied upon the limited resources available to it and s 42. 8. None of these matters was considered by the primary judge. All would involve making findings of fact. None would make any difference to the outcome of this appeal. Consistently with Boensch v Pascoe [2019] HCA 49; 94 ALJR 112 at [7]-[8] and [101], it is not appropriate to resolve them. Liability of the grandparents 1. The primary judge addressed the liability of the plaintiff's grandparents at [351]-[383]. His Honour identified the "key points to emerge from [Ms Whitton's] cross-examination" as follows: "(a) 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); (b) 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; (c) that whilst they were standing looking over into the railing, they were so close to each other as to be touching each other; (d) that she and her husband turned away momentarily, calling the plaintiff to come with them; (e) that her impression of the plaintiff was that he was normally an obedient child; and (f) 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)." 1. The primary judge recorded that the plaintiff's statement of claim alleged that in recognition of the risk at the edge of the jetty, the grandparents told the plaintiff to come away from the edge of the jetty and led the plaintiff by hand as they walked along its length. The primary judge recorded at [355] that those two allegations of fact were not supported by the evidence. Issue was taken with that when the appeal was heard. It was accepted that there was no evidence of their holding the plaintiff's hand, but that there was evidence of their telling him to come away from the edge of the jetty. On the view I take, nothing turns on this. 2. The primary judge said at [357]: "As the plaintiff outlined his case against Mr and Mrs Whitton, it is that they should have either been holding his hand at all times whilst he was in proximity to the edge of the jetty or they should have been watching him and being so close to him that they could have taken hold of him. In those circumstances, the conduct amounting to negligence (in the plaintiff's case), could only be their momentary movement away from the railing without being in physical contact with the plaintiff and without having their eyes on him." 1. No issue was taken with the accuracy of that formulation of the plaintiff's case. 2. It had been common ground at trial that the grandparents would have owed a duty of care to the plaintiff if he had been led into danger by them: Hahn v Conley (1971) 126 CLR 276; [1971] HCA 56 and Hoffmann v Boland [2013] NSWCA 158. At [363]-[370], the primary judge identified decisions confirming that the circumstances may give rise to a duty of care owed to a child, but that such duty will spring out of the particular situation, rather than the parent-child relationship: St Mark's Orthodox Coptic College v Abraham [2007] NSWCA 185 at [31], Tweed Shire Council v Carley Eden Howarth (bht Trent Howarth) [2009] NSWCA 103, Robertson v Swincer (1989) 52 SASR 356 at 361-2 and Hoffmann at [34]-[36], [133]-[134]. 3. The primary judge considered that the case "might" fall into the class of liability that arises when a young child is removed from the safety of the home and exposed to potential dangers: at [371]. That falls short of holding that a duty of care arose. Instead, his Honour said: "However, bearing in mind that Mr and Mrs Whitton were merely going for a walk on a public jetty which was then being used [as] a walkway, even if a duty of care was owed, there must be an issue as to what reasonable care required in all the circumstances." 1. Contrary to the Council's submissions, the careful language of the reasons of the primary judge makes it plain that his Honour did not determine whether a duty was owed, but assumed favourably to the plaintiff (and the Council) that a duty was owed and held that there was no breach. That reflects orthodox judicial technique in a case where duty is problematic: see, for example, Bankstown City Council v Zraika (2016) 94 NSWLR 159; [2016] NSWCA 51 at [2]-[5] and [106]-[107]. 2. On the issue of breach, his Honour applied s 5B, found that the risk was foreseeable and not insignificant and that therefore the question was whether a reasonable person in the position of the grandparents would have taken the precautions identified by the plaintiff, in circumstances where there was a high risk of the plaintiff suffering a serious injury should he fall and no burden in taking the precautions. His Honour continued at [374]: "However, other factors are significant. Section 5B(2)(d) of the CLA refers to the social utility of the activity that creates a risk of harm. The activity that created the risk of harm was the plaintiff's grandparents taking him for a walk along a public walkway over water for his enjoyment and their enjoyment. That activity would necessarily involve looking out at the water and to the water below. It could hardly be said that Mr and Mrs Whitton were negligent for taking the plaintiff on a walk on the jetty. This is presumably why the plaintiff has limited his allegations against Mr and Mrs Whitton to their conduct in the seconds before he fell. They turned away from him for that one or two paces without first taking hold of his hand and were supervising him to make sure he was away from the railing." 1. The primary judge found that the exercise of reasonable care did not require the grandparents to be holding the plaintiff's hand or to take a hold of his hands as they started to move away from the railing. That was based in part upon the fact that they were used to caring for the plaintiff, that he was generally obedient, and that he had been well behaved when walking on the jetty. The primary judge concluded at [381]-[383]: "A five-year-old boy is not unsteady on his feet. As I have said, a finding of what reasonable conduct might be in the circumstances is a normative judgment. There could hardly be expert evidence as to what a person in the positions of Mr and Mrs Whitton might have done. They were not failing to supervise him. They simply turned and commenced to walk. No evidence has been adduced that might have suggested to them that the plaintiff would not immediately do the same. It is not a case of adults walking off into the distance leaving a child exposed to a dangerous situation or adults in some way forgetting that they were supposed to be supervising a child. The law of negligence must reflect the foresight, reactions and conduct of ordinary members of the community. The Court must be careful not to have regard to the fact of the distressing accident and look backwards at something that with the benefit of hindsight might have prevented the accident. It does not seem to me that in not holding the plaintiff's hand as they stood next to the jetty Mr and Mrs Whitton were failing to act with reasonable care towards him. Nor were they negligent in taking him out to the jetty or allowing him to stand with them adjacent to the railing." 1. The Council submitted that the grandparents should either have been holding the plaintiff's hand, or been in a position to grab him in the event that he moved to the railing. 2. I disagree. I think the primary judge was entirely correct, for the reasons given in the three paragraphs reproduced above, to conclude that the grandparents had not been negligent. Assuming for the sake of argument that they owed a duty 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 suddenly to approach and pass through the railing. No differently from the primary judge, it is not necessary to consider the question of duty. Costs 1. Following a hearing on 28 February 2020 on a panoply of issues raised by the parties seeking Sanderson or Bullock orders, or special orders based on the non-acceptance of Calderbank letter, the primary judge gave an ex tempore judgment: Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council (No 3) [2020] NSWSC 169. His Honour ordered that the Council and the Trust pay the costs of the plaintiff. The primary judge also ordered that the Council and the Trust pay the costs of the State and the grandparents on the cross-claims, and, in respect of the cross-claim involving the grandparents, on an indemnity basis from 30 August 2016. His Honour ordered that the plaintiff pay the costs of the State and the grandparents of the statement of claim. 2. The Council and the Trust have appealed from the order requiring them to pay the grandparents' costs of the cross-claims on an indemnity basis from 30 August 2016, and the plaintiff has appealed from the failure to make a Sanderson order whereby the Council and Trust would be liable for the costs of the State and the grandparents on the statement of claim. 3. One aspect of the chronology bears upon both issues. The Council was joined in the original statement of claim filed in 2014. The Council joined the grandparents by cross-claim filed in May 2016. In March 2017, the plaintiff filed an amended statement of claim joining the grandparents as the fifth and sixth defendants. The Council/Trust's appeal in respect of the indemnity costs order 1. The primary judge ordered the Council to pay the grandparents' costs of the cross-claims, on an indemnity basis, from 30 August 2016, based on a Calderbank letter dated 2 August 2016. This gives rise to a short point, although there was perhaps some divergence between the written and oral submissions. 2. It was common ground that the grandparents' offer was a genuine offer of compromise. It proposed that the cross-claim be dismissed with no order as to costs, and that the parties enter into a deed of release and indemnity. The primary judge did not in terms find that it was unreasonable for the Council to reject the grandparents' offer. In written submissions, emphasis was given to the limited material available from the grandparents in August 2016, and the fact that their proximity to the plaintiff only became apparent when a subsequent statement was served. Orally, it was said: "Our point on that which only relates to whether we were obliged to pay the Whittons' costs on an indemnity basis, our only point on that is, they were brought into and kept in the proceedings by the plaintiff. So his Honour did not apply a test of unreasonableness to the question of the basis on which we should pay their costs. We were entitled to have that applied. In our submission, in circumstances where they were going and were a party in any event, it was not unreasonable for us to maintain our cross claim against them. That is the extent of that point." 1. But that is slightly inaccurate, as counsel very properly acknowledged. The grandparents were joined by the Council, many months before they were added to the amended statement of claim. At the time the Calderbank letter was sent and rejected, the grandparents' were only joined as cross-defendants to the Council's cross-claim. If that is the extent of the point, no error is made out. Insofar as the Council's appeal extends to the need to conclude that it was unreasonable for the Council to have rejected the offer, I consider that this is implicit in the reasoning of the primary judge, noting that it was a valid Calderbank letter, therefore amounting to a genuine compromise, which "sets out the basis on which [the grandparents] contend they will be successful". 2. Part (quite possibility the majority) of the costs of the grandparents will have been incurred in the course of responding to the plaintiff's claim and, simultaneously, to the Council's cross-claim. Part may be exclusively referable to one or other of those claims. Nothing in these reasons is to be understood as bearing upon any apportionment as may be required to quantify the effect of the costs orders relating to the grandparents' costs. Plaintiff's cross-appeal as to costs 1. The primary judge rejected the plaintiff's application that the Council and Trust pay the costs of the State and the grandparents. His Honour identified the principles in Gould v Vaggelas (1985) 157 CLR 215 at 229; [1985] HCA 75 by Gibbs CJ: "In my respectful opinion, however, the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or overcaution." 1. The primary judge dealt with the costs of the State and of the grandparents separately. In relation to the State, his Honour noted that there was no evidence that the Council and Trust did anything prior to the commencement of the proceedings which induced, encouraged or caused the plaintiff to join the State. His Honour found that it was reasonable to join the State, but concluded there was nothing more as required by Gould and subsequent decisions. His Honour said at [20]-[21]: "I do not say that there can never be a situation where the conduct of an unsuccessful defendant post-joinder could not be considered as part of the court's discretion in ordering costs. The first and third defendants denied liability, denied the existence of a duty of care and denied that they were occupiers at the relevant time, as did the fourth defendant. Again, it seems to me that these were at least arguments available at the time. It does not seem to me that by denying liability the first and third defendants acted in such an unreasonable, improper or exceptional way that that its post-joinder conduct should be brought to bear in terms of the making of a costs order. In the circumstances, the plaintiff has not established that there was something about the conduct of the first and third defendants which caused him to join the fourth defendant or that there was something exceptional or untoward or unusual, if I use those general terms, about the conduct of the first and third defendants after joinder that necessarily should result in the first and third defendants being responsible for the fourth defendant's costs. The order that I will make in respect of the fourth defendant's costs is that the plaintiff pay the fourth defendant's costs." 1. In relation to the grandparents, the primary judge referred to an exchange of correspondence, prior to the plaintiff joining the grandparents, in which the plaintiff's solicitors queried the basis of a duty owed by the grandparents who were in loco parentium, and the solicitors for the Council and Trust responded by reference to authority in which parents who exposed a child to a risk of harm could be liable. The primary judge said that he was not satisfied that that amounted to an inducement or a suggestion to join the grandparents: at [27]-[28]. 2. The plaintiff challenged both aspects of those orders, although the second is pressed only in the event that the Council's appeal succeeds; accordingly, it need not be mentioned. 3. In support of the proposition that the primary judge erred in not ordering some of the costs of the State and the grandparents on the plaintiff's statement of claim to be borne by the Council and the Trust, the plaintiff submitted that the primary judge did not sufficiently consider the conduct of the Council and Trust, in disputing the duty of care, not admitting their occupation or control of the jetty, and cross-claiming against the State and the grandparents. He also maintained, repeatedly, that he was forced to sue the State and the grandparents. "The [plaintiff] did not freely choose to continue against the [State] or join the [grandparents] to the proceedings, but rather their continuation and joinder was necessitated by the conduct of the [Council and Trust]". 4. In oral submissions, the plaintiff said that the primary judge erred in failing to find that the conduct of the Council and Trust was unreasonable, and alternatively that his Honour erred "in requiring the plaintiff to establish that the Council's conduct was improper, untoward or exceptional". 5. I do not agree. The true legal position of the jetty after 2002 has been summarised above. So far as I can see, at no stage at trial or in the appeal was it correctly identified. I acknowledge the force in the plaintiff's submission that the Trust should have acknowledged that it had care and control of the jetty, but the plaintiff's pleading and submissions were less than a model of precision – they referred repeatedly to one or other of the defendants being 'the owner and/or occupier" of the jetty, and having "the care, custody and management of the jetty in its own right or with one of more of the other defendants". Indeed, the plaintiff maintained that both the Trust and the State were "the owner and/or occupier of the jetty". 6. The legal position is not straightforward. I do not consider that the primary judge erred in failing to find that the Council and Trust had responded unreasonably. 7. The alternative submission advanced by the plaintiff was that there was error of principle in the formulation at [21], set out at [171] above. This was asserted but undeveloped. It amounts to an invitation to depart from settled authority concerning the making of Bullock and Sanderson orders. No foundation has been laid to depart from the established principle. The requirement of leave to appeal 1. The Council and Trust proceeded on the basis that their appeal extended, as of right, to the challenge to the separate orders as to costs made for separate reasons after a further hearing. That accords with what was held in Wheeler v Somerfield [1966] 2 QB 94 but may not be correct, as explained in C G Maloney Pty Ltd v Noon [2011] NSWCA 397 at [104]-[106] and noted in AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346 at [72]. It is appropriate to follow the same course as was adopted in C G Maloney Pty Ltd v Noon, and grant leave to the Council and the Trust to appeal against the orders for costs in the court below, if such leave be necessary. 2. There was no dispute but that the plaintiff requires leave to cross-appeal from the costs orders. Although I have considered the submissions on their merits, that has confirmed that there is no basis for a grant of leave. Hence the appropriate order is that leave be refused. Orders 1. For those reasons, the appeal should be dismissed and the application for leave to cross-appeal should be refused. As presently advised, costs should follow the event, noting that the issues arising on the cross-appeal were severable (and led to separate written submissions in the white folder). If there is a basis for a different exercise of the discretion as to costs, any party may apply within the period specified by UCPR r 36.16. 2. I propose the following orders: 1. Grant leave to the Council and the Trust to appeal against the orders for costs in the court below, if such leave be necessary. 2. Appeal dismissed. 3. Application for leave to cross-appeal dismissed. 4. The appellants (the Council and the Trust) to pay the respondents' costs of the appeal. 5. The cross-appellant (the plaintiff) to pay the cross-respondents' costs of the cross-appeal. ********** 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: 23 October 2020