WHITE v NITIS (NEE WILLIAMS) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL POWELL, BEAZLEY JJA and SHEPPARD AJA 22 June 1998, 17 July 1998 [1998] NSWCA 262 Negligence — Duty of care — Breach of duty — Foreseeability of risk of injury — Likelihood of harm occurring — Whether steps to eliminate risk called for. Powell JA This is an appeal from a Judgment delivered, and verdict found, by Coleman DCJ in the District Court on 29 March 1996 in proceedings which had been brought by the Respondent seeking to recover damages for injuries which she claimed to have sustained as long ago as 31 August 1983 when she fell from a tree whilst playing in the backyard of premises at Wyalong Street, Panania, which premises were - as they seem at the date of the hearing before his Honour still to have been - owned and occupied by the Appellants, Mr and Mrs White. In those proceedings Coleman DCJ, having found that the Appellants were liable to the Respondent, and that the damages to which and the interest thereon to which the Respondent would otherwise have been entitled amounted to $77,286.80, reduced that sum by 50% for the Respondent's contributory negligence and therefore found a verdict in favour of the Respondent in the sum of $38,643.40 and directed the entry of Judgment accordingly. Although, in the Amended Statement of Claim (AB 1-5) which was filed on behalf of the Respondent, the particulars of negligence charged against the Appellants were far more extensive, the case which was sought to be made at trial on behalf of the Respondent was one based upon what might compendiously be described as "occupier's liability". That this was so is revealed by counsel's opening which was in the following terms (AB 21): "This is a case where it is alleged that the occupier was liable for some injuries suffered by the plaintiff. I shall shortly tell you about it. It concerns the plaintiff, who was a school girl at the time, and the defendant's daughter who lived on the premises and the plaintiff during their game, playing games, climb (sic) a tree and fell out of the tree. The plaintiff claims the defendant (sic) was negligent." Then in answer to his Honour's question "What is the duty and what is the breach alleged?", counsel continued: The duty is a duty of care owed to the plaintiff because of being on the occupier's premises and with the degree of proximity being "the foreseeability that the plaintiff would climb the tree and be injured." and then, in answer to his Honour's question "What is the breach that you allege?", he continued: "The circumstances are: the time of day, and they were not supervised in any manner. The defendant knew that the children played there every day and it is alleged that this tree or the limbs of the tree were not within the plaintiff's reach and that a metal form like a gate had been left against the tree and this enabled the plaintiff to climb into the tree from where a limb gave way and she lost her footing and fell, and the submission is that the gate formed an allurement for the 2 UNREPORTED JUDGMENTS plaintiff to climb the tree. The children were playing a game of hide and seek As the evidence will appear, it was the plaintiffs turn to hide while the defendant's daughter counted to one hundred roughly, between 6.00pm and 7.00pm at night, dark and scouting around she comes upon this iron and climbed into the tree. The plaintiff alleges that the occupier is negligent knowing that the children were in the yard four to five days a week and knowing that they played there late and that the defendant, at all times, condoned the children playing in the yard, and it certainly would be foreseeable under Wyong Shire Council v Shirt. Even though it may be only remote that it may happen, it is still foreseeable. That is the plaintiff's case, your Honour." The transcript record of proceedings (AB 22) records that counsel for the Respondent then informed his Honour that the authorities upon which he relied included Wyong Shire Council v Shirt!; Nagle v Rottnest Island Authority? and Australian Safeway Stores Pty Ltd v Zaluzna3. The evidence which the Respondent, who was 15% years of age at the date of the accident and 28 years of age at the date of trial, gave directed toward the question of liability was, if I may say so, sparse in the extreme. After recording (AB 23) that it was customary at the end of a school day for her first to do her homework, then to have dinner, and then go to the Appellants' home to play with their daughter Louise, who was then 12 years of age, the Respondent gave the following evidence (AB 24-25): "Q. On the afternoon of the 3°, could you tell the court what you remember of that afternoon after you had had your dinner? A. I went to Louise's house to see if she wanted to play and she said 'Yes', so we went into her backyard and we started to play a game of hide and seek, just me and her. After playing a few games and running around for a little while... WITNESS: It was Louise's turn to count on this occasion. We usually counted to 100. Louise was in the laundry which was up on her verandah adjoined (sic) to the house and I went down to the backyard for somewhere to hide. I saw the tree and what I thought what was like a gate was a bit of wrought iron sort of what I thought would have been a gate years ago, as I can remember, was leaning against the tree, so I proceeded to climb up the tree to hide. I got up the tree and sort of was holding on to the fork of the tree when a lower stump... HIS HONOUR: Q. You got up the tree and you were holding onto a fork Repeat exactly what you said? A. As I got on to the actual bit I was holding on to, the fork of the tree, it couldn't be reached from the ground. While still holding on to it the lower stump broke off that I was resting my foot on and I fell to the ground and that was before Louise had even finished counting to come and look for me. She then ran down the back yard from where she was counting to find out what happened because I was I (sic) scared and was crying and everything. DUNCOMBE: Q. You fell out of the tree? A. Yes. Q. And you screamed? A. I was crying and there was a noise and I screamed. 1. (1980) 146 CLR 40 2. (1993) 67 AUR 426; see also 177 CLR 423 3. (1987) 61 AUR 180; see also 162 CLR 479 URJ WHITE v NITIS (NEE WILLIAMS) (Powell JA) 3 Q. What happened then? A. Louise came running down the backyard and realised I was I had fallen out of the tree. I was lying underneath the tree. Her grandmother at that stage way residing, living in the garage as I remember, and she sort of came out and soon was there. 'Is there something wrong?' we said 'no'. We didn't want to get in trouble or anything. Then Louise went inside and got a cushion to put under my arm because my arm was sort of hanging really weirdly back down. I said, I have to go home to get to a doctor or something. I was able to walk then Louise helped me up, took me to my front door and Mum was there, sort of said, 'What happened?' and at that stage we didn't say that I fell out of the tree. Louise and me both agreed to say I fell down her back steps so we wouldn't get into trouble for climbing the tree or anything like that. I was taken to our local doctor and went to hospital from there. Q. You have told the court that you couldn't reach the fork of the tree from the ground? A. That's right. Q. Are you able to give the court an indication of how high that was off the ground? A. I'd say it would be between probably 6 to 7 feet off the ground, roughly. Q. By the time that this happened what time of day was it? A. It was in the evening, about between 6.30 and 7 o'clock Other evidence disclosed that, later that day, the Respondent was taken to Bankstown Hospital where she gave a history of having fallen down stairs, her arm going into a gap between the steps (AB 86). After examination and X-ray, the Respondent was diagnosed as having suffered a supracondylar fracture of her left elbow and a fracture of the distal left radius. The Respondent was admitted to hospital where a closed reduction of both fractures was performed. That procedure proved to be adequate for the distal radius but failed to give adequate reduction of the elbow fracture so that, later, an open reduction was performed. At trial the Respondent claimed to have a permanent impairment of the function of her left arm at or above the elbow as well as cosmetic disfigurement of the elbow and the arm. In the course of her cross-examination (AB 28-29) the Respondent gave the following (inter alia) evidence: "Q. Now getting back to your climbing in the tree, you knew that you shouldn't do it, didn't you? A. Well not that I didn't know that I shouldn't be doing it. I mean, it was a tree. I mean it was somewhere for me too (sic) hide so I thought at the time it would be a good place to hide. Okay, make (quaere maybe) the parents would have said no if I had asked them. I (sic) was just somewhere to hide on the spur of the moment. Q. You believed they would have said no if you had asked them: A. Well, probably. Q. And in fact you invented to your parent's (sic) another story? A. That's right. Q. Because you believed you would get in trouble? A. Well, my father was, like, I would have gotten into serious trouble I'd say, because my father was a very disciplined man, sort of thing. He really would have been mad with me so I was a bit scared of what he was going to say. Q. When you gave your evidence before, my friend was asking you questions, you said that you invented the story because you didn't want to get into trouble? 4 UNREPORTED JUDGMENTS A. That's right. Q. And you let that story be passed on to Mr and Mrs White as well? A. I never said anything to Mr and Mrs White. Louise passed that on to them. Q. I am suggesting to you that you knew at the time you should not have climbed in the tree? A. Well, I mean, I am just saying as I said... Q. Do you agree with that? A. Well that I shouldn't have climbed in the tree if I had permission (sic)? They wouldn't have let me, no, probably not. Q. You would agree with that? A. Yes." The only witness who was called on behalf of the Appellants was Mr White. At the outset of his evidence (AB 36), Mr White said that it was not until the day following the accident when he became aware that the Respondent had been injured, that having occurred when the Respondent's father came to the Appellants' home and told him that the Respondent had been injured when running up back steps the house. Mr White further said that it was not until the Statement of Claim was served some six years after the accident when he became aware that the Respondent claimed that she had suffered her injuries when she fell from a tree in the backyard of the Appellants' home. After some general evidence as to the trees which were in the backyard of the Appellants' home, which trees included a gum tree which seems to have been thought to have been the tree from which the Respondent fell, Mr White then gave the following (inter alia) evidence (AB 37-38): "Q. The tree in which the injury occurred was a different type of tree? A. Yes, a gum tree. Q. How would you describe it at the time? A. Fairly large tree, fairly straight up. Now I do remember chopping a limb off it at one stage. I can't remember when it was but it didn't lend itself to be climbed. Q. Now, there was a compost pile in the backyard? A. The compost heap was approximately 10, 15ft away - more like 15 feet away from the gum tree. Q. How did you contain it? A. The compost heap was bordered by one fence on one side, the other fence, sheet iron on one side and on the front of it, what I call the front, was one of my old wrought iron gates and it was wired with some chicken mesh to stop the grass from coming out. Q. Was that in a position being one boundary of the compost heap? A. What I call the front, yes. Q. How long had it been there in August 198P A. 1983. Q. The time of this accident had it been there be fore this accident? A. Well, if I can just - I put the compost heap in a few years after we moved into the house so we would be looking early 70s. Q. At the time there was a compost heap which was bordered at one side by this wrought iron gate. How long had it been there? A. Ever since the compost heap was made. Q. About how long was that? URJ WHITE v NITIS (NEE WILLIAMS) (Powell JA) 5 . Like I said, it would be early '70s. . About ten years. . Yeah, it would be about 10 years, yes. . In relation to the wrought iron gate? . Yes. . Was it ever kept in any other place? No. . You have heard evidence today that it was against the tree? . Yes. . Did you ever have cause to put it against the tree? . None whatsoever. >LOPOPO>FO>O> Q. Was it normal that local children would play in your yard after dark at that time of the year? A. I wouldn't say it was par for the course of playing in the yard in. winter time. They did play, yeah, but it wasn't normal; summer time, yes. Q. Did you, at a particular night when you went out, did you have any knowledge that there was going to be any visitors to the house to play in the yard? A. No. Q. No discussions between yourslf, your daughter or any other person? A. No, not that I can recollect, no. We went out for tea. My daughter was being looked after by my mother." In the course of his cross-examination - during which he repeated that he had not moved the wrought iron gate from the front of the compost or placed it against the gum tree - Mr White gave the following further evidence (AB 43):. "Q. Mr White you have told us that the wrought iron gate was at the front of the compost heap and it was built out of steel, of course, wrought iron. It was a heavy gate, wasn't it. A. What do you call heavy? I don't know what you mean. I could lift it easily. Q. Can you estimate it's (sic) weight? A. I'm in the engineering field. I could work it out roughly. Made out of about half inch square. I am just surmising. Q. Can you tell the court how big it was? A. Be about that long, roughly. Q. Is that indicating about 3ft? A. That's a bit more than 3ft. I'm trying to remember. About that high, roughly. HIS HONOUR: He is indicating about a metre. WITNESS.. No, your Honour, it wasn't a metre high. HIS HONOUR: Q. You just think about it and tell us how high it was. You are indicating about a metre? A. It wasn't as high as that. About 2ft, roughly. DUNCOMBE.. Q. Was it square: A. No, it was oblong. Q. How long was it? A. Td say be over 3 ft, 3 and a half, possibly 4. I'd say between 3 and 4ft, at a guess. It's a long time ago. HIS HONOUR: Q. What kind of wire was it? Chicken wire? 6 UNREPORTED JUDGMENTS A. It was made out of fabricated, I think about half inch square steel wire. Some chicken wire up on one side of it, your Honour. " When, in the course of his Judgment, Coleman DCJ came to the question of liability, he found both that the "frame" had not been placed against the tree by Mr White (AB 132) and that Mr White was not aware, at the time, that the "time" was leaning against the tree (AB 130). His Honour then continued (AB 132-134): 'The plaintiff's case is that the defendants were in breach of their duty by failing either to remove the frame from the compost heap or by failing to secure it to the surrounds, so that it could only be used in the vicinity of the heap. The plaintiff says that within the concept of Shirt there was a risk of injury and that the risk was not far fetched or fanciful, and that a reasonable person in the position of the defendants, and particularly in the position of Mr White, would have reasonably foreseen that the frame might be used as a way of gaining access and climbing the gum tree. I have given some anxious consideration to that question because counsel for the defendants has made some compelling and thorough submissions concerning the standard of care and the situation of suburban householders and, in particular, referred to Yaenke (sic) v Hinton, Court of Appeal, Supreme Court of Queensland 3 November 1995, which I have in an extracted unreported form. I have reached the conclusion, when I asked myself the first question which Mason J, as he then was, refers to in Shirt, that a reasonable man in the defendant's position would have foreseen that leaving the frame in that position involved a risk of injury to the class of persons which included the plaintiff in the way that I have defined. However, I must then consider what a reasonable man would do by way of response to the risk and, in doing that, I must consider the magnitude of the risk and the degree of the probability of its occurrence, together with the expenses, difficulty and inconvenience of taking alleviating action; and any other conflicting responsibilities which the defendant may have. (see Shirt at p285). I have not found it easy to balance those matters in this case and I am conscious of the need not to impose the standards of a remarkably cautious man upon a reasonable person. (See Pincus JA in Yaenke and also per Mahoney JA in Inverell Municipal Council v Pennington (1993) ATR 81-234). It is not unreasonable to keep compost in the backyard and that, in itself, is not an operation which is fraught with danger. However, having found that there was a risk as I have defined I have come to the conclusion that the magnitude of the risk was such that precautions ought to have been taken, bearing in mind that the yard was a place where children came to play from time to time. There were trees in the yard and there was one tree where there was a Perfectly safe access to a tree house but it is not improbable that children might, from time to time, try to climb the other trees. Ihave come to the conclusion that a reasonable man would have responded to the risk by either removing the frame or securing it so that it could be used but not removed. Accordingly, there will be a verdict for the plaintiff against the defendants." I regret that I am unable to agree with the conclusion which Coleman DCJ reached. URJ WHITE v NITIS (NEE WILLIAMS) (Powell JA) 7 The decision of the High Court in Australian Safeway Stores Pty Ltd v Zaluzna* has led to the old rules with respect to occupier's liability being subsumed in the general law of negligence. The result of this is that it may now be said that an occupier of land is subject to a general duty at common law to take reasonable care to avoid foreseeable risks of injury to persons who come lawfully upon his land. In the result, the two preliminary questions which must be answered in a case such as this are: 1. whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff; 2. if the answer be in the affirmative, what would a reasonable man have done by way of response to the risk. If a reasonable man in the position of the defendant would not have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff then that is the end of the matter. If, however, a reasonable man in the position of the defendant would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff then the question is whether or not such action, if any, as the defendant took involved a reasonable response to the perceived risk. It seems now to be accepted (see Nagle v Rottnest Island Authority5) that in determining whether or not a risk is foreseeable, one proceeds upon the basis described by Mason J (as he then was) in Wyong Shire Council v Skirt®, that is, that a risk of injury which is remote in the sense that it is an extremely unlikely to occur, may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable. However, although the question of foreseeability must be approached in the way suggested by Mason J (as he then was) in Wyong Shire Council v Shirt? one must be very careful about the way one proceeds in that question in any particular case. In particular, it seems to me - and the present case provides an excellent example of this being so - it is not legitimate to have regard to hindsight in determining whether what is shown in fact to have occurred was reasonably foreseeable. I say this since, although the facts, as Coleman DCJ has found them, are that the "frame" had been in position for over ten years prior to the accident in question; that Mr White had never removed it from the front of the compost heap; and that although, during that time, the backyard of the Appellants' home had, apparently, been a place where the neighbourhood children commonly gathered to play, the "frame" had never been removed from its place at the front of the compost heap; Coleman DCJ nonetheless considered seemingly only because the accident happened that the Appellants and, in particular, Mr White, ought reasonably to have foreseen, first, that, at some time, some person would remove the "frame" from the front of the compost heap; second that that person would then place the "frame" against the trunk of the gum tree some fifteen feet or so away from the compost heap; third, that some child having found the "frame" in that position, would be "allured" to use it to climb into the gum tree; and, finally, that having done so, the child would then lose his or her footing and (1986-1987) 162 CLR 479 . (1992-1993) 177 CLR 423, 431 per Mason CJ, Deane, Dawson and Gauldron JJ, 439-440 per Brennan J (as he then was) (1980) 146 CLR 40, 48 . supra we ao 8 UNREPORTED JUDGMENTS fall and sustain injury. With great respect to his Honour it seems to me that to find, as he did, in the present case, that the Appellants and, in particular, Mr White, should have foreseen such a chain of events, is to impose upon suburban householders such as the Appellants an unrealistic level of foreseeability (see, for example, Romeo v Conservation Commission (NT)8. I conclude, therefore, that his Honour erred in finding a verdict for the Respondent. The Orders which I propose are thus: 1. ORDER that the Appeal be upheld. 2. ORDER that the verdict found by Coleman DCJ and the Judgment entered in the District Court be set aside. 3. IN LIEU THEREOF ORDER that there be found a verdict in favour of the Appellants and that Judgment be entered accordingly. 4. ORDER that the Respondent pay the Appellants' costs of the proceedings before Coleman DCJ and of the Appeal, the Respondent, if qualified, to have a certificate under the Suitors' Fund Act 1951. Beazley JA I agree with Powell JA. Sheppard AJA I agree with Powell JA. 1. Order that the Appeal be upheld. 2. ORDER that the verdict found by Coleman DCJ and the Judgment entered in the District Court be set aside. 3. IN LIEU THEREOF ORDER that there be found a verdict in favour of the Appellants and that Judgment be entered accordingly. 4. ORDER that the Respondent pay the Appellants' costs of the proceedings before Coleman DCJ and of the Appeal, the Respondent, if qualified, to have a certificate under the Suitors' Fund Act 1951. Counsel for the appellants: H J Marshall Solicitor for the appellants: Henry Davis York Counsel for the respondent: N C Hutley SC and KL Duncombe Solicitors for the respondent: Rosier Associates 8. (1998) 72 ALJR 208; 151 ARL 263