New South Wales Court of Appeal CITATION : Nambucca Shire Council v Revell [2003] NSWCA 367 HEARING DATE(S) : 27 November 2003 JUDGMENT DATE : 17 December 2003 JUDGMENT OF : Giles JA at 1; Ipp JA at 30; Brownie AJA at 31 DECISION : (1) Grant leave to appeal; (2) Direct that the notice of appeal be filed within 7 days; (3) Appeal dismissed; (4) Claimant/appellant pay the costs of the opponent/respondent. CATCHWORDS : Personal injury - plaintiff burnt by below-ground hot coals at rubbish tip - whether evidence sufficient to prove tip managed by burning rubbish and covering it with soil - whether sufficient to prove negligence - whether plaintiff had to prove tip not conducted by contractor to defendant. ND Australia Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Brodie v Singleton Shire Council (2001) 206 CLR 512; Hawkesbury City Council v Ryan [2001] NSWCA 212; CASES CITED : Holloway v McFeeters (1956) 94 CLR 470; Jones v Bartlett (2000) 205 CLR 166; Trevor R Howse & Associates Pty Ltd v Dessman [2003] NSWCA 148; Waverley Municipal Council v Wagner (2001) 119 LGERA 167. PARTIES : Nambucca Shire Council - Appellant William James Revell - Respondent FILE NUMBER(S) : CA 40106/03 COUNSEL : G Curtin & G Glascott - Appellant C Hoeben SC - Respondent SOLICITORS : Phillips Fox - Appellant Beilby Poulden Costello - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT DC 7026/99 FILE NUMBER(S) : LOWER COURT P R Bell DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40106/03 DC 1822/01 GILES JA IPP JA BROWNIE AJA Wednesday 17 December 2003 NAMBUCCA SHIRE COUNCIL v REVELL Judgment 1 GILES JA: The plaintiff suffered burns to his feet as long ago as 20 September 1981. He was then 18 months old. The judge held that his injuries were caused by the defendant's negligence and assessed his damages at $87,500. This was an application by the defendant for leave to appeal on liability. The application was heard on full submissions so that, if leave to appeal were granted, the appeal could be determined without a further hearing. 2 The defendant conducted the Bowraville rubbish tip. The overall tip site was five or ten acres. An access road led to what was sometimes called a "drop area" at a gully within the site. The plaintiff was with his father, Mr Allan Revell, and a friend, Mr Stephen Robinson, when they took some rubbish to the tip. Mr Revell gave evidence of injury to the plaintiff on the access road. Mr Robinson gave evidence of injury to the plaintiff at the drop area. The judge preferred and accepted the evidence of Mr Robinson. 3 The drop area was a more or less flat area ending with a two or three metre drop into the gully. It was clear of grass, a mixture of clay and shale, and Mr Robinson said it had the appearance of ground graded by a grader. It was the area for domestic rubbish, which was deposited at the edge of the drop. It is plain from the evidence to which I later refer that the rubbish was then pushed by earthmoving equipment into the gully: for the moment I pass over the further question of burning and covering the rubbish. 4 The car was stopped on the drop area four to five metres from the edge of the drop. Mr Revell and Mr Robinson unloaded rubbish. Mr Robinson heard the plaintiff cry. He saw the plaintiff between the car and the edge, two and a half to three metres from the edge of the drop. He went over to the plaintiff. He gave the evidence - "Q. What did you notice about the area he was standing in? A. Well underneath his feet was a depression which hadn't been evident before and -- Q. How big was that depression? A. Probably about a foot to 18 inches in diameter, thereabouts. HIS HONOUR: Probably 18 inches to a foot in diameter, is that what you said there? A. Yes, your Honour. DOOLEY: Q. How deep was that depression? A. Probably no more than three, four inches. Q. When you looked in that depression what did you see? A. Coals, wood coals. Q. Did you see any dirt or whatever? A. I don't know how to say this without drawing a conclusion, the surrounding area was dirt and there was some dirt which had appeared to have broken away under his feet but he was on coals. Q. That wasn't there when you pulled up at the tip initially? A. No, it wasn't, it wasn't evident." 5 The negligence found against the defendant is, with respect, not entirely clear. The particulars of negligence in the statement of claim were directed to the condition of the access road, rather than the condition of the drop area, although not entirely so; some further and better particulars had been provided by letter. There were arguments over the adequacy of the particulars for the case as presented, which seem to have obscured the findings as to negligence. 6 The judge first said - "It is quite clear from Mr Robinson's evidence that the area in which this incident took place was readily accessible to members of the public driving into the tip and parking cars alongside it. There was no signage warning persons utilizing the tip that the area was dangerous to walk upon. There was no signage advising that the area was one under which there was a potential danger from smoldering [sic] coals. The area was observed to be safe to enter upon. The dirt above the smoldering [sic] coals was sufficiently thin for the weight of an eighteen month old child to break through it. I have no difficulty whatsoever in stating that these facts amply demonstrate the existence of negligence." 7 The judge noted that counsel for the defendant had "predicated his submissions on negligence on the basis that this negligence must be something connected with the grading process", and had submitted that the plaintiff "has failed to adduce proof as to who did the grading". He said that the defendant had submitted that the statement of claim "does not plead an allegation sufficient to raise such a case". His Honour referred to the particularised negligence, and to the further and better particulars referring to "'any unsafe area' not being delineated by fencing, signage or otherwise." 8 Apparently referring to the pleading submission, his Honour said - "I am satisfied that the area referred to by Mr Robinson was indeed an 'unsafe area' within the further and better particulars provided, and is also covered by subparagraph (d) of the Particulars of Negligence. Accordingly, the negligence is not restricted to the method of grading but includes the absence of any protecting fencing or warning signage in relation to the area that had been graded. I am therefore satisfied that the Plaintiff has established that there was negligence in the manner in which the ground gave way over burning or smoldering [sic] coals, in an area that was accessible to members of the public lawfully using the Council rubbish depot." 9 Then referring to the failure of proof submission, his Honour said - "The second part of the argument advanced by the Defendant's counsel is a more substantial one, namely whether the Plaintiff has discharged his onus of establishing that the negligence was occasioned by the Defendant, its servants or agents. This submission has two aspects, firstly the failure of the Plaintiff to prove who did the grading, and secondly the failure to establish that it was a council employee who lit the fire, which produced the coals. As to the grading, Mr Curtin submitted additionally there was no evidence that it had been done negligently, so that some person would not come to harm. I am well satisfied that if the weight of an eighteen month old child was sufficient to break through the soil covering the smoldering [sic] coals either or both of the following situations prevailed; there was insufficient soil placed over the burning coals or there was a failure to ensure that the burning coals did not diminish the amount of the soil cover. Both of these conditions are encompassed within the pleadings of failure to keep a proper lookout for the Plaintiff." 10 From all this, which in part dealt with the defendant's responsibility for any negligence, it seems that the judge found negligence in the management of the tip by burning rubbish and covering it with soil, in that there was failure to take reasonable care to cover the rubbish with sufficient soil that a person would not break through the soil into the rubbish beneath, or to fence off the relevant area or warn by signs of the danger of breaking through the covering of soil. 11 The defendant submitted that the evidence was insufficient to establish that the wood coals seen by Mr Robinson were the product of management of the tip by covering burning rubbish and covering it with soil. It submitted that the drop area was for domestic rubbish and the "wood coals" seen by Mr Robinson were not consistent with the burning of domestic rubbish, and that it was just as likely that the wood coals were the product of someone lighting a fire for their own purposes and then covering it with dirt. It said that the plaintiff had not discharged his burden of proof when there were no more than "conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture" (Holloway v McFeeters (1956) 94 CLR 470 at 480). 12 With the passage of time, the defendant had no records going to the conduct of the tip. There was no evidence from anyone engaged in its conduct. 13 According to Mr Warwick Kiernan, an expert for the plaintiff, in the 1970's combustible material at some small council rubbish tips was burnt off before the rubbish was covered with soil. He said that the practice ceased as rubbish tip management improved, but that in 1981 at small country tips "controls were minimal and burning off may have occurred". 14 Mr Revell gave evidence of seeing burning rubbish on other occasions when he went to the tip, and of seeing burnt rubbish which had been covered with dirt or "graded over". He said that it was "not just in one sort of set location like at the drop off area but this was spotted quite around". He described that at one point on the creek bed, meaning what I have called the gully, "you can see where the whole creek bed has been built up over the years from this style of thing. There's all different styles of rubbish at different layers". He described this more fully - "Q. What did you mean by that? A. Well, back where the fence covers the road which was the old section you could see more or less layers going down about 20 feet. Q. What do you mean layers? A. Well, different types of rubbish that had, you know, decayed to various levels and were packed down to different levels and to a depth of about 20 feet. Q. What separated the levels? A. Dirt. Q. What sort of condition was the rubbish, how was it? A. Burnt, it was all different sort of things, everything from old trees burnt to household rubbish, all sorts of stuff." 15 Mr Ray Lynch, a long-time Bowraville resident, gave evidence that "they used to take the rubbish out there and then they'd burn it and when the fires went out they used to grade it over, make room for more the next trip." 16 Mr Robinson saw at the tip "a small bulldozer or a front end loader which was used to bulldoze the rubbish". He gave no evidence of burning, but was not asked about it. 17 I do not see why domestic rubbish could not include some wood, or materials which when burnt appeared to be wood coals. It is not easy to see why someone would wish to light and then cover over their own fire about three metres from a pile of no doubt rather unpleasant rubbish. From Mr Robinson's description, the drop area of the tip had been graded. In my opinion, on the evidence to which I have referred it was well open to the judge to conclude that in 1981 burning of rubbish and covering it with soil was practised at the tip, and to find that the apparent wood coals at the drop area were the result of management of the tip by covering burning or smouldering rubbish with soil. 18 The defendant submitted that there was no evidence of the proper method of burning rubbish and covering it with soil, for example of a sufficient depth of soil. That is correct. It said that the plaintiff had therefore failed to prove that there was negligence in this respect in the management of the tip. 19 According to Mr Kiernan, "burning/smouldering beneath the surface could continue for some time" and "accidental fires could smoulder for long periods beneath the face and cover material". The cessation of the practice of burning and covering material was described as improvement in tip management and control. The hazards in the practice were self-evident, but were supported by this evidence. Either the soil cover had to be sufficient for safe passage by persons traversing the drop area, or a different drop area had to be used. If the soil cover might have been insufficient for their safe passage, due care for those attending the tip required that they be directed to a different drop area to deposit their rubbish. 20 It was common ground that the tip as a whole was not fenced, and obviously enough the drop area was not fenced off. It was also common ground that there were no warning signs. Those attending the tip were not directed to a different drop area to deposit their rubbish. 21 The judge inferred, from the plaintiff breaking through the layer of soil, that there was negligence: that is, that where there was ready access to the drop area and no warning signs, the proper method of burning and covering the rubbish had not been used in that there was insufficient depth of soil. I consider that the inference was open. It was not a case of simple inference from injury to negligence producing the injury. The inference was informed by the evidence of Mr Kiernan earlier mentioned and the light cover of soil where the plaintiff broke through. 22 The defendant then submitted that the evidence was inadequate to make it responsible in law for this negligence. It said in effect that there was no evidence that it conducted the tip by its own employees, as distinct from by a contractor, and that if it conducted the tip by a contractor it was not responsible in law for the negligence. The submissions attacked the way the judge dealt with a similar submission found within the "second part of the argument" noted by the judge in the passage earlier set out. The defendant relied, at the trial and in the application, on Waverley Municipal Council v Wagner (2001) 119 LGERA 167. 23 The evidence did not establish one way or the other whether the defendant conducted the tip by its own employees or by a contractor. The judge distinguished Waverley Municipal Council v Wagner on grounds to do with available inquiry and exercise of control which, with respect, are not easy to understand. The case nonetheless does not assist the defendant. 24 In Waverley Municipal Council v Wagner a pedestrian tripped and fell over a loose paver in the footpath. It was held that the council was not liable because there was no evidence that it had laid the pavers, as distinct from had them laid by a contractor. The defendant submitted that, equally in the present case, there was no evidence that the defendant did the work of covering burning or smouldering rubbish with soil itself rather than by a contractor. 25 In Waverley Municipal Council v Wagner, however, the Court emphasised that the case had been presented and run on the basis that the council had been guilty of a misfeasance in laying the pavers in the first place, in accordance with the law concerning the liability of a road authority as understood prior to Brodie v Singleton Shire Council (2001) 206 CLR 512. It was necessary that the pavers had been laid by the council or by someone for whom it was vicariously liable. In the present case the defendant was not sued as a road authority and, quite apart from Brodie v Singleton Shire Council, liability did not depend on misfeasance by the defendant. 26 The defendant was the occupier of the rubbish tip. It conducted the tip - a sign named it as a Nambucca Shire Council tip, and when the tip closed a sign was put up saying that it was closed and stating where the rubbish could now be deposited. The defendant owed to entrants to the tip a duty to take reasonable care to avoid foreseeable risk of injury (Australia Safeway Stores Pty Ltd v Zaluzua (1987) 162 CLR 479 at 488; Jones v Bartlett (2000) 205 CLR 166). It was sufficient for the plaintiff to establish that, in the conduct of the tip by burning rubbish and covering it with soil and without appropriate restrictions or warning signs, he was exposed to a foreseeable risk of injury. It was not necessary for the plaintiff to negate conduct of the tip by a contractor. The defendant may or may not have been able to escape liability by showing that the management of the tip was by a contractor and that it took reasonable care in the selection and supervision of the contractor and inspection of the tip, but it was for the defendant to lead evidence that effect: Hawkesbury City Council v Ryan [2001] NSWCA 212 at [80]-[81]; Trevor R Howse & Associates Pty Ltd v Dessman [2003] NSWCA 148 at [59] – [61]. It did not do so. 27 The defendant said that, because of the lapse of time, it was not in a position to show that it conducted the tip by a contractor. So far as that was a plea to the heart, the plaintiff was in no better position and, if it were necessary for him to prove how the defendant conducted the tip or negate conduct by a contractor, could make a like plea to the heart. The difficulties in going back to 1981 must be acknowledged. The evidence was that the defendant "has been unable to locate any documents dealing with the tip and no staff who worked on or at the tip". This did not exclude evidence such as that of a former council chambers staff member who, albeit without records, could say that a contractor was or was not used. In any event, cases must be heard and decided notwithstanding that circumstances may leave a party bereft of material evidence. 28 Notwithstanding some difficulties in the judge's reasons, I consider that his essential path to liability of the defendant has not been shown to have been in error. Leave to appeal is warranted, but the appeal should be dismissed with costs. 29 I propose the orders - 1. Grant leave to appeal. 2. Direct that the notice of appeal be filed within 7 days; 3. Appeal dismissed. 4. Claimant/appellant pay the costs of the opponent/respondent. 30 IPP JA: I agree with Giles JA. 31 BROWNIE AJA: I agree with Giles JA. ********** Last Modified: 12/18/2003 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.