Herbert v Tamworth City Council (No.3) [2004] NSWSC 207

New South Wales Supreme Court

CITATION : Herbert v Tamworth City Council (No.3) [2004] NSWSC 207 HEARING DATE(S) : 25 - 27 February 2004 1 - 5 March 2004 JUDGMENT DATE : 25 March 2004 JURISDICTION: Common Law JUDGMENT OF : Sperling J at 1 DECISION : 1. Judgment for the Plaintiff against the Defendant with costs for damages to be assessed; 2. Judgment for the Cross-Defendant against the Defendant with costs.

CATCHWORDS : Torts - negligence - occupier's liability - no question of principle CASES CITED : Wyong Shire Council v Shirt (1980) 146 CLR 40 Maddy Herbert by her tutor Teresa Lee Meehan PARTIES : Tamworth City Council Matthew William Keam FILE NUMBER(S) : SC 20187/02 Mr R V Letherbarrow SC with Mr R Taylor for the Plaintiff COUNSEL : Mr M T McCulloch for the Defendant / Cross-Claimant Mr G Niven for the Cross-Defendant McCabe Partners Lawyers for the Plaintiff SOLICITORS : Phillips Fox for the Defendant / Cross-Claimant Rhodes Kildea Solicitors for the Cross-Defendant

- 14 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Sperling J

Thursday, 25 March 2004

20187/02 Maddy Herbert by her tutor Teresa Meehan v Tamworth City Council

Judgment (No.3) 1 His Honour: On 25 October 1999 the plaintiff, Maddy Herbert, was living with her mother Teresa Lee Meehan at 189 Carthage Street, Tamworth. Powerhouse Park is about 100 metres away, bordered on two sides by Carthage Street and Kitchener Street. At all relevant times, the park has been under the occupation, care and control of Tamworth City Council. 2 At the time of the accident there was – and still is – a drainage channel in the park, commencing at the northern (Carthage Street) frontage of the park and running south to a point within the park where it feeds into a pipe installed below ground level. There is a head wall at the pipe inlet into which the end of the pipe is set. The surface of the drainage channel is concreted and river stones have been set into the concreted surface of the channel. The pit formed by the drainage channel at the head wall is 1.6m deep. At a point about 1.5m from the head wall, the pit is 1.4m deep. At the three sides of the pit (formed by the head wall and the adjacent sides of the channel) the ground slopes down to the edge of the pit formed by the head wall and the concreted sides of the channel. 3 In the previous paragraph I have treated Carthage Street as running east-west and the park as lying to the south of it. I will continue to do so, notwithstanding that this is not quite accurate. (Carthage Street in fact runs northwest – southeast.) 4 Late in the afternoon of 25 October 1999, Matthew William Keam, who was boarding with Mrs Meehan, took the plaintiff to the park to practice riding her bicycle. While riding the bicycle in the park, the plaintiff rode into the pit which I have described. 5 Proceedings have been brought against Tamworth City Council on behalf of the plaintiff by Mrs Meehan as her tutor. The Council has joined Mr Keam as a cross-defendant. The trial before me was limited to liability, the assessment of damages (should that arise) being postponed. 6 The bicycle was second-hand, but in good condition. The plaintiff had had it for only a short time. 7 Mrs Meehan's recollection is that the plaintiff had, prior to 25 October, learned to ride the bicycle. Mr Keam's recollection – and I accept it was his understanding at the time – was that the plaintiff had not yet learned to retain her balance on the bicycle satisfactorily when he took her to the park. This difference in recollection is not material and may have more to do with assessment than objective fact. 8 I refer to Exhibit F, a sketch plan of the park drawn by Mr Keam. It is not to scale. It shows the location of the park referable to Carthage Street and Kitchener Street, a playground area, a toilet block, the drainage channel (which terminated at the head wall as I have described), two bridges, a picnic table, a shrub and two trees. 9 I accept Mr Keam's evidence as being his honest recollection of what occurred. One has, however, to make allowances for the likelihood that his recollection may be affected by his association with the episode and that he may now believe that he took note of things which he might not in fact have noticed at the time. It is impossible for a person, in circumstances such as this, to distinguish subconscious confabulation from true recollection. 10 I can best summarise Mr Keam's evidence of what occurred on 25 October by reference to Exhibit F. He said the plaintiff was not wearing a protective helmet. His understanding was that she did not have one. He and the plaintiff walked to the park, he wheeling the bicycle. Mr Keam had not previously been in the park. They entered the park near the corner of Carthage and Kitchener Streets at a point marked with a cross. They then walked along the dotted line to the shrub (so designated on the plan). At a point marked "A" on the plan, Mr Keam noticed the more northerly of the two bridges. He was looking for an open grassy space. Arriving at the shrub, the area to the south appeared to him to be suitable. He said it looked to him to be a grassy area that went all the way the far boundary of the park. 11 Up to this point, the plaintiff had not been on the bicycle during the outing. According to Mr Keam, the plaintiff now undertook three rides from the shrub to a point a short distance to the east of the picnic table. On each occasion, Mr Keam ran beside her, on her right hand side, holding the handlebars with his left hand. On each occasion, he let go about halfway and the plaintiff brought the bicycle to a stop to the east of the picnic table. After each ride, Mr Keam walked the bicycle back to the shrub. 12 On the fourth ride (which terminated in the casualty), Mr Keam said he ran ahead of the plaintiff, jogging backwards in front of the bicycle until he reached a point near one of the trees which he marked with another "X". He then noticed the front wheel of the bicycle turn to the right consistently with the wheel having hit a bump in the ground. The plaintiff appeared to lose control of the bicycle at this point. The bicycle veered off to the plaintiff's right and Mr Keam's left. Mr Keam called out to the plaintiff to put on the brake. To Mr Keam's eye, the plaintiff then just disappeared. He ran towards the point where she was last seen. He said that, when he arrived at a point which he marked "V", the drainage channel came into view for the first time and, on arriving at the channel, he saw the plaintiff sitting beside her bicycle at the bottom of the channel close to the head wall with blood on her face. 13 Mr Keam said that during the time that the plaintiff was riding her bicycle on the four rides to which I have referred, he did not at any stage look to the west towards the drainage channel. 14 Mr Keam returned to the scene next day and saw a blood stain on one of the rocks at the bottom of the pit close to the head wall. 15 I had a view of the park before addresses by counsel. My observations became Exhibit Y in the proceedings. I quote them: Observations on view 4 March 2004 For most of its length the drain is shallow, with gently sloping sides, ie, having a shallow curved cross-section. At the southern end of the drain, there is a much deeper section, 5m in length or thereabouts, which is marked at its northern end by a concrete step and at its southern end by a head wall into which an outlet pipe is set. The deepest part of that section of the drain is close to the head wall. The concrete walls of this section are very steep. The vertical distance from the top of the head wall to the concrete surface of the channel immediately below is about 1.7m. (Having regard to the depth of the drain at that point, the vertical end wall and the steep sides of the drain adjacent to it, the section of the drain within 3m or so of the head wall can fairly be described as a pit and I will refer to it as such.) The grassed surface of the park abuts the concrete lip of the pit at the head wall and on either side. On those three sides of the pit, the grassed surface slopes steeply down to the lip of the pit. The fall on the eastern side is about 1m in a horizontal distance of about 3m. On the opposite side and at the head wall, the fall to the concrete lip of the pit is steeper still. The bottom and sides of the pit are made of or surfaced with concrete. There are stones set into the concrete surface, mostly rounded river stones but some with broken, sharp surfaces. The drain runs across the park roughly north to south, the pit being at the southern end of the drain. The park as a whole slopes moderately from Carthage Street on its northernmost boundary. The slope is generally in a south-easterly direction. There is a playground area in the north-western corner of the park. The slope of the ground is generally downhill from there to the opposite corner of the park. However, throughout the park, the surface undulates considerably with depressions between associated mounds or banks. The configuration of such depressions is concealed in several places by the associated mounds or banks. Because of the falling ground adjacent to the three sides of the pit, to which I have referred, neither the pit itself or any part of the concreted lip of it can be seen from something in the order of 90 per cent of the park area. The pit, or at least part of the lip of it, can be seen from positions on or close to the channel to the north or close to one of the three sides of the pit formed by the head wall and the adjacent concrete surfaces. Otherwise, the area occupied by the pit has the same appearance as the grassed depressions seen elsewhere in the park. By way of illustration, from the playground area, the place where the pit is situated has the appearance of a moderately undulating but relatively flat grassed area. At this distance, the depression is not readily distinguishable from the crest of the grassy bank which obscures a view of the pit itself. Approaching the pit from the playground area, even at 20m from the pit, no part of the structure is visible and the depression in which it is located looks no different from other depressions in the park. The same is generally true of other approaches to the pit except an approach along or close to the upper section of the channel. There are two bridges over the channel to the north of the pit, the more southerly one being about 10m north of the head wall of the pit. One at least of the bridges is readily visible from virtually anywhere in the park. Mostly, both bridges can be seen. From a good deal of the park, one can see the part of the channel situated to the north of the southern bridge, or at least one or both of the concreted lips of that part of the channel. It is, accordingly, apparent from a good deal of the park that there is a channel running north to south across the park, down to the southern bridge or thereabouts. But, because of the depression in which the pit is located, unless one is in close proximity to the pit, or has a view along the channel from further north, one cannot see whether the channel runs beyond the southern bridge. Further observations on view 4 March 2004