Reported Decision : (2005) Aust Torts Reports 81-818 New South Wales Court of Appeal CITATION: Waverley Council v Ferreira [2005] NSWCA 418 HEARING DATE(S): 18/11/05 JUDGMENT DATE: 1 December 2005 JUDGMENT OF: Spigelman CJ at 1; Ipp JA at 2; Tobias JA at 109 DECISION: (1) The appeal is partially allowed (2) The verdict in favour of Mr Ferreira is set aside and in lieu thereof a verdict of $115,900 should be substituted (3) The Council should pay 75% of Mr Ferreira's costs of appeal. CATCHWORDS: NEGLIGENCE - liability of Council as occupier - claim for mental trauma - death of child occurring in park managed by Council - discussion of factors set out in s 5B of Civil Liability Act 2002 (NSW) - Council's breaches of duty. - NEGLIGENCE - contributory negligence - whether child aged 12 could perceive the relevant risk - s 5R of the Civil Liability Act 2002 (NSW). D LEGISLATION CITED: Civil Liability Act 2002 (NSW), ss 5B, 5G(1), 5R, 30, 32(1) Annetts v Australia Stations Pty Ltd (2002) 211 CLR 317 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Cooke v Midland Great Western Railway of Ireland (1909) AC 229 Doubleday v Kelly [2005] NSWCA 151 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Jones v Bartlett (2000) 205 CLR 166 CASES CITED: Lynch v Nurdin (1841) 1 QB 29 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Thompson v Bankstown Municipal Council (1953) 87 CLR 619 Vairy v Wyong Shire Council [2005] HCA 62 Watt v Hertfordshire County Council [1954] 2 All ER 368 Wyong Shire Council v Shirt (1980) 146 CLR 40 Waverley Council (Appellant) PARTIES: Rogelio Ferreira (Respondent) FILE NUMBER(S): CA 41171/04 M Joseph SC/N Polin (Appellant) COUNSEL: L King SC/P Regattiera (Respondent) Phillips Fox (Appellant) SOLICITORS: Collins & Thompson (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 5834/03 LOWER COURT JUDICIAL OFFICER: Garling DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41171/04 DC 5834/03 SPIGELMAN CJ IPP JA TOBIAS JA Thursday, 1 December 2005 WAVERLEY COUNCIL v ROGELIO FERREIRA Judgment 1 SPIGELMAN CJ: I agree with Ipp JA. 2 IPP JA: The main issues on appeal 3 On 15 December 2000 Martin Ferreira, then aged 12 years, died when he fell to the ground through a skylight in the roof of a building situated in a park known as the Kimberley Reserve. The building had been opened in 1985. It was used as a part-time play centre and was known as the Community Centre. The Community Centre and the park were under the care, control and management of the appellant ("the Council"). The park was designed to attract children and was equipped with swings and other playground equipment. Children came to play there every day. 4 Martin was the son of the respondent (Mr Ferreira). Mr Ferreira sued the Council for damages for mental harm he suffered by reason of Martin's death. Garling DCJ held that the Council had breached the duty of care it owed Mr Ferreira and had caused him to suffer damage. His Honour found that Martin had not been contributorily negligent and assessed the damages incurred by Mr Ferreira in the sum of $138,400. 5 The Council appeals against the finding of negligence on its part, the finding that there was no contributory negligence, and the assessment of damages. 6 No issue arises by reason of the fact that the claim is one for pure mental harm and not for physical injury. As Mr Ferreira was Martin's father, he falls within the definition of a "close member of the family" of a victim under s 30 of the Civil Liability Act 2002 (NSW). The Council accepted that Mr Ferreira suffered a recognised psychiatric illness and that a person of normal fortitude might in the circumstances of the case suffer such an illness (s 32(1) of the Civil Liability Act). 7 Mr Joseph SC, who together with Mr Polin appeared for the Council, did not dispute that the Council owed Mr Ferreira a general duty of care as occupier of the park and building. This concession was rightly made. The Council ought reasonably to have foreseen that, were a child to die as a result of its negligence in controlling the Community Centre and the park, a parent of the child might suffer mental harm. In the circumstances the Council owed Mr Ferreira a duty of care: Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317. 8 Mr Joseph submitted, however, that Garling DCJ had wrongly held that the Council had breached its duty of care by failing to take reasonable steps to prevent a person in Martin's position from falling through the skylight. He submitted that the content of the duty of care found, in effect, by Garling DCJ was impermissibly wide. The trial judge's findings and the notice of appeal 9 There were two skylights on the roof of the Community Centre. Each was made up of a domed plastic panel inside a steel frame. Martin had climbed on to the roof to retrieve a dart with which he had been playing, noticed one of the skylights and walked towards it. He sat on the edge of the skylight but then rested his entire body weight on the middle of the plastic panel. The panel collapsed through the roof and caused Martin's fall. 10 Garling DCJ found that the Council knew or ought to have known that boys of Martin's age climbed on to the roof of the Community Centre. He found that it was foreseeable that boys who climbed on to the roof might notice a skylight and go towards it, simply by reason of general curiosity and, once there, might stand or sit or even jump on it. He said: "I believe that the Council had a duty to ensure that a person or a boy particularly of Martin's age climbing on to the roof would not be able to fall through the skylight if they were attracted to it, if they stood on it or sat on it." 11 His Honour erred in describing the Council's duty in terms of "ensuring" that a child of Martin's age would not fall through the skylight. If the content of the duty of care owed by the Council extended to taking steps to prevent persons falling through the skylight, the Council's duty was only to take reasonable steps. 12 His Honour found that the plastic panel of the skylight was "soft" and there is no challenge to this finding. He also found that the Council should have provided protection against the possibility of the skylight collapsing or breaking (in particular, by installing a metal grille over or underneath it) and that would not have been expensive or difficult. He made no finding, however, as to whether the Council knew or should have known of the softness of the plastic panel. 13 Martin gained access to the roof by climbing a fence at the rear of but attached to the Community Centre and, from there, hauling himself up. The judge found that the Council should have removed the fence. He said that the fence was an invitation to climb on to the roof, there was no reason for its existence, and it could easily and inexpensively have been removed. 14 The fence was surrounded by undergrowth and the judge said that this vegetation could have been cleared easily and "at a very small expense". This would have provided a clear space all around the building and discouraged young people from climbing onto the roof. His Honour said that climbing onto the roof would then have been "quite difficult". He said: "I am not prepared to say that someone could not find their way up there but it would be a difficult exercise, not something they could readily do." 15 The judge found that taking these measures would have been an inexpensive way of dealing with the problem of children climbing on to the roof and putting their weight on the skylight. He observed that, after the event, this is precisely what the Council did. 16 His Honour concluded that the Council had breached the duty of care it owed Mr Ferreira in the respects I have mentioned (by failing to install a grille, and by failing to remove the fence and the undergrowth). 17 His Honour then turned to the question of contributory negligence in the light of s 30(3) of the Civil Liability Act. This section provides: "Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim." 18 The judge said that a boy of Martin's age would not have thought that what occurred was an obvious risk. The judge considered that, even though Martin had been told by his father not to climb on to the roof, Martin would not have perceived any danger in doing what he did. The judge held that a boy of Martin's age would not have had any "real perception of [the] risk". Accordingly, his Honour held that Martin had not been guilty of contributory negligence. 19 Turning to damages, the judge found that as a result of Martin's death Mr Ferreira suffered a depressive illness with features of chronic post-traumatic stress disorder and an adjustment disorder. His Honour assessed Mr Ferreira's damages as being $138,400 and directed that judgment be entered in his favour in this sum. 20 The amount of $138,400 included an amount of $90,000 for past loss of earning capacity from the date of Martin's death (15 December 2000) to the date of the trial (December 2004). This was made up of two amounts being $70,000 from the date of Martin's death until the end of December 2003 and $20,000 from January 2004 to December 2004. During the first period Mr Ferreira was totally unfit for work. During the second period he could work as a waiter (but not as a chef – that being his occupation immediately prior to Martin's death); hence during this time he had a reduced earning capacity. 21 His Honour allowed a buffer of $20,000 for loss of future earning capacity. 22 The notice of appeal challenged the findings as to liability and the award in respect of future economic loss. The Council's written submissions, however, asserted that the judge's award for $70,000 as part of the past loss of earning capacity was excessive and, in oral submissions, Mr Joseph submitted that both amounts of $70,000 and $20,000 making up the amount of $90,000 in respect of past loss of earning capacity were excessive. Mr King SC (who together with Mr Regattieri appeared for the respondent) made no point of the omission of any reference in the notice of appeal to the challenge to the assessment of $90,000 in respect of the loss of past earning capacity and simply addressed his argument to that issue. The circumstances of Martin's death 23 On 15 December 2000 Martin went to the park with his friend Dima. This was not an unusual occurrence. They would go to the park every day after school and on weekends. There they played football, threw darts and would "just hang out". 24 On the day in question, the two boys were throwing soft darts at a door of the Community Centre building when Martin, by mistake, threw a dart on to the roof. Martin walked up to the fence that abutted the building, grabbed it with two hands, pulled himself up so that he could stand on the fence, and then climbed on to the roof. 25 Martin retrieved the dart and took it in his hand. He walked up to the skylight, leaned against it with his right hand and called out that it was soft. He proceeded to sit on the edge of the skylight. Then he stood up slightly and, according to Dima, "brought himself down to about the centre of the skylight". He released his hands and allowed his entire body weight to bear on the skylight. The skylight collapsed inwards and he fell to the ground. At the time, Martin weighed 53 kilograms. 26 It seems from the evidence of a police officer, who attended the scene after Martin's fall, that most if not the entire plastic panel fell to the ground. An expert witness postulated that the plastic might have degraded over time as a result of ultra violet radiation. The presence of the fence and the undergrowth 27 A critical question in this case is the content of the duty of care the Council owed Mr Ferreira: Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 475 and 487; Jones v Bartlett (2000) 205 CLR 166 at [166] to [167], 213. At common law, the court is required to identify what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. This is consistent with s 5B(1) of the Civil Liability Act which provides: "5B(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions." 28 The judge held, in effect, that removing the fence and undergrowth was a reasonable response to the risk of children, including Martin, climbing on to the roof and being exposed to some danger there, including the danger of falling in some unknown way from the roof to the ground. The potential possibilities (that, is, the risks) of harm, once a child was on the roof, were falling off the roof, falling through the roof and falling through a skylight. 29 The presence of the fence (which abutted the Community Centre) and the undergrowth made it relatively easy for children to climb on to the roof. Children used the fence as a kind of stepping stone. 30 Garling DCJ said: "The [C]ouncil facilitated the access to the roof by having a fence placed in an ideal position for boys to swing themselves up onto the fence or to climb on it and from there to swing via a well placed drain pipe up on to the roof. The vegetation around that fence would also have assisted the access. This is the way Martin climbed on to the roof. It must have been obvious that boys of Martin's age and people generally who wanted to access the roof will climb up in this somewhat simple manner." 31 These findings were open to his Honour and I think that they were correct. I would add that the fence was of a mesh design and according to an expert witness could easily be climbed by young people. This made access to the roof even easier for them. 32 The removal of the fence and undergrowth are not precautions directed specifically to preventing a person falling through the skylight. They are directed to discouraging children from climbing on to the roof and making it difficult for them to do so. The removal of the fence and undergrowth, by reducing the likelihood that children would climb on to the roof would reduce the risk of children falling from the roof to the ground. The judge held that their removal would reduce those risks substantially. 33 There is an obvious causal link between Martin's acts in climbing from the fence on to the roof and his fall to his death through the skylight. Had he not climbed on to the roof, he would not have fallen through the skylight. The removal of the fence and undergrowth would have made it difficult for children to climb on to the roof. While some children might still have climbed on to the roof, the removal of the fence and the undergrowth would have substantially hindered their capacity to do so. The corollary to these findings is that the presence of the fence and the undergrowth materially contributed to Martin's presence on the roof and, hence, in law, caused his death. Foreseeability of harm in relation to the fence and the undergrowth 34 The initial element to be determined under s 5B(1) is whether the risk was foreseeable. As s 5B(1)(a) makes plain, that involves inquiring whether the risk in question is one of which the defendant knew or ought to have known. The relevant risk in relation to the removal of the fence and undergrowth was the risk that children might use the fence and undergrowth to facilitate their access to the roof and, when on the roof, might fall to the ground. 35 There can be no doubt that the Council knew or ought to have known that children frequently climbed on to the roof of the Community Centre. Children playing at the park were often seen on the roof. Mr Ferreira said that he saw children on the roof "sometimes twice a week". Martin's friend, Dima, said that on a few occasions he himself had climbed onto the roof. Some of Dima's friends had also climbed on to the roof as had other children. A witness testified that "maybe weekly you could see at least one person up there". 36 According to the witness, children would climb up onto the roof because they were "just mucking around", that is, for no particular reason. Sometimes the children would throw objects on to the roof and would climb up to retrieve them. Martin himself had previously climbed up on to the roof to fetch a boomerang that he had, by mistake, thrown there. 37 Garling DCJ pointed out that boys of various ages, but particularly boys of Martin's age, climbed onto the roof of the Community Centre building and did so to retrieve balls, darts, or other objects. In addition, they climbed on to the roof out of curiosity and "because that is what boys do." His Honour observed: "It would be hard to say it is not foreseeable that boys of Martin's age would climb up onto a roof and certainly climb up where they have a means of access. And I am satisfied the Council knew that and if they did not they should have, but I am satisfied they would have known that. 38 On the evidence that I have recounted, not only was this finding open to his Honour but plainly correct. On appeal, the Council did not dispute it. 39 It was reasonably foreseeable that, once on the roof, a boy might be attracted to the skylight and stand on it or otherwise in some way rest his weight upon it. 40 Mr Joseph submitted that there was no evidence that the skylight was structurally weak; nor was there evidence that the Council knew of any defect in it or that it could pose any danger. Accordingly, he argued, a reasonable Council would not have foreseen that the skylight might give way and cause a person sitting on it to fall. 41 I deal with this submission in detail when considering the question whether the installation of a grille over or under the skylight was a reasonable precaution. Irrespective of whether the Council knew or ought to have known of the condition of the skylight it was reasonably foreseeable to the Council that a child who climbed on to the roof might come to serious harm by falling to the ground. Such a fall might be caused by an infinite variety of circumstances, impossible to identify in advance. 42 As Bryson JA said in Doubleday v Kelly [2005] NSWCA 151: "The actual events as they happened are not the circumstances to which consideration of foreseeability of risk of injury is applied; what is to be considered is foresight in more general terms of risk of injury …" 43 In my opinion, the relevant risk of injury was that a child such as Martin might fall to the ground once he had climbed on to the roof. In my opinion, that was a foreseeable risk in terms of s 5B(1)(a). It was a risk of which the Council knew or ought to have known. It is immaterial that the Council might not have been able to foresee the precise mechanism that caused Martin to fall. Section 5B(2): general considerations 44 Section 5B(2) provides: "(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 45 The matters set out in s 5B(2), in substance, are a reiteration of Mason J's remarks in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. Mason J stressed that, in the context of breach of duty, foreseeability of the risk of injury and the likelihood of that risk occurring were two different things. His Honour said: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself 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. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." Later, Mason J repeated (at 48) that the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. He said: "The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." 46 In the second reading speech introducing the Bill which became the Civil Liability Amendment (Personal Responsibility) Act (which introduced s 5B into the Civil Liability Act), the Premier said (Hansard, 23 October 2002 at 5765) that many of its provisions were modelled on the recommendations in the final report by the panel appointed by the Commonwealth and State Governments to review the law of negligence. I shall refer to the final report (The Review of the Law of Negligence, Final Report, September 2002) as "the Negligence Review". Section 5B(2) of the Civil Liability Act repeats Recommendation 28(d) of the recommendations of the Negligence Review. 47 The explanation for the enactment of s 5B(2) appears from paras 7.5 to 7.18 of the Negligence Review. The Negligence Review expressed the opinion that the factors now set out in s 5B(2) should be given statutory force so that courts would focus more directly on the issue "whether it would be reasonable to require precautions to be taken against a particular risk" and to avoid conflation of the concept of foreseeability of risk with the conclusion that a reasonable person would have taken precautions against it. 48 Before discussing the Council's submissions relating to the application of s 5B(2) to the removal of the fence and undergrowth, it is convenient to deal with two matters raised in argument concerning that section. Firstly, Mr Joseph submitted that, when determining whether there has been a breach of duty of care, the words in s 5B(2)(a), "the probability that the harm would occur if care were not taken," require proof that the harm would probably occur. 49 That submission is not correct. All the section requires is that the probability that the harm would occur if care were not taken must be considered. 50 Secondly, during the course of argument there was some discussion about s 5B(2)(d), namely, "the social utility of the activity that creates the risk of harm". There is nothing novel in this factor. It simply gives expression to the idea that some activities are more worth taking risks for than others. As is pointed out on page 103 (footnote 1) of the Negligence Review: "… a plaintiff may be required to submit to a risk for the sake of some greater good that they would not be expected to accept if some lesser interest were at stake. A common situation in which precautions that would normally be thought reasonable need not be taken is where an emergency vehicle is speeding an injured or sick person to hospital. As Denning LJ said in Watt v Hertfordshire County Council [1954] 2 All ER 368, 371 it is one thing to take risks when driving for some commercial purpose with no emergency, but quite another to take risks for life and limb." In the present case the issue of social utility does not arise. 51 Section 5B(2) provides a framework for deciding what precautions the reasonable person would have taken to avoid the harm and involves weighing the factors set out in ss 5B(2)(a) and (b) against those in ss 5B(2)(c) and (d) (subject, of course, to each being applicable in the particular circumstances of the case). 52 In my opinion, the probability as to whether a reasonable person would have taken precautions against a risk of harm (referred to in s 5B(2)(b)) must be considered objectively by reference to the particular circumstances of the case (and the state of mind of the defendant is not relevant to this inquiry). Would a reasonable Council have removed the fence and the undergrowth? 53 As I have noted, s 5B(2)(a) requires consideration to be given to the objective probability of harm occurring if care were not taken. In my view, there was a reasonable possibility of harm occurring if the fence and undergrowth were not removed and children were not prevented from using the fence or the undergrowth as a stepping stone to gain access to the roof. By s 5B(2)(a), this possibility must be taken into account. 54 The likely seriousness of the harm, should the risk materialise, was severe injury or death (s 5B(2)(b)) (that is, in consequence of falling from the roof to the ground). 55 Garling DCJ found that the fence served no practical purpose and in my view he did not thereby err. There was a gate in the fence and the gate had no lock. It would not have been difficult to climb over the fence. There is nothing to suggest that there was a reason to retain the undergrowth. Both the fence and the undergrowth served no apparent utilitarian or aesthetic purpose and the burden of removing them would have been small (s 5B(2)(c)). 56 I have already mentioned that s 5B(2)(d) (the social utility of the activity that creates the risk of harm) is not relevant in this case. 57 Weighing the factors set out in ss 5B(2)(a) and (b) against those in s 5B(2)(c), I conclude that a reasonable Council would have taken the precautions of removing the fence and the undergrowth and Garling DCJ did not err in so holding. In the result, I conclude that his Honour correctly held that the Council breached the duty of care it owed Mr Ferreira by failing to remove the fence and the undergrowth, and that it caused him, thereby, to suffer mental harm. The failure to install the grille: foreseeability 58 The omission to install the grille over or under the skylight gives rise to considerations that are different from those that arise in regard to the failure to remove the fence and the undergrowth. That is because the risk against which the grille was a precaution was more specific and thereby different from the risk against which the removal of the fence and undergrowth were precautions. 59 The risk to which the grille related was the specific risk of falling through the soft plastic panel of the skylight. 60 The lack of knowledge on the Council's part of any defect in the skylight gives rise to an issue not without difficulty. One of the particulars of negligence alleged by Mr Ferreira was that the Council failed to inspect the skylight. Although the judge made no finding in this regard, Mr Joseph submitted that, unless the skylight was patently defective in the sense that the defect "would have been reasonably obvious to a reasonable inspection," it could not be said that "(1) inspections didn't take place and (2) it wasn't reasonable not to have seen it". This issue bears on foreseeability as, if there was nothing to indicate to the Council that the skylight might fail, the Council could not reasonably have foreseen the risk of the harm that materialised. On the other hand, if the defect in the skylight were to be patent, the question of foreseeability might be answered differently. 61 It was obvious that, if a skylight was not sufficiently strong or protected by adequate means such as a metal grille, there was a serious risk that a child standing or jumping or sitting on it would fall through. Should that occur, serious injury or death would probably be the result. But, without knowledge, constructive or otherwise, on the part of the Council that there might be a problem with the skylight, it could not be inferred that the Council should have foreseen the risk of harm to a child resting its weight on the skylight. 62 It is reasonably foreseeable that skylights could be less structurally strong than the roofs in which they are inserted. Skylights, by their very nature, could be potential sources of harm to persons who rest their weight on them. There was no evidence, however, that bore directly on this issue. In particular, there was no evidence as to the weight bearing capacity of the skylight that collapsed. 63 Mr Joseph submitted that the defect in the skylight was latent but I do not accept that. Martin discovered that the skylight was soft simply by feeling it. Softness of that kind, in my view, was a patent defect. In my opinion, to employ Mr Joseph's phraseology, the softness in the skylight's plastic material would have been "reasonably obvious to a reasonable inspection". 64 The question whether inspections of the roof should have been carried out does not appear to have been canvassed at the trial. That is so despite the particulars of negligence alleging a failure to inspect. 65 Whether the Council should have inspected the roof governs the question whether it ought to have known of the softness of the skylight. If the Council had no obligation to inspect the roof, constructive knowledge of the problem with the skylight could not be attributed to it. On the other hand, if the Council should have inspected the roof, it ought to have determined that the skylight panel was soft, that being something that a 12 year-old boy discovered merely by feeling the plastic. 66 Whether the Council should have inspected the roof must depend on whether it should have done so in discharge of the duty of care it owed as occupier of the Community Centre and the park. I would add that the inspection required to discover the defect in the skylight in question would not need to be carried out by a person with particular expertise and could be effected by an ordinary employee of the Council having the necessary agility. Again, I point out, young children on a regular basis walked over this roof. 67 An appellate court would be chary of making a finding in favour of a plaintiff on an issue that was not properly taken up by him at trial. But, in my view, it is not possible to gainsay the proposition that, where a building is situated in a children's park, and it is known that children frequently climb on to the roof of that building and might be attracted to skylights on the roof, a council having the control, care and management of such a park and building, in discharge of the duty of care imposed on it in consequence, should carry out reasonable inspections (that would have involved little cost) at reasonable intervals so as to be able to discover patent sources of danger that might develop in the roof and the skylights. 68 The very condition of the skylight through which Martin fell indicates that there were no or inadequate inspections. Had reasonable inspections been undertaken, the defective skylight would have been discovered. I can see no answer to these inferences. In my view, despite the lack of direct evidence, and despite the fact that the issue was not properly dealt with at the trial or by his Honour, the justice of the case requires due regard to be had to these matters. By that I mean that had Mr Ferreira taken the issue further than merely pleading a particular of negligence involving the failure to inspect, and had the issue been squarely raised when evidence was led, I do not think that any other conclusion could have been reached. 69 In the circumstances, I consider that this Court should hold that the Council ought to have known that the skylight was soft. Accordingly, I conclude that the risk of the skylight collapsing was foreseeable (and the requirement of s 5B(1)(a) was established). The risk was not insignificant (and the requirement of s 5B(1)(b) was established). The installation of the grille as a precaution against the risk 70 Mr Joseph submitted that the installation of a grille either over or under the skylight was not a reasonable response to the risk of the skylight collapsing. 71 Mr Joseph submitted that the risk of climbing on to the roof and sitting on the skylight was obvious and Martin is to be presumed to have been aware of this risk (s 5G(1) of the Act). He argued that the Council was entitled to expect a child having the capacity to climb a roof to take sufficient care for its own safety not to put its weight on a skylight. For that reason, he submitted, the Council was entitled to do nothing. 72 I do not accept this submission. I agree with Garling DCJ that: "It must also have been known to the defendant, the [C]ouncil, that boys of Martin's age will climb onto a roof without any real appreciation of the danger that may exist. The obvious danger, of course, is that they may fall off the roof. They do not perceive danger the same way an adult perceives danger, the same way Martin's father perceived danger. Boys of his age would simply not have the same insight into that question of danger." 73 These findings are in accord with the following remarks of Lord Atkinson in Cooke v Midland Great Western Railway of Ireland (1909) AC 229 at 237 approved by Dixon CJ and Williams J in Thompson v Bankstown Municipal Council (1953) 87 CLR 619 at 631: "The authorities from Lynch v Nurdin (1841) 1 QB 29 downwards establish, it would appear to me, first, that every person must be taken to know that young children and boys are of a very inquisitive and frequently mischievous disposition, and are likely to meddle with whatever happens to come within their reach; secondly, that public streets, roads and public places may not unlikely be frequented by children of tender years and boys of this character." 74 The soundness of his Honour's findings is borne out by the fact that children frequently climbed on to the roof of the Community Centre building, despite the risk. As I have noted, the Council knew or ought to have known this. 75 Once the plastic panel of the skylight was soft, the degree of probability that it might collapse, should it be required to bear the weight of a child of Martin's age, was substantial (s 5B(2)(a)). 76 The likely seriousness of the harm materialising (see s 5B(2)(b)) was, again, serious injury or death. 77 As regards s 5B2(c), the judge held that the burden of taking precautions to avoid the risk of harm was small. He said that the cost of the precautions would have been inexpensive. This finding was disputed, largely on the ground that, according to Mr Joseph's argument, regard should be had to the cost of taking like precautions in regard to other buildings with skylights that might be under the Council's control. 78 There was, however, no evidence of the existence of other similar buildings. In my view, it was for the Council to establish, by way of evidence, that the burden of taking precautions in regard to skylights on other buildings where children climbed on to the roofs would cause it to incur unreasonable expense. In the circumstances, Garling DCJ was right to have regard only to the precautions to be taken in respect of the Community Centre building. 79 In my opinion, for the reasons set out in [65] above, the cost of reasonable inspections of the roof and skylights, and of installing a grille, would have been small. 80 I repeat that s 5B(2)(d) is not relevant in this case. 81 In my opinion, a reasonable person would have installed a grille over or under the skylight and the Council breached its duty of care to Mr Ferreira in failing to do so. I agree with the findings of Garling DCJ in this regard. Contributory negligence 82 In dealing with contributory negligence, Garling DCJ repeated that Martin would not have perceived any danger in doing what he did. He said that a boy of Martin's age would not have any real perception of the risk in climbing the roof and sitting on the skylight. His Honour found that Martin was not guilty of contributory negligence. The Council submitted that the judge thereby erred. 83 The argument advanced was that Martin should have perceived the danger and the judge erred in finding to the contrary. On that ground, it is said, Martin should have taken care for his own safety and failed to do so. 84 The issue of contributory negligence in this case is governed by s 5R of the Civil Liability Act which provides: "(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) The matter is to be determined on the basis of what that person knew or ought to have known at the time." 85 In Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 I pointed out that s 5R reflects the concept expressed by Callinan and Heydon JJ in Vairy v Wyong Shire Council [2005] HCA 62 at [220], namely, that the duty to take reasonable care for one's own safety does not "disregard the burden, by way of social security and other obligations that a civilised and democratic society will assume towards [a plaintiff] if he injured". I also noted that it embodies the expectation, expressed in the Negligence Review at para 8.10 , that "people will take as much care for themselves as they expect others to take for them". 86 These concepts, however, have to be tempered where the plaintiff is a child: see the discussion by Bryson JA in Doubleday v Kelly at [24] to [26]. I respectfully agree with Bryson JA that the characteristics of a reasonable person in the position of "that person" in s 5R(2)(a) include the characteristics of being a child (where the plaintiff is a child). 87 Section 5R is in accord with Recommendation 30 of the Negligence Review and the words "reasonable person in the position of that person" are equivalent to the words "a reasonable person in the plaintiff's position" in Recommendation 30(a). In paragraph 8.12 of the Negligence Review the following was said: "It is important to note that applying the same standard of care to contributory negligence as to negligence does not entail ignoring the identity of the plaintiff or the nature of the relationship between the plaintiff and the defendant. If, for instance, the defendant was an adult and the plaintiff was a child, applying the same standard of care to the plaintiff as to the defendant would not entail treating the plaintiff as an adult (any more than it would entail treating the defendant as a child). Again, if the defendant was a teacher and the plaintiff was a pupil … it would be perfectly consistent with applying the same standard of care to both parties to take account of the fact (for instance) that there is a relationship of authority between teacher and child … The requirement to apply the same standard of care in dealing with the issue of contributory negligence as is applied in dealing with that of negligence means only that the plaintiff should not be treated differently from the defendant merely because the plaintiff is the person who has suffered harm." The remarks of Bryson JA are in accord with these observations. 88 I agree with Garling DCJ that a boy of Martin's age would not have properly perceived the risks attendant of climbing on to the roof and resting his weight on the skylight. In particular, I do not think that it would occur to a 12 year-old child that stepping on the skylight or sitting on it would be a dangerous thing to do. For that reason I think that Garling DCJ correctly held that Martin was not guilty of contributory negligence. Damages 89 In 1987 Mr Ferreira emigrated to Australia. From 1988 to 1997 he was employed as a pizza maker. Part of the time during this period he was employed on a part-time basis. In 1997 Mr Ferriera's wife commenced full-time studies and he stayed at home to look after the family. This continued until October 2000 save for a period of five months when Mr Ferriera was employed by a pizzeria. In October 2000 Mr Ferriera commenced employment as a chef. He was not able to work after Martin's death. He attempted working part-time in March 2002 but was unable to do so. He made a further attempt in October 2004. By the time of the trial (December 2004) he was working part-time. 90 Garling DCJ accepted that Mr Ferreira's mental state was improving and that it would continue to improve; nevertheless at the time of the trial he found that Mr Ferreira was "extremely depressed". He had "obviously [been] deeply affected by what has happened …". The judge accepted that Mr Ferreira's working capacity had been diminished. 91 The judge said, when assessing economic loss, that he would take into account the fact that Mr Ferreira did not have a good work history in the past, and "it was the sort of history which may have resulted in him deciding from time to time not to continue to work but to either look after his children or do something like that". 92 The judge also found that Mr Ferreira had "some sort of back injury which may certainly in the future have some effect on his ability to work". His Honour said that the evidence in question was vague. He said: "… there is little evidence to the contrary other than he has simply suffered a total loss of income, but on the other hand I do have to discount it because of his work history." 93 The evidence as to Mr Ferreira's back injury was indeed vague. Mr Ferreira told his psychiatrist, Dr Dinnen that he obtained a disability support pension in April 2002 "as a result of a chronic back condition". He told Dr Dinnen that he had "three discs in his back". It is not clear, however, from Mr Ferreira's evidence whether he was given a disability pension only because of his back or partly because of his back and partly because of his mental condition. The evidence does not go further than this. The judge said that Mr Ferreira "does have some sort of a back injury which may certainly in the future have some effect on his ability to work" but did not say expressly that he would make allowance for the back injury in his assessment of economic loss. 94 Mr Ferreira's past work history is best seen from his income tax returns. For the year ended 30 June 1997 Mr Ferreira's taxable income was $21,024, for the year ended 30 June 1998 it was $7,998 and for the year ended 30 June 1999 it was $4,646. 95 Mr Joseph submitted that his Honour erred in insufficiently discounting Mr Ferreira's loss of earning capacity by reason of his past work history and in not taking account of his back condition. 96 The period of past economic loss is from 15 December 2000 to the date of the trial, a period of about 36 months. In this period, Mr Ferriera worked for three months. Thus the overall period of his relevant entitlement under this head is 33 months. 97 Garling DCJ stated that Mr Ferreira's total loss of wages for the three years from December 2000 to December 2003 was about $107,000. Mr Ferreira earned $685 per week as a chef for the short time he worked prior to Martin's death. If one assumes that, but for Martin's death, Mr Ferreira would have continued to earn $685 a week, his annual loss of income would amount to $35,620 and his loss of income over the three-year period would indeed amount to about $107,000. 98 The judge said: "Doing the best I can I have allowed him in the past up until the end of December 2003 the sum of $70,000". The award of $70,000 for the three years ending December 2003 involves a reduction of about 35% of $107,000. The $70,000 amounts to about $2,000 per month. 99 Mr Ferreira's notional annual income on the basis of earning $685 a week is $35,620. His actual past earnings, however, come nowhere near this amount. In his last year of full employment prior to the time he began to look after his family he earned $21,000. For the two subsequent years his income was substantially lower. The approximately $2,000 per month (which appears to have been the basis for the award of past loss of economic capacity for the period 15 December 2000 to December 2003) is more than Mr Ferreira's monthly earnings in 1997. Nevertheless, regard must be had to the fact that he earned $685 a week (that is, about $2,800 per month) for a short period immediately prior to the accident. 100 Garling DCJ said that he had to discount Mr Ferreira's loss of income "because of his past work history" but made no mention of his back injury in this particular context. Analysis of the calculations used by his Honour to arrive at his award leads to the inference that he did not take Mr Ferreira's pre-existing back injury into account. In my opinion, when regard is had to the back injury, the notional $2,000 per month on which the loss is based for the period December 2000 to December 2003 is too high a figure. 101 In my opinion, a further deduction of 25% should be made from the $70,000 to take into account the problems that Mr Ferreira had with his back. This results in a deduction of $17,500 leaving $52,500 for past loss of economic capacity until the end of December 2003. 102 As regards the period of 40 weeks from December 2003 to December 2004, Garling DCJ said: "[T]he medical evidence at the best is he is fit for work as a waiter, not a chef, that he is earning $90 per week. He spent three months in gaol between December 2003 and December 2004. He therefore during that period had a reduced earning capacity for nine months. I find that reduced earning capacity to be $500 per week for 40 weeks and that would total $20,000." 103 For that 40 week period, if one starts with an assumed loss of earning capacity of $685 per week and reduces that by 35%, one is left with $445 per week. If that is to be reduced by $90 for Mr Ferreira's earning as a waiter the result is $355 per week. $355 per week for 40 weeks is $14,200. As I have said, the judge awarded $20,000 for this period. 104 Taking into account what I have set out in the preceding paragraph, as well as Mr Ferreira's back injury, I would reduce the award of $20,000 in respect of the 40-week period by 25% ($5000), thereby arriving at an amount of $15,000. 105 In the result, I consider the appropriate award for past loss of earnings to be a total of $67,500 made up of $52,500 for the period from the date of Martin's death to December 2003 and $15,000 for the period from December 2003 to December 2004. 106 Garling DCJ allowed a buffer for the future of $20,000 and in my opinion that is unexceptionable. Conclusion 107 The substantial issue on appeal was the liability of the Council for Mr Ferreira's damages. Mr Ferreira succeeded on this issue and the Council succeeded in reducing the extent of Mr Ferreira's damages by $22,500. In my view the reality of this situation should be recognised by awarding Mr Ferreira 75% of the costs of the appeal. 108 Accordingly, in my opinion, the appeal succeeds to a partial extent. I propose the following orders: (1) The appeal is partially allowed. (2) The verdict in favour of Mr Ferreira is set aside and in lieu thereof a verdict of $115,900 should be substituted. (3) The Council should pay 75% of Mr Ferreira's costs of appeal. 109 TOBIAS JA: I agree with Ipp JA. ********** 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.