New South Wales Court of Appeal CITATION: Kempsey Shire Council v Glenice Baguley [2010] NSWCA 284 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 29 September 2010 JUDGMENT DATE: 8 November 2010 JUDGMENT OF: Campbell JA at 1; Handley AJA at 2; Sackville AJA at 3 1. Appeal allowed. 2. The orders made by the primary Judge on 10 November 2009 be set aside. 3. In lieu thereof: DECISION: (a) judgment be entered for the Council; and (b) the respondent be ordered to pay the Council's costs of the proceedings. 4. The respondent pay the Council's costs of the appeal. 5. The respondent, if otherwise qualified, have a certificate under the Suitors Fund Act 1957. CATCHWORDS: TORTS – negligence – injury as a result of a fall into an unfenced pit at tip - whether risk of harm was "not insignificant" - whether primary judge took into account probability of harm if precautions were not taken - whether a reasonable person in the position of the occupier of the tip would have erected a protective wall - need to consider the risks created by the alternative safety strategy, in particular of those injuries occurring - Civil Liability Act 2002 (NSW), s 5B(1)(b) LEGISLATION CITED: Civil Liability Act 2002 (NSW) Suitors Fund Act 1957 (NSW) CATEGORY: Principal judgment Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 Cruise Group Pty Ltd v Fullard [2005] NSWCA 161 CASES CITED: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 6; 205 CLR 254 Sheridan v Borgmeyer [2006] NSWCA 201 Thompson v Woolworths (Queensland) Pty Ltd: [2005] HCA 9; 221 CLR 234 Toll Transport Pty Ltd v Haskins [2008] NSWCA 244 Warren v Coombes [1979] HCA 9; 142 CLR 531 PARTIES: Kempsey Shire Council (Appellant) Glenice Baguley (Respondent) FILE NUMBER(S): CA 2010/018253 COUNSEL: Mr R Sheldon SC and Mr G Donnellan (Appellant) Mr R Seton SC and Mr R Harrington (Respondent) SOLICITORS: DLA Phillips Fox Lawyers (Appellant) Stacks Law Firm (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 27/08 LOWER COURT JUDICIAL OFFICER: Garling DCJ LOWER COURT DATE OF DECISION: 10 November 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/018253 CAMPBELL JA HANDLEY AJA SACKVILLE AJA 8 November 2010 KEMPSEY SHIRE COUNCIL v GLENICE BAGULEY Judgment 1 CAMPBELL JA: I agree with Sackville AJA. 2 HANDLEY AJA: I agree with Sackville AJA. 3 SACKVILLE AJA: This is an appeal against an ex tempore judgment of a Judge of the District Court (Garling DCJ), given at Port Macquarie on 10 November 2009. His Honour awarded the plaintiff (the respondent in these proceedings) damages for personal injuries arising out of a fall she sustained on 27 September 2007 at premises occupied by the appellant ("The Council"). His Honour assessed the respondent's damages at $174,300.00, but reduced this sum by 20% to allow for her contributory negligence. His Honour therefore gave a verdict in favour of the respondent in the sum of $139,440.00. 4 The Council raises no issue on the appeal concerning the assessment of damages. However, the Council submits that the primary Judge erred in finding that it had breached its duty of care to the respondent. Accordingly, the Council contends that the judgment in favour of the respondent should be set aside and that judgment should be entered in its favour. 5 In the alternative, the Council says that the primary Judge erred in finding that the respondent was only 20% contributorily negligent. The Council submits that his Honour erred in failing to find contributory negligence of at least 50%. FACTS 6 There was little dispute about the facts at the trial. The primary Judge found that the respondent was a "good witness" and accepted her evidence. The following account is largely based on the findings made by his Honour. 7 The Council was the occupier and had the care, custody and control of the Kempsey Waste Receival and Disposal Facility Centre ("The Tip"). On 27 September 2007, the respondent, then aged 65, drove a Nissan Navaro utility to the Tip in order to dispose of a load of rubbish. The primary Judge described the utility as "quite loaded up" with rubbish. 8 The respondent arrived at the entrance to the Tip and paid the fee of $9.00. She was told by the person in charge to take the vehicle to a pit, where the rubbish was to be dumped. The place to which she was directed was at the side of the pit. 9 The pit was constructed of concrete. It was 1.1 metres deep, measured from the lip of a riser which ran along one side of the tip to the concrete base, and was 3.9 metres wide. The riser was made of concrete and was 18 cm in height. It ran continuously along the side of the pit where the respondent was told to take her vehicle. There was no riser at the front of the pit, apparently because this area was used by bobcats to gain access to the pit for the purpose of cleaning out the rubbish deposited there. Members of the public did not use the front area to dump rubbish in the pit. 10 The primary Judge found that the respondent had been to the Tip before, but only as a passenger in a vehicle driven by her husband. This finding was not quite correct, as the respondent's evidence was that she had driven to the Tip with her daughter on at least two occasions. However, the evidence supported the Judge's finding that the respondent had never previously got out of the vehicle at the Tip and had never unloaded rubbish herself. 11 On this occasion, the respondent drove her utility to the area designated by the person in charge. She reversed her vehicle towards the riser and stopped just before reaching it. The respondent got out of her vehicle, walked around it and untied ropes that had secured the load. She then moved to the rear driver's side of the vehicle and released the utility's tailgate. She did this by using her left hand to undo the latch on the tailgate. 12 The respondent intended to position herself on the driver's side of the vehicle in order to remove the rubbish that was on the tray of the utility and, in the primary Judge's words, "pull the rubbish off into the pit". However, before she commenced to walk along the side of the utility, the respondent stepped backwards, and began to turn. This movement brought her foot into contact with the riser. The contact caused her to fall into the pit and to sustain the injuries in respect of which she was awarded damages at the trial. LEGISLATION 13 Sections 5B and 5C of the Civil Liability Act 2002 ("CL Act") provide as follows: " 5B General principles (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. (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 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." THE PRIMARY JUDGMENT 14 The primary Judge noted that the respondent put her claim in three ways: (i) the Council owed her a duty of care and breached that duty by failing to construct a fence or a brick wall along the side of the pit that would have prevented her falling into the pit and injuring herself; (ii) the Council should have provided a supervisor in the area where rubbish was being unloaded into the pit in order to avoid the risk of someone falling into the unfenced pit; and (iii) warnings should have been placed in the area alerting customers to the danger of the pit. 15 The primary Judge referred to the evidence of an expert witness, Mr Dohrmann, a consulting engineer. Mr Dohrmann had expressed the view that the Council should have known of the risk that customers might fall into the pit through published information relating to the risk of falls. He had identified a number of measures that might have been taken to prevent falls, the most obvious of which was to erect a barrier along the edge of the pit. 16 His Honour then referred to evidence indicating that about 80 to 100 persons a day used the Tip. However, there had been no reports of any injuries by reason of anyone falling into a pit at any time in the five years during which the facility had operated prior to the respondent being injured. 17 Having referred to this evidence, his Honour described the respondent's case as "very straightforward". There was no dispute that the Council owed the respondent a duty of care. The respondent had argued that the Council breached its duty of care, since the risk of an injury of this type was clearly foreseeable and it was a simple matter for the Council to take preventative action by fencing the side of the pit where the accident occurred. 18 The primary Judge reasoned as follows: "In this case we have a concrete area, people are charged to enter and to dump rubbish by reversing their vehicle close to a pit which is 1.1 metres deep. There is a concrete rise, I assume to stop vehicles from going into the pit, and vehicles are required to reverse and then to unload their rubbish. The rise is quite visible, the pit is quite visible. The danger is the pit, over one metre deep, unguarded, except by this small riser. Any trip, slip or miscalculation could cause a person to trip or strike the riser and fall into the pit, and once a fall starts, it could not stop, because there was no means to stop it. The [respondent] summed that situation up by saying she was 'flying', which I think is an apt description of what happened to her, until she fell to the floor of the pit. In my view, this pit is potentially dangerous. It is a danger which is obvious. The danger which is obvious is that which I have just referred to. Numerous people use this area, as I understand it. They would include elderly people, people who are not as agile as they used to be and, in my view, it was quite foreseeable that a person could have tripped or been distracted, or for some other reason fallen, and once they fell, if they were close to the pit, there was no way of stopping themselves; they would fall into the pit, and it was then extremely foreseeable they would suffer a serious injury, that is, falling a distance of over one metre. In my view, there was a duty of care. In my view, it was foreseeable that a person could, in the manner I have expressed, fall into the pit, and such a fall would have resulted in serious injury. That being foreseeable, then was there a solution? There was a solution. It was a simple solution, in my view, as expressed by the expert, but more importantly, it is shown in a number of photographs of other such places. That is the placement of a wall of a suitable height, which certainly, in my view, would have stopped the [respondent] from falling into the pit. That required a wall, as I understand it, of about 3.9 metres [sic], and whilst there was always a danger, as has been expressed, of someone hurting themselves in some other way, that does not seem to have worried those who constructed a number of these other facilities in putting it there, and it seems to me that the more obvious danger is that danger of falling into an unfenced and open pit. It would not have been an expensive step or a difficult step to take to simply construct a wall and, in my view, the risk was of such magnitude that it called for such action to prevent serious injury. And as far as the Act is concerned, the risk was foreseeable and was not insignificant and, in my view, a person in the circumstances of the [Council] would have taken the precautions I have set out. The probability that harm would occur cannot just be measured on how many complaints have been made or, indeed, whether employees had seen persons fall into the pit. In my view, it was very obvious and perhaps an accident waiting to occur. There was a very likely risk of serious harm as there was in this and the burden of taking precautions was not great. There was social utility to all those who used the tip in taking them. For those reasons, I am of the view that the [appellant] was negligent." (There was no dispute that the primary judge's reference to a wall of about 3.9 metres was an error and that his Honour should have referred to a wall about one metre in height.) 19 His Honour went on to reject the respondent's claim that there should have been a supervisor present at the site. His Honour said that he could not see how the presence of a supervisor would have altered the accident in any way, because it occurred when the respondent took a step backwards when unloading. His Honour stated that he would not have found against the respondent on any basis other than which he had previously set out. 20 The primary Judge then dealt with contributory negligence as follows: "The [respondent] clearly contributes to this accident. She does so by failing to keep a proper lookout, failing to take care, failing to be careful when she steps back. She has a duty to take care. She knows the pit is there. She knows the riser is there and if she had taken care, the accident may very well not have happened. However, on the other hand, the real cause of this accident, in my view, is the [Council]. That is the substantial cause of it by not doing what I believe they should have done. I assess contributory negligence at 20 per cent." SUBMISSIONS 21 Mr Sheldon SC, who appeared with Mr Donnellan for the appellant, accepted that his Honour had attempted to take into account the matters referred to in s 5B of the CL Act. However, Mr Sheldon submitted that the attempt had not succeeded and that his Honour had committed a number of errors. 22 First, the primary Judge had not given consideration to whether the risk of injury was "not insignificant" (s 5B(1)), or, if he had, he had erred in his assessment that the risk was not insignificant. The stark obviousness of the pit and of the existence of the concrete riser, coupled with the respondent's acknowledgement that she had seen the riser as she was backing her utility towards it, militated against the primary Judge's finding. According to Mr Sheldon, his Honour should have found that the risk of someone falling into the pit was "trivial". 23 Secondly, his Honour, in determining that a reasonable person in the Council's position would have erected a wall or a fence, had failed to give due consideration to the requirement in s 5B(2)(a) of the CL Act that the Court must take into account the "probability that the harm would occur if care were not taken". His Honour, so it was argued, had conflated the question of the foreseeability of the risk of harm with the question of whether there was a probability of harm occurring if care was not taken. In consequence, the primary Judge failed to consider or give due weight to the evidence that the Tip had operated for five years without any similar accident occurring. On the evidence, some 100,000 customers had used the Tip over that period without an incident ever occurring. 24 Thirdly, his Honour erred in finding that a reasonable person in the position of the Council would have taken the precaution of constructing a wall along the side of the pit. Mr Sheldon submitted that the primary Judge failed to take into account evidence indicating that the construction of a wall of (say) one metre in height would have created other risks of injury. One such risk was that customers would be forced into the dangerous position of having to stand on the tray of a vehicle such as a utility in order to drop rubbish over the wall into the pit. Another was that if a customer chose to unload rubbish from the vehicle while standing next to it, he or she would have to lift items, some of which would be bulky, over the wall, creating the risk of back and other injuries. 25 Mr Seton SC, who appeared with Mr Harrison for the respondent, submitted that the primary Judge had not been shown to have made any error. While his Honour's reasons were brief, they demonstrated that he was well aware of the relevant provisions of the CL Act. In determining whether the Council was in breach of its duty to the respondent, the primary Judge was required to weigh up a number of matters and to make an evaluative judgment. 26 According to Mr Seton, the mere fact that no injuries had been reported from falls at the Tip did not lead to the conclusion that the primary Judge was wrong in finding that the risk of this kind of harm was more than insignificant and that a reasonable person in the Council's position would have taken measures to remove or greatly reduce the risk of injuries from falls into the pit. There had been no challenge to the finding that there was a "very likely risk of serious harm" if someone fell into the pit. It was open to his Honour to conclude that the risk of serious harm required precautionary steps to be taken. The evidence supported his Honour's finding that the installation of a wall or fence was a reasonable response given the probability that harm would occur if care were not taken, the likely seriousness of the harm, the minor burden of taking precautions to avoid the risk of injury and the utility of the activity creating the risk of harm. 27 Mr Seton acknowledged that each case must depend on its own facts. Nonetheless, he cited cases in which plaintiffs had fallen or been pushed from raised areas and recovered damages for personal injuries suffered: Thompson v Woolworths (Queensland) Pty Ltd: [2005] HCA 9; 221 CLR 234; Sheridan v Borgmeyer [2006] NSWCA 201; Toll Transport Pty Ltd v Haskins [2008] NSWCA 244. He submitted that the facts of these cases were "closely aligned" to those of the present case and demonstrated that where a risk of injury from a fall is obvious, reasonable care requires the occupier of the premises to take preventative measures to eliminate or minimise the risk. REASONING 28 Neither the respondent's statement of claim nor the reasons of the primary Judge identified precisely the nature of the duty of care owed by the Council to the respondent. However, it is clear that the case proceeded on the basis that the Council, as the occupier of the Tip, owed the respondent, as a lawful entrant, a duty to take reasonable care to avoid a foreseeable risk of injury to her: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479, at 488, per Mason, Wilson, Deane and Dawson JJ. That duty extended to taking reasonable care to avoid a foreseeable risk of injury by reason of the physical state of the premises: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 6; 205 CLR 254, at [18], per Gleeson CJ (With whom Gaudron J agreed), at [112], per Hayne J. 29 The determination of whether a defendant breached its duty of care to the plaintiff requires the court to make a factual judgment which involves an interplay of considerations. The weight to be given to anyone of these considerations is likely to vary according to circumstances: Thompson v Woolworths (Queensland) Pty Ltd, at [37], per curiam. In New South Wales, the judgment has to take into account the requirements stated in s 5B(1) of the CL Act, as elaborated in s 5B(2). 30 The primary Judge's conclusion that the Council breached its duty of care to the respondent involved an evaluation by his Honour of a range of considerations, some of which compete with each other. Nonetheless, the test for determining whether appellate intervention is justified in relation to that conclusion, given that the primary facts are not in dispute, is that laid down in Warren v Coombes [1979] HCA 9; 142 CLR 531, at 551, per Gibbs ACJ, Jacobs and Murphy JJ: "[T]he established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation." It is to be remembered that Warren v Coombes itself was a case in which the issue was whether a duty to exercise reasonable care had been breached: see Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56, at [91]-[92], per Campbell JA (with whom Giles and Ipp JJA agreed). 31 I do not think that the appellants have made out their complaint that the primary Judge failed to apply the direction in s 5B(1)(b) of the CL Act that a person is not negligent in failing to take precautions against a risk of harm unless the risk "was not insignificant". The primary Judge directed his attention to this issue and expressly concluded that the risk was not only foreseeable but was not insignificant. Indeed, he found that the risk was "very obvious and perhaps an accident waiting to happen". 32 Nor do I think that his Honour erred in finding that the risk was not insignificant. Mr Sheldon emphasised the evidence indicating that some 80 to 100 people came to the Tip each day and yet no accident of the kind suffered by the respondent had ever been reported over the five years the Tip had been in operation. While the absence of any similar accident is a matter to be considered in determining whether a particular risk is more than insignificant, it is not determinative. It is quite possible for the physical state of premises to present an obvious hazard for visitors, yet for no-one to sustain injury by reason of the hazard over a period of years. The reasons for the absence of any injuries include the obviousness of the risk to a visitor; the propensity of people to take particular care to avoid or negotiate a visible hazard; the fact that relatively few vulnerable people, such as the elderly or infirm, have been exposed to the hazard; the failure of injured people to report injuries they have sustained; and sheer good fortune. 33 In this case, the evidence that the pit had not produced any injuries was not quite as compelling as the figure of 80 to 100 customers daily might have suggested. The pit was not the only facility at the Tip for dumping rubbish. The photographs showed a large open area where rubbish had apparently been deposited by customers. Mr Sheldon did not dispute that there would have been other receptacles on the premises at which customers could deposit particular kinds of waste. It is a matter of speculation as to the proportion of customers who would have deposited rubbish at this pit or one like it. But the numbers certainly would have been very much fewer than the 100,000 suggested by the raw figures (80 per day, five days per week over roughly five years). 34 Any assessment of the significance of the risk posed by the configuration of the Pit had to take into account the possibility that a customer, by reason of momentary inattention or a stumble, might fall into the Pit. Even a customer otherwise exercising reasonable care for his or her safety might still stumble or take a mis-step, perhaps while struggling to unload or dispose of a heavy or bulky item. The primary Judge referred to a possibility of this kind when he pointed out that a person, particularly an elderly or less agile person, could have tripped or been distracted and fallen into the pit. It is true that his Honour made this observation in the context of discussing the foreseeability of the risk of injury, but the comment was also pertinent to the issue posed by s 5B(1)(b) of the CL Act. Reading the ex tempore judgment as a whole, it is fair to conclude that his Honour intended those matters to be taken into account both on the question of foreseeability and the significance of the risk. 35 Mr Sheldon referred to Cruise Group Pty Ltd v Fullard [2005] NSWCA 161, a case in which a passenger was injured when she tripped on a raised watertight coaming as she boarded a ferry. Giles JA expressed the view (at [15]) that the fact that 120,000 passengers had safely negotiated the coaming over a twelve year period was: "powerful reason to conclude that there was a minimal degree of probability that the foreseeable risk would eventuate." See, to similar effect, at [58]-[62], per McClellan AJA; cf Basten JA, dissenting, at [31]-[35] and authorities cited there. 36 Evidence of the kind adduced in Cruise Ship v Fullard clearly may be important on the issues of the significance of a risk and the probabilities that a foreseeable risk will eventuate. But, as Mr Sheldon accepted, each case must turn on its own facts. In my opinion, the primary Judge was not in error in concluding that the physical layout of the pit, in particular the location of the concrete riser, created a not insignificant risk of injury to customers using that particular part of the Tip. 37 For similar reasons I think that the primary Judge took into account, on the issue of the precautions a reasonable person would have taken, the probability of harm occurring if the Council failed to take care. The factors his Honour identified in the context of foreseeability were relevant to the question posed by s 5B(2)(a) of the CL Act. Reading his judgment as a whole, I consider that he appreciated the difference between foreseeability and the requirement specified in s 5B(2)(a) of the CL Act. 38 Having said that, in my view his Honour overstated the position when he characterised the respondent's injuries as "perhaps an accident waiting to occur". Section 5B(2)(a) of the CL Act appears to use the word "probability" in the sense of the chance that harm will occur, rather than in the sense of more probable than not. The evidence, even taking into account the absence of any reported injury over a five year period, justifies a finding that there was a real chance that the physical configuration of the pit would result in injury. However, it smacks of ex post facto reasoning to conclude, in effect, that a reasonable person in the position of the Council would have formed the view that an injury of the kind sustained by the respondent was inevitable. 39 There is more force in the Council's third argument. The primary Judge found that the risk of injury required a wall of about one metre in height to be constructed. By this I take his Honour to have meant that a reasonable person in the position of the Council would have erected such a wall in order to eliminate or reduce the risk that a customer or employee would trip over the riser and fall into the pit. 40 The primary Judge's finding appears to have been based on the evidence of Mr Dohrmann and on photographs of other waste facilities. These photographs, taken at different times by the respondent's husband, appear to show structures of various kinds around pits or areas where rubbish can be deposited. 41 Mr Dohrmann did not express the opinion that a reasonable person in the position of the Council would have erected a wall or fence around the pit as a safety measure. Having concluded that the respondent's fall was not due to carelessness on her part (a proposition not consistent with his Honour's finding on contributory negligence), Mr Dohrmann stated that there were a number of measures that the Council "could have taken to prevent exposing [the respondent] to risk". The measures were: conducting an audit of the workplace to identify risks; erecting a " low safety rail ", which was " the most obvious measure and would have been effective and economical to implement "; erecting clear warning signs; better and closer supervision; and requiring patrons to dump rubbish at ground level. 42 Although Mr Dohrmann characterised a low safety rail as the "most obvious" strategy, he implied that any one of the measures he proposed would have been equally effective. This, too, was a proposition rejected by the primary Judge, who found, for example, that increased supervision would not have prevented the accident and, by implication, that warning signs would not have eliminated the risk or could not have prevented the injury to the respondent. 43 Mr Dohrmann did not consider in his report whether the measures he proposed would create risks similar to, or greater than the risks posed by the configuration of the pit into which the respondent fell. In particular, he said nothing about whether a safety fence or wall would create risks for customers and employees, that a reasonable person in the position of the Council, would wish to take into account before erecting such a fence or wall. 44 Mr Dohrmann was, however, cross-examined on this issue. At first he resisted the suggestion that a permanent fence would create additional problems: "Q. If you have a permanent fence at the end of the pit one of the problems it could create is that people would have to lift their rubbish over the fence to get it into the pit. Do you agree with that? A. No I don't. This continuous fence is the best example of avoiding that kind of problem. It's the scenario where take a Ute, the Ute is backed into an opening, the person works from the side of the Ute, the guarding or the rail or the fence, the chain, is at the side only, so they can slide their stuff out the back. Q. Well that assumes that the stuff can be readily moved, doesn't it? A. Yes. Q. It assumes that they don't have to get into the back of the Ute in order to move it? A. Well those things have to be assumed because its the nature of rubbish. Q. Well with respect making that assumption completely overlooks the practicalities of dumping rubbish doesn't it? A. No it just says that rubbish can be tangled, rubbish can oblige people to exert high and unusual forces to twist, depending on where they're obliged to stand and where they choose to do to move the rubbish they've brought along." Later in his evidence, however, Mr Dohrmann acknowledged that a fence would create different risks of injury: "Q. And do you not see there being a risk of injury if people are required to lift their rubbish over a fence? A. Yes there can be a risk there, the usual manual handling with the business of height, weight and distance. Q. And that risk of injury would encourage people, would it not, to try and get above the fence by getting to the Ute and just drop the material over the fence? A. Yeah I think it probably would if they were allowed." 45 Mr Dohrmann also appeared to accept in his evidence that if the guard rail or fence was not continuous, and if there was a gap at the unloading point, the risk would be much the same as with the pit in the present case. He acknowledged that a "window style" mesh fence at the unloading point (where items could be pushed through a gap) would be suitable only for small articles of rubbish. 46 There was other evidence that the erection of a fence or wall along a pit would create significant risks to customers using the Tip. A report presented in March 2007 by "Environment and Infrastructure Consultants" to a "Waste Pathways" Conference, contained a section headed "Safety – Falls from Heights and User/Waste Separation". In the section dealing with safety, the report pointed out that smaller stations, where users unload vehicles by hand, involve the risk that "Fall protection barriers can result in hand and/or lifting injuries". The report concluded that there was no clear answer for some of the planning choices that operators of waste facilities face: Many issues require a trade-off between competing priorities …" The primary Judge did not refer to this report. 47 The primary Judge recorded the Council's argument that there would always be a risk of injury whatever was done and that a fence would create precisely the problems put to and accepted by Mr Dohrmann in his cross-examination. The only answer given by his Honour to the argument was his observation that the dangers associated with a wall do "not seem to have worried those who constructed a number of those other facilities [with fences or barriers]'". 48 The only evidence about barriers at other waste facilities, apart from very general comments by Mr Dohrmann, consisted of the photographs taken by the respondent's husband. There was no evidence as to the reasons why the barriers were constructed, whether they had reduced the incidence of accidents or injuries, whether the operators of the waste facilities were or were not "worried" about the safety measures they had adopted. 49 Moreover, the photographs illustrate the very risks that, according to the evidence, the erection of a safety fence could create. In two of the three photographs showing a vehicle at a waste disposal site (presumably, but not clearly, requiring rubbish to be placed in a pit), the vehicle (a utility) or a trailer is parked hard up against the barrier. In these circumstances, the customer would seem to have two alternatives available. One would involve stepping onto the tray of the utility (or the trailer) and proceed to push or lift the rubbish over the barrier. In one photograph, the upper beam of the barrier appears to be higher than the tray of the utility, suggesting that the customers would have to lift the rubbish over the barrier. The second alternative would be to unload the rubbish from the tray or the trailer and lift it over the barrier. Either alternative would seem to involve very obvious risks to the customer of the kind identified in the report to which I have referred. 50 The critical issue on which the primary Judge found in the respondent's favour was that a reasonable person in the position of the Council would have erected a continuous fence along the side of the pit as a precaution against injuries of the kind sustained by the respondent. In my opinion, his Honour erred in making that finding. The evidence did not permit him to conclude that the erection of such a barrier would lessen the risk of injury to customers using the tip, in particular those depositing rubbish at the pit. The burden of proof on this issue rested on the respondent. She adduced no evidence to demonstrate that the risks associated with constructing a fence or wall alongside the pit were less than the risks of a fall by reason of a customer coming into contact with the riser and falling into the Pit. 51 In the absence of evidence justifying a finding that the risks inherent in the erection of a fence or wall were less than those associated with the configuration of the pit, the primary Judge was incorrect to conclude that a reasonable person in the council's position would have constructed a wall or fence along the side of the pit. On the evidence, that would simply have substituted for one risk another set of risks. 52 The cases relied on by the respondent turned on their own facts, which were in any event materially different. None involved a problem of the kind that confronts the respondent in the present case. 53 It was not suggested by the respondent that the decision of the primary Judge could be supported on any basis other than that the Council's duty required it to construct a wall or fence along the side of the pit at which customers deposited rubbish. Accordingly, the primary judge was in error in finding that the Council breached the duty of care it owed to the respondent. CONCLUSION 54 For the reasons I have given, the appeal must be allowed. I propose the following orders: 1. Appeal allowed. 2. The orders made by the primary Judge on 10 November 2009 be set aside. 3. In lieu thereof: (a) judgment be entered for the Council; and (b) the respondent be ordered to pay the Council's costs of the proceedings. 4. The respondent pay the Council's costs of the appeal. 5. The respondent, if otherwise qualified, have a certificate under the Suitors Fund Act 1957. ********** 09/11/2010 - Counsel's name spelt incorrectly. - Paragraph(s) Coversheet 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.