Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Holroyd City Council v Zaiter [2014] NSWCA 109
• Hearing dates: 07.03.2014
• Decision date: 08 April 2014
• Before: Hoeben JA at [1]; Emmett JA at [102]; Gleeson JA at [117]

Decision

Appeal dismissed.

Appellant to pay the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - 9 year old child injured when rode bicycle into an unfenced concrete drainage channel - drainage channel and surrounding grassed slope under care and control of appellant - presence of drainage channel not obvious from adjacent cycleway - appellant aware of risk of injury to children from unfenced drainage channel - expert report of engineer admitted without objection - whether trial judge bound to accept expert opinion - extent to which precise sequence of events leading to accident needed to be foreseen - application of sections 5B and 5C of Civil Liability Act 2002 - whether child engaged in a "dangerous recreational activity" at time of injury - s5L Civil Liability Act 2002 - application of s42 Civil Liability Act 2002 - whether resources of appellant sufficient to construct fence - ambiguity of evidence - defence not made out.
• Legislation Cited: Civil Liability Act 2002
• Cases Cited: Chapman v Hearse [1961] HCA 46;106 CLR 112; Edwards v Consolidated Broken Hill Ltd [2005] NSWSC 301; Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360; Romeo v Conservation Commission (NT) [1998] HCA 5; 192 CLR 431; Shaw v Thomas [2010] NSWCA 169; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
• Category: Principal judgment
• Parties: Holroyd City Council - Appellant; Joey Zaiter bht Michael Zaiter - Respondent
• Representation: Counsel: Mr RS Sheldon SC - Appellant; Mr LT Grey/Ms CM Spain - Respondent; Solicitors: DLA Piper Australia - Appellant; Carroll & O'Dea - Respondent
• File Number(s): 2013/111066

Decision under appeal

• Date of Decision: 2013-03-14 00:00:00
• Before: Kearns DCJ
• File Number(s): 2011/077475

Judgment

1 HOEBEN JA:

Nature of proceedings

The respondent, who had just turned 9 at the time, suffered personal injury on 16 March 2008 when he rode a bicycle down a grassed slope and into a concrete drainage channel. The accident occurred at the Holroyd Sports Ground when he was accompanied by his older sister and an unrelated friend, Naiden.

2 The matter was heard in the District Court as to liability only on 5, 6 and 7 February 2013 by Kearns DCJ. His Honour delivered judgment in favour of the respondent on 14 March 2013.

3 His Honour found that the appellant had been negligent in not erecting a fence along the length of the channel. His Honour found that the respondent had contributed to his damage to the extent of 10 percent by not wearing a helmet.

4 The appellant has appealed against the finding that it was negligent.

Factual background

5 The respondent turned 9 years of age approximately a week before the date of the accident. He received a bike and a helmet for his birthday. On 16 March 2008 he and his sister, Linda (who was 14 months older, i.e. 10 years and 2 months), and a friend, Naiden (whose age is unknown), rode bikes to the Holroyd Sports Ground. The respondent had been riding a bicycle since the age of 5.

6 The respondent, who suffered brain injury as a result of the accident, had no recollection of how the accident occurred. He agreed in cross-examination that he had been told by his parents to wear a helmet when riding his bike and that he understood that the reason he should wear a helmet was because it would protect his head if he fell off his bike.

7 The respondent said that he had ridden his new bike every day since his birthday. It had brakes which were applied by squeezing a lever on the handlebars. He said that he had ridden Naiden's bike before the day of the accident on two or three occasions "because it was big". The brake on Naiden's bike was operated by pushing backwards on the back pedal.

8 Holroyd Sports Ground is about 5 hectares. It is roughly triangular in shape. Its length lies roughly in an east-west direction. The east end of it has a narrow point and it gradually broadens out as one proceeds west. It slopes roughly in a south-east direction. That slope is towards a concrete channel. The steepness of the slope varies. It is at its steepest at the eastern end.

9 The children entered the sports ground at its eastern end on a cycleway. There, Linda and Naiden got off their bikes and walked. The respondent continued to ride his bike. The children proceeded in a southerly direction down a slope towards the concrete channel.

10 Linda gave evidence as to how the accident occurred. When asked whether she remembered the day of the accident she said "only a bit". She said that she got off her bike because she thought the slope was dangerous and too steep. She said that the respondent rode down the slope on Naiden's bike. She described the accident as follows:

"I don't know, he was going like, too fast and then he - when he came to the bottom he turned - he tried to turn to stop and then he just flipped over." (Black 23H)

"... Q. How far down the hill was he when you thought he was going too fast?

A. Probably in the middle." (Black 29C)

She said that the respondent fell over the edge of the channel and ended at the bottom. She said that she could not see the channel from the cycleway by which the children entered the sports ground, but she could see it when she was about half way down the hill. (Black 27V)

11 In cross-examination she was asked:

"Q. Did you see him try to apply the brakes?

A. Yeah." (Black 28V)

12 From the eastern end of the sports ground where the children entered, the distance between the cycleway and the channel was about 34 metres. It was common ground that this distance was made up of four sections. The first section was 6 metres across and had a gentle slope down of about 4 degrees towards the channel. The second section was about 8 metres across and was "gradually" steeper. The third section was about 12 metres with a slope of about 33 degrees. The fourth section flattened out for about 8 metres towards the channel. Where the grassy section met the channel, there was a slight lip as the level of the wall of the channel was slightly higher than the level of the grass.

13 The channel was 2 metres deep. Its base was concrete with no covering. Its sides were vertical. At places there were metal rungs down the side adjacent to the sports ground which allowed access to the bottom of the channel. There was usually little water in the channel.

14 Where the cycleway met the sports ground at the eastern end, there was some fencing along the cycleway. This fencing was between the cycleway and the sports ground. The terrain there was steep. The fencing was on the left as the respondent entered the sports ground. It was at some point past this fencing that the respondent rode down the slope. This fencing has now been extended to the western end of the ground so that cyclists cannot access the ground at or near the point where the children did.

15 The inference drawn by the primary judge from the evidence was as follows:

"13 The plaintiff rode across the ground and when he was on what I have called "the third section", he found the bike was going too fast. He could not stop it or bring it under control. He made an attempt to turn it to the right. To some extent he did. It was not sufficient to stop him going over the edge of the channel and falling to the bottom where he sustained serious injury." (Red 16F)

This finding was not challenged in the appeal.

16 At the date of the accident, the sports ground was owned by "the Minister Administering the Environmental Planning and Assessment Act 1979". It was under the care and control of the appellant. The concrete channel was owned by the appellant. It acquired it in 1991. It acquired it from AGL. The concrete channel was a creek known as "A'Becketts Creek", when it was owned by AGL.

17 In 1987 AGL proposed channelisation of the creek. In June 1988 the appellant gave consent to AGL for the channelisation of the creek but imposed a number of conditions. One was that a 1.8 metre high wire mesh fence be installed along the full length of the channel, on the north-western side. That is the side adjacent to the sports ground. That side of the channel was the side from which the respondent fell into the channel. AGL accepted the conditions. The creek was channelised but the fence was not built.

18 His Honour found that the channel was "plainly at a level lower than the bicycle track from where the plaintiff entered the sports ground" (Red 17C). The evidence did not reveal how much lower. His Honour concluded that the best evidence on that issue came from the photographs (exhibit B3), combined with some oral evidence. The oral evidence to which his Honour referred was that of Linda and Mr Kiernan, an expert called in the respondent's case. His Honour determined that the first photograph in exhibit B3, was a fair representation of what could be seen from the bicycle track and from where the respondent commenced to ride across the grass. His Honour noted that there was no evidence as to whether the photograph was taken from a height higher than the respondent's eye level as a 9 year old on a bike. While his Honour thought it likely that it was taken from a higher point, in the absence of evidence he did not make a finding to that effect.

19 His Honour described the content of that photograph as follows:

"19 The photograph shows a grassy stretch with a wall covered by graffiti beyond it. The wall is the south wall of the channel. The photograph does not make it abundantly clear, but it can be assumed that what could also be seen is that the grassy stretch sloped downwards towards the channel. What could not be seen was the fact that the channel was there. Nor could it be seen how deep the channel was, nor what its base was, nor what, if anything, covered its base. Nor could the nature and detail of the slope towards the channel be seen. Nor could the slight concrete lip be seen." (Red17M-R)

20 His Honour's description of what the photograph showed was not challenged in the appeal, except for his finding that the presence of the channel was not visible.

21 It was accepted that the respondent and his sister had been to the park on earlier occasions. The most recent was about 6 or 7 months before the accident. On those occasions, the part of the sports ground which they visited was well away from the accident site. It was where the swings and other equipment were located. To the extent that there was evidence on the subject, it was to the effect that the respondent was unfamiliar with this part of the sports ground.

22 While the care and control of the sports ground lay with the appellant, the management of it was in the hands of the Holroyd Sports Ground Local Park Committee (the Park Committee). On 4 October 2007 the Park Committee wrote a letter to the appellant which included the following:

"On behalf of the Holroyd Sports Ground Local Park Committee I would like to make the Council aware of a safety issue at the Ground.

Our concern is where the concrete canal runs along the side of Field No 2 to the Motorway. The current situation presents a fall hazard as there is no edge protection and a person could easily fall well over one metre and could be closer to two metres.

As we have many small children using Field No 2, both during Rugby and Little Athletics and with the new long jump facility so close to the canal, we are concern[sic] that a child could fall in the canal."

23 The appellant had not acted on the letter by the time of the respondent's accident on 16 March 2008. Unaware of the plaintiff's accident, it did take some action on 30 May 2008. On that occasion, it wrote to Sydney Water seeking that Sydney Water fence the channel. That letter stated:

"Council and the Park Committee are concerned for the safety of children using the sports ground due to the significant fall height. Since this creek is in a catchment which collects a drainage rate, it would be appreciated if child safety fencing could be installed as has been undertaken previously by Sydney Water at Finlayson Creek and Coopers Creek.

Your urgent attention to the necessary fencing will benefit the many young children who play Rugby Union or take part in Little Athletics events at this sports ground."

On 6 June 2008 Sydney Water responded to the effect that it had no responsibility for the channel.

24 In December 2008 a Finance and Works document of the appellant relating to the sports ground said:

"3. Safety Fencing Adjacent to Storm Water Canal

The existing creek and concrete canal from the main field to the eastern end of the sports ground is not fenced and is considered a safety issue for children using the adjacent long jump facility and mini field. It is proposed as a first stage to provide galvanised child-proof fencing adjacent to the canal from the main field perimeter fencing to approximately 30 m past the eastern end of the mini field.

The estimated cost for the safety fencing is $20,000." (Blue 442J)

25 In 2004 the appellant adopted a plan of management (exhibit B4) for the sports ground. This was a comprehensive document which set out management objectives and summarised the extensive usage of the sports ground. Under the heading "Funding" the following was stated:

"The majority of funding for general maintenance and improvement works at Holroyd Sports Ground is derived from rate revenue. In addition to this, fees collected by the local committee assist with minor works and occasional grants are obtained for capital improvement. Section 94 contributions also provide a source of potential funds for improvements within sports grounds."

26 Section 5.3 of the plan of management set out a table of prioritised actions. Relevant to these proceedings was the last item on that table, which his Honour found referred to the channel. Under the heading "Action" the following was set out:

"Respond promptly to reports of safety issues through inspection and investigation, and where necessary, the provision of upgraded or improved facilities. Equipment or situations that represent a safety hazard will be rectified, repaired or replaced on a priority basis."

The priority recorded was "H" (High). The entity with responsibility for that action was identified as the appellant. The status was identified as "O" (Ongoing) and the performance indicator was specified as "User Safety Achieved".

27 In 2009, while still unaware of the respondent's accident, the appellant installed safety fencing along the channel. That fencing was installed on the channel itself. Photographs of the fencing are at Blue 38 - 39I. It is a weld mesh fence.

28 There was on the sports ground a pole with an advertising sign on it. That advertising sign was a source of revenue for the appellant.

The judgment

29 At trial, evidence was called by the respondent from Mr Kiernan, a consulting engineer. Mr Kiernan had 18 years' experience working in local government. In order to prepare a report and to give evidence, he visited the site of the accident on three occasions. In his evidence-in-chief he said that it was quite unusual that the channel had not been fenced and that this should have been done when the channel was constructed. He said that the cost of the fence was very small, compared to the cost of constructing the channel, i.e. $15,000 - $20,000.

30 In cross-examination Mr Kiernan gave the following evidence:

"Q. In looking at what happened to Mr Zaiter, would you agree that on the assumptions you made about the events leading up to his accident, there was a coincidence of incidents that were themselves unlikely?

A. Yes, it's a rare event.

Q. But each of the images that produced the ultimate event, were themselves unlikely to occur?

A. Yes, I think that's reasonable.

Q. And for instance, you had to have - well perhaps I should deal with what you understood the assumptions to be first. One of the assumptions you were asked to make was, that Mr Zaiter attempted to stop the bike, is that right?

A. Yes.

Q. Now you also I think made an assumption that the bike he was riding was one that had been swapped from one of the other people in the group?

A. Yes.

Q. Suggesting, does it not, to you that there may have been some unfamiliarity with the controls of that bike?

A. That's right.

Q. Now the prospect of someone riding a bike down a grassed hill and not being able to use the brakes of that bike which is something which viewed from the point of view of a council engineer would have to be seen as very unlikely to occur, would you agree with that?

A. Yes.

Q. Would you agree that such a sequence of events is almost incredible viewed from the perspective of a council engineer?

A. Yes, I don't know about the word incredible but - I'm happy with the rare event.

Q. Well the very rare event, are you happy with that?

A. Yes, it's a bit hard to assess very rare and rare but it certainly borders on the very rare.

Q. Right. Now that's not the sort of event that you would be turning your mind to in conducting a risk analysis with respect to a channel like this is it?

A. No, well I think probably your mind would be focussed on people playing ball and doing all sorts of recreational activities. And if they did them on a steep slope it could be dangerous, but riding bikes I don't think you'd necessarily think of that." (Black 39E-X)

31 It was common ground that the Civil Liability Act 2002 (CLA) applied to this claim. His Honour set out relevant sections of the CLA and then considered their application to the claim. In order to understand the submissions at trial and on appeal, it is necessary to set out the relevant provisions of the CLA.

"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.

...

5F Meaning of "obvious risk"

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

...

5K Definitions

In this Division:

dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.

obvious risk has the same meaning as it has in Division 4.

recreational activity includes:

(a) any sport (whether or not the sport is an organised activity), and

(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

5L No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

2) This section applies whether or not the plaintiff was aware of the risk.

...

42 Principles concerning resources, responsibilities etc of public or other authorities

The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),

(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate."

32 The primary judge considered that foreseeability was critical to the question of whether the appellant owed a duty of care to the respondent and if so, the content of the duty. He identified the content of the duty as whether the appellant ought to have erected a fence along the channel to prevent the respondent's injury. In considering that question, the primary judge rejected the evidence of Mr Kiernan.

33 His Honour approached the duty question with the following considerations in mind. Where the cycleway met the sports ground was the first available point of access for persons entering the sports ground from the east. He considered that it was reasonably foreseeable that among cyclists using the cycleway there would be children who would ride their bikes into the sports ground to meet with friends, play games, picnic and to otherwise enjoy themselves. He thought it was foreseeable that a 9 year old boy, or other child, entering the sports ground from that direction would see at the bottom of the downward slope a wall covered with graffiti but would not see all of the undulations in the ground nor would he see or appreciate that there was a 2 metre drop onto concrete at the end of the slope. His Honour found that these matters should have been foreseen by a reasonable council in the position of the appellant.

34 His Honour had regard to the fact that riding bicycles would not be the only activity carried out by children entering the sports ground. Such children could be expected to engage in many different types of activities and games including running, kicking, hitting, catching and chasing balls. Carrying on those activities posed risks that someone would fall inadvertently into the channel. His Honour concluded that a reasonable council in the position of the appellant, if analysing or assessing the situation, ought to have appreciated that fact. This was particularly so when the appellant was aware of the particular topographical features, including the steep slope and the concrete channel with a 2 metre drop at the end of it.

35 His Honour also took into account the following matters which made the foreseeability of such an injury all the more likely:

(a) The condition imposed by the appellant on AGL in 1998.

(b) The letter from the Park Committee in October 2007.

(c) The appellant's letter to Sydney Water of 30 May 2008 requesting payment for the erection of a fence.

(d) The appellant's own risk assessment in the management plan of 2004 and its prioritisation of responsibilities in that document.

(e) The risk assessment in the Finance and Works document of December 2008.

Even though some of those documents post-dated the accident, they were indicative of the state of knowledge of the appellant at the time of the accident.

36 His Honour noted that although none of those documents referred specifically to bike riding, they all identified and accepted as real and important, the risk of a child falling into the channel because of the large numbers of children involved in activities in that location.

37 Accordingly, his Honour rejected the proposition that a Council Engineer advising a council in the position of the appellant would consider the risk of a child falling into the channel as very unlikely to occur. His Honour considered that whether or not such a child was riding a bike or engaged in some other activity was largely irrelevant to the assessment of the risk. Bike riding was simply one of a number of activities which children were likely to engage in at that location.

38 His Honour specifically rejected the proposition that what had to be foreseeable was the precise sequence of events leading to the accident, i.e. the specific matters put to Mr Kiernan in cross-examination. His Honour considered it sufficient, if it could reasonably be foreseen, that the respondent was a person, or one of a class of persons, who could be injured by falling to the bottom of the channel if reasonable precautions were not taken. In the alternative, his Honour found that even if the proper test of foreseeability was that the appellant should have anticipated a child riding a bike near the channel, that test was also met. Given the proximity of the channel to the cycle track, he regarded such a scenario as reasonably foreseeable (Red 34D-T). Accordingly, his Honour found that the appellant owed a duty of care to the respondent and that the content of that duty was the obligation to erect a fence along the channel to prevent injury to him.

39 His Honour next considered s5B(1)(b) CLA, i.e. whether the risk was not insignificant. As his Honour appreciated, the "risk of harm" was that a child would fall into the channel. On that issue, his Honour had regard to what Macfarlan JA said in Shaw v Thomas [2010] NSWCA 169 at [44] to the effect that for a risk to be "not insignificant" a more demanding standard had to be met than the "not far fetched or fanciful" test in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 but not by very much.

40 By reference to that test, his Honour had regard to the likelihood of the risk occurring and the consequences if it did. In line with his previous analysis, he concluded that there was a real and foreseeable risk of harm in that the sports ground was used by many children and one of its borders was this unfenced channel. The consequences of a fall into the channel were potentially very serious. Accordingly, his Honour was satisfied that the requirements of s5B(1)(b) CLA had been made out.

41 When considering s5B(1)(c) CLA, his Honour took into account the matters raised in s5B(2). The matters in s5B(2)(a) and (b) his Honour regarded as having already been dealt with. In relation to s5B(2)(d) his Honour found that the erection of a fence would not in any way affect the operation of the sports ground and its facilities. With respect to s5B(2)(c) his Honour noted that the fence which was erected cost approximately $20,000. His Honour inferred from the fact that a fence had been constructed in 2009 that this was a course of action available to the appellant at an earlier point in time.

42 Before leaving s5B(1)(c) his Honour had regard to the provisions of s5C(a), i.e. that the burden of taking precautions to avoid the risk of harm included the burden of taking precautions to avoid similar risks of harm for which the defendant might be responsible. This was necessary because the appellant had submitted that if it were required to erect a fence in this instance, this would impose a burden to do so in similar situations throughout its area. This would require it to undertake the burden of identifying other similar channels in this area, to carry out risk assessments on them and perhaps fence them all.

43 His Honour rejected such an approach to s5B(2)(c) and s5C(a) CLA. His Honour noted that no evidence had been called by the appellant to the effect that this would involve a burdensome and time consuming search. His Honour was of the opinion that maps, aerial photographs and Google investigations would show such locations within the Council boundaries. His Honour was not persuaded that such an inquiry would be unreasonable or difficult.

44 His Honour next considered the appellant's submission that the construction of a fence would create its own problems, e.g. a person falling from the top of the fence or falling off a bike which was out of control, against the fence. His Honour rejected that submission. When balancing comparative risks, his Honour determined that the chances of an injury from a collision with the fence were far less than those of falling into an unfenced channel and that the consequences of such a collision would be less serious.

45 At trial the appellant submitted that the respondent's harm occurred as a result of the materialisation of an obvious risk of a dangerous recreational activity so that by reason by reason of s5L CLA it was not liable. His Honour rejected this submission.

46 His Honour noted that under the section the question was to be determined objectively and prospectively. His Honour identified the following elements which had to be satisfied for the application of the section:

"(i) The plaintiff should be engaged in a recreational activity.

(ii) The recreational activity should be a dangerous recreational activity.

(iii) There should be an obvious risk of that dangerous recreational activity.

(iv) There should be a materialisation of the obvious risk."

47 His Honour concluded that element (iii) had not been satisfied. This was because for a risk to be obvious, it had to be obvious "to a reasonable person in the position of" the respondent. In this case, it had to be obvious to a reasonable 9 year old in the position the respondent was in when he decided to ride his bike down the grassy slope. His Honour concluded that a reasonable 9 year old would not have appreciated the extent of the slope, would not have appreciated the steepness of the decline in the third section of the slope, would not have appreciated a potential for losing control, would not have appreciated what was at the bottom of the slope, would not have appreciated that there was a concrete lip at the bottom of the slope and would not have appreciated that there was a 2 metre drop to a bare concrete base at the bottom of the channel. His Honour was satisfied that in the circumstances of this case there was not an obvious risk within the meaning of s5F and consequently s5L did not apply.

48 In the alternative, his Honour was of the opinion that element (ii) was not made out. His Honour was not satisfied that the mere riding of a bike on a grassy slope was objectively speaking, a dangerous recreational activity. In that regard, his Honour relied upon a decision of Grove J in Edwards v Consolidated Broken Hill Ltd [2005] NSWSC 301. There, a bike rider had fallen from an unfenced bridge when trying to proceed around rail cars which had been positioned on the bridge. In relation to "dangerous recreational activity" Grove J said:

"24 ... The riding of a bicycle scarcely fits the concept of what I would understand the legislature to have intended to have comprehended by its expression "dangerous recreational activity". The risk in this case of falling from the bridge because the space for passage had been limited by the presence of rail cars is not a risk of bicycle riding as such, rather it is a risk created by the defendant's activity in allowing the storing of rail cars in that position. ..."

49 At trial the appellant submitted that how it allocated its resources was not open to challenge. For example, if an authority decided to allocate a particular amount to recreation and parks, that could not be challenged. In this case the appellant submitted that it had decided that only the income from the advertising pole sign at the sports ground was to be used for improvements to the ground. The appellant submitted that pursuant to s42(b) CLA this was not open to challenge.

50 His Honour rejected that submission. He concluded that s42(b) did not apply. His Honour noted that a considerable amount of financial material had become evidence in the case, but that this was of little use unless the financial material was self-explanatory. In this case it was not.

51 By way of illustration, his Honour referred to the appellant's submission that looking purely at revenue, in the years leading up to 2008, it had been operating at a loss. In contrast, by reference to the same financial records, the respondent submitted that in addition to revenue, there were capital amounts received by the appellant on an annual basis which were also applied to ongoing expenses. This produced surpluses in excess of $2 million per year. His Honour not unreasonably observed that these matters needed to be explained by someone from the appellant's organisation but were not.

52 His Honour concluded that the financial records of themselves, without explanation, did not satisfy him that s42 applied to the case.

53 In relation to the submission concerning the revenue from the advertising pole sign, his Honour was not satisfied that the evidence supported the proposition that the appellant had made a decision to that effect, i.e. that it was to be the sole source of revenue for the sports ground. In that regard, his Honour referred to evidence to contrary effect, i.e. the provision in the 2004 Plan of Management for the funding of the sports ground. This provided that funding for general maintenance and improvement, was to be derived from rate revenue (see [25] hereof). His Honour concluded that this absence of evidence fatally undermined the submission.

54 At trial submissions were made by the appellant as to the application of ss5I, 5R, 5S and 43A CLA. His Honour rejected those submissions. Since his Honour's findings in relation to those sections have not been challenged on appeal, there is no need to say anything further about them.

Appeal

Ground 1: His Honour erred in finding that there was a foreseeable risk of injury in the circumstances.

Ground 2: His Honour erred in the way in which he framed the risk of injury and ignored the evidence that the risk he framed would not have been within the contemplation of a person having responsibility for the response his Honour concluded would have been reasonable in the circumstances.

Ground 3: His Honour erred in finding that the risk of injury was other than "not insignificant" within the meaning of s5B of the Civil Liability Act 2002 (the Act) and in his construction of the meaning of that term.

55 The appellant dealt with these grounds together, both in written and oral submissions. It is convenient to treat them in the same way.

56 In relation to foreseeability, both as concerns the duty of care question and breach of duty, the appellant relied heavily on the evidence of Mr Kiernan. The appellant submitted that his Honour was not entitled to disregard the expert evidence of Mr Kiernan without good reason since it was the only expert evidence on the issue. The appellant relied particularly on Mr Kiernan's agreement to the proposition that "the prospect of someone riding a bike down a grassed hill and not being able to use the brakes of that bike ... viewed from the point of view of a council engineer would have to be seen as very unlikely to occur" (Black 39Q).

57 The appellant submitted that his Honour's findings at Red 34O and 34V directly contradicted the opinion of Mr Kiernan, without any proper basis having been established for doing so.

58 A further matter relied upon by the appellant on the issue of foreseeability was the "obviousness" of the risk of harm. The appellant submitted that the presence of the channel was self-evident, as was the steepness of the slope. In support of that proposition, the appellant relied upon the evidence of Linda to the effect that she got off her bike because she thought the slope was dangerous. The appellant submitted that her reaction could be taken as the reaction of a reasonable 9 year old child in that there was little difference between the behaviour of a 9 year old and somebody aged 10 years and 2 months.

59 The appellant raised again the proposition that for foreseeability to be established, the respondent needed to show that a reasonable council would have foreseen the actual chain of events commencing at the cycleway and finishing with the fall into the channel.

60 There are a number of flaws in those submissions. The first and most obvious is that this was not a case where a plaintiff had to identify factors which ought to have made the appellant aware of a risk of injury. The unusual feature in this case is that the appellant was fully aware of the risk of injury. The relevant risk of injury was that a child would fall into an unfenced, two metre deep, concrete channel. This awareness can be seen from the appellant's requirement that AGL construct a fence when channelising the creek, its receipt of the letter from the Park Committee, the description of the risk in its letter to Sydney Water in May 2008, its own risk assessment which was part of the 2004 management plan and its December 2008 Finance and Work document. The appellant was clearly aware of the foreseeable risk of injury and was taking steps, albeit somewhat slowly, to do something about it. Nowhere in that material is there an assertion by the appellant as to the unlikelihood of such an accident occurring. On the contrary, the thrust of those documents is an awareness on the part of the appellant of the existence of a real risk of injury to children unless something was done about fencing the channel.

61 Against that background, the evidence of Mr Kiernan was irrelevant. It mattered not what a reasonable council might or might not have known. This council did know of the risk and far from regarding the risk as unlikely to eventuate, it had formed the view that remedial action in the form of a fence should be undertaken.

62 There is another difficulty with the evidence of Mr Kiernan. While he could give evidence as to engineering matters, the evidence which was relied upon by the appellant was not of that kind. It was not expert evidence. In reality, it went no further than an expression of opinion by Mr Kiernan, i.e., that he would not have anticipated the particular sequence of events which led to the respondent's accident. That was not an opinion based on any branch of technical science, nor did it depend for its effect on his qualifications, skill and experience as an engineer. No scientific, or other criteria, was identified for giving this expression of opinion any wider application than one personally held by Mr Kiernan.

63 That is not to be critical of Mr Kiernan. He did what he was asked to do. Unfortunately, a substantial part of his evidence particularly that relied upon by the appellant, should not have been admitted.

64 Another difficulty for the appellant in this submission is its insistence that what had to be foreseen was not just the risk of a child falling into the unfenced channel, but the detailed sequence of events put to Mr Kiernan (see [30] hereof).

65 A similar submission was comprehensively rejected by the High Court (Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ) in Chapman v Hearse [1961] HCA 46;106 CLR 112 at 119 - 121 where their Honours said:

"In the unusual circumstances of the case the point which calls first for attention is the position which Dr Cherry occupied viz a viz Chapman. At the time when Dr Cherry was run down he was standing - or stooping - near the centre of the road. It was dark and wet and there seems no doubt that visibility was poor. As a consequence, the task of attending to the injured man with no-one present to warn on oncoming traffic, involved Dr Cherry in a situation of some danger. But, says the appellant, this was quite fortuitous and not a situation reasonably foreseeable by Chapman at the time when, as a result of his negligence, his vehicle collided with that of Emery. Then to emphasise the contention that Chapman owed no duty of care to Dr Cherry, the appellant enlarged upon the sequence of events which led to the final result. None of these events, it was said, was reasonably foreseeable. It was not reasonably foreseeable that Chapman would be precipitated onto the roadway, that Dr Cherry should at that moment be in the immediate vicinity that he, as a doctor, should be first on the scene and proceed to render aid to Chapman with no other person present to warn oncoming traffic, finally, that within a few minutes Dr Cherry should be run down by a negligent driver. But this argument assumes as the test of the existence of a duty of care with respect to Dr Cherry, the reasonable foreseeability of the precise sequence of events which led to his death and it was rejected, and rightly rejected, by the Full Court. It is, we think, sufficient in the circumstances of this case to ask whether a consequence of the same general character as that which followed was reasonably foreseeable as one not unlikely to follow the collision between two vehicles on a dark wet night upon a busy highway. In pursuing this inquiry it is without significance that Dr Cherry was a medical practitioner or that Dr Chapman was deposited on the roadway. What is important to consider is whether a reasonable man might foresee, as the consequence of such a collision, the attendance on the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those incapacitated or otherwise injured. As Greer LJ said in Haynes v Harwood: "It is not necessary to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act". (See also Hyett v Great Western Railway Co and Carmarthen Shire County Council v Lewis). Whether characterisation after the event of its consequences as "reasonable and probable" precisely marks the full range of consequences which, before the event, were "reasonably foreseeable" may be, and no doubt will continue to be, the subject of much debate. But one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant's carelessness, it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence."

66 To the extent that the appellant's submission relied upon the action of Linda in getting off her bike as a measure of the foreseeable conduct of children, it is also misconceived. As the primary judge appreciated, what we are looking at is a class of persons - in this case, children. That covers a broad spectrum, but would certainly include, boys who have just turned 9. Such a class is notorious for its lack of maturity and unpredictable risk-taking behaviour. That is one of the reasons, no doubt, why the appellant believed that the unfenced channel constituted a significant risk of harm for children and why the danger needed to be remedied.

67 The fact that one child behaved in a cautious manner on this occasion does not mean that all children of a similar age should be expected to behave in the same way. In any event, the difference in maturity between a boy who had just turned 9 and a girl aged 10 years and 2 months at that time in their development is likely to be much greater than such an age difference in later life. Accordingly, the actions of Linda on this occasion are irrelevant to a consideration of foreseeability, both in the context of the duty of care and in the context of breach of duty. Grounds of Appeal 1 and 2 have not been made out.

68 To the extent that duty of care is in issue, the duty owed by the appellant to the respondent was to exercise reasonable care to prevent him suffering injury while on property under its care and control. The content of the duty was to fence the concrete channel at the eastern end of the sports ground.

69 Ground 3 is directed to s5B(1)(b) CLA. That ground is largely answered by the above discussion. It is difficult for the appellant to argue that the risk of harm, i.e. of a child falling into the unfenced channel, was "far fetched or fanciful" when that risk had been identified by the appellant as a real one which the appellant was taking steps to alleviate.

70 As the primary judge appreciated, the concept of "not insignificant" encompassed two matters, i.e. the likelihood that the risk would occur and the consequences if the risk did occur. It is true that there was no evidence in the proceedings of any report of injury having been made to the appellant of a child falling into the channel. This was despite a high level of use of the sports ground by children. That, however, is not determinative of the issue.

71 What is undisputed was the presence of an unfenced 2 metre deep channel in a recreation area frequented by large numbers of children (whether under supervision or otherwise). Not only was it reasonable for a council in the position of the appellant to foresee a realistic chance of injury to one of those children, but it had actually reached that conclusion and was proposing to do something about it. Despite that awareness, a fence had not been erected at the time when the respondent was injured. The risk was multi-faceted. There was not only a risk that young people playing near the long jump area could fall into the channel, whether chasing a ball or simply skylarking near its edge, but there was a cycle path built at the top of the steep slope less than 35 metres away. The risk was clearly not insignificant in that sense.

72 In relation to the consequences if the risk did occur, it was never argued that those consequences could not potentially be very serious as in fact occurred. Ground of Appeal 3 has not been made out.

Ground 4 - His Honour erred in finding that the appellant breached its duty of care to the respondent.

Ground 5 - His Honour erred in finding that the respondent would not have appreciated that the slope on which he was riding could cause him to gain speed and as to what a 9 year old child would perceive because:

5.1 - The evidence of children of comparable age was to the contrary of the conclusion;

5.2 - There was no evidence to suggest how any difference in age between the children of comparable age and the respondent would manifest itself in differing perceptions.

5.3 - The respondent's sister responded to the circumstances and she was of a comparable age and of comparable insight.

5.4 - His Honour failed to give reasons for his conclusion as to the lack of perception of the respondent.

Ground 7 - His Honour erred in finding that the channel into which the respondent rode was not visible.

Ground 9 - His Honour erred in finding that the appellant was negligent.

Ground 10 - His Honour erred in failing to find that the installation of a fence entailed risks of injury and was therefore not a reasonable response to the risk.

73 Grounds 4 and 9 raise the general issue and depend for their success on the outcome of the other grounds of appeal.

74 The purport of Ground of Appeal 5 seems to be a denial of a breach of duty of care on the basis that it was reasonable for the appellant to expect that persons entering onto the sports ground would exercise reasonable care for their own safety. The appellant then seeks to extend that otherwise unexceptionable proposition to children. Its basis for doing so is that Linda got off her bike and did not continue to ride it down the slope, whereas the respondent did. This submission has already been substantially answered when dealing with Grounds 1 and 2.

75 Children are in a different category to adults. The foreseeability issue relates to a class of persons, not to an individual. The fact that one child might behave in a conservative manner does not mean that all children will or should be expected to do so. In any event, the appellant understood the particular vulnerability of children and that is why when identifying the risk of harm in documents to which reference has been made, it specifically identified the class which it identified as being at risk as children.

76 As already indicated, the behaviour of one child says nothing about the behaviour of children generally. It is notorious that immaturity is a feature of childhood and that normally the younger a person, the less mature that person is. That lack of maturity in children is often demonstrated by unsafe or, more often, unthinking behaviour. Ground of Appeal 5 has not been made out.

77 The evidence as to the difficulty in perceiving the presence of the canal was overwhelming. The evidence to the contrary is sparse. The first photograph in exhibit B3, which was probably taken by an adult standing rather than from the perspective of a 9 year old child seated on a bike, shows how difficult it is to identify the presence of the channel when standing on the cycle path. It also shows how difficult it is to identify the steep part of the slope. Linda, who was walking with her bike, did not observe the existence of the channel until she was halfway down the slope. How much more difficult would it have been for the respondent who was on a moving bike. According to Linda, the respondent did not get into difficulties until he was halfway down the slope, i.e. when he was on the very steep section.

78 The only evidence to the contrary is that of the father of the respondent and Linda. His evidence is expressed in very general terms and does not traverse what is shown on the photograph and Linda's evidence. It is not clear from the father's evidence where he was standing at the time and what in fact he was looking at. In any event, his perspective as an adult would be quite different to that of a 9 year old child, seated on a bike, who was moving at the time. Ground of Appeal 7 has not been made out.

79 Ground 10 and the submissions in support thereof are somewhat surprising. It was common ground that the reasonable response to the foreseeable risk of harm was the erection of a fence. No alternative was suggested, nor was it submitted that the channel should be allowed to remain in its unfenced state. The only expert evidence on the subject was that of Mr Kiernan to the effect that a channel of this kind should be fenced.

80 The appellant submitted that there was no basis for his Honour's refusal to accept that had a fence been in position, the respondent could have suffered the same injuries had he come into collision with it. There was no evidence to substantiate that proposition. The only evidence is a photograph of the weld mesh fence which was actually erected next to the channel. By reference to the photograph of that fence, even without other evidence, it is fanciful to suggest that if a young person on a bike came in contact with the fence, he or she was likely to suffer similar injuries to those which would be suffered had that young person fallen into a two metre channel with a concrete bottom. That is particularly so when, as occurred here, the respondent had been successful in turning the bike, although he was not successful in completely stopping its forward motion. Ground of Appeal 10 has not been made out.

Ground 6 - His Honour should have found that the respondent's unfamiliarity with the bike he was riding was a cause of the respondent's injuries.

81 The appellant submitted that his Honour did not appreciate that when the respondent attempted to apply the brakes and attempted to steer away from the canal, this was evidence which showed that he was not in control of the bike. In fact his Honour did find that the respondent had, at least in part, lost control of the bike he was riding when he was traversing the steep part of the slope (see [15] hereof). It is the next submission of the appellant which is problematic, i.e. "his inability to control the bike arose from his unfamiliarity with it". There is no evidence to support that submission.

82 The evidence was that the respondent had ridden Naiden's bike "twice or three times before because it was big" (Black 11X). The following leading question was put to the respondent in cross-examination:

"Q. And were you still getting to know the braking system on the new bike on the day of your accident?

A. Yeah." (Black 12V)

The reference to "new bike" is, of course, ambiguous and could be referring to the birthday present as much as Naiden's bike. On the assumption that the reference is to Naiden's bike, there is no basis in that evidence for a conclusion that Naiden's bike was too big for the respondent, nor that he was unable to properly operate the braking system.

83 In fact the submission depends entirely upon the leading question put to Linda in cross-examination at Black 28W:

"Q. Did you see him try to apply the brakes?

A. Yeah."

That question was put to a witness who had earlier indicated that her recollection of the day of the accident was "only a bit". That was not surprising, given that she was aged 10 at the time and 5 years had passed. The evidence might have had more force had it not been put in such leading terms. In any event, the question and answer are at best ambiguous. Does the question mean that the respondent tried to apply the brake but was unsuccessful or that he tried to apply the brakes and was partially, or eventually successful. If the respondent did unsuccessfully try to apply the brakes on the bike, it does not necessarily follow that this was because of his unfamiliarity with it. It could have equally been due to the fact that the sudden increase in the slope took him by surprise.

84 Even if the respondent's unfamiliarity with the bike did contribute towards him losing control of the bike, that finding goes nowhere. What is clear on the issue of factual causation was that the fall into the unfenced channel was also a necessary condition of the occurrence of the harm (s5D(1)(a) CLA). Ground of Appeal 6 has not been made out.

Ground 8 - His Honour erred in his consideration of the burden on the appellant and the resources available to the appellant.

85 The purport of this ground of appeal seems to be that if the appropriate response to the foreseeable risk of harm in this case was to erect a fence next to the channel, that would have to be done in respect of every unfenced channel in the municipality and to do so, would impose an unreasonable burden on the appellant. The basis for the submission seems to be by analogy with such cases as Romeo v Conservation Commission (NT) [1998] HCA 5; 192 CLR 431 and Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422. One of the difficulties confronting the plaintiffs in those cases was that both authorities had responsibility for long coastlines and there was no indication that one particular part of the coast might be more dangerous than any other.

86 That is not the situation here. It was not a question of the appellant attempting to anticipate what locations might present a danger to certain classes of the public. Here, the appellant knew of the actual existence of a risk of harm in a particular location. The question of some kind of search and inquiry for other potentially dangerous locations simply did not arise. In formulating this ground of appeal, the appellant has misunderstood s5C(a) CLA.

87 In any event, even if such an inquiry were required of the appellant, it was not one which would be regarded as unduly burdensome for the reasons set out by the primary judge. The appellant's area of responsibility was a small, built up, urban area where photographs, maps and a Google Earth search would go a long way to identifying unfenced channels which were a potential hazard. The appellant's area of responsibility was not a large, undeveloped environment with extensive natural features, such as were considered by the High Court in Romeo and Vairy. Ground 8 has not been made out.

Ground 11 - His Honour erred in not finding that the respondent was engaged in a dangerous recreational activity and failed to give adequate reasons in support of the finding he made on this issue.

88 The appellant submitted that on the facts of this case the defence in s5L CLA had been made out in that the harm suffered by the respondent was as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by him. The appellant submitted that riding down a grass slope, on an unfamiliar bike, was a dangerous recreational activity and that the risk of falling into the unfenced channel would have been obvious to a reasonable person in the position of the respondent.

89 Like his Honour, I am not persuaded that riding an unfamiliar bike down a grass slope is properly to be characterised objectively as a dangerous recreational activity. Similarly, as arose in discussion in the course of the appeal, riding a bike down a grass slope without wearing a helmet is of itself not objectively a dangerous recreational activity. One can envisage circumstances when riding a bike without wearing a helmet could constitute a dangerous recreational activity, particularly on a busy road or perhaps in a bicycle race. That was not the situation here.

90 There is another difficulty with the appellant's submission. The materialisation of the "obvious risk" in the submission depends upon the risk being obvious to a reasonable person. In this case, the standard of reasonableness was that to be expected of a 9 year old boy. It has already been established that the presence of the channel was not obvious and would not have been seen by the respondent until he was at least half way down the slope and traversing the steep part.

91 There is another difficulty for the appellant in making out the s5L CLA defence. This is because the risk which materialised (be it obvious or not) was not a normal incident of the dangerous recreational activity. On the assumption that riding a bike without a helmet down a grass slope was a dangerous recreational activity, the incidental risk was that the rider might fall off and hit his or her head on the ground or on the bike. The risk which eventuated here was not a fall off the bike, but falling a distance of 2 metres into an unfenced concrete channel. The analogy which the primary judge drew with the decision of Grove J in Edwards v Consolidated Broken Hill Ltd was apt. Ground of Appeal 11 has not been made out.

Ground 12 - His Honour erred in failing to apply s42 of the Act to the question of whether the appellant chose to fund work on the subject oval from advertising revenue generated within that park or from general revenue.

92 The appellant submitted that the approach of the primary judge obscured the circumstance that the resources available to the appellant were limited. It submitted that his Honour's approach inevitably challenged the "general allocation" of resources because properly understood, his Honour's finding required that money from other sources ought to have been allocated at the general level of allocation so as to have enabled the building of the fence.

93 The appellant submitted that it had determined to fund improvements to the sports ground on a priority basis from the revenue from the advertising pole sign within the ground. The appellant submitted that implicit in his Honour's finding was the proposition that the appellant was not entitled to rely upon that sole source of funding as the "resource" from which the ground was to be upgraded, but that money was to be allocated from elsewhere. The appellant submitted that this directly conflicted with s42(b) CLA.

94 The appellant submitted that its decision to restrict funding for use on the sports ground in this way, was a "general allocation on its part". It followed that unless it was assumed that not all the money from the advertising pole site had been spent (the evidence being to the contrary), a re-allocation of resources at a general level would be necessary in order to permit departure from that funding source so as to pay for the building of the fence.

95 The appellant submitted that the financial documents tendered by it showed that it had no reasonably available resources from is annual revenue to allocate to the construction of the fence. The appellant submitted that this conclusion emerged from an examination of its financial records in the years leading up to the date of the accident. If one left out capital allocations, in each area of allocation of funds available to the appellant there was a deficit.

96 The leading case in relation to s42 remains Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360. There Campbell JA (with whom McColl JA and Sackville AJA agreed on this point) said:

"388 Like section 43A, section 42 pre-supposes the existence of the law of negligence - it applies "in proceedings for civil liability to which this Part applies", and, in the course of such proceedings, "in determining" whether a public or other authority has a duty of care, or "in determining" whether the public or other authority has breached a duty of care. Section 42 is in the nature of a supplement or corrective to the pre-existing law of negligence, not a replacement for it or for any part of it.

389 Both section 42(a) and (c) used the phrase "the functions required to be exercised by the authority". As section 42 deals quite generally with the way one should proceed in deciding whether a public or other authority has a duty of care or has breached a duty of care, the force of "required" seems to me to be "required by the law of negligence" - ie, required by the legal standard of taking reasonable care not to harm in a relevant way a person to whom the public or other authority owes a duty of care. It does not refer to a requirement in the nature of a statutory duty.

390 The whole topic of section 42 concerns the manner in which the public or other authority exercises its "functions". The definition of "function" in section 41 is only an inclusive one, but section 42 must be able to work in a way that makes sense by reference to at least situations where a function is a power, a function is an authority, and a function is a duty.

...

395 The effect of section 42(a) in the present case is that what the RTA can be required by the law of negligence to do is limited by the financial and other resources that are reasonably available to the RTA for the purpose of carrying out the care, control and management of freeways and any other roads that are under its care, control and management. Its budget for that purpose is so large that any expenditure that would have been involved in earlier screening of the Glenlee Bridge, or indeed in earlier screening of all overpasses on freeways would have been well within its budget.

396 When section 42(b) uses the expression "those resources" it is referring back to section 42(a). What section 42(b) requires not to be challenged, in the present case, is the "general allocation" by the RTA of those resources that are reasonably available to the RTA for the purpose of the care control and management of freeways and other roads under its care control and management.

397 There is an important difference in prepositions between section 42(a) and section 42(b). Section 42(a) is concerned with the resources reasonably available to the authority, while section 42(b) is concerned with the allocation of those resources by the authority. In other words, section 42(b) starts from the position that certain resources are reasonably available to the authority, and considers the allocation that is made by the authority of those resources.

398 Effect must be given to the word "general" in section 42(b). It seems to be drawing a distinction between the general and the specific. It will be a matter that needs to be decided concerning any particular set of resources that is allocated to a public authority, whether a particular decision about allocation of those resources by the authority is regarded as a decision about the general allocation of resources, or a decision about the specific allocation of resources.

399 The force of the words "is not open to challenge" in section 42(b) is to prohibit a particular manner of contending that a public or other authority is under a duty of care, or has breached a duty of care. Thus, in a case like the present, which concerns an allegation of breach of duty of care, application of section 42(b) needs to be carried out bearing in mind each particular manner in which it is alleged a duty of care has been breached.

...

401 In the present case, if one allegation had been that the RTA misapplied well-established principles and made careless factual errors in the way it prioritised overpasses for screening, and that a principled and careful prioritisation process would have put the Glenlee Bridge close enough to the top of the priority list to have been screened before 23 August 1998 with the money that the RTA actually chose to spend on bridge screening, the challenge that was being made would have been to the allocation of resources that the RTA had actually allocated to bridge screening. I do not think that such a challenge would be one to the general allocation of the resources reasonably available to the RTA for the purpose of exercising its functions."

97 The analysis by Campbell JA is contrary to the appellant's submission that once it had determined that the sole source of funding for improvements to the sports ground was to be the revenue from the advertising pole sign, that was a "general allocation of resources" which could not be challenged. In accordance with the reasoning of Campbell JA (and I might add the clear meaning of the section), such a decision by the appellant was properly to be looked at as part of the "general allocation" under either the heading of "public order and safety health" or "recreation and culture" which were the headings used by the appellant in its financial statements. As I read the judgment of Campbell JA and the section, the general allocation of monies by the appellant to such functions cannot be challenged, but the allocation within those functions can. In other words, the reasonableness of a decision that the revenue from the advertising pole sign is to be the sole source of funding for the sports ground is not protected by the provisions of s42(b) and is subject to challenge.

98 There is another difficulty with the appellant's submission on this issue. The evidence does not support the appellant's primary position that the sole source of funding for the sports ground was to be the revenue from the advertising pole sign. The high point of the evidence on this issue is at Blue 441 - 443. This document is headed "Finance and Works". It refers to a decision of the appellant at a meeting on 21 December 1998. The motion passed at that meeting was:

"That Council pronounce as policy, that all income derived from the commercial pole sign located at the Holroyd Sportsground be directed at improving recreational and open space facilities in the suburb of Holroyd which has an anticipated population of approximately 1500 - 2000 people and which currently has the Sydney Children's Museum and the Walpole Street Park as centres of recreation requiring urgent enhancement and that income from the pole sign also be directed towards the Holroyd Sportsground until the ground reaches an appropriate standard of excellence. Further that the policy be reviewed after ten years in consultation with the residents of the suburb of Holroyd." (Blue 441K)

The subject of the motion is the purposes to which the income from the advertising pole sign at the sports ground will be directed. The appellant adopted a policy that such income will be directed to improvements both at the sports ground and other recreation and open space facilities in the suburb of Holroyd.

99 What the motion and the document does not say is that the revenue from the advertising pole sign will be the only source of revenue for the sports ground. I have not been able to find any evidence to that effect elsewhere in the financial documents tendered by the appellant. As the primary judge pointed out, there may be a good reason for this absence of evidence, i.e the proposition is incorrect. It certainly sits uneasily with the funding arrangements set out in the 2004 plan of management for the sports ground, which refers to "the majority of funding for general maintenance and improvement works at Holroyd Sportsground is derived from rate revenue. In addition to this, fees collected by the Local Committee assist with minor works and occasional grants are obtained for capital improvement". The proposition is also inconsistent with the appellant's document at Blue 861 - 862, being a record of an answer to questions without notice at the council meeting held on 21 March 2006. This document contains a table listing capital improvement projects at the sports ground between 2001/2002 to 2005/2006, which shows that the funding source was not limited to income from the advertising pole sign.

100 The final difficulty for the appellant in maintaining this ground of appeal was also identified by the primary judge in that the ground depends for its success on a particular interpretation of a series of financial statements relating to the financial affairs of the appellant which were not explained. On one view of the documents, they reveal that ample funds were available within various general allocations to pay for this fence and that such had been the situation since at least 2005. On an interpretation most favourable to the appellant, the best that can be said is that the financial documents are ambiguous. They may show ample funding available, or they may not. What they do not unequivocally show is that there were insufficient funds within the two relevant categories, i.e. public order and safety health and recreational culture since 2005 to pay for the fence. In the absence of any evidence from the appellant explaining those financial accounts, they cannot raise a s42(b) issue. Ground of Appeal 12 has not been made out.

Conclusion

101 The orders which I propose are:

(1) The appeal be dismissed.

(2) The appellant pay the costs of the appeal.

102 EMMETT JA: This appeal arises out of injuries suffered by the respondent, Joey Zaiter, when he rode a bike down a grassy slope forming part of the Holroyd Sports Ground (the Sports Ground), lost control, and fell with the bike into a concrete channel two metres deep owned by the appellant, Holroyd City Council (the Council). At the time of the accident, Master Zaiter was aged nine years. He suffered serious injury as a result of the fall and proceedings were brought on his behalf by his tutor, Mr Michael Zaiter, for recovery of damages from the Council. A Judge of the District Court found that Master Zaiter's injuries were caused by the Council's breach of duty and that the Council was liable in negligence for the injuries suffered by him. The District Court also found that the extent of Master Zaiter's negligence in contributing to the accident should be fixed at ten percent. The Council has appealed from the determination that it is liable for the injuries suffered by Master Zaiter.

103 The Sports Ground consists of approximately five hectares. At one end, it slopes roughly in a south-easterly direction towards the concrete channel. The steepness of the slope varies and it is at its steepest at the eastern end. A path shared by cyclists and pedestrians runs from a public road to the eastern end. The distance between the path and the concrete channel is about 34 metres. The ground between the path and the channel has four different sections. The first section is about six metres and is a gentle downward slope of about four degrees towards the channel. The second section is about eight metres and is gradually steeper. The third section is about 12 metres and slopes at about 33 degrees. The fourth section is about eight metres and is broadly flat. Where the fourth section meets the channel, there is a slight lip, in that the level of the wall of the channel is slightly higher than the level of the grass. The channel is about two metres deep. Its base is concrete and it has no covering. The sides are vertical. At places, there are metal rungs down the side adjacent to the Sports Ground, which permit access to the bottom of the channel.

104 The ultimate issue in the proceedings was whether the Council, in order to discharge the duty of care that it owes to somebody in the position of Master Zaiter, ought to have erected a fence along the channel to prevent an accident such as that suffered by him. The trial judge found that it was foreseeable by the Council that the slope described above posed a risk of harm to young children who rode their bikes onto the Sports Ground at the point where Master Zaiter rode. His Honour found that a person in a position of the Council could and ought to have appreciated that a nine year old or other young child who came to the Sports Ground from the path on a bike would see a downward slope, but would not see that the slope was in four sections. His Honour considered that a person in the position of the Council could and ought to have appreciated that, with a slope of 30 degrees, the third section was steep and could cause a bike to gather speed that might make it uncontrollable.

105 His Honour found that a person in the position of the Council, if analysing or assessing the situation, ought to have appreciated that children could be engaged in different types of activities on the grassed slope since it was adjacent to the Sports Ground, which was intended for recreational activity. Such a person ought to have appreciated that that posed a risk that someone could inadvertently fall into the two metre deep channel at the end of the steep slope. His Honour concluded that, in those circumstances, it was foreseeable by the Council that the slope posed a risk of harm to young children who rode bikes onto the Sports Ground.

106 His Honour also found that there were other factors known to the Council that made such foreseeability stronger. In 1998, the Council imposed on the Australian Gaslight Company, which constructed the channel, a condition that a fence be constructed. That indicates awareness on the part of the Council of the danger posed by an open channel adjacent to the Sports Ground. Further, in October 2007, the Holroyd Sports Ground Local Management Committee wrote to the Council pointing out that, as the channel had no edge protection, it presented a hazard in that a person could easily fall a distance close to two metres. In addition, in December 2008, when estimating the cost of fencing the channel, the Council observed that the existing channel was not fenced and was considered a safety issue for children using the facilities in the Sports Ground.

107 The primary judge found that Master Zaiter was a member of a class of persons who come to the Sports Ground for recreational purposes and that it could reasonably be foreseen that a member of such a class could be injured by falling to the bottom of the channel if reasonable precautions were not taken to prevent that happening. His Honour found that the Council ought to have foreseen that a young child might well decide to ride a bike down the slope, might lose control and, in that situation, could finish up injured at the bottom of the channel. His Honour was therefore satisfied that the risk of injury to a child in the position of Master Zaiter by falling inadvertently to the bottom of the channel was foreseeable by the Council.

108 I have had the advantage of reading in draft form the proposed reasons of Hoeben JA for concluding that the appeal should be dismissed with costs. I agree with Hoeben JA, for the reasons given by his Honour, that the primary judge made no error in finding that there was a foreseeable risk of injury and that the risk would have been within the reasonable contemplation of the Council. There was no error in finding that the risk of injury was other than not insignificant within the meaning of s 5B of the Civil Liability Act 2002 (NSW).

109 I also agree with Hoeben JA's conclusions that the primary judge made no error in finding that Master Zaiter would not have appreciated that the slope on which he was riding could cause him to gain speed, and in finding that the channel was not visible. Further, there was no error in failing to find that the installation of a fence would have been a reasonable response to the risk. It follows that his Honour made no error in finding that the Council breached its duty of care to Master Zaiter and was negligent. I also agree with Hoeben JA's reasons for concluding that the primary judge did not err in rejecting the contention that Master Zaiter's unfamiliarity with the bike he was riding was a cause of his injuries.

110 The primary judge had before him a written report by engineers prepared for the purposes of the proceedings. Much of the material in the written report was clearly inadmissible in so far as it failed to satisfy the prerequisites of s 79 of the Evidence Act 1995 (NSW). The written report dealt reasonably adequately with the training, study and experience upon which certain specialised knowledge of the author was based. However, the report did not demonstrate adequately how any opinion expressed in it was wholly or substantially based on that specialised knowledge. I agree with Hoeben JA that, notwithstanding that the report was admitted without objection, there was no error on the part of the primary judge in rejecting that opinion evidence.

111 The primary judge then gave consideration to the defences raised by the Council based on s 5L and s 42 of the Civil Liability Act. I shall say something brief about each of those questions.

112 Under s 5L, the Council would not be liable in negligence for harm suffered by Master Zaiter if it could establish that Master Zaiter suffered harm as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by him. A dangerous recreational activity is a recreational activity that involves a significant risk of physical harm. An obvious risk of such an activity is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of Master Zaiter. The risk of something occurring can be an obvious risk even though it has a low probability of occurring and even if the risk is not prominent, conspicuous or physically observable. The immunity conferred by s 5L would apply whether or not Master Zaiter was actually aware of the risk.

113 Clearly enough, the activity in which Master Zaiter engaged was recreational. If one characterises the activity as riding a bicycle, the obvious conclusion would be that he did not engage in an activity that involves a significant risk of physical harm. Even if one characterises the activity as riding a bicycle down a steep slope towards an unfenced concrete channel with a drop of up to two metres, it would not follow that the activity should be characterised as involving a significant risk.

114 The accident was apparently occasioned because Master Zaiter lost control of the bicycle on the slope and was unable to stop before reaching the bottom. It was not his bicycle, and he had not had a great deal of experience riding it. Thus, it is necessary to introduce into the formula an activity of riding an unfamiliar bicycle down a steep grassy slope towards the concrete channel. Even then, the activity is not one that involves a significant risk of physical harm. In the circumstances, s 5L was not enlivened by the circumstances of this case. I agree with Hoeben JA's reasons for concluding that Master Zaiter was not engaged in a dangerous recreational activity or that the primary judge gave inadequate reasons in support of his finding on that question.

115 Section 42 provides that, in determining whether a public authority such as the Council had a duty of care or had breached a duty of care to a person such as Master Zaiter, the functions that the Council is required to exercise are limited by the financial resources reasonably available to it for the purpose of exercising those functions. Further, the Council's general allocation of those resources is not open to challenge. The Council contended that it had not made a general allocation of funds for the purpose of fencing the concrete channel and that that decision was not open to challenge. That is a question of fact to be examined on the material in evidence. I agree with Hoeben JA's reasons for concluding that s 42 does not afford an answer to the claim against the Council. At best, the material relied on by the Council was ambiguous. On another view, it was evidence against the conclusion contended for by the Council.

116 It follows that the appeal should be dismissed. I agree with Hoeben JA that the Council must pay Master Zaiter's costs of the appeal.

117 GLEESON JA: I agree with Hoeben JA.

118 Following the delivery of judgment on 7 April 2014 the parties agreed that the following additional orders as to costs should be made:

(3) The appellant is to pay the respondent's costs in respect of the claim in the District Court assessed on the ordinary basis up to 22 February 2012 and then on an indemnity basis from the beginning of the following day.

(4) The appellant is to pay the respondent's costs in respect of the appeal assessed on an ordinary basis up to 28 November 2013, and then on an indemnity basis from the beginning of the following day.

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Amendments

09 July 2014 - Par [118] added to reflect Consent Orders re: costs filed.
Amended paragraphs: Par [118] added

Decision last updated: 09 July 2014