The recent decision of Corbett v Town of Port Hedland [2024] WASCA 9 involved a very unfortunate set of circumstances. The appellant was two years old when he caught his hand in the hinge of a gate at the Port Hedland Racecourse, and ended up having four fingers amputated (he only has the thumb on his left hand).
There was no question that his injury was serious and the damages would be significant. The parties proceeded to trial on liability only in the District Court – to save time and money and focus on the true issues in dispute.
The Town of Port Hedland successfully defended this claim at first instance and was then successful on appeal.
The Court of Appeal overturned some of the original findings, saying that the risk of harm in this case was reasonably foreseeable and that the risk of harm was not insignificant – reinforcing that it is a low bar to satisfy these threshold tests.
The case, however, was ultimately dismissed after application of the reasonable person test, specifically when balancing the significant burden on the Town having to take fairly onerous precautions when there was a low risk or low probability of harm occurring.
This decision reinforces the importance of considering the burden on occupiers against the likelihood of harm occurring when determining whether or not particular precautions should be taken. Local governments, in particular, are responsible for safeguarding a wide range of premises, and do not have the time and resources to keep constant watch over all assets under their control.
Evaluating the particular risk presented in the particular circumstances requires consideration of factors like:
To illustrate this point, there has been recent media attention about the Burswood Park Playground and whether or not that playground should have had a “child-safe lock” installed on it to prevent children from escaping the playground and venturing to the river nearby.
It would be fairly safe to say that the river would be characterised as an “allurement” and would present a “foreseeable and not insignificant risk of harm” that might require some additional precautions to be taken, rather than just relying on adult supervision.
It is obvious that a playground will be used by children, and natural that parents may be a little complacent about supervision at a playground given they’re designed with children in mind (with the caveat that playgrounds are also designed to challenge children to take “safe” risks). The presence of a fence might also lull parents into a false sense of security.
With that in mind, if the occupier of the playground has the resources, it might be reasonable for them to install child-proof locks on any fenced playgrounds, or erect signs warning parents if the gate latches are not child-proof or are broken, or reminding parents to supervise their children while playing on the playground or near water / roads or other major risks.
Read on for a more detailed analysis of the decision.
Background:
In August 2015, the appellant brought proceedings against the Town of Port Hedland (“Town”) after suffering a serious crush injury to four of his fingers. The injury was sustained when the 2-year-old boy was playing with his siblings and cousins on a swinging gate at the Port Hedland racecourse. This gate could have been, but was not at the time of injury, secured.
The original decision of Gething DCJ in Corbett v Town of Port Hedland [2021] WADC 55 found the appellant had failed to prove the injury sustained was caused by the negligence of the Town of Port Hedland and the action was dismissed. The appellant appealed this decision.
The appeal consisted of five grounds, namely that the primary judge erred in:
The appellant successfully made out the first three grounds of appeal. However, President Buss and Justices Mitchell and Vaughan, agreed with the finding of the primary judge on the fourth ground of appeal. The appellant failed to challenge important findings that ultimately resulted in the Court of Appeal determining that a reasonable person in the Town’s position would not have taken precautions against the risk of harm. This resulted in the action being dismissed.
Ground 1 – the allurement of the gate
The primary judge did not accept the gate was alluring to children. His Honour stated that ‘… there is nothing in its very nature that would make it alluring to a child. It is just a gate.’ On appeal, the court found that ‘just a gate’ could in fact be very alluring to a group of children and without considering the hindsight bias of the outcome in this particular case, an unsecured gate was considered an alluring “swing” to young children.
Grounds 2 & 3 – the risk of harm was foreseeable and this risk was not insignificant
Drawing a conclusion from the fact that the gate was usually secured and that, if locked, the gate could not be used as a swing, the primary judge concluded there was no evidence upon which the Town could have foreseen the risk. The primary judge found the combination of the gate usually being locked and the fact that children were rarely around the gate, the risk of harm was insignificant.
On appeal however, the court upheld Grounds 2 and 3. Their Honours found that the analysis of the primary judge was based on the common practice of the Town that the gate is usually secured. The Court of Appeal however, found the starting point should be to assess the foreseeability of harm and the significance of the risk of harm cased on the state of the gate at the time of the injury.
The Court of Appeal considered that because the racecourse was a public open space and was regularly used as a short cut by a nearby Indigenous community, ‘it was objectively likely that one or more children might enter on and seek to entertain themselves on the racecourse premises’. This, compounded with the nature of the gate and its ability to be used by children as a swing in an unsecured state, presented a foreseeable risk of harm which the Town ought to have known.
The Court of Appeal importantly pointed out that just because the probability of children playing on the gate was low, this does not automatically result in the risk of harm being insignificant. The Court of Appeal found that when the gate was unsecured, the risk of harm to a child using a gate as a swing was not insignificant.
Ground 4 – the reasonable person in the Town of Port Hedland’s position
The appellant at the trial accepted that they would have to prove that a reasonable person in the Towns position would ensure the gate was secured at all times when not allowing vehicle access, in order to establish that the Town was negligent. The primary judge found this would have placed a significant burden on the Town.
The Court of Appeal found no issues in the primary judge’s reasoning in relation to this aspect of the case. The primary judge found that for the Town to ensure the gate was secured by padlocks, the Town would have to exercise active oversight of the use of the gates. This would necessitate the need for either only Town staff members having a key to unlock the gates, which would not prevent others from cutting off the padlocks, or having staff routinely check the gates in the open spaces were secured. This would place a significant burden on the Town. Combined with the ‘low’ to ‘very low’ probability of harm occurring, a reasonable person would not have done anything more than the Town did.
Having not made out all of the elements of section 5B(1) of the Civil Liability Act, the appeal was dismissed.
Ground 5 – the presence of a responsible adult
The primary judge held that a reasonable person in the position of the Town would assume a child under 3 years of age would not be at the racecourse without a supervising adult, and this was relevant to the Town’s consideration of the precautions it should take in response to the risk of harm. Since Ground 4 was not made out, and because the primary judge’s ultimate decision (dismissing the proceedings) was not contingent upon his findings in relation to supervision, the Court of Appeal did not make any findings in respect of Ground 5.