To:
Antonia Johnson
From:
Chris Sherlock
Re:
Tamworth Shire Council
I refer you to the task set for me of outlining the legal position of Tamworth Shire
Council (TSC) in relation to an incident involving Simon Jones at the Tamworth
Municipal Refuse Depot.
Key Facts
TSC operates a Refuse Depot in the Shire. Sometime after 5pm (the Depot’s closing
time) on the day in question, 13 year old Simon Jones (Simon) entered the Refuse
Depot through a hole in the fence. He suffered severe burns to his feet whilst within the
Depot.
The hole in the fence was apparently made recently, but TSC does perform twice yearly
inspections on the two kilometre perimeter fence. TSC is aware of prior break-ins.
Simon denies that he used wire cutters.
Does the Council owe a duty of care?
There does not appear to be an established common law duty relationship between
TSC and Simon. Therefore, for a claim against the TSC to succeed, it must be
established that a duty of care exists between the TSC and the plaintiff: they must be
‘neighbour[s] in law’.1 In the absence of any absolute guidance from the High Court on
how duty of care might be established, I will proceed on the basis of the two stage test:
proximity and reasonable foreseeability would determine whether that duty
relationship exists.
To satisfy the proximity test, Simon would have to show that he is one of a class of
people to whom a duty is owed. For the Council, as a land occupier, the proximity issue
was explored in Hackshaw v Shaw.2 There, Deane J wrote that
there [must] be reasonable foreseeability of a real risk to the visitor or to the class of person of
which the visitor is member3
to establish that proximity. This principle was cited with approval in Australian Safeway
Stores Pty Ltd v Zalunza4 and so now seems to have displaced the older common law
position which made distinctions betweens invitees, licencees and trespassers.
On the facts, although it appears that Simon has entered the land as a trespasser, and
therefore to be less likely to have been foreseeable as an entrant on the land, the
requisite proximity may still be established. TSC has been aware of previous break-ins
and conducts twice yearly inspections on the fences around the depot.
The second sub-issue to duty of care is that of reasonable foreseeability. This was
discussed in Chapman v Hearse.5 Effectively,
1
Donoghue v Stevenson
(1984) 155 CLR 614
3
Ibid, at 662-663.
4
(1987) 162 CLR 479
2
[i]t is sufficient if it appears that injury to a class of person of which he was one might reasonably
have been foreseen as a consequence. 6
It would have to be demonstrated that TSC should have had a reasonable foreseeability
that having leaving hot ashes posed an injury risk to Simon. Again, having known of
prior incursions to the depot probably indicates some level of foreseeability to the
consequences of having hot ashes on the Depot premises.
With regard to the facts given, then, it would appear that TSC would be under a duty of
care to Simon. However, the content of that care needs to be examined.
What would be the standard of that care?
If it were established that a duty of care was owed, then the required standard of that
care must be defined. In Australian Safeway Stores Pty Ltd v Zalunza,7 it was held that
‘what is reasonable … will vary with circumstances of the plaintiff’s entry upon the
premises’.8 It stands to reason that the entry of a trespasser is less probable than that of
TSC’s employees, and that the standard of care required to be offered to a trespasser
would be lessened as a result.
The fact that the Refuse Depot has left hot ashes unextinguished after hours raises
concern. Although the standard of care that would be afforded trespassers is lower
5
(1961) 106 CLR 112
Ibid
7
(1987) 162 CLR 479
8
Ibid
6
than that of other entrants, Mason J, in Wyong Shire Council v Shirt9 explained that ‘a
risk which is not far-fetched or fanciful is real and therefore foreseeable’.10 As the TSC
knows that break-ins have occurred in the past, it is probable that there would be
expectation to leave the Refuse Depot in a safe state.
However, the existence of a fence around the depot distinguishes the present facts
from Ryan v State Rail Authority of New South Wales,11 where ‘the only particular on
which the plaintiff ultimately placed reliance was the failure to erect fences’12 around
the risk. In that case, a trespassing child was injured on State Rail Authority land. It is
possible in this case, then, that the standard of care may have been met by maintaining
a fence around the Depot, and therefore the risk.
There may also be policy issues at play. In Ryan v State Rail Authority of New South
Wales,13 Dunford J notes that:
The law has long recognised that children are attracted to things which do not attract adults and
this "allurement" has been recognised as relevant to the duty of care owed, particularly to child
trespassers.14
A similar comment was made in Kelly v Bega Valley County Council15: clearly the court
appears prepared to tighten that duty where children are concerned. It is likely that a
Refuse Depot would provide a similar level of allurement for a child.
9
(1980) 146 CLR 40
Ibid
11
[1999] NSWSC 1236
12
Ibid at para 13
13
[1999] NSWSC 1236
14
Ibid, para 17
10
Was there a breach of that duty?
There is an interesting dichotomy in this set of facts. Although TSC’s duty would be
narrowed due to the circumstances of Simon’s entry, the courts have shown that the
protection of children is a policy issue, imposing a stricter standard of care in those
situations.
It does seem though, that Ryan v State Rail Authority of New South Wales16 provides a
comparable fact scenario – a breach of duty was found, but it was noted that the
plaintiff’s reliance was on the non-existence of a fence around the risk.
Kirby J in Romeo v Conservation Commission of the Northern Territory17noted that:
[i]t is quite wrong to read past authority as requiring that any reasonable foreseeable risk,
however remote, must in every case be guarded against.
In the same judgment, he remarked that although the absence of past mishaps does
not excuse the duty, the lack of mishap over years ‘may tend’ to confirm an occupier’s
opinion of the remoteness of the risk.18
It would be difficult, at this stage, to make anything other than a very tentative
conclusion.
15
Unreported, 13 September 1982, NSWCA
[1999] NSWSC 1236
17
[1998] HCA 5
18
ibid.
16
What defences might TSC have?
TSC, in the first instance, should assert that no breach of duty has occurred. The
plaintiff’s case in Ryan v State Rail Authority of New South Wales19 was largely reliant on
the absence of fencing around the risk. TSC could argue that the duty of care was met
by the erection and maintenance of the fence by distinguishing the present case from
Ryan. It should also be noted that, even though the plaintiff in that case was successful,
he was judged to have been contributorily negligent, and the award reduced by one
third.
It is probable that TSC could raise a defence of contributory negligence. It would have
to show that Simon failed to take the precautions of a reasonable person. That
standard of care, as it would apply to a child, was examined in Kelly v Bega Valley
County Council.20 Glass JA applied obiter in McHale v Watson21 to determine that the
standard of care required of the plaintiff was that of a child ‘endowed with the
knowledge, experience and development to be expected’ of one that age’.22
Accordingly, TSC would have to show that Simon’s actions fell outside the standard of
care which would be expected of a 13 year old boy and it would be left to Simon to
negative that charge.
To be burned by hot ashes it is likely that he was not wearing appropriate footwear, if
any at all. Should this be the case, TSC might argue that the lack of proper footwear
19
[1999] NSWSC 1236
Unreported, 13 September 1982, NSWCA
21
(1964) 111 CLR 384
22
Kelly v Bega Valley County Council, Unreported, 13 September 1982, NSWCA
20
whilst on the Depot’s ground shows a lack of precaution, even for a 13 year old child.
However, in dismissing an appeal (by majority), the court in the older case of
Commissioner for Railways (N.S.W) v Cardy23 was also divided on the issue of
contributory negligence for barefooted roaming.24 In that case, ashes were concealed
and on open land, so it would be important to distinguish the present facts from those
in that case.
Next steps
In the contributory negligence context, it would be useful to determine the following:

whether Simon was wearing appropriate footwear

the nature of the ashes and if they were concealed
If the fencing around the depot is checked twice a year, how often are repairs required?
Should few repairs be required, it may go to demonstrate the frequency of break-ins,
and therefore the foreseeability aspect of the duty issue. It may also go to the required
standard of care.
It would also be helpful to know the safety history of the Depot – this may also be of
relevance to the foreseeability issue as espoused in Romeo v Conservation Commission
of the Northern Territory.25
23
(1960) 104 CLR 274.
Ibid, at 290, 327.
25
[1998] HCA 5
24
Conclusion
On the basis of the facts given, a very general assessment of TSC’s legal position can be
made.
With the courts appearing to be willing to impose a higher standard of care where
children are involved,26 it is probable that a court would find that a duty of care would
exist in the current situation.
In a best case scenario, TSC would be able to demonstrate a ‘no breach’ situation by
distinguishing the present facts with those in Ryan27 and
Should this approach be unsuccessful, a finding of contributory negligence appears to
be the more likely outcome.
Further determination of the facts would allow for a more specific assessment of TSC’s
legal position.
Sincerely,
Chris Sherlock
26
see, eg, Kelly v Bega Valley County Council, Unreported, 13 September 1982, NSWCA, Ryan v State Rail
Authority of New South Wales, [1999] NSWSC 1236.
27
Ryan v State Rail Authority of New South Wales, [1999] NSWSC 1236.