Waverley Council V Ferreira 2005 NSWCA 418

Recent Developments 2006

Negligence: duty, breach, contributory negligence

Waverley Council v Ferreira [2005] NSWCA 418

(Relevance Chapter 6: the tort of negligence)

Martin Ferreira had died when he fell through a skylight in the roof of a building when he was 12. The building was under the control of the council, and while the building had been fenced off with an open wire mesh, the vegetation had been allowed to grow along the fence line, making access to the building relatively easy for children.

Mr Ferreira had sued the council for damages for mental harm and it was held at first instance that the council had breached its duty of care and caused him to suffer damage. As the child's father, Mr Ferreira falls within the definition of a close member of the family of a victim under s. 30 of the Civil Liability Act 2002 (NSW) ("CLA") and he suffered a recognised psychiatric illness (s. 32(1) CLA). The council appealed against the finding of negligence on its part, and the finding that there was no contributory negligence.

The question for the court on appeal was whether the trial judge was correct in his finding on the content of the duty of care the council owed Mr Ferreira. The court noted that at common law, the court was required to identify what a reasonable person in the position of the defendant would do by way of response to what was a reasonably foreseeable risk and they saw s. 5B(1) as providing a similar test. That is [para 27]:

“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

The court came to the conclusion that there was a foreseeable risk in terms of s. 5B(1)(a) as the council knew, or ought to have known, that children frequently climbed on the roof of the Centre, using the fence and vegetation to assist them [para 43]. Further, if the council had carried out adequate inspections of the building, they would have been aware of the risk of the skylight on the roof collapsing and so this was also reasonably foreseeable. They should also have ensured that the skylight was safe as they knew children got on to the roof and so the risk of injury to one of them was not insignificant within the meaning of s. 5B(1)(b)[para 69].

As to the question of general considerations under s. 5B(2), the Act states:

“(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,

(d) the social utility of the activity that creates the risk of harm.”

These matters are basically a restatement of Mason J's remarks in Wyong Shire Council v Shirt (1980) 146 CLR 40 and that as a result a reasonable council would have taken the precautions of ensuring that children could not access the property by removing the fence and undergrowth [para 57]. Failure to do so amounted to a breach of s. 5B(2). Similarly, the failure of the council to ensure that a child could not fall through the skylight by ensuring that proper protection was in place was a breach of s. 5B(2) [paras 75-77]. The cost of reasonable inspections of the roof and skylights, and of installing a grille, would have been small [para 79].

On the question of contributory negligence, the case was governed by s. 5R:

“The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose: (a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) The matter is to be determined on the basis of what that person knew or ought to have known at the time.”

The court came to the conclusion that a 12-year old boy would not appreciate the risk associated with climbing onto a roof or stepping onto a skylight was a dangerous thing to do. Accordingly, there was no finding of contributory negligence.

Comment: the case to some extent reinforces the difficulty facing occupiers in defeating a claim of negligence against them where children are involved. They are going to have to be able to establish that they took all reasonable precautions and any failure on their part to do so will see liability fall on them. It essentially means that they must practise good risk management practices with all the property under their control and view it almost from the eyes of the child.