Keywords
Negligence – occupiers’ liability – child suffered crush injury while playing near unsecured gate.
Facts
On the evening of 28 August 2015, Nathaniel Corbett (“the appellant”), who was almost three years old, was playing with a group of children at the Port Hedland racecourse. The group were playing on an unsecured metal gate and using the gate as a swing.
As the children were playing, the appellant’s left hand was crushed between the gate and the metal post where the gate was attached. As a result of the injury, the appellant had four fingers amputated, only leaving him with a thumb on his left hand.
Proceedings were commenced against the Town of Port Hedland, who occupied and controlled the racecourse premises (“the respondent”).
At first instance, the appellant’s claim was dismissed on the basis that the appellant had not proven, on the balance of probabilities, that the respondent had been negligent. This decision was the subject of an appeal.
Decision
The appeal was dismissed.
Buss P, Mitchell JA and Vaughan JA, delivered 2 February 2024.
Ratio
On appeal, the appellant submitted that the primary judge erred in not characterising the gate as an “allurement” and “attraction” to children.
The Court of Appeal held that although it may be “just a gate”, when viewed objectively and without hindsight bias, the gate would be alluring to children if it was not secured by a padlock because it might be used in a manner where children could sit on the gate and be “whizzed” in an arc by other children pushing and pulling it.
As a result, the Court of Appeal was satisfied that that the primary judge erred in this finding.
The Court of Appeal was also required to determine whether the risk of harm was foreseeable and not insignificant. It was undisputed that children were not ordinarily in the vicinity of the gate and did not routinely play on the gate. In fact, children were not frequently seen at the racecourse premises.
However, the racecourse was a public space and often used as a shortcut by a nearby Indigenous community. As a result, the Court of Appeal held it was reasonably foreseeable that one or more children might enter the racecourse and seek to entertain themselves on the racecourse premises.
If that occurred, the unsecured gate (when used as a swing) presented a foreseeable risk of harm which the respondent ought to have known. The Court of Appeal also determined that the risk was not insignificant despite the gate typically being secured by a padlock. Instead, the Court of Appeal were satisfied that the risk of harm was not insignificant given the ‘much higher’ probability that a child using the unsecured gate as a swing might be harmed.
Despite these findings, the appellant failed to establish that a reasonable person in the respondent’s position should have taken the precaution of ensuring that the gate was secured at all times (except when open to allow vehicle access).
The Court of Appeal held that this would have imposed a significant burden on the respondent and while there was a risk of harm to a child playing on or around the gate, it was not a risk that a reasonable person in the respondent’s position would have taken burdensome steps to avoid. This finding was sufficient of itself to sustain the order that the appeal be dismissed.
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