Waverley Council v Ferreira (2005) Aust Torts Reports 81-818
Tort; Negligence; breach of a duty of care; the standard of care; statutory criteria.
Facts: Martin Ferreira, aged 12, went to play in a park controlled and managed by the Waverley Council. A toy he was playing with got stuck on the roof of the community centre building in the park. Martin gained access to the roof by climbing up an adjacent fence. While on the roof, he sat on a skylight, which collapsed. Martin died as a result of the subsequent fall. As a result of Martin's death, his father suffered depression and chronic stress disorder. He sued the Waverley Council in Negligence for damages for mental harm. It was not disputed that Mr Ferreira had suffered actionable mental harm. Nor was it disputed that the council owed Mr Ferreira a duty of care: the council ought to have foreseen that a parent might suffer mental harm if a child died while in the park as a result of the council's failure to make the park safe.
Issue: What was the content of the duty of care owed by the council to Ferreira, and had the Council acted in accordance with the required standard of care?
Decision: Under both the common law and the Civil Liability Act 2002 (NSW) a defendant must do what a reasonable person in the position of the defendant would do to prevent foreseeable harm. The council had failed to do what was required.
Reason: Section 5B(1) of the Civil Liability Act says that 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. The court held that, in the circumstances, the council ought to have foreseen that a child might climb onto the roof and in some way suffer serious harm by falling to the ground. In deciding what the council ought to have done to prevent this harm, the court considered the factors listed in s 5B(2) of the Act: the probability of the harm, the likelihood of it occurring, the likely seriousness of the harm, the difficulty of preventing it and the social utility of taking any risk. The court held that, in the circumstances, a reasonable person would have removed the fence that allowed access to the roof and installed a grill under the skylight to prevent the risk of the foreseeable harm.