Nathaniel Corbett by next friend Debra Todd v Town of Port Hedland

[2024] WASCA 9

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Occupiers' liability
4. › Duty of care owed to child entrant
5. › Unsecured gate at public open space
6. › Whether gate was allurement to children
7. › Whether risk of harm foreseeable and not insignificant
8. › Whether reasonable person would have taken precaution of securing gate at all times
9. › Civil Liability Act 2002 (WA), s 5B
10. › Occupiers' Liability Act 1985 (WA), s 5
1. Torts
2. › Negligence
3. › Breach of duty
4. › Assessment of foreseeability and risk
5. › Need to assess foreseeability and risk objectively and prospectively by reference to actual state of premises at relevant time
6. › Error in assessing risk on basis that precaution had been taken
7. › Civil Liability Act 2002 (WA), s 5B(1)(a), (b)
1. Torts
2. › Negligence
3. › Breach of duty
4. › Calculus of negligence
5. › Whether reasonable person would have taken burdensome steps to avoid risk of low probability harm
6. › Significant burden of precaution weighed against low probability of harm
7. › Civil Liability Act 2002 (WA), s 5B(1)(c), (2)
1. Appeal
2. › Appeal by way of rehearing
3. › Challenge to inferential findings of fact
4. › Whether illogicality in reasoning reveals error of law
5. › Standard of appellate review for negligence findings
6. › Correctness standard applies

Quick Take

Occupiers' liability claims require assessment of foreseeability and risk by reference to the actual state of the premises at the time of injury, not by reference to the usual state when precautions are in place; however, the usual state remains relevant to the probability of harm occurring.