13 March 2024

Burden on occupier remains key in breach of duty assessments

Gilchrist Connell


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Recent decision acknowledged that risk was foreseeable & not insignificant but focused on practical burdens on occupiers.
Australia Litigation, Mediation & Arbitration
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In the recent decision of Athaniel Corbett by next friend Debra Todd v Town of Port Hedland [2024] WASCA 9, the Western Australian Court of Appeal of determined the reasonableness of alleged precautions to guard against foreseeable and not insignificant risks of harm by focusing on the practical burdens on occupiers.


A two-year-old boy sustained serious crush injuries, resulting in the amputation of four fingers, after his left hand was caught between a metal post and an unlocked gate on which he was swinging at the Port Hedland Racecourse (Premises). The Premises were occupied and controlled by the Town of Port Hedland (Town).

The gate was part of the outer barrier of the Premises. It provided vehicular access onto the horse running track when opened. The gate was not locked and could swing both backwards and forwards. The two-year old and his siblings were playing in an open area adjacent to the gate. They were being supervised by his grandmother whilst his mother was attending an evening martial arts class in a hall some 80 metres away, within the Premises. Due to darkness, the grandmother could not decipher if the two-year old and siblings were playing on or around the gate.

The two-year old's tutor sued the Town in negligence and alleged that leaving the gate unsecured without a padlock when not required for vehicular access, constituted a breach of section 5B(1) of the Civil Liability Act 2002 (WA) (CLA), being an unreasonable response to a risk of harm of children suffering injury when using the unsecured gate as a swing.

Section 5B of the CLA provides that:

(1) A person is not liable for harm caused by that person's fault 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.

First instance decision

The claim failed at first instance. The Court accepted the risk of harm as formulated, but found it was both not foreseeable and not significant in accordance with sections 5B(1)(a) and (b) of the CLA, as the gate was not an allurement and attraction to children. In turn, the Court rejected that a reasonable person in the Town's position would have taken the alleged precaution of ensuring the gate was kept always locked by padlock when horse racing was not occurring.


On appeal, the Court again accepted the risk of harm as formulated but found to the contrary that such risk was both foreseeable and not insignificant, as an unsecured gate in a public area was likely to be an allurement to children, notwithstanding the low probability of them playing on it.

However, the Court also found, when applying section 5B(1)(c) of the CLA, that a reasonable person in the Town's position would not have locked the gate by padlock as this would have required the Town to exercise oversight of the use of the gate.

The Court of Appeal agreed with the primary judge's conclusion that the proposed precaution was a significant burden. To have ensured that the gate was secured by padlock at all times when not open to allow vehicular access, would have required the Town to have exercised active oversight of the use of the gate.


This decision highlights the continued significance of the nature of the proposed burden on occupiers when assessing whether or not a particular precaution should be taken, in the application and evaluation of the reasonable person test set out in section 5B(1) of the CLA, and its state equivalents, particularly in the context where there is a low risk or low probability of harm occurring.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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