Ballerini v Berrigan Shire Council [2004] VSC 321

Supreme Court of Victoria|2004-09-01|Before: Smith J

Negligence - injuries to a 16 year old as a result of diving into lagoon from a log - duty of care of Council and Forest Commission - breach of duty of care - contributory negligence - apportionment.

On 29 December 1996 the plaintiff, then aged 16, went to a public reserve[1], known as Collie Park, in the town of Barooga. He was accompanied by a friend Imbie Sorenson and her boyfriend. They took with them their lunch bought at the local fish and chip shop. After they had finished their lunch, the plaintiff decided to go swimming in the adjacent Bullanginya Lagoon, an anabranch of the Murray River. He went down to the bank of the anabranch, out on to a log ("the log") which extended from the bank over the water, and dived into the lagoon. The water under and surrounding the log had been used for many years as the local swimming hole, referred to by counsel for the plaintiff and the first defendant as the "Barooga Swimming Hole". In the past the water in it had been deep. On this occasion, however, as a result of a prolonged recent flooding, the water was shallow. The plaintiff struck the bed of the anabranch and suffered severe spinal injuries rendering him a quadriplegic.

He seeks damages from the defendants as persons who occupied, maintained or controlled the area comprising the swimming hole and the reserve. The defendants deny any liability and have alleged contributory negligence on the part of the plaintiff. The defendants also have filed contribution proceedings against each other.

The parties are agreed that the quantum of damages should be assessed at $8,000,000.

In 1964 an area of land, being the park known locally as Collie Park, was reserved for public recreation by Government Gazette No 15 of 7 February 1964. It was given the reference number 84,738. The diagram published in the Gazette showed the reserve as bounded towards the south by the bank of the Bullanginya Lagoon and towards the north by a street. A few months later, the Council of the Shire of Berrigan was appointed the trustee of the reserve under the Public Trusts Act 1897[2]. Subsequently in 1995, under s 92(1) Crown Lands Act 1989, the Berrigan Council Crown Reserve Trust was appointed trustee of the same reserve[3]. Under s 95 of that Act, the Berrigan Council was appointed to manage the affairs of the Reserve Trust.

Section 95 (1) Crown Lands Act 1989 authorised the Minister to appoint a corporation to manage a reserve trust. Section 95 (2) provided, as follows:

"95 (2) A corporation so appointed has power to accept the appointment and to exercise all the functions of a manager of a reserve trust despite the provisions of the Act by or under which the corporation is constituted."

There are provisions in the Local Government Act 1993 that are relevant. It should be noted that s 21 Local Government Act 1993 provided that:

"A council has the functions conferred or imposed on it by or under this Act."

"A council has the functions conferred or imposed on it by or under any other Act or law."

"to do all such things as are supplemental or incidental to, or consequential on, the exercise of its function".

Chapter 6 of the Local Government Act 1993 dealt with the "Service Functions of Councils". Section 35 of that Chapter requires, inter alia, that community land is to be used and managed in accordance with "the plan of management applying to the land". There are elaborate provisions in Part 2, Division 1 of Chapter 6 of that Act for the classification of community land. It was common ground, however, that the reserve was community land for that purpose. Section 48 of the Act also provided that a Council

"has control of public reserves that the Governor by proclamation places under the control of the council."

Certain "core" objectives were stated for the management of "community land categorised as a park". Under the Local Government Act 1993, "park" is defined, so far as relevant, to mean "an area of open space used for recreation, not being bushland". The core objectives stated were to be found in the following provision:

"36G Core objectives for management of community land categorized as a park. The core objectives for management of community land categorised as a park are: (a) to encourage, promote and facilitate recreational, cultural, social and educational pastimes and activities, and (b) to provide for passive recreational activities or pastimes and for the casual playing of games, and (c) to improve the land in such a way as to promote and facilitate its use to achieve the other core objectives for its management."

The Council's charter is also of relevance. It is to be found in s 8 of that Act.

"8 The council's charter. (1) The council has the following charter:

* to provide directly on behalf of other levels of Government, after due consultation, adequate, equitable and appropriate services and facilities for the community and to ensure that those services and facilities are managed efficiently and effectively

* to promote and to provide and plan for the needs of children

* to properly manage, develop, protect, restore and enhance and conserve the environment of the area for which it is responsible, in a manner that is consistent with and promotes the principles of ecologically sustainable development

* have regard to the long term and cumulative effect of its decisions

* to bear in mind that it is the custodian and trustee of public assets and to effectively account for and manage the assets for which it is responsible

The bed of the lagoon and the land to the south of the lagoon was land under the control and management of the Forest Commission of New South Wales (the Commission). It operated under the Forestry Act 1916. The objects of the Commission were set out in s 8A of that Act as follows:

"8A Objects of the Commission 1. The objects of the Commission shall be: (a) to conserve and utilize the timber of Crown-Timber lands and land owned by the Commission or otherwise under its control or management to the best advantage of the State, (b) to provide adequate supplies of timber from Crown-Timber lands and land owned by the Commission or otherwise under its control or management for building, commercial, industrial, agricultural, mining and domestic purposes, (c) to preserve and improve, in accordance with good forestry practice, the soil resources and water catchment capabilities of Crown Timber-lands and land owned by the Commission or otherwise under its control or management, (d) to encourage the use of timber derived from trees grown in the state, (e) consistent with the use of state forest for the purpose of forestry and or flora reserves for the preservation of the native flora thereon: (i) to promote and encourage their use as a recreation and

The powers and duties of the Commission are set out in a lengthy provision, s 11. So far as relevant it provides as follows:

"11. Powers and duties of the Commission 1. Subject to this Act, the Commission: (a) shall have the control and management of State forests, timber reserves and flora reserves and shall control and manage them in such manner as best serves the public interest and, in so doing, may maintain and improve indigenous species of trees and may on State forest and timber reserves establish, maintain and improve plantations of indigenous species and exotic species, of trees,

A specific provision, s 36 A, gave the Commission power to place control signs. In view of the fact that the plaintiff no longer asserts that the Commission should have placed such signs and the Council does not argue that the Commission should have done so, that provision need not be considered.

The defendants concede that they owed a duty of care to persons who entered land under their control and management. That concession is amply supported by authority[4]. Control and management spells occupation[5]. The duty of care that arises from occupation, control and management may be described as a duty to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the area[6]. A risk may constitute a foreseeable risk even though it is unlikely to occur but it must be real, not fanciful[7].

Each defendant also concedes that if the log emanated from land under its control or management, it owed a duty of care to persons who used the log, including the plaintiff. They deny owing a duty of care to persons using the log if it did not emanate from their land.

Counsel for the plaintiff submits that the Council was at all relevant times the occupier of, and controlled and managed the land from which the log emanated and from which access was gained to the log. The case put by the plaintiff against the Commission is that either it controlled and managed the land from which the log emanated and the river bed over which the log extended or it controlled and managed the latter, depending upon the determination of where the boundary between the land occupied by the Council and that occupied by the Commission was drawn. Each defendant has argued that the log emanated from land controlled and managed by the other.

It is common ground that the Council had the control and management of the parkland immediately towards the north of the anabranch and the Commission had the control and management of the bed of the anabranch and the forest immediately to the south of it. What is in dispute is the location of the boundary line between the areas under the control and management of each. Depending on its location, the log emanated from land occupied, controlled and managed by one defendant and not the other.

The issue of the location of the boundary line, therefore, needs to be resolved before consideration is given to the other substantive issues raised. The resolution of this issue involves consideration of legislation and some expert evidence which unusually, but as adduced by the parties without objection, involved interpretation of the legislation by those experts, neither of whom had a legal background.

It is necessary to consider first s 172 Crown Lands Act 1989 which provides the definition of the boundary of lakes and rivers. It provides as follows:

"Land with boundaries to lakes, roads etc 172 Land with boundaries to lakes, roads etc

"alienated (except in subsection (7)) means sold, leased or otherwise disposed of under the Crown Lands Act or any other Act relating to the alienation of land of the Crown. "bank" means the limit of the bed of a lake or river. "bed" means the whole of the soil of a lake or river including that portion:

(a) which is alternately covered and left bare with an increase or diminution in the supply of water, and

(b) which is adequate to contain the lake or river at its average or mean stage without reference to extraordinary freshets in time of flood or to extreme droughts.

....

(5) A person is not, by being the owner of land sold, leased or otherwise disposed of under this Act or the Crown Lands (Continued Tenures) Act 1989:

(a) as bounded by, by reference to, or by the margin or bank of, a river, or

(b) by metes expressed or shown to run to a river or to the margin or bank of a river,

entitled to any rights of access over, or to the use of, any part of the bed of the river."

* the Bullanginya lagoon came within the definition of "river" in the Act;

* whatever definition is used, the position of the "bank" in December 1996 was in essence the same as its present position;

* the southern and relevant boundary to the land under the control and management of the Council was the "bank" of the lagoon.

"Bank", is defined by reference to the limit of the "bed" of the river. It was submitted for the Council and accepted by the parties that parts (a) and (b) of the definition of "bed" were intended to expand the meaning of the words preceding them, namely, "the whole of the soil of a...river"[8]. It was also submitted for the Council, correctly, and it was accepted, that both paragraphs (a) and (b) had to be considered in determining the limit of the bed of a river. It followed, and appeared to be common ground, that the definition had the effect of determining the outer limit of the bed of the river.

The Council called a fluvial geomorphologist, Dr Finlayson, to give expert evidence on the question of the location of the "bank" of the river under the legislation. Critical to his analysis was the proposition that, in geomorphological terminology, what the Act called "the bed" would be called the channel and the term "bed" would be used to describe the bottom of the channel. He then proceeded on the basis that when he used the term "channel" he was referring to the same concept referred to by the Act as the "bed". He used the term "channel" when defining "extraordinary freshets" as "large floods that go beyond the channel which normally contains the river". As to the meaning of "channel" he said:

"And there is, . . ., on virtually all rivers . . . a distinct feature which is referred to as the channel, which contains all but the largest floods, which I would interpret to be the extraordinary freshets."

By reference to a photograph, he identified the top of the bank of the channel as the point where the slope of the land beside the river changed abruptly from a "low angle or nearly flat, to a much steeper bank of the channel". Viewing the photograph, this was a reference to what a lay person would call the top of the bank. He identified the top of the bank as the limit of the channel and so the limit of the "bed" for the purpose of the Act. He argued that the most appropriate way to interpret the term "bed" in the Act was that it was all of the channel up to the point reached by the bank full discharge--that is the flow which forms and maintains the channel. Flows greater than it overflow the channel and spread out on to the flood plain of the river.

I can understand Dr Finlayson's desire to define the bed and bank of the river by reference to his field of expertise. But, in the end, the issue is a legal one and any analysis must give effect to the language of the Act and his approach, in my view, does not do so. In particular, he gave no effect to the words "average or mean stage". "Stage" is a term meaning "flow depth". Further, accepting his definition of "extraordinary freshets", the Act required that they be ignored when determining the limit of the bed. Dr Finlayson purported to do that but took the top of the channel, which marked the level at which the extraordinary freshets commenced, as the boundary. An "average or mean stage" would have to be below the top of the channel.

The Act uses language employed[9] in the American Supreme Court decision of The State of Alabama v The State of Georgia[10] in resolving the question of the location of the boundary between those two States constituted by the western bank of the Chattahoochee River. The Court ruled that

" . . there is ownership of soil and jurisdiction in Georgia in the bed of the river Chattahoochee, and that the bed of the river is that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn. The western line of the cession of the Chattahoochee river must be traced on the water line of the acclivity of the western bank, and along that bank where that is defined; and in such places on the river and where the western bank is not defined, it must be continued up the river on the line of its bed, as that is made by the average and mean stage of the water, as that is expressed in the conclusion of the preceding paragraph of this opinion.".

I note also from the report of the reasons of that American decision the following definition of a "bank" from Webster' s Dictionary as a "steep declivity rising from a river or lake considered so when descending, and called acclivity when ascending."

On its proper construction, the statutory definition creates a notional line which defines the limit of the bed and, therefore, the bank. A critical element of the definition is the concept of the "average or mean stage". The determination of that stage will inevitably be imprecise; for even if there is detailed historical evidence available about the levels of the river at or in close proximity to the bank in question, the assessment requires that "extraordinary freshets" in times of flood and "extreme droughts" be ignored.

In the present case, the expert relied upon by the Commission, Dr Neave, approached the question by applying the words of the Act and attempted to determine the "average or mean stage without reference to extraordinary freshets in time of flood or extreme droughts". The task was made more difficult because there was little data available for the location itself. Using information obtained about water levels at the site on two occasions by a surveyor, Mitsch and herself, and comparing that with levels recorded on the same days at the nearest stage, Tocumwal (down river), Dr Neave performed an extrapolation using information available about average flow depth figures for Tocumwal[11]. She assumed a positive relationship between a change in flow depth at Tocumwal and that at the lagoon - that is, that if the level rose at Tocumwal, the level would rise at the lagoon.

In her report of 19 May, 2004, she stated that because of a lack of data she had made a number of assumptions in determining the average or mean stage at the site and that those assumptions were made in a conservative manner. This evidence was not directly challenged.[12] She also expressed the opinion that the average or mean stage she identified represented the maximum possible value likely for the average or mean stage. That opinion was not directly challenged. Her conclusion was that the bottom edge of the log in the bank was 50 centimetres above the average or mean stage. The bottom edge of the log was at least halfway up the physical bank, lending support to her conclusion that the log was above the level of the "average or mean stage".

Counsel for the Shire argued that Dr Neave focused on the issue of the "average or mean stage" to the exclusion of other considerations. In my view, she did not and, in any event, was correct to consider the expression because ultimately it determines the limit of the bed of the river for the purpose of the Act. As to the determination of the average or mean stage, the Council did not offer any alternative approaches that satisfied the legislation.

Ultimately, the question is whether a conclusion should be formed on the balance of probabilities about the level of the average or mean stage as defined by the Act. I am persuaded by the evidence given by Dr Neave that, on the probabilities, the level she arrived at should be accepted as the maximum likely average or mean stage for the purpose of the Act.

Accepting that analysis, the log from which the plaintiff dived emanated from land occupied and controlled and managed by the Council and was, therefore, under the control and management of the Council. It, therefore, owed a duty of care of the kind referred to above in paragraph 11 to persons using the log on the basis that it had the control and management of the log. But that is not the end of the issue of the existence of a duty of care. There are other matters relevant to the existence of a duty of care in the Council - and the content of that duty. The Council's control and management was of a specific area pursuant to its appointment to manage the area for the Trustee. Further, it encouraged the recreational use of that park and the log and swimming hole by its management of the park. Whether the log emanated from the land controlled and managed by it, the land gave uninterrupted and ready access to the log and the log clearly continued underground into that land.[13] As the Commission argued, the Council had de facto control of access to the log.

As to the Commission, while the log did not emanate from land occupied, controlled and managed by the Commission, a very substantial part of the log extended some five metres or more[14] over the bed of the anabranch over which it did have control and gave access to the bed and so entry to the land under its control and management. In my view, the admitted duty of care arising from occupation, management and control of land must extend not only to the use by lawful visitors of the land once entered but also the use of the points of entry by such visitors. In this instance, as it happened, the log provided a point of entry and it was the hidden level of the bed of the anabranch which posed one of the major dangers for anyone using the log in that way. I, therefore, consider that it also owed a duty of care to the persons using the log for the purposes of diving into the anabranch. If the log had emanated from the Commission's land, it would have had the additional problem that the log was part of the land it managed and controlled. Whatever the source, however, in addressing its duty of care, it had to determine what reasonable steps should be taken to avoid foreseeable risks of injury to lawful visitors having regard to the presence of the log over the bed of the anabranch and the access it gave to the bed of the anabranch.

The next issue canvassed by the parties was whether any duty of care, if it existed, was breached. Specifically, the issues raised by the plaintiff are whether both defendants were in breach of their duty of care by failing to have the log removed, or, in the case of the first defendant, by failing to place appropriate warning signs. Those failures are said by the plaintiff to constitute the breaches of duty.

It is common ground that the statement of Mason J in Wyong Shire Council v Shirt[15] correctly states the principles to be applied in determining whether there had been any breach of duty of care. In that case his Honour stated:

"In deciding whether there has been a breach of duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the Tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But as we have seen, the existence of a foreseeable risk of injury does not itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remains to be considered with other relevant factors."

In determining what action should be taken to discharge the duty of care, consideration should be given to the possibility that one or more of those to whom the duty is owed might fail to take proper care of himself or herself, although not necessarily in all cases - particularly where the risks are obvious.[16] The obviousness or otherwise of the risk has emerged as a significant matter. The age of the likely lawful visitors is a relevant matter - the young are likely to act inadvertently and lack mature judgment. In Romeo[17], Hayne J commented generally:

"But it is not only those factors[18] that may bear upon the question. In the case of a public authority which manages public lands, it may or may not be able to control entry on the land in the same way that a private owner may; it may have responsibility for an area of wilderness far removed from the nearest town or village or an area of carefully manicured park in the middle of the capital city; it may positively encourage, or at least know of, use of the land only by the fit and adventurous or by those of all ages and conditions. All of these matters may bear upon what the reasonable response of the authority may be to the fact that injury is reasonably foreseeable. Similarly, it may be necessary, in a particular case, to consider whether the danger was hidden or obvious, or to consider whether it could be avoided by the exercise or the degree of care ordinarily exercised by a member of the public, or to consider whether the danger is one created by the action of the authority or is naturally occurring. . ."

I note also that in Nagle[19] it was said that:

"As occupier under the statutory duty already mentioned, the board by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged."

Submissions of plaintiff and the Council relating to breach of duty

Counsel for the plaintiff submitted that the Council not only controlled the area of the log, and the land that gave access to the log, it actively encouraged its use. Counsel submitted that the work done by the Council in landscaping and maintaining the reserve created a recreational park which encouraged school children to gather there and swim in the swimming hole in the lagoon in the location of the log. Further, the log was the outstanding feature of the water hole, particularly for school children, and had been used as a diving platform for many years. It was further submitted that the landscaping and maintenance of the park, together with the absence of any warning to the contrary, presented an environment in which the diving into the water hole from the log might be considered by visitors to be safe and free from hazard and encouraged.

Counsel for the plaintiff further submitted that the Council knew, or ought to have known, that there could be significant changes in the depth of the water hole in the vicinity of the log at any time because of the alluvial nature of the river bed and particularly following a period of flooding. Counsel also submitted that such changes would create hidden or concealed dangers. In those circumstances, it was submitted that the Council knew or ought to have known at all relevant times that entering the river using a rope swing or diving from the log was potentially dangerous, particularly after a flood. It was further submitted that the evidence revealed that the Council had a policy of removing rope swings attached to trees on land under its control adjacent to the anabranch and that this demonstrated an awareness of the dangers posed by the anabranch. Counsel submitted further that the use of the log as a diving platform presented dangers no different to those associated with a rope swings. Counsel argued that on the evidence the Council had adopted the policy of not erecting warning signs on the bank and that the only effective method of abating the danger posed by the log as a diving platform was its removal. Counsel submitted, however, that the Council was in breach of its duty of care in any event in failing to erect any appropriate warning signs. It was submitted that the Council's justification that the absence of signs elsewhere might be interpreted as endorsement of the safety of those other locations was contrary to accepted practice and common sense.

The plaintiff's statement of claim referred to the 1996 flood among material matters that were or should have been known by the defendants. In particular, it stated that the 1996 flood had resulted in high water levels through to and beyond December 1996 and had thereby caused "the composition of the bed of the river to be particularly prone to change"[20]. In addition, the 1996 flood was referred to in his particulars of negligence[21] as follows:

"Failing to erect warning signs, particularly following the October 1996 flood, warning users that the composition of the bed of the said river was subject to change and underwater hazards making diving dangerous."

In submissions, the plaintiff's counsel did not give great prominence to the 1996 flood but the plaintiff relies upon it and, as the case involved alleged breach of duties of care as at the date of the incident causing the injury, it is plainly relevant to the consideration of the issues. The plaintiff's primary position, however, is that the log should never have been in its position because of the dangers posed by the shifting nature of the river bed and by movement of hazards into the area, particularly in time of flood.

For the Council it was submitted that any duty of care did not extend to taking steps to protect lawful visitors from their own extreme foolhardiness in diving into the water when they knew it was shallow - which, it argued, was the situation of the plaintiff. The Council relied on the plaintiff's answers to interrogatories to support this argument.

The Council also submitted that, in any event, if it owed a duty of care to the plaintiff, it had not in all the circumstances breached that duty. It submitted that an important issue was the assessment of the magnitude of the risk and that the Council acting reasonably was entitled to proceed on the basis at the relevant time that there was no foreseeable risk that required action. In particular, the Council submitted that, if there was a duty of care owed, it did not require either a warning sign or the removal of the log because a reasonable person would not in all the circumstances have considered either was reasonably necessary. Reliance was placed on the evidence, accepted by all parties, that for many years (at least 25 years prior to the incident if not more) the lagoon and the log had been used safely for swimming and diving and, despite a number of floods, the swimming hole had remained large and deep and safe for diving. It also disputed the suggestion that the actions of the Council had in anyway provided an encouragement or allurement to school children.

As to the 1996 flood, the Council submitted that, assuming it was put that it was negligent in not taking action after the flood that had occurred shortly before the incident in 1996, it could not have anticipated the change that had occurred to the bed of the anabranch. In addition, it submitted that, realistically, there was insufficient time for the Council, acting reasonably, to assess the situation and take whatever action was necessary.

The Council also submitted that having regard to the cost of erecting warning signs, which it argued would need to be erected at frequent intervals for some 135 kilometres, it would not have been reasonable to require it to do so. I will address below other issues raised - notably the causation issue and contributory negligence.

Breach of duty - submissions of plaintiff and Commission

The plaintiff submitted that the Commission knew or ought to have known that there could be significant changes in the depth of water in the vicinity of the log at any time due to the alluvial nature of the river bed, and particularly after flooding, and that this could create a hidden or concealed danger in the level of the river bed. It was put for the plaintiff that the Commission, therefore, at all relevant times, knew or ought to have known that entering the river using a rope swing or diving from the log was potentially dangerous particularly after a flood. Counsel argued that, as with the Council, the Commission's policy of removing rope swings acknowledged those dangers and also acknowledged that the only effective method of abating such dangers associated with diving or jumping from a height into the anabranch was the removal of the means of doing so. Counsel submitted that the Commission knew or ought to have known of the dangers presented by the log because of its use in the community for many years as a diving platform and ought to have taken steps to remove it, or have it removed, on the basis that it extended over the anabranch bed vested in it and occupied by it and gave entry to it.

At one point, the plaintiff submitted that if there was land upon which it was able to erect warning signs the Commission should have done so. Ultimately, however, the position taken by the plaintiff was that the Commission should have taken steps to have the log removed and the signage case was not pursued.

The Commission submitted that, if a duty of care did exist, it had not been breached. The Commission relied upon the first issue raised by the Council - that any duty of care did not extend to taking steps to protect lawful visitors from the consequences of diving into water which they knew to be shallow. Its counsel also submitted that the duty did not require it to prevent all reasonably foreseeable injuries and that the standard of care imposed had to be judged in light of all the circumstances. Counsel referred to the legislation under which the Commission acted emphasising the provisions relating to the management of timber on land controlled by the Commission and the use of timber derived from trees grown in the State for forestry and flora reserves together with the purpose of promoting and encouraging their use for recreation and conservation[22]. Counsel referred to the fact that the Commission was a public authority managing some 100,000 hectares of land of which some 4000 hectares were in the Barooga State Forest in the vicinity of the lagoon. It was argued that it had no control over entry to the reserve from land under the control of the Council and had done nothing positive to encourage persons to use that reserve or lagoon. Counsel for the Commission submitted that the danger of diving into the lagoon was obvious and could have been avoided by the plaintiff exercising reasonable care of the kind ordinarily exercised by members of the public.

In considering the issue of whether the defendants breached their duty of care I will first consider specific issues raised by the defendants and then return to the general issue that the plaintiff must establish.

Breach of duty of care - plaintiff aware of depth

The first issue to consider is the defendants' argument based on the proposition that the plaintiff dived into the water when he knew it was shallow. This argument relies upon the plaintiff's answers to interrogatories.

The details of the relevant interrogatories and answers are set out in Attachment B to these reasons. Counsel submitted that the plaintiff's sworn answers revealed that he had in fact swum in the swimming hole on the same day as the accident and prior to diving and on occasions prior to that day but during that summer. Counsel acknowledged that he was alleging that the plaintiff's evidence of what occurred was a recent invention. He argued that the answers to interrogatories should be accepted as evidence against the plaintiff.

The answers given by the plaintiff when compared with the interrogatories are arguably open to the interpretation placed upon them by the Council. Asked to explain the answers, the plaintiff gave evidence that they had been sent to him by his solicitors and that he had had no assistance in answering them[23]. He said he had found them confusing and suggested that if there was any inconsistency the explanation was that he was confused by the interrogatories and had difficulty trying to remember events prior to the incident. His confusion is born out by one answer to interrogatories that was plainly wrong - namely, that "on the said date and prior to the said accident" he observed "two people" diving from the log. It is clear from independent evidence that he saw no one on the day and would have seen more than two on previous occasions.

I can well understand a lay person being confused. The task of answering was a difficult one even with the assistance of an experienced lawyer. The questions contained multiple options and varying combinations.[24] A lay person might well mistakenly answer "Yes" to the three parts of one question because "yes" was the correct answer to one part. "On the said date and prior to the said accident"[25] could be interpreted as a reference to two time frames not one or, as the plaintiff suggested, "previously". Another problem for the plaintiff was that words such as "the accident" were defined by reference to the Statement of Claim. On the evidence, he was sent the interrogatories but not the Statement of Claim. It is also highly probable that in the absence of the Statement of Claim and any other definition, the plaintiff would have assumed that the references to "the accident" were references to him striking the bottom of the bed of the anabranch with the result that he would say that he had dived from the trunk before the accident.

Rightly or wrongly, he appeared to me to give his evidence honestly and carefully. His evidence about his swimming that day was supported by that of Imbie Sorenson.

The attack of recent invention is answered by the booklet he co-wrote which was published in November 1997. In that booklet he described the accident as follows:

"On 29th December 1996 and I went swimming in a local water hole for the first time that season. I walked out onto a log which overhung the creek's Beach as I had done so many times in previous summers. I didn't Think, Look or Consider before I dived in because I had never been able to reach the bottom before."

It was argued in the defendants' final submissions, that it was significant that the plaintiff had not called his solicitor to give evidence to support his account and had not put in evidence his instructions to his solicitors and instructions to counsel to settle the answers. They launch an attack that can only be answered by the plaintiff waiving client legal privilege. No inference can be drawn in those circumstances against the plaintiff.[26] In any event the foundation had not been laid for such an argument. The plaintiff's evidence about the processing of the interrogatories and lack of professional assistance was not directly challenged. The attacks made were met by independent evidence supporting the plaintiff's account and a party does not usually have to call all the evidence at its disposal. I turn to the other issues raised.

Breach of duty of care - other issues raised by defendants

The next argument of the defendants was that, in doing nothing, they acted reasonably in light of past history and that they could not have anticipated the change that had occurred to the bed of the anabranch.

There is an assumption underlying these arguments - namely that authorities in the position of the Council and the Commission which owe a duty of care to lawful entrants are under no obligation to inform themselves about the condition of the land they occupy, control and manage and take steps to consider whether there are any risks to such entrants and to inform themselves of such risks.

I accept that the Council and the Commission were not in fact aware of the hidden dangers associated with the log and the level of the bed of the anabranch at the time of the incident. This, however, was the result of their failure to inform themselves of, or consider, the condition of the relevant areas under their occupation, control and management and the risks associated with the use of land under their use.

First, the evidence of the employees of the defendants make it clear that they were not aware of the boundaries of the land under their occupation, control and management. Secondly, I accept the plaintiff's submission that the defendants did not have any risk assessment policy or system in place at the time of the accident. They took an ad hoc and haphazard approach to dealing with risks and hazards. While the Council had a Risk Manager prior to 1996, Mr Perkins, the first serious attempt by the Council to assess risks associated with land under its control appears to have occurred in 2001 when it engaged consultants, "Environment Risks Assessment". On the basis of the evidence of employees of the defendants, neither defendant appears to have a familiarity with the 1995 Australian New Zealand Standard "Risk Management"[27] with respect to risk assessment. Thirdly, they did not, through their officers, direct their minds to any assessment of the risk of injury arising from use of the log over the anabranch. The defendants, therefore, failed to carry out the first task required in determining how to discharge the duty of care arising from occupation, control and management of the pieces of relevant land. Without undertaking that task, it was not possible to determine what risks were foreseeable, the magnitude of those risks and what steps could be taken to avoid or minimise those risks.

In any event, however, the defendants were generally aware of the dangers posed by jumping and diving into the river, in particular, in the area of the lagoon. This was evidenced by the fact that the employees of both applied a policy of removing ropes attached to trees used to jump and dive into the lagoon (and elsewhere in the areas they controlled and managed). In addition, on the basis of the evidence of the employees of the defendants,[28] I am satisfied that the defendants had, or must have had, knowledge of.

* the fact that there could be significant changes in the depth of the lagoon in the vicinity of the log from time to time and the introduction of hazards into that area because of the alluvial nature of the lagoon and the flow of water through it, particularly in times of flood,

* the fact that the lagoon and its log were a popular focus for children of the area.

The defendants failed to direct their minds to the significance of this knowledge. If the defendants did not have knowledge of the above, they would have acquired such knowledge if they had exercised reasonable care as occupiers, controllers and mangers of their respective areas. Thus, notwithstanding the past safe history, they should have been aware of the potential for significant changes, particularly after flooding, and the risks associated with such changes.

The defendants also argued that it would be very difficult to remove the log because of the number of authorities involved and the issues involved. They relied in particular on the Murray Regional Environmental Plan No 2 which required consultation with at least six organisations for any work to move or remove "trees or woody debris from the water of the River Murray . . . "[29]. I accept the submission for the plaintiff that the consultation requirement imposed by the Plan did not apply to an item like the log which would not be characterised as a tree or woody debris in the water. In any event, consultation with authorities with an interest in the River Murray seeking their agreement to the removal of a physically dangerous hazard might reasonably be expected to move reasonably quickly to an agreement for removal. Similarly the division of control and ownership of the land should not have created a problem. While the incident led to some considerable predictable "buck-passing" and lack of cooperation about the removal of the log, in an environment free of the potential legal implications flowing from removal after an incident, co-operation should be expected. In the absence of such co-operation, the Council could have removed the log as was done by its employee, Mr McCormack, on his own initiative and without any penalty, using a chain-saw and an excavator, for $1,000 or less. The Commission could have gained access to the log also and removed it in the same way. If permission was needed from the Council to bring equipment into its reserve for that task, there is no reason to think that such permission would not have been given. Combined action was another realistic option. Neither defendant took any steps. If either had initiated action on the grounds of public safety, it is reasonable to conclude that the log would have been removed and reasonably quickly. In the meantime appropriate warning signs could have been erected.

A further argument was put that, to the extent the plaintiff relied upon the 1996 flood as a circumstance putting the defendants on inquiry, there would have been insufficient time in which to have put up a sign or removed the log prior to the accident. On the evidence, there was at least three weeks - ample time in which to take the appropriate brief action.

Finally, there is the argument advanced on behalf of the Council that having regard to the cost of a warning system, it was not reasonable to require warning signs.

It relied on evidence given by the General Manager of the Council, Mr Perkins, that it would be necessary to sign the 135 kilometre Murray river frontage of the Shire. This, he said, would require signs every 10 or 20 metres at a cost of $80.00 to $100.00 a sign. The Council also relied on the evidence of the Commission's Forest Centre Manager at Deniliquin. He gave evidence that he had costed, for the purpose of this case, the erection of warning signs along the water frontages controlled by the Commission. Assuming signs 250 metres apart, 4,000 signs would be required under normal conditions at a total cost of $748,000. He gave evidence of a significant problem in maintaining the signs because of flooding and vandalism.

I do not accept the argument that erecting a sign at the swimming hole, a clearly defined, maintained and easily accessible area close to the town and highway, would have required the erection of signs along the full-length of the edge of the waterways in the Berrigan Shire. Placing a sign at the Barooga swimming hole and not at other locations would not imply that the other locations would be safe.

On this issue, I note that in 2001, the Berrigan Shire engaged an environmental risk consultant to advise on appropriate risk management action. The consultant advised that warning signs be erected at particular locations including the Barooga swimming hole. The report dealt initially with playground equipment in the park and some old pipes which needed to be removed or made safe. It then stated:

"4. The foreshore and beach (photographs numbered 28 and 29)[30] need to be signed. Council should adopt BPM 6[31] and use the signs nominated. All signs should be consistent and comply with international convention as discussed in BPM 6. BPM 6 recommends that the signs need to be placed on all entrances to the reserve. It is recommended that the Council review BPM 6 and follow its recommendations."

The report also commented on the lack of signs at the foreshore reserve in Tocumwal. It recommended, inter alia, that BPM 6 should be applied to what was described as Town Beach which is a sandy area giving access to the Murray River. The expert consultant did not suggest widespread signing. The General Manager of the Council, Mr Perkins, did not implement the plan put forward by the consultant and did not refer it to the Council of the Shire of Berigan. He sought to justify the decision not to carry out the plan, by advancing the argument presently advanced for the Council - it would be necessary to erect thousands of signs along all waterways in the Shire. I do not accept the justification. He was at the time of giving his evidence, still unfamiliar with the Australian Standard.[32] I suggest it is significant that the expert environment risk consultant engaged did not suggest that limiting the location of signs was an issue. The expert was not called to give evidence.

As to the Council, it occupied, controlled and managed the area of the log and the park which gave access to that area. It, therefore, controlled entry to the log and to the lagoon via the log. It actively encouraged the use of the park and the log through its landscaping and regular maintenance of the reserve as a recreational park. This made it attractive and encouraged visitors, particularly school children, to gather and swim in the swimming hole and use the log for diving. The way the park, the log and lagoon were presented, and the absence of any warning signs to the contrary, also carried the impression of a facility which might be considered by visitors to be safe and free from hazard, and one the use of which was encouraged. The past safe history would have reinforced this impression for visitors to the facility from the Barooga community.

As to the Commission, the area in question was not part of its general forest areas. The issue is not its responsibility for an area of forest wilderness or the river bed generally. Rather, the area in question constituted the ground of a location which had a special recreational use, a location which was in fact a focal point for diving and swimming for local children. It and the log gave access, and were a point of entry, to the rest of the land occupied, controlled and managed by it. The situation was one where it could in fact control the mode of entry, for example, by taking steps to have the log removed.

On the basis of the evidence given by their employees of their observations and their own activities in the area and connections with the area, I am satisfied that the defendants had, or would have had, knowledge that

* the park gave access to the log and the bed of the anabranch,

* the Barooga swimming hole, with its log, was frequently used by school children and had been for many years, and

* the log had been commonly used by such children for the purpose of diving and jumping into the anabranch.[33]

If they did not have such knowledge, they ought to have had it and would have acquired it if they had exercised reasonable care.

The Council's employees who gave evidence conceded knowledge of the above. The Commission's employees did not. Of particular relevance was the evidence of a Commission employee, Mr O'Brien. At the time he had been living and working in the area[34] and passing it regularly by road and over the nearby bridge. He denied any knowledge of the park and its layout and any knowledge of the log, the lagoon and their use. I regard his assertions of a lack of knowledge of Collie Park, the log and the swimming hole as false. The probabilities are that he had knowledge of these matters.

I am also satisfied that the presentation of the park encouraged its use and that of the log and the swimming hole and gave the impression that such use was encouraged and was safe. The defendants' employees, if not aware of those facts would have been aware of them if they had considered the risks associated with the use of the log - that is if they had exercised reasonable care.

Also on the basis of the evidence of their employees, I am satisfied that the defendants had knowledge that, because of the movement of water through the lagoon, there could be, particularly following a period of flooding,

* significant changes in the depth of the bed of the anabranch generally and, so, in the vicinity of the log, at any time because of the alluvial nature of the river bed, and

This was so notwithstanding the history of flooding in the past which did not seem to have affected the depth of the Barooga swimming hole or introduced such hazards. The next flow of water, particularly if a flood, however, could always be different and have different consequences. This was what occurred in 1996. The 1996 flood was unique. While its peak was exceeded by a few earlier floods, unusually, it lasted at least six weeks because flood waters were released from the Hume Weir and not stored there (as had occurred in previous years). I am satisfied that the defendants' employees had knowledge of the flood and of its height and duration. If they did not have that knowledge, the defendants' employees ought to have had it and would have had it if the defendants had exercised reasonable care.

I accept that any changes which reduced the depth of the lagoon or introduction of hazards below the surface would create hidden dangers for any person considering diving into the lagoon because the bed of the lagoon and such hazards could not be seen. I also accept that the defendants were or should have been aware of such dangers in those circumstances. Those hidden dangers were not obvious to users, particularly having regard to the safe history and reputation and the presentation of the area.

It was argued that the probability of anyone being seriously injured by diving from the log was not high in view of the safe history for many years. But that conclusion could only be drawn if it was assumed that the next flow of water through the anabranch, particularly a flood, would not raise the bed of the river or introduce hazards. True there had been a number of floods which had not apparently materially changed the depth of the swimming hole or introduced hazards into it. It could not be assumed, however, that each flood would be the same and have the same effect notwithstanding a number of floods which apparently had done so. Thus there was an on-going risk of very serious injury depending on the river flows and, a prolonged flood having occurred shortly prior to the incident, there was at the relevant time a heightened risk of such injury and of the introduction of hidden hazards. The defendants knew or ought to have been aware that the 1996 flood could have brought about such changes.

I accept that the attitude of the defendants to the removal of rope swings in the area indicated an awareness on their part of the potential danger of jumping or diving into the water of the river or any anabranch of it and in the lagoon. I also accept that diving from the log into the anabranch involved similar dangers to those associated with diving from a rope swing. In particular, it carried a real risk of very serious, even fatal, injuries. Removal of rope swings involved an acknowledgment that removing the means of diving or jumping from a height into the lagoon was the only effective way of removing dangers associated with them.

There were two easy and inexpensive options available to address the risks posed by the log and the lagoon and any actual hidden dangers that might exist. One was to remove the log. The other was to erect an appropriate warning sign. I accept, on the basis of Mr Perkins' evidence, that prior to 1996 the Council had adopted a policy of not erecting warning signs on the bank at the time of the incident. In those circumstances, the only way the Council could address the risk of this danger was to remove the log. In addition, while erecting signs might reasonably be relied upon to alert adults to the danger, they would be less effective with the typical users, school children. I address the alternative case of the plaintiff about warning signs below.

I suggest, therefore, that an authority which exercised reasonable care in occupying, controlling and managing either area and which considered the relevant risks prior to the incident would have come to the conclusion that, notwithstanding that it was depriving the children of Barooga of the adventure and the delight of diving or jumping off the log into the water hole, the log needed to be removed because of the risk of serious injury associated with it. I note that this was the view of Mr McCallum, an employee of the Council[35] and Mr Rodda, an employee of the Commission[36].

Alternatively, as a bare minimum, an authority occupying, controlling and managing the areas, and exercising reasonable care, should have taken the view that what needed to be done was to check the swimming hole area after any flood to ensure it was safe prior to the commencement of the summer swimming season. In particular, if any flooding had occurred prior to that season, the swimming hole area needed to be checked for depth and hazards and appropriate action taken depending on what was found.

That analysis however does not assist the defendants. If that approach had been taken in the present case, the defendants would have needed to check on the area in late November or early December. If they had checked, they would have found that the deep hole into which people had dived in the past had disappeared and that it was likely during the summer swimming period that the water would not be deep enough to allow diving. It would not have been difficult or expensive to check - either by wading into the water or from a dinghy[37]. A detailed survey by a surveyor would not have been necessary. They would then have been faced with the same alternatives. Exercising reasonable care, they would have taken steps to have the log removed.

Before leaving the issue of breach of duty, I note that it has been recently stated that the courts in considering the question of breach of duty of care have been increasingly concerned about the extent to which it is appropriate to assume that persons to whom a duty of care is owed will take reasonable care for their own safety.[38] The duty, however, has not been "confined to one owed to those who are careful for their own safety".[39] In addition, a reading of recent cases in this area points to a more stringent approach being taken to the determination of the content of the duty of care owed by persons in the positions of the defendants resulting on occasions in findings that no breach of duty occurred.[40] It seems to me that this case differs in a number of significant respects from those cases where the courts have found no breach of duty of care. The most notable, I suggest, are the age of the class of plaintiff in question, the hidden nature of the danger and the lack of obviousness of that hidden danger, the reputation of the log and swimming hole in the community as a safe facility, the plaintiff's past experience of the facility as a safe one and his ignorance of the factors that gave rise to the risk of serious injury, the capacity and ability of both defendants to control or bring about control of entry to the point of danger and the very special nature of the log and the swimming hole which were a focal point for children in the area of a special and artificial kind - in effect a swimming pool with diving board - the use of which was facilitated and encouraged by the Council.

Council's failure to erect warning sign - causation issue

If the foregoing analysis that the Council was negligent in not removing the log be incorrect, the question remains whether the Council should have erected warning signs forbidding diving or urging the checking of the water levels before diving.

Having regard to the fact that the Council encouraged the use of the park and its facilities, the safe reputation of those facilities, the real risk of the presence of hidden dangers, the real risk of very serious injury associated with the use of the log for diving and jumping into the water and and the ready availability of inexpensive warning signs, I have come to the conclusion that the Council was also in breach of its duty of care in failing to place any warning signs at the Barooga swimming hole while the log remained in position.

As to this aspect, however, another issue needs to be considered. The Council submitted that the plaintiff has not proved on the balance probabilities that there was a causal connection between the failure to erect a warning sign and the injuries suffered by him. Its counsel submitted that, on the evidence, it would have made no difference and that the plaintiff could not establish that it would have caused him not to dive on 29 December 1996.

The courts have approached the evidence of plaintiffs about how they would have reacted to appropriate warning signs with scepticism. They have emphasised the need for objective support and other evidence where a plaintiff has asserted that he or she would have observed an appropriate warning and so avoided injury.[41] A judgment is required of the sort of person the plaintiff was at the time and the likelihood of his responding to an appropriate warning sign.[42]

The causation issue involves consideration of the evidence given by the plaintiff and the attacks made on that evidence and on his credibility. I note that that evidence and the attacks on it are also relevant to the defence of contributory negligence raised by both defendants - an issue to which I will return. I have referred to the attack of recent invention based on answers to interrogatories. I turn to the plaintiff's evidence and to other arguments advanced on the question of his credibility.

The case is somewhat unusual because the plaintiff showed a reluctance to assert categorically that he would have complied with any warning notice. I refer to his cross-examination in which he accepted propositions put in leading form that he had progressed very well at school, was intelligent and was sensible and careful the majority of the time. He agreed that he had never had any problems with the police and was not a trouble maker. He accepted that he was a well liked and well respected young member of the community. He said that he rode his bicycle on occasions to the reserve by the lagoon. He was aware of a sign at Thompson's Beach warning of deep holes in the adjacent Murray River. He was pressed a number of times to say whether a warning sign would have stopped him diving. He initially responded saying that he could not say. Under continued pressure, however, he did make some positive statements. At one point he was asked to assume the sign was there. It was put that it would not have removed his confidence in diving. He said that he did not agree with that. He said that if there was a sign saying that there was a danger he probably would not have dived. Counsel continued to press him but he declined to commit himself further.

He was challenged about his compliance with warning signs by reference to a sign in front of the library building at Collie Park which forbade the riding of bicycles. He said that he was not aware of that sign even though he had been to the reserve many times. In my view, this was plainly possible having regard to the relevant locations and distances.

He said that he did not know what his approach would have been if a friend had said "Don't dive". He said a warning sign put up a year or two, or a day before, would have been different--the circumstances would be different. Put that he would say to a friend not to worry that it was fine, he said he did not know. He denied that he was trying to protect his position on signs.

Counsel continued to press the issue. Pressed further he said that he would not have dived if there was a sign there. Asked why he was now in a position to respond in that way he said that counsel was wanting him to answer a hypothetical question and he was thinking that at Thompson's Beach, a beach on the Murray River, there was a sign about deep holes and prior to the incident he had obeyed that sign and not swum in the area designated by the sign.

Later he denied that he would have ignored a sign saying "Don't Dive". He was then questioned by counsel about whether, if there was a sign warning against riding on his bicycle over bumpy tracks that he loved to ride, he would have observed it and stopped doing so. He again initially said that he could not say. Pressed further he said that he believed that he would observe the sign -- because the sign would imply that there was a risk. Pressed further his response became stronger and he said that the sign would stop him riding his bicycle along a track he had ridden with no risk for 10 years because the sign would imply that there was some risk.

I have come to the conclusion that the plaintiff's reluctance to assert categorically that he would have observed warning signs did not reflect a concern that he thought he would be lying if he said that he would have observed them. Rather, it reflected a responsible approach to his obligations as a witness and was honest and reasonable and to his credit. It would have been very easy for him to assert from the outset that he would have complied with any notice but an honest and careful witness would have to concede that he could not be certain about that. Pressed by cross-examining counsel to commit himself, he ultimately did after reflecting on how he had responded to the sign at Thompson's Beach. He relied on that to say that he believed he would not have dived from the log if there had been a "No Diving" sign.

As to the questioning about the hypothetical bicycle riding, it was submitted for the Council that the plaintiff's responses reflected badly on his credibility in that it was inconceivable that in the situation put to the plaintiff he would not have ignored the suggested sign and continued to ride on the track. I do not share the view put by the Council.

The attack made on the plaintiff on this issue ignores a salient feature, one which also would have been present if a sign had been erected at the log. The erection of a warning sign in the area, particularly after a long history of use without any warning signs, is likely to be noticed by a regular user and likely to cause that user to stop and consider if something had changed since he or she had last used it. If done immediately after the 1996 flood -- an action which I see as the barest minimum required of the Council--the sequence of events, including the prolonged flood, would have reinforced the user's concern that something must have changed.

As noted above, the question whether a plaintiff was likely to respond appropriately to a warning notice requires an assessment of the individual and the probabilities. He acknowledged in cross-examination by counsel for the Commission that in his youth he had on occasions smoked cigarettes despite the cancer warnings and hadn't told his parents. He had had the odd social alcoholic mixed drink with the knowledge of his parents. He was aware at the time that it was generally suggested that you should not swim for one hour after a meal. He regarded it as a suggestion. He had not followed it on the day in question. There was a sign at the Cobram pool saying "No Running". He said that he had run on the grass around the Cobram swimming pool but not on the 1.5 metre concrete strip separating the grass from the pool. He had done "bombs" into the pool. He dived into the shallow end, but only with a racing dive for which he was coached. I do not see these examples as altering the general picture, as at the time of the incident, of a reasonably responsible, careful, sensible, law abiding young man.

He presents now, particularly in his handling of cross-examination on this issue, as an intelligent and responsible human being. But he is, of course, considerably older and has been through a potentially life-changing experience. The question is what was he like at the time of the incident. In addition to the personality characteristics referred to above, there is the evidence of his compliance with the Thomson Beach sign prior to the incident. There is also some evidence of his conduct not long after the incident that is relevant. After the incident, the plaintiff and another injured young man became involved in the preparation of a booklet entitled "Think Look Consider". It warned of the dangers in using the rivers and waterways. I note that it was admitted into evidence absolutely between the plaintiff and Commission. Its admissibility against the Council was disputed. In my view, it is relevant and admissible against the Council on two limited bases but is not admissible against it as evidence of the truth of its contents. One basis, discussed above, is its relevance to the attack of recent invention. The other basis is the light it sheds on the plaintiff.

The booklet was published in November 1997. It contained detailed practical first aid instruction and detailed warnings about various aspects of the use of the rivers and waterways, camping and exposure to the sun. It shows his intelligence. It was also a remarkably responsible act by a 17 year-old who might have been expected to be preoccupied with the reality of his life shattering injury. Allowance again needs to be made for the likelihood that his experience had affected him and his attitudes but, even so, it points to someone of intelligence and with an underlying strong sense of responsibility and common sense.

On the evidence before me, I consider that the plaintiff was someone who would, on the probabilities, have responded to a warning sign erected prior to the incident. The probability of that occurring is, I suggest, increased by the fact that the erection of a warning sign, after many years without one, would have been a significant event having regard to the long standing community perception, shared by the plaintiff, that the lagoon was the safe swimming hole of Barooga. If erected after the 1996 flood, there would have been the added factor that the plaintiff was aware of the flood and would have been likely to make the connection between a warning sign and changed conditions flowing from the flood.[43]

The next issue to consider is contributory negligence.

As noted above, the plaintiff's evidence was that on the afternoon in question he went to the reserve with a friend from school, Imbie Sorenson, and her boyfriend. They had bought fish and chips for lunch and they sat in the reserve above and back from the bank of the lagoon eating them. Later, he decided to go for a swim. He walked down to and on to the log. He said that as he walked out on to the log, he saw two friends riding their bicycles across the nearby bridge. He called out to them to join him. Having reached the end of the log he dived in. The plaintiff accepted that he did not check the swimming hole before diving. He said that his dive was like a racing dive. He said that it was his first swim of the summer at the swimming hole. He denied swimming in the water before diving. Ms Sorenson and the other eyewitnesses confirmed that fact. Ms Sorenson also said that she had called out to the plaintiff, in effect, that he be careful as he walked to the log. She called out with the intention that he hear what she said but he did not react or reply in any way. She said she did not know if he had heard her.

Counsel for the defendants submitted that the plaintiff's own negligence caused or contributed to the injuries he suffered.

For the Council it was submitted that it was dangerous for the plaintiff to dive into the water without checking in any way when he did not know what was there and knew that large submerged logs could exist in the river. The plaintiff in his evidence conceded that this was in fact dangerous but said he didn't consider it so at the time. The Council relied on the evidence of Ms Sorenson that she had called out a warning to the plaintiff. Its counsel submitted that it was significant that the plaintiff was not recalled to give evidence and no explanation was given for that failure.

The Commission relied upon submissions put for the Council. The Commission also submitted that the plaintiff's conduct in other areas such as swimming too soon after eating, ignoring warnings on cigarette packets and signs at the Cobram pool suggest a somewhat careless young man and on the day in question he did nothing to assess the dangers before diving in.

Counsel for the plaintiff submitted that there should be no finding of contributory negligence. Counsel submitted that the plaintiff was 16 years of age. On the evidence, the plaintiff had not swum in the area since the previous summer and had no reason to expect that there had been any change in the depth of the swimming hole. There was nothing in the appearance of the swimming hole to alert him to any danger. He and his peers had never encountered any dangers in the past in the common practice of diving from the log into the swimming hole. He knows now, but had no knowledge then, about the tendency of alluvial river beds to change their composition without notice and had not had any warnings from parents or school or the defendants about the dangers in what he was in about to undertake. It was put that he performed a flat dive and reasonably regarded the activity as being without risk.

The principles were recently restated by McHugh J in Joslyn v Berryman[44] in the following terms:

"At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed."

"The test of contributory negligence is an objective one. Contributory negligence, like negligence, `eliminates the personal equation and is independent of idiosyncrasies of the particular person whose conduct is in question'. One exception to that rule is that, in considering whether a child is guilty of contributory negligence, the standard of care is tailored to the age of the child."[45]

Thus it has been put that the degree of care expected of a plaintiff is that which was "proportionate to his age and the circumstances under examination".[46] How much foresight and appreciation of the risks might be expected of a reasonable 16 year old in the circumstances in which he found himself on this occasion? That question was posed in a recent Western Australian case concerning a 15 year old who dived off a groyne at Cottesloe Beach notwithstanding warning signs forbidding diving.[47] The learned trial judge in that case considered the issue in the following passage.[48]

"In this case I am satisfied this plaintiff at almost 15 years of age could be expected to foresee and guard against the dangers of diving from the groyne and could be expected to take precautions for his own safety. He was well aware of the risks of diving and normally took appropriate precautions. On the day of the accident he acted contrary to what he knew as necessary to look out for himself when diving from the dive rock. He must have dived steeply despite knowing it was really dangerous and stupid to do so. He was an intelligent person well able to look after himself. I accept that the plaintiff may not have been as good assessing risk as a mature person might have been. Otherwise I have no concerns about his ability to look after himself and take precautions for his own safety when diving from the dive rock. Based on the evidence that he dived in an area where diving was prohibited and that he dived steeply when he knew it would be dangerous and stupid to do so. I would have found the plaintiff guilty of contributory negligence by his actions in exposing himself to risk of serious injury."

On appeal, Murray ACJ commented "in my opinion there is nothing more to be said on the topic. Her Honour's conclusion on this issue is again, in my respectful opinion, unassailable".[49] Her Honour had also found there was no breach of duty and that conclusion was upheld.

In the present case, the first matter to consider is the evidence of Ms Sorenson about her warning directed to the plaintiff. The defendants argue that it, and the failure of the plaintiff to give evidence in response, gave rise to the inference that before reaching the log, the plaintiff had received a warning to be careful and that he ignored that warning. Counsel for the first defendant submitted that "there is no reason to suggest . . . anything other than he heard that observation."

In response, counsel for the plaintiff submitted that Ms Sorenson had said that she wasn't sure whether he heard, he giving no reaction to suggest that he had. Counsel then went on to say:

" ... whether he heard or whether he didn't hear, in the end, matters little, in terms of the question of contributory negligence. What we do know about Ms Sorenson is that she was a girl who had a shocking experience.[50] She had a different upbringing, in terms of education, and she said something to a young man; and further, she had never swum in this lagoon, and in those circumstances she says something to a young man who knows the lagoon, he has swum in it for many years and is deceived by its safety. So why would he, even if he had heard, have done anything other than what he did do, which was what everyone else his age and older did when they entered the water?"

As I understand the responses made by counsel for the plaintiff, the first concerns whether an inference could be drawn from the evidence of Ms Sorenson that the plaintiff had heard her call out. The second addresses the question whether there was any reason why the plaintiff should have returned to give further evidence.

Taking the first issue raised, it is necessary to consider the evidence of Ms Sorenson. Ms Sorenson was, in my judgment, uncertain about what she said but it was possible that she called out to him that he be careful or that she may have said that he should check the water. Her evidence appeared to me to be a reconstruction based on her recollection that she called out a warning of some sort. There is, however, no evidence to suggest that the plaintiff heard her. Rather, as noted above, Ms Sorenson said he did not react in any way and that she did not know if he had heard her. On her evidence, they were sitting at some distance from the log[51] and he was closer to the water than Ms Sorenson when she called out. In cross-examination, she gave unclear evidence that was open to the interpretation that she called out between the plaintiff calling out to friends and their reply.

On the evidence led from Ms Sorenson, the more probable inference was that the plaintiff did not hear her. The evidence does not support an inference that he did hear her. To use his silence to draw that inference would be to use his silence, impermissibly, to fill a gap in the evidence.[52] In those circumstances, the defendants cannot demonstrate that the point has been reached where the plaintiff was called upon to explain or contradict.[53] As a result the rule in Jones v Dunkel has no application.

If that analysis be incorrect, a number of possible inferences arise from the evidence and need to be considered in deciding whether the rule has application.[54] The situation is one of competing possibilities or a choice among rival conjectures.[55] The rule cannot be employed "to convert conjecture and suspicion into inference".[56] It seems to me, again, that the defendant cannot demonstrate that the point was reached where the plaintiff was called upon to explain or contradict.

Taking the second issue raised by the plaintiff's counsel, and accepting the points advanced as representing the views of counsel as conveyed to the plaintiff, it cannot be demonstrated that the reason for not recalling the plaintiff was concern as to some specific evidence he might give - the underlying inference which provides the basis for the rule in Jones v Dunkel[57] This conclusion receives support from the reality that the plaintiff's counsel was not in fact able to protect the plaintiff by not recalling him; for defence counsel could always seek to cross-examine him further if they wished. Why adopting this course might advantage the plaintiff is not clear. As I see it, counsel engaged in forensic manoeuvres seeking to test each others nerve and judgment, and manoeuvres in which, presumably, each acted according to what he saw was on balance in his client's interests. Bearing in mind that the onus of proof was on the defendant on the issue, and that they could have sought to have the plaintiff recalled for cross-examination, the failure to do so may reflect the lack of support for any such cross-examination in the evidence of Ms Sorenson.

I turn to the other evidence and the conclusions to be drawn from it.

I suggest that a convenient starting point is that the plaintiff concedes that he did not check the swimming hole before diving into it. He was aware that the area had recently been flooded and that he had not swum in the area since the flood. He had no knowledge about the depth of the water but his experience of past floods was that the swimming hole continued as a safe place for diving and swimming with its depth unchanged. He was not aware that the bed of the anabranch could change. He had seen submerged logs in the anabranch but was not aware that they could be moved. He had, however, seen floating logs and, therefore, would or should have been aware that they might have found their way into the lagoon. There were other possibilities - for example, someone might have thrown objects into the swimming hole since he last swam in it.

A 16 year old exercising reasonable care for his own safety, might have been expected to consider the question of safety. With a 16 year old, a close analysis was not to be expected and his foresight and appreciation and assessment of the risk would not have been as good as that of a mature person. He was old enough, however, to consider that there might be risks and to take the simple steps required to protect himself - to wade into the water and check for hazards and check the depth. It was negligent not to do so. I do not consider his dive was steeper than he has suggested. If it was, there is insufficient evidence to suggest that that made any difference.

It seems to me that in negligently failing to check the swimming hole he contributed to his injuries. The primary responsibility, however, rested with the defendants. The potential dangers had been ignored for many years while the frequent use of the area and the log by children had been allowed to continue. As at 29 December 1996, the dangers were very real but were concealed. The authorities who occupied, managed and controlled the two areas of land in question should have been aware of the dangers potential and real, and addressed them. The risk of very serious injury was great and the measures available to address them simple and of trifling cost.

Weighing up the degrees of blameworthiness and the relative importance and seriousness of the fault of the defendants and the plaintiff, I am persuaded that it would be just and equitable having regard to the plaintiff's share of responsibility to reduce the damages to which the plaintiff is entitled by 30 percent.[58]

Contribution proceedings between the defendants

Having found both defendant liable in negligence, it is also necessary to consider their respective responsibility for what occurred.

In relation to the contribution proceedings between defendants, the Council submitted that if it was liable in negligence to the plaintiff, the primary responsibility lay with the Commission, because the bed of the anabranch on to which the plaintiff had dived was clearly vested in the Commission alone and under its control. The Council submitted that the Commission was gravely negligent because on the evidence the Commission did not know that it had control of and responsibility for the bed of the anabranch and that its actions in removing rope swings attached to trees on the southern side of the anabranch demonstrated that it was well aware of the dangers of jumping and diving into the waters of the anabranch. It claims contribution from the Commission.

The Commission submitted that the Council had maintained the recreation reserve which gave access to the lagoon and the reality was that the lagoon was part and parcel of the reserve and so regarded by all local people. Counsel submitted that in relation to the log, the Council had effective control of the use and enjoyment of the reserve and the land from which the log emanated and that it enticed the plaintiff to the log and lured him to the log. Counsel submitted that the Council's duty of care did not end on the northern bank of the lagoon because of its proximity to those using the reserve and the foreseeable consequences of someone using the log to dive into the lagoon. Counsel repeated that there was no evidence of any positive acts on behalf of the Commission to encourage swimming in the lagoon. On the contrary, the Commission on the evidence removed rope swings when they appeared and there was no evidence of people entering the lagoon from the forest--they entered from the Council's reserve. Counsel also submitted that the evidence revealed that the Council had not directed its mind to the issue of ownership and responsibility for the log. Counsel submitted that if the Council had applied its mind to the issue and was concerned about the log, a simple phone call would have resolved any problems about removal of the log.

As between the defendants, each was clearly negligent in failing to discharge the duty of care arising from their occupation, management and control of the reserve and river bed respectively. Their failure to take any action flowed from a complete failure to identify their areas of responsibility and to give consideration to the management of risk in the area of, and adjoining, the swimming hole even though both were well aware of dangers associated with diving and jumping into the anabranch as evidenced by their policy of removing ropes. Thus neither had considered the dangers posed by the depth of the bed of the anabranch, possible hazards and the log. The Council, however, directly controlled the access to the log and had maintained the adjoining reserve in a condition that could only encourage the use of it, the swimming hole and the log. It provided easy access to the area of the log and was in active management and control of the area. It was the Council's acts and omissions that created a situation that was potentially dangerous. The Commission merely failed to take steps to address that situation. Having regard to the degree of blameworthiness and the relative importance and seriousness of their breaches, the Council should bear the major responsibility. It would be just and equitable, therefore, to require it to bear 80 percent of the damages recoverable by the plaintiff and for the Commission to bear the balance of 20 percent.

[1] Being the land between Golf Course Road, Barooga, and the edge of the Bullanginya lagoon.

[4] Nagle v Rottnest Island Authority (1993) 177 CLR 23; Romeo v Conservation CMN (NT) (1998) 192 CLR 431.

[5] Aiken v Kingsborough Corporation [1939] HCA 20; (1939) 62 CLR 179 at 203 per Dixon J; Romeo, above, 441.

[6] Nagle v Rottnest Island Authority [1993] HCA 76; (1992-3) 177 CLR 423, 423, 429-31; Romeo, above 460, 478, 486.

[7] Nagle, above, 4321, 439-440; and Romeo 486; - both citing Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 48

[8] Sherritt Gordon Mines Ltd v FCT [1977] VicRp 42; (1976) 10 ALR 441 , 445.

[9] See Comserv Pty Ltd v Figtree Gardens [1999] NSWSC 124; (1999) 102 LGERA 74, 76: Bryson J.

[11] The figures covered the period 1983 to 2001.

[12] She was challenged on matters such as the use of the Tocumwal levels.

[13] It is likely that the diving log was constructed and not a natural occurrence. There was no evidence, however, that either defendant had constructed it.

[14] An estimate from the photos supplied. The log was substantial. Attached is a photograph marked Attachment A taken some days after the incident.

[16] Nagle, above, 431; Romeo, above, 454, 459, 461, 478; Waverley Municipal Council v Swain [2003] NSWCA 61 especially paragraphs [101], [104], and [114]; Wyong Shire Council v Vairy and Mulligan v Coffs Harbour City Council & Ors [2004] NSWSCA 247; especially paragraphs 69, 93, 147-150.

[18] Referring to the issues of the gravity of the injury that might be sustained, the likelihood of such injury and the difficulty and costs of averting the danger as relevant considerations.

[20] Amended Statement of Claim paragraph, 6, particular (f).

[21] Amended Statement of Claim, paragraph 10, particular (g).

[22] Forest Commission Act section 8 A, above.

[23] In re-examination he said he received the interrogatories by mail from his solicitors. He mailed back answers. He then received the typed answers for swearing. He did not speak to his solicitors about them.

[24] For example "On the said date and prior to the accident . . ."; "on the said date but prior to the accident . . . ."

[25] The first defendant Interrogatory 2; second defendant Interrogatory 1.

[26] Wentworth v Lloyd [1864] EngR 492; (1864) 10 HL Cas 589, 590-2; Wigmore on Evidence, para.2322.

[28] The conclusions are supported directly or indirectly by the evidence of the employees of the defendants of their observations and by inferences as to probable observations from their activities in the relevant areas. See further discussion below.

[29] From paragraph 8- "Desnagging operations (including snag maintenance)."

[31] BPM 6 refers to the "Best Practice Manual"- Signs as Remote Supervision" issued by Statewide Mutual. The manual was not in evidence. The report noted that "the manual was developed to assist Councils in preparing the best possible defence in the event of a claims (sic) for damages being made" - p 2.

[32] I note that the Australian Standard comments on problems associated with "risk aversion" which can result in "decisions to avoid or ignore risks regardless of the information available and costs incurred in treating those risks" and "failure to treat risks".

[33] These facts are also strongly supported by the evidence of persons from the area called by the plaintiff.

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