67 As the judge observed and the transcript bears out, Ms Sorenson was uncertain about what she said. At one point she recalled that she had called out to Mr Ballerini that he be careful and at another point she said it was possible that she may have said that he should check the water. At yet another point in her evidence she said that when she called out she was sitting at some distance from the log and Mr Ballerini was closer to the water. Her evidence in cross-examination was different again. It is open to the interpretation that she called out between the plaintiff calling out to friends and their reply. Unsurprisingly, the judge was inclined to the view that Ms Sorenson's evidence was a reconstruction based on really no more than her recollection that she called out a warning of some sort. Just as importantly, Ms Sorenson could not tell whether Mr Ballerini heard whatever it was she said. In as much as he did not react at all, there is some evidence that he did not hear it. And one may suppose that the ambient noises of the summer swimming hole and the distraction of speaking to the other two boys on their bikes could have caused him not to hear it. Consequently, and despite that the judge may have erred about the availability of a Jones v Dunkel inference, I do not consider that his Honour erred in concluding that it was more likely than not that Mr Ballerini did not hear the warning.
68 But the significance of this point should also not be overestimated. Even if one concluded that Mr Ballerini had heard the warning and ignored it, I doubt it would say much about the probability of Mr Ballerini ignoring a no diving sign installed near the log. In the circumstances which obtained, there would have been a big difference between the effects of any warning of the kind that Ms Sorenson may have called out and the effect of an official Council sign warning that because of changed circumstances the swimming hole had become so shallow as to be unsafe to dive. As the judge said, the erection of a warning sign near the log, particularly after a long history of use without any warning signs, was 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 it would have reinforced the user's concern that something must have changed.
The Commission's duty of care
69 The Commission accepts that the swimming hole was on land under its management and control and thus that it owed a "generalized duty of care" to members of the public making use of the swimming hole to take reasonable steps to avoid foreseeable risk of injury to those persons. It contends, however, that its duty to such persons did not extend to taking steps to avoid the risks of diving from the log into the swimming hole or at least that it was not a breach of its duty to fail to cut down the log. It submits that the judge was wrong to hold that it did.
70 I agree. In one sense the Commission's position was like that of the Council: broadly analogous to an occupier of the land under its management and control and the fact of that management and control brought the Commission into relationship with those members of the public who made use of its land and gave rise to the "generalized duty of care" which the Commission owed to those members of the public.[79] Subject to that, however, the Commission was in a very different position to the Council.
71 The Council's charter and purpose were to develop and maintain town infrastructure. As part of that, it had powers of management and control over the land which was Collie Park and it used those powers to create and maintain the park so as to make it an attractive recreational feature of Barooga. The Council also had immediate responsibility for the park, and what happened on it, and the reason and means to know what did go on and what to do about it. By its responsible employees, it was aware of the practice of diving from the log, it was aware that the river bed could change and of the flood with the potential to cause such change, it had the means and the opportunity to put up a sign to guard against the risks of the log and perhaps in the longer term to remove the log. The park was one of relatively few town recreational facilities which it was the responsibility of the Council to maintain. It was the only swimming facility in Barooga, and it was close to the centre of Barooga, and consequently it was close to the geographic centre of the Council's Barooga sphere of activities. There were therefore a large number of aspects of the relationship between the Council and Mr Ballerini which made it resemble others in which statutory authorities have been held to owe specific duties of care to particular members of the public, and in terms of the "fact-value complex" there are good reasons of "fairness, policy, practicality, proportion, expense and justice" which warrant the conclusion that the Council owed to Mr Ballerini a specific duty to take reasonable steps to guard against the risk of harm resulting from the use of the log for diving into the swimming hole.
72 The Commission had a very different charter and purpose and arguably no actual knowledge of the use of the log. Unlike the Council which exercised its powers of management and control to develop and maintain Collie Park amongst other town recreational facilities, the Commission exercised statutory powers under the Forestry Act 1916 (N.S.W.) for purposes primarily related to timber management and exploitation. There is reference to recreational facilities in the Commission's charter. But it is of minor significance. The Commission's principal concern is with maintaining developing and exploiting state forests. It is true that the swimming hole was on land under the management and control of the Commission and no doubt for that reason, as it concedes, it owed to users of the swimming hole a "generalized duty to take care". But unlike the Council the Commission did not invite or attract children to use the swimming hole, and the area under its occupation did not afford it control of the means of entry by the public into the swimming hole. The Commission did not create the situation of danger, and unlike the Council it had no particular reason to be aware of the danger. The judge found that the Commission's employee Mr. O'Brien had seen children diving from the log into the swimming hole, but even if that finding is correct (and I shall return to that question), Mr O'Brien's responsibilities on behalf of the Commission involved the supervision of about 4,000 hectares. In the Central Murray Forest Group alone, the Commission controlled about 1,000 kilometres of river frontage and the evidence shows that there were literally thousands of logs extending over the river along that length of frontage. There were therefore a large number of aspects of the relationship between the Commission and Mr Ballerini which made it resemble others in which statutory authorities have been held not to owe specific duties of care to particular members of the public.
73 In terms of the "fact-value complex" there are also good reasons of "fairness, policy, practicality, proportion, expense and justice" for concluding that the Commission did not owe to Mr Ballerini a specific duty to take reasonable steps to guard against the risk of harm resulting from the use of the log for diving.[80] The Commission had responsibility for a vast area of forest, it could not control entry on to it, it could not be expected to supervise or maintain areas of it in the way in which the Council could be expected to supervise and maintain recreational facilities in the middle of Barooga, and it did not encourage and would not have wished to encourage the use of the Barooga swimming hole for swimming. It did not create the danger to which use of the log gave rise, and while it could have removed the log at negligible cost, the burden of the obligation needs to be assessed in light of the totality of the Commission's obligations to supervise and exploit literally thousands of hectares of state forests. It is surely not enough to impose a specific duty of care on the Commission to guard against the risks of diving into a length of river under the Commission's management and control that a person might make use of one of the thousands of logs that overhang that length of river. In my opinion it is also not enough to impose such a duty on the Commission in respect of a particular log that the log may emanate from a point of particular development (not under the Commission's management and control) such as the many parks, camping grounds and caravan parks that are dotted along the river. From the Commission's frame of reference, and judged by reference to its charter, each such area is of no more significance that any other along the thousand kilometres of river in which it has an interest, and although a particular development may make it more foreseeable that harm will be suffered at that point, foreseeability is not sufficient basis for the imposition of a duty of care.[81]
74 Finally, there are powerful reasons of policy, practicality, proportion and expense which militate against the imposition of such a duty; not least the expense and redirection of resources away from forest protection and exploitation to risk assessment and prevention which would inevitably have to follow.[82] Reasons of fairness and justice warrant that the duty should be upon the authority whose management and development of facilities under its management and control encourage the use of those facilities by members of the public for purposes to which they appear to be adapted. That is why the Council owed a duty of care. There are no such reasons in the case of the Commission.
75 I return to the question of whether Mr O'Brien had knowledge of the fact that children made use of the log for diving into the swimming hole and whether if he did it should make any difference. Mr O'Brien swore that he did not know of the swimming hole or the log in 1996. The judge found that he did. His Honour took the evidence to show that Mr O'Brien had lived at Cobram in the period 1994 to 1995 and in Barooga in the period late 1995 to 1996, that he walked opposite Collie Park approximately once every two weeks for three years and that he had removed two rope swings from the southern bank of the swimming hole. The judge also said that Mr O'Brien had denied any knowledge of Collie Park and its layout and any knowledge of the log, the lagoon and their use, and that in the circumstances he regarded the assertions of lack of knowledge of Collie Park, the log and the swimming hole as false.
76 The Commission attacks the judge's conclusion as based upon a misunderstanding of the evidence. It submits that Mr O'Brien did not deny all knowledge of Collie Park - he said that he knew the area but did not know that it was called Collie Park - and it contends that once the judge is shown to have based his finding upon misconception, the finding must be disregarded. It submits that it cannot be assumed that the judge would have come to the same conclusion if not mistaken about Mr O'Brien's evidence concerning his knowledge of the park, and so it is necessary for this court to consider the evidence afresh. The Commission contends that once the evidence is looked at afresh there is nothing inherently improbable about Mr O'Brien's assertions that he was not aware of the log and had not seen children diving from the log.
77 I do not accept that the judge was mistaken about the effect of the evidence. Although his Honour did say that Mr O'Brien denied knowledge of the park and its layout, and in a sense that is contrary to Mr O'Brien's testimony that he knew the area but not what it was called, Mr O'Brien said in chief that he did not recall visiting the area and that he could not recall seeing the log sticking out of the bank. When asked in cross-examination whether he said that he had "no idea about the existence of Collie Park and its swimming hole" he answered "yes"; when taxed about his knowledge of what was in the area he said that all he knew was that it contained a library and possibly a pumping house; and when asked, he denied that he had while driving over the bridge ever seen people swimming down at Collie Park. In the circumstances I read his Honour's reference to Mr O'Brien denying "any knowledge of the park and its layout and any knowledge of the log" as a compendious summary of that testimony.
78 In the result, I see no basis to reject the judge's conclusion that Mr O'Brien's denials were not to be accepted or with his Honour's finding that it was probable that Mr O'Brien had knowledge of those matters. As the judge said, Mr O'Brien had been living and working in the area and passing it regularly by road and over the nearby bridge. As a local it is probable that he would have seen and noticed children swimming and diving into the swimming hole from the log at its edge. The rest of it came down to an assessment of Mr O'Brien's credit.
79 That said, I do not consider that Mr O'Brien's state of knowledge makes any difference to whether the Commission owed a particular duty to Mr Ballerini to take steps to guard against the risks of his use of the log for diving into the swimming hole. At the risk of repetition, mere foreseeability of harm is not a sufficient basis for the imposition of such a duty of care. There must also be such factual similarity with a recognised category of case as to mean that in terms of principle and policy a similar result should be held to apply or there must be attributes of the total relationship which make it reasonable, or perhaps fair just and reasonable, that the authority be under a duty to take reasonable care to guard against the foreseeable risk of injury which existed. In terms of the "fact-value complex", "questions of fairness, policy, practicality, proportion, expense and justice" must be answered with that result. And for the reasons already given, I do not think that they are.
Contributory negligence
80 Mr Ballerini attacks the judge's conclusion that his share of responsibility for his injuries was such as to reduce his entitlement to damages by 30%. He accepts that the judge identified the relevant principles of law but contends that his Honour made errors of principle in allowing himself to be unduly influenced by the decision of the Western Australian Supreme Court in Uzabeaga v Town of Cottesloe[83] and by failing to take into account the relevant "experience" of Mr Ballerini and all of the relevant "circumstances under examination". Mr Ballerini also contends that the judge failed to consider or attribute sufficient weight to the following facts, findings and evidence:
a) that it was the practice of Mr Ballerini, his peers and other members of the community who swam in the swimming hole to dive from the log without first checking the depth of the water and that the practice was regarded as safe and without risk because no-one had ever encountered dangers in so doing;
b) that the Council actively encouraged the use of the park and the log through its landscaping and regular maintenance of the reserve as a recreational park;
c) that the Council presented the log and the swimming hole, in the absence of any warning signs to the contrary, as a facility which might be considered by visitors to be safe and free from hazard; that Mr Ballerini was not aware that the bed of the swimming hole might change;
d) that the safe history of swimming in the swimming hole would have reinforced the impression that the swimming hole was safe and free from hazard;
e) that Mr Ballerini had received no warning or education as to the potential danger of the activity in which he was engaged;
f) that Mr Ballerini and his peers who swam at the swimming hole had never encountered dangers when diving or jumping from the log in the past;
g) that it was common practice for children using the swimming hole to dive and jump from the log.
h) the use of the log and the swimming hole were easily seen from the bridge.
i) the Council knew of the use of the park and the log as a diving platform and a means of entering the water;
j) the Council knew that the swimming hole was one of only two swimming holes associated with towns in the Shire.
81 I am not persuaded that the judge erred in any of the respects alleged or in his assessment that Mr Ballerini's responsibility for the injuries which he sustained should be assessed at the level of 30%. His Honour mentioned each of the matters which are referred to and there is no reason to doubt that he took them into account in his conclusion.
82 As the judge observed after referring to those factors, the risk of very serious injury was great and the measures available to address it were simple and of negligible cost. It followed that primary responsibility rested with the Council. But the fact that the Council was negligent does not mean that Mr Ballerini was not also negligent and for the reasons given by the judge, I think that he was. Mr Ballerini was an intelligent, educated and relatively mature 16 year old young man. He was aware that the area had recently been flooded and he had not swum in the area since long before the flood. As a 16 year old of reasonable intellect and education exercising reasonable care for his own safety, he might properly be expected to consider the question of safety. He could not be expected to have the same foresight, appreciation and assessment of the risk as a mature adult. But at his age and stage in life he could be expected to exercise some degree of caution, even if it were no more than jumping feet first from the log into the water before diving head first into it. In my view his failure to exercise at least that degree of caution was significant and it was blameworthy. Its quantification was dependent to a large extent upon an assessment of Mr Ballerini's maturity, orientation and perception of risk, and in that respect the judge had the singular advantage of seeing Mr Ballerini at first hand in evidence and throughout the course of the trial. In all the circumstances, I see no reason to disagree with the judge's assessment of 30% responsibility.[84]
Conclusion
83 For the reasons I have given I would dismiss the Council's appeal and Mr Ballerini's cross-appeal, but I would allow the Commission's appeal.