Berrigan Shire Council v Ballerini & Anor [2005] VSCA 159

1 I have had the advantage of reading in draft the reasons for judgment written by Nettle, J.A. I agree in the disposition of the appeals and cross-appeal that his Honour proposes. As he explains, we are concerned with the liability of the Council and the Commission and the plaintiff's challenge to the finding of contributory negligence. If there was contributory negligence, he no longer challenges the judge's assessment that it was just and equitable to reduce the damages recoverable by 30%.

The Council

2 I agree with Nettle, J.A., for the reasons his Honour gives at [26], [31] - [33], [35] - [37], [40] and [44] - [47][1], that the Council owed a relevant duty of care to the plaintiff. This is not a case at the cutting edge of the law of negligence. It is clear, in my opinion, that such a duty was owed.

3 I also agree that the duty was breached. The Council permitted what was, in effect, a dangerous diving board to remain attached to its land. It could, at negligible cost, have either removed the log or erected a warning sign. It did neither and, as a result, the plaintiff suffered injury. Inaction is sometimes a reasonable response to a risk, perhaps more often than has been realised in the past, but it was not a reasonable response in this case.

4 Causation is not in issue as regards removal of the log, but Mr Garling argued that the plaintiff did not establish, on the balance of probabilities, that a warning sign would have averted the accident. There may be more than one answer to that contention. The swimming hole was regularly used by young people of the plaintiff's age and had been so used for many years without recorded incident. It presented an insidious danger, to which a warning sign may not have been an

adequate response. But, if a warning sign was an adequate response, there is every reason to believe that it would have been effective for a responsible young person like the plaintiff. The judge saw him give evidence and, even if his Honour erred in relation to the rule in Jones v. Dunkel[2], he was entitled to find that the plaintiff did not hear Ms Sorenson's warning. In any event, its terms were uncertain and it was not comparable with an authoritative warning emanating from the Council.[3]

The Commission

5 The judge's adverse finding concerning Mr O'Brien's knowledge was challenged on more than one basis, but I am prepared to assume, without deciding, that the Commission did owe a relevant duty of care to the plaintiff as an entrant on land under its control and management. The difficulty is that I do not consider that it was open to his Honour to find that that duty was breached. As Nettle, J.A. points out, in the Central Murray Forest Group alone, the Commission controlled about 1,000 kilometres of rural frontage and there were literally thousands of logs jutting out over the river along that frontage. Mr O'Brien himself supervised about 4,000 hectares. Even after the 1996 flood, this swimming hole was just one among many locations that may have been affected and the accident took place only a month after the flood subsided. The Commission's omission to take any action with respect to the log did not fall short of the standard expected by the community of a public authority with only peripheral responsibilities in relation to recreation.[4]

Contributory negligence

6 Reasonable care does not require over-caution.[5] That is true of defendants and it is also true of plaintiffs. I was, for a time, attracted by Mr Saccardo's argument that what the plaintiff did was exactly what any normal 16 year-old boy would do, given his and his peers' previous experience of the swimming hole. For better or worse, the law of negligence affects the kind of society in which we live and we do not want the law to nurture a nation of ninnies. Mr Garling persuaded me, however, that even a normal 16 year-old could be expected to realise that diving into the opaque waters of an alluvial anabranch after an exceptional flood posed a danger against which at least some precaution should have been taken. It need not have been, as the judge suggested, wading into the hole first. There were other ways in which the depth of the water could have been tested.

Concluding unscientific postscript[6]

7 The relationship between duty and breach in the law of negligence is causing more perplexity than it used to do but, as I have said, this case is not at the cutting edge.[7] I would leave the quelling of that perplexity to the High Court. I simply wish to make two brief observations.

8 The first is that the imposition of general duties of care in negligence has no sure foundation in legal principle. It involves trade-offs and value judgments that may have been better left to the legislature in 1932 and again in 1963 and 1976.[8] The search for a principle is worse than looking for a needle in a haystack. The needle is not there. The second observation is that, however the difficulties are to be resolved, duty is a question of law and breach is a question of fact. The discipline of civil juries, which we still have in Victoria, conduces to clear thinking. It reminds us that

questions of breach, unlike questions of duty, cannot involve legal policy. At common law the same is true of causation.[9]

9 I have had the considerable advantage of reading the draft reasons for judgment of Nettle, J.A. For the reasons given by his Honour, I agree that the appeals and the cross-appeal be disposed of as he proposes. As his Honour explains, the Council owed persons in the position of the plaintiff a duty of care. A principal factor that gave rise to the duty was the Council's relationship with persons such as the plaintiff, which sprang from its encouraging those persons to use its parkland and adjoining swimming hole and, hence, the log as well as from its actual control over that area.

10 It is irrelevant, I think, that the Council had not placed the log in position or that, from a strict legal position, it was the Commission that had de jure control of it, at least to the extent of its protrusion over the river. As the Council well knew, during the summer months in particular, the swimming hole and the log were used by local young people, like the plaintiff, as if they were part of a typical swimming pool with diving facilities. The Council effectively encouraged such activity by creating and maintaining a complementary environment in the nature of a parkland over which those using the swimming hole ordinarily passed. As is apparent from the reasons of Nettle, J.A., the log was essentially a feature of that area enacting as a magnet to attract locals to the swimming hole and its adjacent parkland. In the circumstances, the Council owed such persons a duty to take reasonable steps to guard them against reasonably foreseeable risk of injury arising from use of the log as an entry point into the river.

11 The extent of the Council's duty, and whether it was breached, must be analysed in the context of the prevailing circumstances, one of which was that, as the evidence established, the depth of the riverbed in the vicinity of the log varied depending on the range of occurrences, particularly prolonged floods. As his Honour makes plain, the Council ought to have known this and could have responded appropriately to the risk created by the changing water depth by, in the first instance, erecting a warning sign or removing the log. Either course would have involved a little effort or expense on its part. I respectfully agree with his Honour that there is no basis for claiming that such a sign would not have been effective in respect of the plaintiff. The Council's failure to take such action meant it breached its duty to the plaintiff.

12 It is true that, in the abstract, the dangers associated with diving from the log into the river would have been obvious enough to a person in the position of the plaintiff who exercised reasonable care for his or her safety. But it does not follow that, by reason of this, the Council owed no duty to the plaintiff. From his perspective, given his experience at the swimming hole, the risk was a concealed one. The Council, on the other hand, ought to have known of the latent dangers associated with diving off the log and thus, taken steps to protect the plaintiff from such risks.

13 I also agree with Nettle, J.A. that it was open to the learned trial judge to find that the plaintiff did not hear whatever it was that Ms Sorensen may have said to him before he dived off the log and that no error has been established in relation to the trial judge's conclusion as to the existence and extent of the plaintiff's contributory negligence.

14 I further agree with Nettle, J.A. that the judgment against the Commission cannot stand. As his Honour points out, the Commission had a very different charter and purpose from that of the Council, which involved it in supervising vast areas with many kilometres of river frontage and it had no relevant relationship with

the plaintiff. In the circumstances, it is difficult to see how it could be said that it owed the plaintiff a relevant duty of care, but even if it did, it was not open to find that it was breached.

15 By Writ filed on 3 April 2001 Jason Ballerini instituted proceedings in the Common Law Division against Berrigan Shire Council ("the Council") and the Forestry Commission of New South Wales ("the Commission") for damages for personal injuries suffered on 29 December 1996 when he dived from a log into the Old Barooga swimming hole at Collie Park, Barooga in New South Wales. After a trial before judge alone, on 1 September 2004 it was adjudged that the Council and the Commission were both liable in respect of the injuries suffered by Mr Ballerini (as between themselves, in the proportions of 80% to 20%) but that Mr Ballerini had by his own negligence contributed to his injuries to the extent of 30%. In the result Mr Ballerini was awarded judgment against the Council and the Commission in the sum of $5,600,000 (being $8.2 million reduced by 30% to reflect the extent of Mr Ballerini's contributory negligence), and as between the Council and the Commission the judge ordered that the Council bear 80% of the damages recoverable and that the Commission bear the remaining 20%. The Council and the Commission now appeal against the judgment and orders for contribution, and Mr Ballerini cross-appeals against the determination that he was guilty of contributory negligence.

The judgment below

16 The facts as found by the judge were that on 29 December 1996 Mr Ballerini, then aged 16 years and eight months, went to a public reserve known as Collie Park in the town of Barooga. The reserve was on land between Golf Course Road, Barooga and the edge of an anabranch of the Murray River which was called "Bullanginya Lagoon". Mr Ballerini was accompanied by a friend, Ms. Imbie Sorenson, and her boyfriend and they each took their lunch with them. After finishing lunch by a tree near to the bank of the lagoon, Mr Ballerini decided to go swimming in the area of the lagoon which was then called the "Barooga Swimming Hole". It had been used as the local swimming hole for many years and Mr Ballerini had swum in it on a number of previous occasions. As on those previous occasions, Mr Ballerini went down the park to the bank of the swimming hole and out on to a log which extended from the bank of the swimming hole over the water, and from there he dived into the water. In the past the water had always been deep but on this occasion there had been prolonged recent flooding and unknown to Mr Ballerini it had made the water shallow; the bottom of the swimming hole having risen. Mr Ballerini thus struck his head on the bed of the swimming hole and suffered severe spinal injuries which rendered him quadriplegic.

17 Collie Park was reserved for public recreation in 1964 by New South Wales 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 lagoon and towards the north by Golf Course Road. A few months later, the Council was appointed the trustee of the reserve under the Public Trusts Act 1897 (NSW). In 1995 the Council Crown Reserve Trust was appointed trustee of the reserve and the Council was appointed under s.95(1) of the Crown Lands Act 1989 (NSW) to manage the affairs of the Reserve Trust. The park was "community land" for the purposes of the Local Government Act 1993 (NSW) and in accordance with s.35 of the act the Council was required to manage the land in accordance with "the plan of management applying to the land". By force of s.48 of the act the Council had control of the park with core objectives under s.36G of the act (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.

18 The bed of the lagoon and the land to the south of the lagoon was land under the control and management of the Commission. It operated under the Forestry Act 1916 (N.S.W.) Section 8A of that act provided that the objects of the Commission shall be:

(a) to conserve and utilize the timber of Crown-Timber lands and lands 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

(ii) to conserve birds and animals thereon and

(f) . . ."

19 The powers and duties of the Commission were set out in s.11 of the Act as follows:

"11. Powers and duties of the Commission

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,

20 The judge proceeded on the basis that the Council and the Commission had each conceded that it owed a duty of care to persons using land which was under its management and control but disputed that the log was under its management and control. The issue was whether the log emanated from the land under the management and control of the Council or from land under the management and control of the Commission. The judge determined the issue on the basis of expert evidence and provisions of the Crown Lands Act 1989. His Honour held that the log emanated from the land under the management and control of the Council and, for that and other reasons, that the Council owed a duty of care to Mr Ballerini as a person using the log. As his Honour put it:

"...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. As the Commission argued, the Council had de facto control of access to the log."

21 The judge held too, however, that the Commission also owed a duty of care to Mr Ballerini, which his Honour said derived from the fact that a substantial part of the log extended above the water and therefore over land of which the Commission had management and control. As the judge put that:

"...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 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."

22 The judge further found that the Council and the Commission knew or ought to have known of the danger of the flood reducing the depth of the swimming hole and thereby creating a hidden danger of serious injury, and that each of them could have guarded against that risk by removing the log, and his Honour held that the Council could also have guarded against the risk by erecting an appropriate warning sign. The judge rejected contentions that Mr Ballerini knew of the risk when he dived and that he had ignored an oral warning given by Ms Sorenson. It followed, his Honour held, that each of the Council and the Commission had breached the duty of care which it owed to Mr Ballerini and had thereby caused his injuries. But the judge was persuaded that Mr Ballerini had been guilty of contributory negligence in failing to check the swimming hole before diving, and that it was just and equitable having regard to his share of the responsibility to reduce the damages recoverable by 30%. The judge determined that the Council and the Commission should contribute to those damages in the proportions of 80% and 20% respectively. Quantum was not in issue.

23 The Council contends that the judge erred in holding that the Council owed a duty of care to Mr Ballerini to take steps to prevent harm from the danger of diving into the swimming hole. It says that, contrary to the judge's reasons, it did not concede below that it owed a duty of care in relation to Mr Ballerini's use of the log[10] and it submits that it does not follow from the fact that the log emanated from park land under its management and control that the log was under its management and control. To the contrary, it submits that once the log passed onto or over the land of the Commission, as the log did at the point at which it emerged from the near vertical earthen bank of the swimming hole, control and management of the log belonged to the Commission and so it was the Commission which had responsibility for it and for those who made use of it.

24 If it matters, I think that the Council did make the concession which the judge attributed to it. At least that is the way in which I would construe the following exchange between the judge and counsel for the Council:

"HIS HONOUR: Can I go back to your preamble because at the moment I'm inclined to think that your Questions 1 to 5 may be sufficient for those matters. But going back to your preamble, you say the jury having decided the question of ownership, occupation and control; what will the jury have to decide there?

COUNSEL: Perhaps I can deal with it this way: the jury will only have to decide between two experts.

HIS HONOUR: So this is the definition of the bank, is that what you're talking about?

COUNSEL: Yes, and they will take direction from your Honour on matters of law [upon] which your Honour will direct them as a matter of law, and then they'll apply the facts before them from the experts to the law that your Honour directs them to in relation to the definition of the lake.

HIS HONOUR: That will determine ownership and what flows from that which is occupation and control in that sense. As I understand the plaintiff is also arguing that whatever be the legal position, who [has] de facto control?

COUNSEL: Yes.

HIS HONOUR: Is that an issue the jury will also have to decide?

COUNSEL: Yes, we say that is a proper matter for the jury because that will determine the breach. You see there's no - - -

HIS HONOUR: If there is control, are you saying that it follows there is a duty?

COUNSEL: Look if we have control and exercise control in the legal sense of the word, it would be difficult for us to argue that we had no duty..."

25 In point of fact, however, it appears that the concession was of little consequence. The judge's analysis was independent of it. The essence of his Honour's reasoning was that the Council so exercised its powers of control and management over the park as to encourage the recreational use of the park and the log and swimming hole and provided uninterrupted and ready access over the park to the log in effect for that purpose.[11]

The Council's duty of care

26 I agree with the judge that the Council did owe a duty of care to Mr Ballerini in relation to his use of the log as a diving platform. Like the judge I think it to be beside the point that Mr Ballerini dived from a point above the swimming hole and therefore beyond the boundary of the land which was under the Council's management and control. The duty arose because the log emanated from the park, which was land under the Council's management and control, and because the Council by its management and control of the park encouraged the recreational use of the park and thus of the log for diving. In point of principle the position is the same as in Nagle v Rottnest Island Authority[12]. Rottnest Island Authority was held to owe a duty to bathers diving from a rock platform which was part of a beach under the management and control of the Authority. In my opinion the Council owed a similar duty to bathers diving from the log which emanated from the park and beach under the control of the Council. It is true, as counsel for the Council contended, that the Rottnest Island Authority actively promoted the beach in question as a tourist swimming spot and that it encouraged its use for swimming by setting up signs and a path leading from the ferry wharf directly to the beach, with facilities for changing and showering and the like. It is also true, as the Council contended, that the Council did not actively promote the swimming hole for swimming, or set up a path or signs, and that generally speaking such facilities as it provided at the park were of a scale and quality less grand than those provided in Nagle. Nevertheless, the Council had the park under its management and control and it maintained the park by mowing the lawns and providing play equipment and providing and cleaning toilets and it knew that the swimming hole was attractive to young people and that they made use of the park to obtain access to the log from which they dived into the swimming hole. In my opinion those activities were just as much calculated to encourage young people to use the swimming hole and to assume that the log was suitable for the purpose of diving into the swimming hole as the Authority's activities in Nagle were calculated to encourage members of the public to use the rock platform in question to dive into the sea.

27 In any event, the scale of promotional activities and other encouragement is not the sole criterion of an authority's duty to those who make use of facilities under its management and control. There are a number of cases in which it has been held that the mere fact of providing a recreational facility can be enough to impose a duty to guard against attendant foreseeable risk. While each case involves questions of fact and degree, and therefore cannot be used as a precedent,[13] the reasoning is instructive. One such case in which the reasoning is instructive is The Public Trustee as Administrator of the Estate of the late Peter Saroukas v Sutherland Shire Council[14]. The council there had the care, control and management of a park beside a bay and also of tidal baths that were separated from the bay by a walkway constructed by the council. The walkway had a rail fence around the outside of it but it was possible to climb through or over the fence and to dive from it into the bay, in which the depth of the water varied and was difficult and frequently impossible to assess. The council had installed signs to warn of the danger of diving into the baths and of the variable depth of the water in the baths but did not erect signs to warn of the risk of diving from the walkway into the bay. The plaintiff dived from the walkway into water after losing his shoe into it. Unbeknown to him, the water was only three feet deep at that point and he hit the bottom and was rendered quadriplegic. Gleeson, C.J., with whom Priestley and Handley, JJ.A. agreed, held that the council owed a duty to persons diving from the walkway into the bay and that it breached the duty by failing to erect an appropriate pictorial sign warning of the danger of diving from the walkway into the bay. As Gleeson, C.J. explained:

"Whilst it is true to say that the Council did not intend that people should dive from the walkway into the Bay outside the baths, nevertheless the Council provided a recreational facility which made that possible, and the risk that a person might dive out into Gunnamatta Bay from the walkway and suffer injury as a consequence was foreseeable...the necessary relationship of proximity between the respondent and the deceased existed, and the learned trial judge was correct in concluding that the respondent was under a duty to warn those using the walkway of the dangers of diving into variable depth tidal waters.

...The very existence of the Council's walkway going out into the bay creates the possibility that people will jump or dive from it and once it is accepted as a possibility that the Council's recreational facility will be used in that way then it would be taking far too narrow an approach to limit the Council's obligation to an obligation to give a warning to people who intend to jump or dive in one direction rather than in another."

28 I do not overlook the differences between Saroukas and this case. In Saroukas the council created the structure which caused the risk, whereas in this case there was no evidence that the council installed the log. In Saroukas there were some signs warning of the risks of diving into the baths and possibly, because of the absence of signs warning of the risks of diving into the bay, an implication that it was safe to do so. But I do not think that the differences are material. Once the Council developed the park, and thereby made the log available as a point from which it was likely that swimmers would dive into the swimming hole, it became just as foreseeable that swimmers would dive from the log into the water and put themselves at risk as it was foreseeable in Saroukas that swimmers might dive from the walkway into the bay and put themselves at risk.

29 I also do not overlook that foreseeability is not a sufficient basis for the

imposition of a duty to guard against a particular risk - it is plain that it is not[15] - and that there is also some uncertainty as to whether Saroukas would be decided today as it was thirteen years ago. The course of authority has not been consistent:

1. In the passage from Gleeson, C.J.'s judgment in Saroukas which is set out above, there is reference to "the necessary relationship and proximity". It resonates with the centrality which the High Court at the time accorded to the concept of proximity.[16]

2. Later, in Sullivan v Moody, the majority of the High Court said that:

"...Notwithstanding the centrality of that concept, for more than a century, in this area of discourse, and despite some later decisions in this Court which emphasised that centrality, it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established. It expresses the nature of what is in issue, and in that respect gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited. The present appeals provide an illustration of the problem. To ask whether there was a relationship of proximity ... might be a convenient short-hand method of formulating the ultimate question in the case, but it provides no assistance in deciding how to answer the question. That is so, whether it is expressed as the ultimate test of a duty of care, or as one of a number of stages in an approach towards a conclusion on that issue."[17]

3. In Pyrenees Shire Council v Day[18] Kirby, J. proposed the adoption of the three part test[19] of reasonable foreseeability, proximity and whether it is fair, just and reasonable, and his Honour reprised that conception in Romeo v Conservation Commission of the Northern Territory[20].

4. Later, in Sullivan v Moody[21], all members of the High Court except Kirby, J. rejected that idea, saying:

"What has been described as the three-stage approach of Lord Bridge of Harwich in Caparo Industries Plc v Dickman does not represent the law in Australia. Lord Bridge himself said that concepts of proximity and fairness lack the necessary precision to give them utility as practical tests, and 'amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope'. There is a danger that judges and practitioners, confronted by a novel problem, will seek to give the Caparo approach a utility beyond that claimed for it by its original author. There is also a danger that, the matter of foreseeability (which is often incontestable) having been determined, the succeeding questions will be reduced to a discretionary judgment based upon a sense of what is fair, and just and reasonable as an outcome in the particular case. The proximity question has already been discussed. The question as to what is fair, and just and reasonable is capable of being misunderstood as an invitation to formulate policy rather than to search for principle. The concept of policy, in this context, is often ill-defined. There are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles, which must be capable of general application, not discretionary decision-making in individual cases."

5. In Crimmins v Stevedoring Industry Finance Committee[22] McHugh, J. with whom Gleeson, C.J. agreed, said that there is no longer any general test for determining whether a duty of care exists and that the correct approach now is to commence by ascertaining whether the case comes within a factual category where duties of care have been held to arise. His Honour added, however, that while a statutory authority may frequently be held to owe a duty of care because the facts of the case fall within one of those categories, it is not enough to look for factual similarities in decided cases. In novel cases it is necessary to examine the precedent cases to reveal their bases in "principle and policy" and thus to determine whether fact A in the instant case is truly analogous to fact B in the precedent case.

6. More recently, in Graham Barclay Oysters Pty Ltd v Ryan[23], Gleeson, C.J. spoke in terms of the "the total relationship between the parties". On one view of the matter, "the total relationship between the parties" is proximity by another name.

7. More recently still, in Swain v Waverley Municipal Council, McHugh, J stated that the identification of a duty of care is dependent upon a "fact-value complex" in which are inherent "questions of fairness, policy, practicality, proportion, expense and justice".[24] With respect that looks like the test of "fair, just and reasonable" advocated by Kirby, J. in Romeo and rejected by the majority in Sullivan v Moody.

30 Accompanying the change in nomenclature there has also been a change in the specificity with which a duty of care may need to be defined, at least in some cases, and consequent change in the importance attributed to the standard of care as a discrete concept:

1. In the past and still at the time of Nagle, the majority of the High Court spoke in terms of a statutory authority having a "generalized duty of care" to members of the public who made use of facilities under the management and control of a statutory authority to take reasonable steps to avoid foreseeable risk of injury to those persons.[25] It was the same sort of duty as was held in Australian Safeway Stores Pty Ltd v Zaluzna[26] to be owed by an occupier to a visitor or the class of persons of which the visitor was a member. Specificity was reserved for description of the standard of care, or at least the breach of it, in terms of the particular action which "a reasonable person in the [authority's] situation would have taken to guard against the foreseeable risk of injury which existed".[27]

2. At the time only Brennan, J. was against that approach. He preferred the test formulated by Dixon, J. in Aiken v The Warden Councillors and Electors of the Municipality of Kingborough Corporation[28], of a duty to take reasonable care to prevent injury to the users of facilities under the charge of the authority to prevent injury through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care. His Honour considered that it was a superior test because it focussed attention on the nature of the danger itself as assessed prior to the event according to the obviousness of the danger and the care ordinarily exercised by the public.[29]

3. In Romeo[30] a majority of the court adhered to the Zaluzna/Nagle test. Brennan, C.J., however, reiterated preference for the Aiken test which he had advocated in Nagle and his Honour added with emphasis that there was no warrant for extending the duty to the taking of steps to protect the particular entrants from the consequences of their failure to take reasonable care to protect themselves.[31]

4. Kirby and Hayne, JJ., also spoke of the need for more precise identification of the risk against which a statutory authority was said to owe a duty to guard, with consequent effect upon the concept of breach. Kirby, J. said:

"The ordinary formulation of the common law is that a body such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the reserve, including the cliffs, as of common right. However, that expression of the duty must be elaborated if it is to be of any practical guidance. The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier."[32]

"In this case the Commission owed visitors who lawfully entered land which it managed, a duty to take reasonable care to avoid foreseeable risks of injury to them. But the bare fact that the risk of the injury which in fact occurred was reasonably foreseeable (in the sense of not far-fetched or fanciful) does not conclude the enquiry about the scope of the Commission's duty[33]. The duty is a duty to take reasonable care, not a duty to prevent any and all reasonable foreseeable injuries."

6. In Modbury Triangle a majority of the court spoke in terms which suggest rejection of the Zaluzna/Nagle conception of "generalized duty of care" in favour of more precise identification of the risk or harm against which a defendant is required to guard. Gleeson, C.J., with whom Gaudron, J. agreed, said:

"That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt. It is clear that the appellant owed the first respondent a duty in relation to the physical state and condition of the car park. The point of debate concerns whether the appellant owed a duty of a kind relevant to the harm which befell the first respondent. That was variously described in argument as a question concerning the nature, or scope, or measure of the duty..."[34]

7. Kirby, J. referred to what he had said in Romeo about the importance of identifying the scope of a duty and went on to define the duty in question precisely as one to take reasonable care for the avoidance of foreseeable risks of injury arising out of the criminal acts of a third party.[35]

8. Hayne, J., with whom Gaudron, J. also agreed, said:

"Noting that the appellant and first respondent could, respectively, be described as the occupier of land and an entrant upon that land does not wholly resolve the duty of care issue. There can be no dispute that an occupier of land owes some duty of care to those who enter it. But detecting that the parties stood in a relationship where one owed some duty of care to the other by no means exhausts the first in the traditional trilogy of issues in an action for damages for negligence: duty, breach and damage. The relevant question in the present case is not whether an occupier owes some duty of care to an entrant. The question is what is the extent of the duty which the occupier owes."[36]

9. Callinan, J. approached the matter on the basis that a different rule applies to the control of actions or conduct of third persons than applies to the duty of a public authority to guard against other sorts of risks.[37]

31 Be that as it may, the case against the Council appears to be clear. To begin with, it comes within a factual category where duties of care have been held to arise. As Hayne, J. put it in Romeo:

"It has now long been held by this Court that the position of an authority, such as the Commission, which has power to manage, and does manage, land which the public use as of right is broadly analogous to that of an occupier of private land. It is the management of the land by the authority which provides the necessary relationship of proximity between the authority and members of the public."[38]

32 In the second place, there were aspects of the total relationship between the Council and Mr Ballerini or the class of persons of which he was a member which made it reasonable that the Council should be under a duty to take reasonable care to guard him against foreseeable risk of injury which existed[39]. The development and encouragement of the use of facilities under an authority's management and control have long been recognised as important aspects of the relationship between the authority and members of the public who make use of them. Examination of the precedent cases reveals that it accords with principle and policy that such an authority be bound to take reasonable care to guard entrants against foreseeable risk. Shirt and Nagle are both examples. In Nagle the majority said:

"... In this case, the basis for holding that the Board came under a duty of care may be simply stated: the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who swam in the Basin. 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 activity so encouraged."[40]

33 In the third place, it makes no difference in the circumstances of this case whether the relevant duty is to be defined in the broad terms of the Zaluzna/Nagle approach, as one to take reasonable care to guard against the foreseeable risk of injury which existed, or in the more precisely defined terms of the Aiken test, of a duty to prevent injury through dangers arising from the state or condition of the premises which are not apparent. I have referred already to the nature of the park and the significance of the swimming hole and log as features of the park. I add that the park was established by the Council in 1970 and thereafter maintained by the Council as an attractive recreational facility. It was immediately adjacent to what appears to have been the centre of Barooga, directly across the street from the hotel and police station and houses. Throughout the whole period of its operation the park and the swimming hole had been used by the community with the knowledge and tacit encouragement of the Council as the sole swimming facility in Barooga. For the whole time the log had stood at the edge of swimming hole and been used by countless children for diving and jumping into the swimming hole without incident. In effect the log was a diving platform for diving from the park into a swimming hole which was a feature of the park. And until the time of the accident the risk that there was insufficient depth of water below it to dive was not apparent to the children that used it. In the result I consider that the log was so placed, adapted for diving and known to be used for diving that the Council owed to those children using the log for diving a duty no different to that which it would have owed if it had installed the log for the purposes of diving.

34 The Council contends that if any duty were owed in respect of the log it was owed by the Commission alone. As I follow the argument, it is said that just as a landowner is obliged to abate a nuisance emanating from the landowner's land, the Commission was obliged to remove the risk of injury resulting from the use of the log on its land, and it could have done that by cutting down so much of the log as passed over the lagoon. I do not accept that contention. If there is any parallel to be drawn between the law of nuisance and the law of negligence, and for present purposes I doubt it,[41] it would work against the Council. Just as a landowner is obliged to abate a known nuisance constituted of roots or boughs emanating from the landowner's land and affecting the enjoyment of other land,[42] the Council would be obligated to ameliorate the risks of use beyond its land of a log emanating from its land and creating a risk of injury on the other land.

35 The Council further contends that the judge was wrong in fact in finding that the Council by its management of Collie Park encouraged Mr Ballerini and others to swim in the swimming hole and to dive from the log into the swimming hole. It says that its management of Collie Park was essentially confined to mowing the grass and keeping the equipment of an enclosed playground in order[43] and that that is very different to the sort of management and control that was exercised over the beach in Nagle v Rottnest Island Authority. According to the Council the sort of management and control which it exercised over Collie Park was no different to that exercised by the Conservation Commission over the road and car park in Romeo v Conservation Commission (NT)[44]. That was not enough for the creation of a duty and the Council submits that the present case is a fortiori because the danger which was found to exist was on adjoining land. The Council says that the judge erred in failing to differentiate between the Council's statutory functions and its duty to take positive steps to avoid a foreseeable risk of harm to Mr Ballerini when he used the log to dive into the swimming hole.

36 It will be apparent from what I have said already about the Council's establishment and maintenance of the park that I do not accept that contention. Nor do I accept that the judge confused the Council's statutory functions with the Council's duty to guard against the risk of harm from use of the log as a diving point. The basis of his Honour's decision was the positive finding of fact that the Council:

"... 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."

37 The evidence bears that out. Mr McCallum and Mr McCormack gave uncontradicted evidence that the Council maintained the park by trimming branches and watering and mowing the lawns which stretched from the street down to the swimming hole. The photographic evidence, still shots and a DVD, show the park as a formed and maintained recreational facility close to the centre of Barooga. Mr Ballerini, Mr Brooks, Mr Dunn, Ms Ballerini and Mr. Wadeson all gave uncontradicted evidence that it was their own practice and the widespread and longstanding practice of the Barooga community to dive from the log without first checking the water. It was regarded as being so deep as to be without risk. Mr McCallum and Mr Perkins of the Council gave evidence that they knew how the park was used and knew that the log was used for diving into the swimming hole.

38 The Council contends that even if it owed some duty of care to Mr Ballerini the judge was in error in imposing a duty which extended beyond the central concept of reasonableness.[45] It says that his Honour failed to have regard to:

1. The fact that the Council did not create the actual danger. The Council contends that Graham Barclay Oysters Pty Ltd v Ryan[46] is authority that a duty of care will not ordinarily be imposed in such a case.

2. The fact that there was no evidence to implicate the Council in the placement of the log in the position it was and accordingly it did not create the access to the place of danger.

3. That the particular danger, if one existed, was the product of a transient act of nature, ie. a flood, which caused the bed of the lagoon to suffer a significant reduction in depth.

4. The fact that the log was not the only entry point into the swimming hole from Collie Park. Entry could be gained from any part of the park by descending the bank, which may have been easier or more difficult depending upon the depth of water in the swimming hole.

5. That there was no evidence that the Council was aware of any previous serious injuries being suffered by users of the log.

6. The fact that the park was an area set aside for passive recreation.

It is convenient to deal with those points in turn.

Graham Barclay Oysters Pty Ltd v Ryan

39 In my opinion the Council's reliance on Graham Barclay Oysters Pty Ltd v Ryan is misplaced. That case was concerned with circumstances in which courts will recognise an affirmative duty of care in a situation that has not yet been recognised by the common law. The point at issue was whether local and state governments were liable for failing to exercise such powers as they may have had to prevent the risk to commercial oyster production of infection from the polluted waters of Wallace Lake. The conclusion was that a public authority has no duty to take reasonable care to protect other persons merely because the legislature has invested it with a power of which the exercise could prevent harm to those persons. Thus, in most cases, a public authority will not be in breach of a common law duty by failing to exercise a discretionary power that is vested in it for the benefit of the general public. But as was also made clear in that case, if such an authority has used its powers to intervene in a field of activity and increased the risk of harm to persons, it will ordinarily come under a duty of care.[47]

40 The situation in this case is not one in which the law has yet to recognise an affirmative duty of care. For the reasons already given I consider that the situation here is akin to that in Shirt and Nagle and Saroukas. Nor is this a case in which the Council had not used its powers so as to increase the risk of harm to persons. To the contrary, as the judge found, it used its powers of management and control by constructing and maintaining the park in such a way as to afford ready access to the log and swimming hole, and thereby to cause children to think that the log was suitable for use as a diving platform. This is just the sort of situation where the law has recognised that an authority is under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the park and using the log and swimming hole.[48] As I have also said already, it does not matter whether there was evidence to implicate the Council in the placement of the log. The point is that the Council created and maintained the park with the log emanating from the park, extending over the swimming hole, and so appearing to be suitable for diving and jumping into the swimming hole. It was likely and the judge found it to be the fact that users of the park and in particular children using the park assumed that it was suitable for that purpose and the log was in fact habitually used for that purpose. It is those features which set this case apart from others like Vairy[49] and Tomlinson v Congleton Borough Council[50].

Transient act of nature

41 The suggestion that the danger of shallow water was the product of a transient act of nature is correct as far as it goes. The judge found that it was the result of a flood which caused the bed of the swimming hole to undergo a significant reduction in depth. It remains however that the risk was found to be one which for the Council was reasonably foreseeable. Based on the evidence of two fluvial geomorphologists, a farmer who had lived all his life in the area, and a surveyor, the judge held that the Council ought to have been aware that there could be significant changes in the depth of the swimming hole in the vicinity of the log and the introduction of hazards because of the alluvial nature of the lagoon and the flow of water through it from time to time and particularly in times of flood.

42 The Council criticises the judge's conclusion that the change in depth of the swimming hole was the product of the 1996 flood. It says it is an example of post hoc propter hoc reasoning that was unsupported by the evidence. According to the Council there was no expert evidence as such that the reduction in depth was due to the 1996 flood and, in the absence of that sort of evidence, there was no saying that the reduction in depth may not have occurred at any time after the end of the previous summer and as a result of no more than ordinary river flow and alluvial deposition and erosion. In that event, it is said, the risk which eventuated was an obvious risk which Mr Ballerini should have been able to foresee just as well as the Council, and thus against which the Council had no duty to guard.

43 I reject the argument. It was plainly open to the judge on the evidence to conclude that the change in depth was the result of the 1996 flood, and I would find on the evidence that the change in depth was the result of the flood. No doubt it could have occurred at some other time during the off-season period. The expert evidence to which I have referred shows it is possible if not probable that the floor of an alluvial river may change constantly with the deposition and scouring of alluvial material. But given that the pool had been very deep for at least twenty five years, that in that period of twenty five years there had been several floods of lesser duration than the 1996 flood, that none of those floods had affected the depth of the swimming hole, and that the 1996 flood was far and away larger and longer than any flood in living memory, it is more likely than not that the 1996 flood caused the change in depth.

44 It should not be thought, however, that I regard the point as one of great significance. The result would be no different if the finding had been that the change in depth was caused by routine forces rather than the cataclysmic effect of the 1996 flood. The Council would be in no better position: it ought to have known that a change of that kind was foreseeable.

Not the only point of entry to swimming hole

45 For the reasons already given I think to be irrelevant that the log was not the only entry point into the swimming hole from Collie Park. Perhaps entry could be gained from other parts of the park by descending down the lawns to other points along the bank. But the fact that it was so did not stop the log appearing to be suitable for diving into the swimming hole or deter children from using it for the purpose to which it was so obviously adapted and for which the Council knew that it was used. The evidence was that it was usual for children to dive from the log into the swimming hole rather than entering from the bank because it was easier and more fun than entering from the bank. The situation was analogous to Nagle. The plaintiff there could have entered the sea in any number of ways which would not have caused him injury, but the Authority was liable to take reasonable care to protect him from the risk of diving from the platform. So too in this case, the Council was under a duty to protect Mr Ballerini from the foreseeable risks of diving from the log.

Lack of previous injuries

46 The point about the lack of any previous serious injuries is met by the finding that, despite the past safe history of use of the log and swimming hole, the Council should have been aware of the potential for significant changes, particularly after flooding, and the risks associated with such changes. It may be added that the fact that there had been no previous injuries and that the depth had always been adequate made it more unlikely that children using the swimming hole and log would foresee the risk of inadequate depth and even more important that the Council guard against the foreseeable risks of such a change occurring.[51]

Park for passive recreation

47 Whether or not the park was set aside for passive recreation is also beside the point. By design or otherwise, but in any event with knowledge, the result of what the Council did with Collie Park was to make the swimming hole and log an attractive recreational feature of Barooga for swimming and diving. Those being the facts, it is irrelevant that the primary or dominant idea behind the park's creation and maintenance may have been the provision of a passive recreation facility, whatever that means. It was enough to give rise to a duty to take care to guard against the risks that the park afforded an attraction to the use of the log and the swimming hole and it was known to be so.

The Council's breach of duty

48 As a matter of law we are bound to approach the question of breach of duty on the basis of the test laid down in Shirt, namely:

"In deciding whether there has been a breach of the 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 a 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 in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors. "[52]

49 Recognising that to be so, the Council argues that even if it owed a duty of care to Mr Ballerini, the dangers of diving from the log into the swimming hole were obvious, and it says that it is not unreasonable to fail to take steps to guard against a risk that is obvious. It relies in support of that contention on the decision of the majority of New South Wales Court of Appeal in Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council[53]. The Council submits that Vairy and Mulligan establishes that a statutory authority does not breach its duty of care to users of facilities under its management and control by failing to take steps to guard against the risk of diving into water of unknown and variable depth.

50 It assists in the consideration of that submission to recall the facts of Vairy and Mulligan. Mr Vairy was rendered quadriplegic after diving off a rock platform into the sea at a New South Wales Central Coast beach. He had never dived from the platform before and he could not ascertain the depth of the water from where he stood on the platform, but he had seen many other people dive without mishap on previous occasions including immediately prior to his dive. Wyong Council had the care, control and management of the platform and was aware of the use of the platform and that the seabed in that vicinity was subject to variation as sands moved up and down the coast, but it took no steps to prohibit or warn of the dangers of diving from that point. The evidence also revealed that Mr Vairy's former uncle-in-law had suffered severe spinal injuries in a diving accident years earlier at another location. Mr Mulligan was rendered quadriplegic after he dived forward into a submerged bed-form from a standing position in thigh deep water at a creek in Coffs Harbour in New South Wales. He had never swum in the creek before, but for the half hour preceding the accident he had been wading out to the middle of the creek and diving forward into the current to be carried downstream. His injury occurred on approximately his sixth repetition of the activity. The bottom of the creek was not visible and, although Mulligan was aware of the variability in depth due to the presence of bedforms, he was unaware of the depth of water into which he dived. The creek was a popular recreational location and Coffs Harbour City Council, which had statutory powers of management and control, had enhanced and improved the creek for the purposes of swimming. At the time of the injury several other persons were either swimming in the creek (some were engaging in similar activity to Mr Mulligan) or recreating on its banks, predominantly the northern bank. The evidence revealed that the presence of bedforms in the creek would naturally vary with the ebb and flow of the creek's tides. At first instance, the trial judge upheld Mr Vairy's claim but dismissed Mr Mulligan's claim. On appeal a majority of the Court of Appeal (Mason, P. and Tobias, J.A.) held that Mr Vairy's and Mr Mulligan's claims both failed. Tobias, J.A. with whom Mason, P. agreed, reasoned that the council in each case owed a duty to take reasonable steps to avoid risk of reasonably foreseeable injury but that neither Council had breached its duty.

51 Tobias, J.A. characterised the risk or danger facing each plaintiff as a risk of significant injury resulting from diving into water of unknown and variable depth which turned out to be too shallow and, on that basis, his Honour held that the risk was obvious in the sense that it would be apparent to, and would be recognised by, a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. His Honour also thought it to be significant that neither plaintiff had taken proper care for his own safety in the face of a risk that was obvious. He considered that it followed from the obviousness of the risk and the failure of each plaintiff to take proper care for his own safety in the face of the risk that it was not a breach of duty for the Council not to warn or take any other steps to prevent the risk. Beasley, J.A. agreed with other judges in respect of Mulligan but dissented in Vairy. Her Honour was of the view that where the depth of water could not accurately be gauged by observation, most people assessed the risk of diving by the observation of others and, in those circumstances, that the trial judge had not erred in concluding that the authority breached its duty by failing to erect warning signs.

52 Tobias, J.A.'s judgment incorporates a detailed analysis of the authorities starting with Shirt, including the decision of the Western Australian Court of Appeal in Prast v Town of Cottesloe[54] (in which the plaintiff who had been body surfing many times was rendered quadriplegic when dumped by a wave while body surfing at Cottesloe Beach), and the decision of the New South Wales Court of Appeal in Swain v Waverley Municipal Council (in which a majority of the Court held that it had not been open to the jury to find that the authority was in breach of duty to a plaintiff who was rendered quadriplegic while swimming between the flags at Bondi Beach when he had dived through a wave and hit his head on a sandbar). His Honour identified in those authorities and in a number of others which he analysed what he described as a shift towards personal responsibility for one's conduct, especially in the context of sporting and recreational pursuits where the risk of injury is obvious. In his Honour's view that shift accords with current community perceptions of the reasonableness of a defendant's response to a foreseeable risk and is also the product of the High Court's recent emphasis on the proposition that people ought take reasonable care for their own safety, in connexion with which his Honour mentioned observations of Gleeson, C.J. in Tame v New South Wales[55] and McHugh, J. in Dovuro Pty Ltd v Wilkins[56].

53 The Council submits that Vairy and Mulligan dictates or at least accurately represents the approach which should be followed in determining the standard of care that was required of the Council in this case. I do not accept that submission. While Vairy and Mulligan is a decision of the New South Wales Court of Appeal, and therefore of course commands respect, I consider that the case turns on its facts. Despite superficial similarities, the facts in Vairy and Mulligan are very different to the facts of this case. In Vairy the depth of water was unknown and known to be variable, the activity of diving from a cliff into the ocean was obviously dangerous, and the authority actively discouraged it. In Mulligan the depth of the water was also unknown and known to be variable, and it was found that Mr Mulligan knew or at least ought to have realised that he was taking a risk of hitting his head on the bottom, and while the authority had improved and promoted the creek as a swimming spot, there is nothing to suggest that it knew or ought to have foreseen that swimmers would dive into water which they knew to be of unknown and variable depth. Contrastingly, in this case, Mr Ballerini's extensive experience led him to believe that the water into which he dived was so deep that he could not reach the bottom. From his perspective the risk that it was not deep enough was a concealed risk.[57] Additionally, the Council not only created the park and thus made the swimming hole and log a recreational attraction, but in effect encouraged the use of the log for diving. It allowed the practice to continue and it did not warn against it. In effect there are greater similarities between this case and Pennington's case,[58] which was also concerned with a town swimming facility established and maintained by the defendant authority, and in which the authority was found liable.

54 As to Tobias, J.A.'s analysis of the authorities_,_ I agree with respect with his Honour that a judge sitting without jury is bound to bear in mind that reasonableness should be judged in the light of current community standards and therefore that the judge's conception of reasonableness must reflect the foresight, reactions and conduct of ordinary members of the community. We have been warned more than once already that to do otherwise can only bring the law of negligence and with it the administration of justice into disrepute.[59] I also agree with respect with his Honour that the balancing exercise which that entails involves policy considerations of some significance.[60] As was noted when dealing with duty of care, the conception of what is reasonable may now be seen as involving a fact-value complex in which questions of fairness, policy, practicality, proportion, expense and justice are all inherent.[61] Obviousness of a risk is one factor to be considered as part of that process.[62] But obviousness of risk is not a principle, and as a proposition of fact it is not of universal validity.[63] As Gleeson, C.J. explained in Woods v Multi-Sport Holdings Pty Ltd[64], the description of a risk as "obvious" may require closer analysis in a given case, and as Gummow, J. stated in very clear terms in Swain,[65] whether or not a risk is obvious is a question of fact, not precedent.

55 Finally, the Council relies on observations of Mahoney and Samuels, JJ.A. in Phillis v Daly[66] to the effect that a given risk of injury may be so slight that an occupier is not bound to do anything to guard against it. The example given was of the risk of injury from a table in a room being so slight as to mean that an occupier need not remove the table or warn against risk of using the table.[67] By parity of reasoning the Council contends that it was not unreasonable for the Council not to remove the log or warn against the risk of it. I do not accept the argument:

1. In the first place, the assessment of the magnitude of risk depends on the facts, and they include the serious of the risk if it eventuates.[68] While it is unlikely that an injury resulting from use of the table would amount to much, it is probable that an injury resulting from a child diving from a log into a swimming hole would be very serious.

2. Secondly, in this case the judge was alive to the need to conform to community perceptions of reasonableness and his Honour was aware of the emphasis which must be put on the need for persons take reasonable care for their own safety. As his Honour said:

"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. The duty, however, has not been 'confined to one owed to those who are careful for their own safety'. 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."

3. Thirdly, as the judge pointed out, this case differs in a number of significant respects from other recent cases in which the courts have found no breach of duty of care. They include the age of Mr Ballerini, the hidden nature of the danger and the lack of obviousness, 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 the Council 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 - in effect a swimming pool with diving board - the use of which was facilitated and not discouraged by the Council.

4. Fourthly, I consider that the judge's analysis of breach of duty of care conforms to community perceptions of the requisite standard of response to foreseeable risk of harm. Given the magnitude of possible harm and objective probability of children being injured through use of the log, my view is that reasonable thinking members of the community would say, as the judge did, that the Council ought to have been aware that there was an on-going risk of very serious injury depending on river flow and, because there had been a prolonged flood shortly before the incident, that there was at the relevant time a heightened risk of such injury. Given further that there were two easy and inexpensive options to remove or alleviate those risks - removal of the log or a warning sign - I consider that reasonable thinking members of the community would also say, as the judge did, that it was incumbent on the Council as the responsible authority to adopt one or other of them. At least, as the judge said, the Council as the authority occupying, controlling and managing the park, and exercising reasonable care, should have checked the swimming hole area after any flood and certainly after the 1996 flood to ensure that it was safe prior to the commencement of the summer swimming season. Having then found that the area was no longer suitable for diving, as it undoubtedly would have found upon inspection, it should have removed the log or put up a sign. The foreseeable consequences to children diving in the belief that nothing had changed were so grave as to mean that to do nothing was negligent.

56 In summary, I find no error in the judge's analysis of the Council's breach of duty of care. It appears to me to accord with principle and to be consistent with the facts. In my opinion it was open to the judge to find as I would find that the Council knew or ought to have known that there was an on-going risk of very serious injury depending on the river flows and, because there had been a prolonged flood shortly before the incident, that there was at the relevant time a heightened risk of such injury and of the introduction of hidden hazards. Judged upon the basis of the fact value test laid down in Shirt, there was a duty on the Council to take reasonable steps to guard against that risk and as it happened there were two simple and low cost solutions to deal with the problem, either of which on the facts would have saved Mr Ballerini from injury. According to the current community standards of reasonableness, the Council was in breach of its duty of care by failing to take one or other of those steps.

Causation

57 The Council contends that the judge erred in finding that Mr Ballerini would have complied with a warning sign. Much is made of the fact that Mr Ballerini was reluctant in cross-examination to assert categorically that he would have observed a warning sign if it had been installed. The Council contends that his hesitation should have been seen as the result of fear that he would be lying if he answered affirmatively. Reliance is also placed upon answers to interrogatories which were inconsistent with Mr Ballerini's oral testimony and on evidence given by Ms Sorenson that she called out a warning to Mr Ballerini to be careful immediately or momentarily before he dived. I shall deal with those matters in turn.

Reluctance to assert the affirmative

58 I do not think that there is anything in the point about Mr Ballerini's reluctance to be dogmatic. As Lord Halsbury once said, it is an old expedient but seldom successful to ask a witness what he would have done if the facts had been as they should have been.[69] In truth it is all but impossible for a witness to say several years after an event what his mental condition might have been if the circumstances had been different at the time of the event. Consequently, if a witness is honest his hesitation to assert what might have been is ordinarily to be expected. It is also necessary to remember that the judge saw Mr Ballerini in the witness box and his Honour's perception of Mr Ballerini was of a reasonably responsible, careful, sensible, law abiding young man whose hesitation in testimony reflected a responsible approach to his obligations as a witness. Granted that this appeal is in the nature of a rehearing,[70] we are at a distinct disadvantage relative to the judge in attempting to evaluate Mr Ballerini's credit, and quite unable to achieve the sort of perception of the case that his Honour was able to derive from hearing the evidence as a whole.[71] Faced with the limitations which that entails, I am not be prepared to disagree with the judge about the significance of Mr Ballerini's hesitation in the witness box.[72]

Answers to interrogatories

59 The point about answers to interrogatories is more complex. In answers to interrogatories which were sworn on 26 May 2004 Mr Ballerini answered interrogatories 3 and 5 as follows:

"3. On the said date but prior to the occurrence of the accident, had the plaintiff:-

(a) dived into the water from the tree trunk;

(b) jumped into the water from the tree trunk;

(c) swum in the area of the lagoon where he dived at the time of the occurrence of the accident?

3. (a), (b) and (c) Yes."

"5. In the period of: -

(a) one week;

(b) one month;

(c) one year,

prior to the occurrence of the accident, had the plaintiff:-

(i) dived into the water of the lagoon from the tree trunk;

(ii) jumped into the water of the lagoon from the tree trunk;

(iii) swum in the area of the lagoon into which he dived on the said date?

5. (a), (b) and (c) Yes."

60 In oral testimony Mr Ballerini swore that the last time that he had dived into or swam in the swimming hole before the accident on 29 December 1996 was in January, February or possibly March 1996 at the end of the previous summer. When it was put to him in cross-examination that his oral testimony was inconsistent with his answers to interrogatories 3 and 5 he said that he had been confused when answering the interrogatories and that his testimony was accurate. When it was put to him that the answers to interrogatories showed that he had changed his story he denied it. The judge accepted what he said and the Council contends that his Honour erred in doing so in circumstances where Mr Ballerini did not call his solicitor to rebut the suggestion of recent invention.

61 It is puzzling that Mr Ballerini should have been confused or otherwise made a mistake in answering the interrogatories. They are clear and straightforward as he in effect acknowledged in the witness box. But as the judge observed, there are internal inconsistencies in other answers which suggest that he may have been confused or mistaken. One answer was plainly wrong in a way which could not have assisted Mr Ballerini. Just as importantly, his testimony concerning the day of the accident was corroborated by Ms Sorenson in respect of at least that part of the day in which he was in her company. Most importantly, there was in evidence a booklet written and published by Mr Ballerini when he was 17 years of age, and therefore some years before answering the interrogatories, in which he told the story of his accident in terms which were consistent with his oral testimony. Ms Sorenson's evidence and the contents of the booklet logically tended to answer the attack based on the answers to interrogatories.[73] In those circumstances I think that it was open to the judge to reject the charge of recent invention and to accept that Mr Ballerini was mistaken in the answers which he gave to interrogatories 3 and 5. It would not have been appropriate to draw an adverse inference from the failure to call Mr Ballerini's solicitor. [74]

Ms Sorenson's warning

62 Ms Sorenson was called as a witness in the plaintiff's case, after Mr Ballerini had given evidence, to rebut the imputation of recent invention which had been based on the answers to interrogatories 3 and 5. In her evidence in chief she said that on the day of the accident she had gone with her boyfriend and Mr Ballerini from her home to the fish and chip shop and from there to the park (she was uncertain whether they had eaten lunch at the fish and chip shop or taken it to the park and eaten it there), and that Mr Ballerini had then taken off his shoes and walked to the water while she and her boyfriend remained on the bank together. Ms Sorenson said that her attention was not focussed on Mr Ballerini, for among other reasons because she was with her boyfriend, but that as Mr Ballerini walked towards the water she had said something to him "in regards to just being careful, checking the water". She added that she could not remember exactly how she had put it and that he had not responded. She also recalled that between Mr Ballerini walking down to the edge of the water and when she heard the splash of his dive she had heard Mr Ballerini say hello to two boys who were on their bikes to the far side of the wire boundary fence of the park. In cross-examination it was put to her that she had said "Be careful. Check the water". She agreed. She also re-iterated that Mr Ballerini did not respond. She added that she had called that out because she had been taught by her parents to be careful.

63 The Council argued below that Mr Ballerini's failure to heed Ms Sorenson's warning showed that Mr Ballerini would have been unlikely to heed a warning sign if one had been erected, and hence that Mr Ballerini had failed to establish that his injuries were caused by the Council's failure to erect such a sign. The judge rejected that argument. The Council submitted in support of its argument that the failure of Mr Ballerini to go back into the witness box and deny that he had heard the warning led to an inference that Mr Ballerini would not have been able to deny that he had heard the warning. The judge rejected that submission. His Honour reasoned that:

"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 (Cross on Evidence, para 1215 and cases cited at footnote 24). In those circumstances, the defendants cannot demonstrate that the point has been reached where the plaintiff was called upon to explain or contradict (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 321, 322; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 at [51]). As a result the rule in Jones v Dunkel has no application."

64 The Council now contends that the judge was in error in declining to draw an inference adverse. That may be so. The rule in Jones v Dunkel has been held to apply as much to the failure to ask a witness about a subject matter as to a failure to call the witness, and also where a witness is not recalled as part of a party's case in order to deal with a fresh matter arising in the course of the evidence of a later witness.[75] Contrary to the judge's reasoning, this was not a case in which the Council was seeking to use the inference to fill up a gap left by silence or on which there was no evidence. Unless Ms Sorenson's evidence were to be rejected out of hand - and the judge did not suggest that he approached the matter on that basis - Ms Sorenson's testimony was evidence that Mr Ballerini was warned and thus evidence of a fact which required an answer. In those circumstances Mr Ballerini's failure to return to the witness box and deny that he had heard the warning entitled the judge to draw an inference that anything Mr Ballerini might have said on the subject would not have assisted his case.

65 It is, however, another matter whether the judge erred in concluding that Mr Ballerini did not hear the warning. I do not think so. According to the Council, Mr Ballerini's failure to return to the witness box and deny that he heard the warning was positive evidence that he had heard it and it followed that the judge was bound to conclude that he heard it. In my opinion that is not so.

66 Reference was made to the observations of Handley, J.A in Ferrcom[76] that:

"There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates 'as the most natural inference that the party fears to do so'. This fear is then 'some evidence' that such examination in chief 'would have exposed facts unfavourable to the party': see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who G could have given direct evidence when that party refrained from asking the crucial questions."

His Honour also referred to American authority including Milliman v Rochester Railway Co,[77] a decision of the Appellate Division of the Supreme Court of New York, in which it was held that if a litigant fails to produce a person known to be friendly to him and to his cause, who is so situated that he must have knowledge of the facts in issue, the jury is permitted to presume that the testimony of that person would not have been favourable to the party. But with respect I do not read those observations as meaning more than that the failure of a witness to return to the witness box and give evidence may enable a tribunal of fact to infer that the evidence which might have been given "would not have helped that party's case". I accept that some of the words used by Windeyer, J. in Jones v Dunkel are apt to imply something more, as do the American authorities which Handley, J.A. considered. But as at present advised, I take the position in Australia to be governed by the following passage from the joint judgment of Gibbs, A.C.J. and Stephen, Mason and Aickin, JJ. in Brandi v Mingot[78]:

"...In the authority relied upon by the Full Court, O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916, the joint judgment of Newton and Norris JJ does, we think, correctly state the law when it says (at 929) that a jury may infer that the evidence of the absent witness "would not have helped that party's case. With this may be contrasted the view expressed in the judgment now under appeal, that the proper inference is that the absent witness's evidence would have exposed facts unfavourable to the case of the party failing to call that potential witness. This latter approach reflects the views of Wigmore (3rd ed, par 285 et seq), as Street J observed in Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582. Like Street J, we too regard a narrower view, as expressed in the joint judgment in O'Donnell v Reichard, as that which has come to be accepted in Australia: Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39 at 61; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, especially at 308, 312 and 321; Lopes v Taylor (1970) 44 ALJR 412, per Windeyer J at 418 and per Gibbs J at 422; Nuhic v Rail & Road Excavations [1972] 1 NSWLR 204 per Jacobs and Mason JJA."

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.

[1] Except the last three words of the second-last sentence of [47]. The distinction between active and passive recreation is imprecise, but I can see what counsel was driving at.

[2] [1959] HCA 8; (1959) 101 C.L.R. 298. I am inclined to think, with respect, that his Honour did err in relation to that rule, or a variant of it, but the point need not be decided.

[3] In this paragraph I am speaking of a warning sign erected at any time. I do not confine myself to a warning sign following the 1996 flood.

[4] The suggestion that the Commission should have "abated the nuisance" raises its own problems, because the right of abatement is given to a landowner not with a view to protecting others but with a view to protecting his or her enjoyment of the land.

[5] Compare Swain v. Waverley Municipal Council [2005] HCA 4; (2005) 213 A.L.R. 249 at 250 [5].

[6] This is the conventional translation of Kierkegaard's Afsluttende uvidenskabelig Efterskrift. I realise that "unscientific" does not accurately capture the sense of uvidenskabelig.

[7] Mr Garling wisely argued that it mattered not for his purposes whether obviousness of the risk was considered under the heading of duty or breach, although he submitted that, if it were to be considered under the former heading, the Council's position was stronger.

[8] Donoghue v. Stevenson [1932] A.C. 562, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1963] UKHL 4; [1964] A.C. 465 and Caltex Oil (Australia) Pty. Ltd. v. The Dredge "Willemstad" [1976] HCA 65; (1976) 136 C.L.R. 529.

[9] That does not mean, of course, that the formulation of the test to be applied by the tribunal of fact, whether for breach or causation, is not a question of law or that a judge cannot rule that a particular finding of fact is, or is not, open. See State of Victoria v. McIver [2005] VSCA 50 at [10] - [12] but compare s.51 of the Wrongs Act 1958.

[10] Transcript 575.17 - .22; 617.23 -.31.

[11] See [6].

[12] [1993] HCA 76; (1993) 177 C.L.R. 423 at 427 .

[13] Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR at 32 [73].

[14] (1992) Aust Torts Reports 81-149.

[15] Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 C.L.R. 254 at 268[35]; Sullivan v Moody; Thompson v. Cannon (2001) 207 C.L.R. 562 at 572-573[25], 576[42], 583[64]; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 C.L.R. 540 at 555[9].

[16] Jaensch v Coffey [1984] HCA 52; (1984) 155 C.L.R. 549 at 584.

[17] Sullivan v Moody (2001) 207 C.L.R. 562 at 578[48], per Gleeson, C.J; see too Hill v Van Erp (1997) 188 C.L.R. 159 at 177-178, 188-189 and 210 -211.

[18] [1998] HCA 3; (1998) 192 C.L.R. 330 at 360[74].

[19] Adumbrated by the Lord Bridge in Caparo Industries Plc. v Dickman [1990] UKHL 2; [1990] 2 A.C. 605 at 617-8.

[20] (1998) 192 C.L.R. 431 at 476[117].

[21] (2001) 207 C.L.R. 562 at 579[49].

[22] [1999] HCA 59; (1999) 200 C.L.R. 1 at 29 [61].

[23] [2002] HCA 54; (2002) 211 C.L.R. 540 at 596[145].

[24] [2005] HCA 4; (2005) 213 A.L.R. 249 at 273 [79].

[25] [1993] HCA 76; (1993) 177 C.L.R. 423 at 430.

[26] (1987) 162 C.L.R. 479 at 488.

[27] ibid.

[28] [1939] HCA 20; (1939) 62 C.L.R. 179.

[29] [1993] HCA 76; (1993) 177 C.L.R. 423 at 440.

[30] (1998) 192 C.L.R. 431 at 454 [49], per Toohey and Gummow, JJ., at 458[66] -[67], per Gaudron, J., and at 460[75] and [78], per McHugh, J.

[31] (1998) 192 C.L.R. 431 at 444.

[32] (1998) 192 C.L.R. 431 at 478 [123].

[33] His Honour referred at this point to the passage of the judgment of Mason, C.J. in The Council of the Shire of Wyong v Shirt and Ors [1980] HCA 12; (1980) 146 C.L.R. 40 at 47-48 which is concerned with breach of duty.

[34] (2000) 205 C.L.R. 254 at 263 [17], per Gleeson, C.J. and at 270 [42] per Gaudron, J.

[35] ibid. at 274 [59] and at 276 [65].

[36] ibid. at 289 [102] and at 270 [42] per Gaudron, J.

[37] ibid. at 299 [139] and [140].

[38] (1998) 192 C.L.R. 431 at 487 [152]; see too Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at 576[147].

[39] cf. Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19 at [24].

[40] [1993] HCA 76; (1993) 177 C.L.R. 423 at 430.

[41] cf. Buckle v Bayswater Road Board [1936] HCA 65; (1936) 57 C.L.R. 259 at 280-281; Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 C.L.R. 512 at 566[120]-[126].

[42] Sedleigh-Denfield v O'Callaghan [1940] UKHL 2; [1940] A.C. 880; Proprietors of Strata Plan No.14198 v Cowell (1989) 24 N.S.W.L.R. 478; Delaware Mansions Ltd. v Westminster City Council Ltd. [2001] UKHL 55; [2002] 1 A.C. 321.

[43] Reasons for judgment at [62].

[44] (1998) 192 C.L.R. 423.

[45] cf. Swain v Waverley Municipal Council (2005) HCA 4 at [5], per Gleeson, C.J.

[46] [2002] HCA 54; (2002) 211 C.L.R. 540 at 575-576 [81].

[47] Ibid. at [99].

[48] Nagle v Rottnest Island Authority [1993] HCA 76; (1992) 177 C.L.R. 423 at 430; The Council of the Shire of Wyong v Shirt and ors [1980] HCA 12; (1980) 146 C.L.R. 40 at 48.

[49] Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) N.S.W.C.A. 247.

[50] [2003] UKHL 47; [2004] 1 A.C. 46.

[51] cf. Black v City of South Melbourne (1964) 38 ALJR 309.

[52] [1980] HCA 12; (1980) 146 CLR 40 at 47-48.

[53] Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) N.S.W.C.A. 247.

[54] [2000] WASCA 274; (2000) 22 W.A.R. 474.

[55] [2002] HCA 35; (2002) 211 C.L.R. 317 at 337[38].

[56] [2003] HCA 51; (2003) 215 C.L.R. 317 at 329[34].

[57] cf. _Ghantous v Hawkesbury City Co_uncil [2001] HCA 29; (2001) 206 CLR 512 at 639[355].

[58] Inverell Municipal Council v Pennington (1993) Aust Torts Reports 81-234.

[59] Tame v New South Wales [2002] HCA 35; (2002) 211 C.L.R. 317 at 354 [101]; Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 C.L.R. 317 at 329[34].

[60] Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) N.S.W.L.R. 247 per Tobias, J.A. at [23].

[61] Swain v Waverley Municipal Council at [79].

[62] Romeo v Conservation Commission of the Northern Territory (1998) 192 C.L.R. 431 at 478[123].

[63] Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 C.L.R. 460 at 474[45] per Gleeson, C.J., and at 499 [127] per Kirby, J.

[64] ibid.; see also Swain v Waverley Municipal Council at [140]; Jolley v Sutton London Borough Council [2000] UKHL 31; [2000] 3 All E.R. 409.

[65] [2005] HCA 4; (2005) 213 A.L.R. 249 at 286[140].

[66] (1988) 15 N.S.W.L.R. 65; see also Waverley Council v Lodge (2001) 117 L.E.G.R.A. 447.

[67] (1988) 15 N.S.W.L.R. at 74.

[68] Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 C.L.R. 423; Romeo v Conservation Commission of the Northern Territory (1998) 192 C.L.R. 431.

[69] Arnison v Smith (1889) 41 Ch. D. 348 at 369, per Lord Halsbury, L.C.; Drincqbier v Wood [1899] 1 Ch. 393 at 405; National Australia Bank Ltd v Cunningham (1990) A.T.P.R. 41-047 at 51,627.

[70] Freeman v Rabinov [1981] VicRp 52; [1981] V.R. 539 at 548; Williams; Civil Procedure, Victoria, at [64.01.160]; Warren v Coombes (1979) 122 C.L.R. 531.

[71] Fox v Percy [2003] HCA 22; (2003) 214 C.L.R. 118 at 125-126 at [21]-[25], per Gleeson, C.J. and Gummow and Kirby, JJ.

[72] cf. Allesch v Maunz [2000] HCA 40; (2000) 203 C.L.R. 172 at 180[23].

[73] Nominal Defendant v Clements [1960] HCA 39; (1960) 104 C.L.R. 476 at 480; see also Damon v Snyder [1970] VicRp 11; [1970] V.R. 81 at 82-83.

[74] Cross on Evidence, Aust Ed. at [1215], citing Wentworth v Lloyd (1864) 33 L.J. (Eq) N.S. 688 (HL).

[75] Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 N.S.W.L.R. 389 at 419; R. v G.E.C. [2001] VSCA 146; (2001) 3 V.R. 334 at 345; To Ho Ma Pty Ltd v Allen [1999] NSWCA 202; (1999) 47 N.S.W.L.R. 1 at 4; Cross on Evidence, Aust Ed. at [1215]; cf. Dyers v The Queen (2002) 210 C.L.R. 285 at 295 [17], per Gaudron and Hayne, JJ.

[76] Which were considered by this court in R v G.E.C. [2001] VSCA 146; (2001) 3 V.R. 334 at 345, per Vincent, J.A.

[77] (1896) 3 App. Div. 109; (1896) 39 NYS 274.

[78] (1976) 12 A.L.R. 551 at 559.

[79] (1998) 192 C.L.R. 431 at 487 [152].

[80] Romeo v Conservation Commission of the Northern Territory (1998) 192 C.L.R. 431 at 488 [157], per Hayne, J.

[81] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 C.L.R. 540 at 555[9]; Secretary, Department of Natural Resources v Harper [2000] VSCA 36; (2000) 1 V.R. 133 at 149 [48].

[82] Brodie v Singleton SC [2001] HCA 29; (2001) 206 C.L.R. 512 at 626[304].

[83] [2004] WASCA 57; (2004) Aust Torts Reports 81-739; see on appeal to the Supreme Court of Western Australia Court of Appeal [2004] WASCA 57 (31 March 2004); special leave to appeal was refused on 4 February 2005 in Uzabeaga v Town of Cottesloe [2005] HCA Trans 16.

[84] Commissioner of Main Roads v. Jones [2005] HCA 27 at [10] and [54].