Bowman v Nambucca Shire Council - [2020] NSWSC 1121 - NSWSC 2018 case summary — Zoe

NSWNSWSC

Bowman v Nambucca Shire Council

[2020] NSWSC 1121

Supreme Court of NSW|2018-11-21|Before: Walton J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-11-21

Before

Walton J

Catchwords

[2005] HCA 19 Uniting Church in Australia Property Trust (NSW) v Miller

Source

Original judgment source is linked above.

Catchwords

[2005] HCA 19 Uniting Church in Australia Property Trust (NSW) v Miller

Judgment (112 paragraphs)

[1]

INTRODUCTION

HIS HONOUR: By an amended statement of claim filed on 27 August 2018 ("the ASOC"), Mr Colin Bowman ("the plaintiff") brought negligence proceedings against Nambucca Shire Council ("the defendant"). The proceedings arise from a slip and fall by the plaintiff that occurred on 22 February 2015 on the Scotts Head Marine Boat Ramp ("the boat ramp") at Forster Beach, Scotts Head ("the accident"). The defendant had the care, control and management of a boat ramp. The boat ramp was constructed with the approval of the defendant.
On Sunday, 22 February 2015, due to the rough seas caused by a cyclone, Forster Beach was closed from 8.30am to 2pm. Later that afternoon, the plaintiff, together with his family, drove to the north-eastern end of Forster Beach to enjoy afternoon tea at a popular picnic spot which adjoined the beach on the headland at Scotts Head ("the headland"). The plaintiff's son, James Bowman ("James"), was the driver. In addition to the plaintiff, there were two other passengers in the vehicle: Debora Bowman, the plaintiff's wife at the time of the accident, and James' then girlfriend. James drove the family down to a picnic spot via an access road which moved in a northerly direction up the headland ("the access road"), which road eventually ended with a wooden staircase continuing north towards the Scotts Head Lookout.
Driving north to the picnic spot, the family drove through two car parks and past the Scotts Head Surf Life Saving Club ("the surf club") and the boat ramp. The boat ramp was used by members of the public accessing Forster Beach and/or launching boats.

[10]

ISSUES IN DISPUTE

The parties did not agree a common set of issues in the proceedings, although the characterisation of responsive sets of issues by the parties given by the defendant, namely, that apart from the plaintiff repeating its case as set out in the pleadings, as summarised below, the difference was essentially one of form.
It might also be noted that the plaintiff identified the two remaining issues in dispute, in the broad, at the outset of the hearing, as follows: 1. Does the warning sign on the eastern side of the boat ramp, adequately provide warning of the risk of slipping? 2. At the time of the slip and fall, was the plaintiff engaged in a "recreational activity"?
Putting aside particular factual issues and noting that the parties submissions will be further discussed below, the defendant's statement of issues as to liability then represents a reasonable starting point.
The defendant's statement of issues filed on 14 November 2018, as to liability, intersects with the two discrete issues raised by the plaintiff asset out above, in particular, their relevant intersections with the Civil Liability Act 2002 (NSW) ("CLA"). They are extracted below: 1. What is the scope of any duty of care owed by the defendant to the plaintiff, having regard to the considerations in s 42 of the CLA? 2. What is the relevant risk of harm for the purposes of s 5B of the CLA? 3. Was that risk of harm "foreseeable" for the purposes of s 5B(1)(a) of the CLA? 4. Was that risk of harm "not insignificant" for the purposes of s 5B(1)(b) of the CLA? 5. What precautions (if any) would a reasonable person in the position of the defendant have taken in response to that risk of harm for a person taking reasonable care for their own safety, having regard to (among other things) the considerations in ss 5B(2), 5C, 5G(1) and 42 of the CLA? 6. Was the defendant negligent in failing to take any such precautions? 7. If so, was the negligence a necessary condition of the accident for the purposes of s 5D(1)(a) of the CLA, in that the fall would not have happened had the defendant taken the relevant precaution(s)? 8. Was the risk of slipping on the boat ramp an "obvious risk" for the purposes of s 5F of the CLA? 9. If so: 1. Is there a presumption under s 5G of the CLA that the plaintiff was aware of that risk? 2. Having been aware of that risk, did the plaintiff voluntarily assume responsibility for that risk by proceeding to cross the boat ramp, such that there is no liability imposed on the defendant? 3. Does the defendant owe any duty to warn of that risk, given s 5H of the CLA? 1. Was the plaintiff engaged in a "recreational activity" for the purposes of s 5K of the CLA? 2. If so: 1. Was the risk of that activity the subject of a "risk warning" for the purposes of s 5M(3) and (5) of the CLA? 2. Does the defendant owe any duty of care for that activity, given s 5M(1) of the CLA? 1. Was the plaintiff guilty of failing to take reasonable care for his own safety?
Similarly, the defendant's statement of issues as to damages is broadly adequate: 1. What damage did the plaintiff suffer as a result of his fall? 2. What (if any) ongoing disability does the plaintiff suffer as a result of his fall? 3. What reasonable and necessary past and future treatment was/is required for the fall? 4. What reasonable and necessary gratuitous assistance was/is required for the fall? 5. Was the plaintiff's decision to take a redundancy from his job at the University of Sydney caused by any disability attributable to his fall? 6. To what extent (if at all) has the fall caused a diminution in earning capacity? 7. To what extent (if at all) has or will any such diminution in earning capacity been productive of economic loss?

[11]

Duty of Care

The plaintiff pleaded that at all material times the defendant was under a duty to take precautions against the risk of harm (set out below), which was foreseeable, not insignificant and, in the circumstances, a reasonable defendant in the defendant's position would have taken precautions (ASOC at para 13).
The defendant denied para 13 and each particular of the precautions to be taken. Further, in answer to para 13 stated "that the precautions which it took with respect to the ramp including a routine system of cleaning and signage were reasonable and sufficient to satisfy any obligation further to Section 5B(1) of the Civil Liability Act, 2002".Additionally, with respect to duty, the defendant further pleaded: 18. Further, and/or in the alternative, in the event the Defendant is found to have owed any duty of care to the Plaintiff, which is denied, the Defendant says it was not negligent pursuant to the principles in Section 5B and 5C of the Civil Liability Act, 2002 and if it is found to be have been negligent (which is denied) it relies on the principles set out in Sections 5D and 5E of the Civil Liability Act, 2002. 19. Further and/or in the alternative if the Defendant is found to have owed a prima facie duty of care to the Plaintiff, the Defendant says: a) If the Plaintiff's accident occurred as alleged (which is denied) the risk of slipping on algae on a wet boat ramp was an obvious risk within the meaning of Section 5F of the Civil Liability Act, 2002; b) The Plaintiff is presumed to have been aware of this obvious risk further to section 5G of the Civil Liability Act, 2002; c) It does not owe a duty of care to the Plaintiff to warn of the obvious risk pursuant to section 5H of the Civil Liability Act, 2002; d) The common law ordinarily expects person to exercise reasonable or sufficient care by looking where they are going and perceiving and avoiding obvious risks or hazards; e) The risk of slipping on algae, the presence of algae not being admitted, was not concealed or obscured and typical of a boat ramp in a marine environment; f) In any event, despite the above the Defendant provided a warning of the risk of the area being slippery both way of pictogram and words; and g) Accordingly it is not liable to the Plaintiff.
Nonetheless and subject to the availability of stator defences, in written submissions, the defendant submitted: "as the occupier of the boat ramp at the time of the accident, the defendant owed a duty of care to the plaintiff. The duty owed by an occupier is to exercise reasonable care so that the premises are safe for pedestrians and other users". Reference, in that respect, was made to the following authorities: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; [1987] HCA 7; Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 at [24].

[14]

Breach of duty

The plaintiff contended that the loss and damage suffered by the plaintiff, as particularised in the Third Statement of Particulars (set out below), was a result of the defendant's breach of duty.
The following was pleaded at paras 11, 11A and 12 of the ASOC: 11. On and/or about 22 February 2015 the plaintiff was a pedestrian walking across part of the said boat ramp when he slipped and fell as a result of the condition of the said boat ramp. 11A. At all material times the defendant was aware and/or ought to have been aware that the boat ramp would and/or could be used by pedestrian to access the beach. Particulars i) Section C of the Better Boating Program - Grant Application Form with a closing date of 29 July 2011. ii) Section D of the abovementioned document. iii) Email of 8 May 2012 from Tim Woolnough to Noel Chapman and others under the heading "Summary". 12. As a result of the plaintiffs slip and fall he suffered injury, loss and damage as is set out in the statement of particulars.
The defendant did not admit paras 11, 11A or 12. Further, the defendant stated that whatever be the reason the plaintiff fell it was not because the boat ramp was slippery in or about the location of where the plaintiff alleged he slipped and fell.
The breach of duty was particularised at para 14 of the ASOC, extracted below: Particulars of Breach of Duty of Care i) Allowing signs to be obscured by trees. ii) Failure to place appropriate warning signs warning of the risk of slipping on the said boat ramp. iii) Failure to close the boat ramp after advice of Noel Chapman, manager of civil works of the defendant on 6 February 2013. iv) Failure to rectify the said boat ramp after a report from Joanne Hudson to the defendant of a slip and fall which occurred on 6 February 2013. v) Failure to seek expert opinion as to means of preventing the boat ramp from being slippery after reports of slip and falls on the boat ramp in 2013 and following thereafter. vi) Failure to rectify the boat ramp after reports of injuries occurring from persons slipping on the said boat ramp which were reported by the Scotts Head Beach Surf Lifesaving Association and/or club members. vii) Failure to cut appropriate grooves in the said boat ramp. viii) Failure to regularly pressure clean the said boat ramp. ix) Failure to regularly inspect the said boat ramp and arrange immediate cleaning if it was contaminated by vegetation or other materials that would cause it to become slippery. x) Failure to carry out rectification of the slip hazard following advice of the hazard on 6 February 2013 by the general manager of Nambucca Shire Council. xi) Failure to rectify the risk of slipping and falling on the ramp after an email dated 24 January 2014 from Michael Coulter to Ken Fowler. xii) Failure to ensure that the boat ramp had a slip resistant surface. xiii) Failure to comply with Australian Standard 1657-1992 in that the boat ramp exceeded a 1 in 8 gradient. xiv) Failure to ensure that the boat ramp was constructed in accordance with the drawings with 25mm x 25mm gaps and if it wasn't so constructed arranging for such gaps to be placed within the boat ramp and/or to alter the boat ramp accordingly. xv) Failure to place large rubber mats on the said ramp. xvi) Failure to investigate means of reducing the risk of persons slipping on the said ramp due to moss or algae.
In answer to the plaintiff's pleading, with respect the alleged breach of duty, the defendant denied the allegations of breach of duty of care pleaded at para 14.

[16]

Loss and Damage

The loss and damage suffered by the plaintiff, pleaded at para 12 of the ASOC, was set out in the Third Statement of Particulars.
The Third Statement of Particulars sets out particulars of "injuries received" and "continuing disabilities", as follows: PARTICULARS OF INJURIES RECEIVED 1. Head injury. 2. Brain injury. 3. Injury to the lumbar/thoracic spine. 4. Injury to the elbow. 5. Injury to the ribs. 6. Injury to the hearing. 7. Obstructive Sleep Apnoea. 8. Significant Anxiety. 9. Sleep Anxiety. PARTICULARS OF CONTINUING DISABILITIES 1. Traumatic brain injury. 2. Reduced cognitive ability. 3. Concussion. 4. Post-traumatic amnesia. 5. Reduced recollection. 6. Reduced memory. 7. Reduced hearing. 8. Hiccups. 9. Sleeplessness. 10. Mood swings. 11. Headaches. 12. Pain and discomfort in the lumbar/thoracic spine. 13. Restriction of movement of the lumbar/thoracic spine. 14. Pain and discomfort in the elbow. 15. Restriction of movement of the elbow. 16. Pain and discomfort in the ribs. 17. Reduced ability to engage in social and/or recreational activities. 18. Reduced ability to perform work related activities. 19. Reduced ability to perform domestic activities. 20. Fatigue 21. Frustration, anxiety and the risk of further injury due to fatigue. 22. Sleep apnoea. 23. Cognitive dysfunction. 24. Difficulty in planning and organisation 25. Panic attacks. 26. Constructional Apraxia. 27. Impaired spelling 28. Visual Aura. 29. Mood disturbance. 30. Anger Bouts. 31. Severely impaired spontaneous incidental recall of complex visual information 32. Forgetfulness. 33. Difficulty concentrating. 34. Lack of motivation. 35. Frustration. 36. Behavioural changes. 37. Irritability. 38. Need for medication. 39. Need for further treatment. 40. Frustration and emotional distress related to his functional restrictions. 41. Reduced Energy 42. Restless Leg Syndrome. 43. Loss of interest in activities. 44. Reduced capacity to find pleasure in activities 45. Loss of confidence in decision-making. 46. Difficulty standing for extended periods of time. 47. Family Disruption.
By that same statement of particulars, the following was also included: 1. a partial particularisation of "out-of-pocket expenses" was included with a notation that "full particulars" would be provided in due course; 2. particulars of future out of pocket expenses were listed, with a notation that a claim would be made for those items in accordance with the medical evidence that will be served; 3. particulars of claim for domestic assistance or attendant care; 4. particulars of loss of income; 5. particulars of loss of earning capacity and future economic loss; and 6. superannuation, it was noted that the plaintiff would claim a loss of superannuation on both past and future economic loss at statutory rates.

[17]

Relief

The plaintiff claims damages, interest and costs (see para 15 of the ASOC).
As to the relief claimed by the plaintiff, the defendant provided the following answer: 22. Denies the Plaintiff is entitled to the relief sought or any relief at all sought in paragraph 15. 23. Further, says if the Plaintiff is entitled to an award of damages (which is denied) then those damages ought to be calculated in accordance with the Civil Liability Act, 2002. 24. Says if the Plaintiff suffered injury, loss and damages (which is not admitted) then section 16 of the Civil Liability Act, 2002 operates to affect the amount that may be awarded to the Plaintiff as damages for non economic loss. 25. Further, and in the alternative, if the Plaintiff suffered injury, loss or damage (which is not admitted) says such injury, loss and damage was caused or contributed to by the negligence of the Plaintiff and the Defendant relies upon Sections 5R and 58 of the Civil Liability Act, 2002. Particulars a) Walking along the ramp without taking care in the circumstances. b) Walking along the ramp in the water thereby being unable to see what he was walking upon c) Failing to avoid an obvious risk d) Failing to take not of the warning signs present e) Failing to take reasonable care in the circumstances. f) Wearing unsuitable footwear g) Failing to keep any proper or adequate look out for his own safety. h) Failing to test the area where he is alleged to have slipped with is foot before he moved onto it. i) Failing to have regard to the marine environment in which he was walking.
Before turning specifically to the issues in the proceedings, it is appropriate to traverse a series of controversies, largely factual in nature, raised in the submissions of the parties. Expressed broadly, those topics concern the following subjects or, more particularly, subsidiary subjects: 1. the location, dimensions and features of the boat ramp; 2. the risk of slipping at the boat ramp; 3. the signage at the boat ramp; and 4. the nature of the risk.

[24]

Project Details

Section C of the application form set out the "Project Details". The project name was described as "Scotts Head Boat Ramp". Under the heading "Project Description", the defendant provided the following description: The existing Scotts Head boat ramp/access point is a severely degraded concrete ramp extending from the level of the car park down 14m towards the beach. In summer, the sand in this area is scoured out, often leaving a drop of 30-50cm to the rocks and sand below. The proposed project will construct a boat ramp that is useable in all tide and sand conditions by creating a wider and longer concrete ramp, enabling boats to launch at high tide on one side or at low tide at the end of the ramp… The end of the boat ramp will be designed so sand is trapped below the concrete pad and not washed out, as currently happens. The project includes the removal of some of the existing concrete, plus the construction of a rock spillway on the southern end of the stormwater outlet to attenuate wave action at that point, which will help protect the sand deposited in that area. The proposed work will include filling in an existing dip where the ramp meets the car park so that the ramp is a smooth decline to the water. [Emphasis added.]
Under the heading, "Consultation" appeared the following question and answer: What consultation has been undertaken on the need and appropriateness of the project with the people/groups most likely to be affected and what views have been received? (eg. Local Council, Boat Owners Association, Estuary Management Committee, Aboriginal Land Council, disability groups or others) The project has been discussed with representatives of the Scott Head Fishing Club, the Macksville Scotts Head Surf Life Saving Club (which is located approximately 20m from the ramp) and the Nambucca Heads Offshore Fishing Club. Opinions have also been sought from individual boat ramp users on two recent site visits where possible options were discussed. In all instances, the current inadequacy of the boat ramp was highlighted, and the need for a better all-conditions boat ramp was agreed to be important. Another issue that was brought up which is related to the boat ramp, is that of pedestrian access to the beach. As recent wave action has demolished the only wooden walkway down to the beach at this location, the boat ramp had been the only access to the beach for pedestrians, and the 30-50 cm drop onto rocks has meant that any disabled or frail walkers could not get to the beach. The new boat ramp is expected to provide better access for all users, not just boats. [Emphasis added.]

[25]

Evaluation Criteria

Section D was entitled "Evaluation Criteria" and required a response by the defendant with respect to seven categories of evaluation, outlined below: 1. A Lasting Nature: "Demonstrate that the project involves infrastructure works of a lasting nature, which will improve the amenity on the New South Wales waterways for a significant period of time". 2. Benefits: "Applications must clearly demonstrate that the project infrastructure is available to be used by a broad cross-section of the boating public and marine sector, with unrestricted public access and its use is free of charge … The specific benefits to users and the broader community must be identified". 3. Completion Date: "Demonstrate that the project will commence within six months of the announcement of the funding grant and be completed within 18 months of this date". 4. Good Management: Application must provide evidence of, inter alia, realistic budgeting, a well-defined project scope and work plan, and support in writing from project stakeholders, including the owner of the site, the Local Council and the organisation who will be providing ongoing management of the facility. 5. Non-BBP Project Funding: Provide evidence of matching funding for the project. 6. Ongoing Operation/Maintenance Costs: "Demonstrate that where required, adequate ongoing operation/maintenance costs for the infrastructure works will be raised or made available". 7. Desirable Criteria: Administrative arrangements, community support, environmental benefit and socioeconomic benefits.
As to the "lasting nature" of the project, the defendant provided the following response: The boat ramp will be constructed to provide boat launching facilities for all-season conditions. The ramp will be poured concrete, using high-strength concrete, rated for marine conditions, and will be reinforced with either galvanised iron or stainless steel. This method of construction is simple and straightforward, and will require little maintenance over time. The lifespan of the new ramp would be at least 10 years. The ramp has also been designed to provide non-boating beach users with safe and easy access to the beach, removing the sharp drop off onto rocks which occurs with the current ramp; this is particularly important for disabled users. [Emphasis added.]
The section addressing "benefits" listed five benefits, as follows: 1. The boat ramp "will enable safer access to the ocean at the only point within 30km to the north (Nambucca) and 20km to the south (Stuarts Point)". 2. The boat ramp "is located on a public reserve and is open to all members of the public with no charges incurred for use of the ramp". 3. The "new boat ramp will make the spot able to be used by more people because the current ramp requires quite good trailering and launching skills to navigate the small space and to take the trailer over the lip of concrete and down to the sand". 4. The boat ramp "will also be used by non-boating beach users to gain access to the beach as recent wave action has destroyed the wooden walkway to the beach, and continual beach erosion at that point means that a replacement will not be possible for some time". 5. The defendant will continue to maintain the boat ramp and the defendant's policy is "for free access to facilities across the Shire".
The section on ongoing operation/maintenance costs stated: Once completed, the new Scotts Head boat ramp will be incorporated into the Nambucca Shire Council's ongoing works program, with maintenance costs determined on a yearly budget cycle and works carried out as required. Due to the nature of the construction, there are expected to be few costs associated with maintenance, and of these costs are likely to be minimal. [Emphasis added.]
Under the heading "Desirable Criteria", the project was described as having "a high level of community support" (based upon on-site interviews with boat ramp users), including from the Macksville Scotts Head Surf Life Saving Club and "two local fishing clubs". All three clubs provided letters of support.

[28]

BBP Grant and Conditions

By a letter dated 9 January 2012, the Minister for Roads and Ports offered a grant of $47,733, being half the costs of the project. The Hon Duncan Gay MLC stated: The NSW Government is pleased to offer Nambucca Shire Council a grant totalling $47,733 for the development of boating infrastructure in Nambucca. This amount consist of the following project: 1) $47,733 towards the Scotts Head Boat Ramp Reconstruction. A letter of offer, which includes the grant conditions and details of funding, will be issued to the council's General Manager by Roads and Maritime Services.
On 16 January 2012, the Roads & Maritime Services ("RMS") confirmed that the grant was subject to certain conditions. Those conditions are extracted below: 1. Council is required to obtain engineering certification of the concrete boat ramp on the sand, to ensure the ramp is stable with appropriate allowance for erosion. 2. Substantial progress on the project is demonstrated by September 2012 otherwise the BBP reserves the right to withdraw funding or consider offering the above funding amount to another BBP project applicant. 3. Ensuring detailed drawings of the proposed Project are submitted to the BBP for concurrence (if not already submitted) prior to any work being undertaken. 4. Council must inform the BBP prior to commencement of construction and liaise with BBP staff at least 3 weeks before completion of the project to install appropriate recognition signage. Signage options are attached.
The BBP grant of funding was accepted by Mr Michael Coulter, General Manager of the defendant, as an authorised representative of the defendant.
On 8 May 2012, Mr Tim Woolnough, A/Project Officer, BBP, sent an email to Mr Noel Chapman, Manager Civil Works for the defendant and Ms Coleen Henry, Grants Officer for the defendant.
The subject of the email was "Scotts Head Boat Ramp Reconstruction - Maritime Feedback" and followed Mr Woolnought's review of the plans for the boat ramp and a consultation with the local Boating Safety Officer. He provided the following feedback: • The ramp is vulnerable and requires robust engineering to prevent undermining and exposure to surf conditions. I note that the new ramp is to be over existing ramp so it should be on a solid foundation and the grade and addition of the extra sections of ramp should assist. • Engineering certification of the concrete ramp needs to be provided, to ensure the ramp is stable with appropriate allowance for erosion. • Manoeuvring in the car park proper could still be an issue, however could be overcomes [sic] with a code of practice for launching. •The Maritime signage is outdated and the local Maritime Boating Safety Officer will be able to work with Council on some suitable signage encased in one frame or on a single signage board (keeping in mind there is also a requirement for recognition signage at the location before the grant funds can be paid).
Under the heading "Summary", Mr Woolnought made the following further observations: A new improved ramp should increase usage and could potentially create safety issues for beachgoers and the general public. Without seeing the engineering detail this will need to be addressed - as previously suggested a pedestrian, trailer/vehicle management plan is needed. The local BSOA has advised that there has been some opposition to boating from the current Scotts Head Ramp by the Three Valleys Branch of National Parks Association. Several letters have been forwarded to Maritime requesting the ramp be shut down, although none of late. I understand there has been conflict between vessel operators and swimmers/surfers, so I suggest a need to make sure that the design takes into account the safety of all users and stakeholders. I note that NSC signage has changed from the attached photograph (the former yellow sign had a restriction of between 8am - 5pm for authorised vehicles only). I am unsure of the current restrictions. …

[34]

Slope and Gradient of the Boat Ramp

Mr Kiernan produced a report with respect to the proceedings. The report was entitled: "Colin Bowman: Investigation of a Slip and Fall Incident on a Boat Ramp at Forster Beach Scotts Head, NSW", dated 18 February 2016 ("the investigation report"). The following summary is based upon the evidence of Mr Kiernan, an expert witness in these proceedings.
The dimensions and the slope towards the water of each concrete slab were variable. They were distinguished by Mr Kiernan as follows: 1. The slopes near the access road were a "moderate" 7%. It may be noted that Mr Kiernan did not consistently distinguish between eastern, existing and western slabs, but rather, "upper levels" and "lower levels" of the boat ramp. As to the "upper levels" near the access road, Mr Kiernan described the slopes as "moderate". 2. The slopes on the southern leg were between 9% and 10%. 3. The slopes on the western slab were between 10% and 16%. 4. The slopes between the southern and western legs had "a very steep gradient of 17%".
Based on Australian Standards AS 1657-1992 and RMS Boating Guidelines, the maximum gradient for pedestrian surfaces is 1 in 8 (12.5%). In light of that criterion, Mr Kiernan observed, "some ramp slabs exceed the maximum pedestrian gradient for pedestrian surfaces".
The plaintiff contended that the gradient of the boat ramp is relevant to causation, namely, the defendant had a duty of care to take precautions to reduce the risk of slipping and falling, which included, inter alia, "to ensure that the boat ramp complied with Australian Standard AS 1657-1992".
As to the gradient of the slopes at the location of the plaintiff's fall, Mr Kiernan opined: The most westerly slab on the ramp, where the slip occurred, was exposed at 2.30pm, (tide level 0.31 metres), and was covered with a thin layer of sand. The gradient of this slab was 14.7%.
It may be noted that opinion is based upon a presumption that the location of the plaintiff's slip occurred on the western slab. In light of that opinion, the plaintiff contended that the boat ramp exceeded a 1 in 8 gradient, in contravention with that standard. I will return to that argument under the heading "Location of the Plaintiff's Fall" but I do not find that the defendant slipped at that location.
As mentioned above, in his report, Mr Kiernan referred to the eastern and western levels of the boat ramp as the "upper" and "lower" levels, respectively. There was a distinction between the eastern (higher) and western (lower) levels of the boat ramp, separated by the existing slab. The distinction between the two levels of the ramp is evident by the colour change between the two slabs, visible in Photograph 8 above.
The colour change reflects the different concrete surface colour of the new 160mm "upper" concrete slab which is brighter on the photograph (the eastern slab), and the older retained concrete slab from the previous ramp (the existing slab). According to Mr Kiernan, the part of the ramp that was retained as well as a south eastern extension in the reconstruction was obvious from the surface when he inspected it after the accident. During cross-examination, Photograph 8 was shown to Mr Kiernan. The expert accepted: 1. "the portion which is closest to the camera represents the old slab"; and 2. "the portion which is furthest away is new material".
He also accepted, on the basis of the engineering plan, the "new material" would be 160 millimetres thick.
Mr Kiernan gave evidence as to the following matters, which are uncontroversial: 1. The western level has a 200mm thick slab because it is expected to have high loads for launching boats and also because it was to be subject to wave action and inundation. 2. The eastern level, being 160mm thick, would not permit grooves to be cut into it without weakening the concrete slabs. 3. The eastern level is exposed to less effect from the sea; and would be covered by sea water only from time to time, and not for long. 4. It was an acceptable means of reconstructing that eastern level without grooves. 5. The slopes measured on site were a moderate 7% near the access road, where this eastern level was located. 6. It is appropriate to have a different engineering regime in respect of the eastern and western levels of the ramp.

[37]

Mr Kiernan's Evidence

As earlier mentioned, Mr Kiernan inspected the site on 8 February 2016. Following his inspection, Mr Kiernan observed that following differences between the engineering plan and the boat ramp as constructed: • Additional concrete slabs constructed between the proposed westerly and southerly extensions to the existing boat ramp that had some steep sections in excess of the safe pedestrian surface with a maximum slope of 12.5%. • Grooving of the concrete slabs was not carried out which improves slip resistance in wet conditions and visually warns persons using the ramp for boat launching or walking down to enter the water for swimming, that caution is required.
Following his observation as the steep sections between the southern leg and western slab and the absence of grooving, Mr Kiernan turned to pedestrian access. He opined: The boat ramp design did not take into account that pedestrians use the ramp as a short cut to enter the water for swimming and to access the beach to the south of the ramp. This pedestrian ramp usage is possibly greater than that of boat launching persons. While I was on site (a Monday with variable weather conditions), there was only one boat that used the ramp compared to about 20 people who walked down the ramp to access the beach or the water.
In the inspection report, particular attention was placed upon the western slab and pedestrian access at that point. He observed: At the time of the inspection the ramp was clean and only the westernmost slab had a green stained surface when the sand was partially removed, indicating this lower area is subject to marine growth. This slab with the sand partially removed is shown in Photograph 3. [Photograph 3] During the time I was at the site (about 3 hours), I saw several people walk down the ramp to enter the water for a swim. The parking areas beside the boat ramp are a convenient location to park and swim. Thus apart from people launching boats, there is a demand for pedestrian access to the water at this location. Information provided by Council recorded that people were using the ramp as access to the water and the beach to the south. Since the incident, pedestrian crossing markings have been placed on the concrete ramp directing pedestrians to walk adjoining the rock edge on the southern side where the gradient is moderate and the ramp is subject to less inundation by seawater. The pedestrian crossing markings are shown in Photograph 1. The pedestrian crossing markings were not used by persons walking down the ramp.
Mr Kiernan captioned "Photograph 3": "northerly view of the westernmost concrete slab near where Colin Bowman slipped". That photograph is extracted below. However, as earlier found, that is not the location of the plaintiff's slip and fall.

[38]

Photograph 11 - "Photograph 3" from the inspection report

The scope of Mr Kiernan's report did not extend to whether the slabs that "exceed[ed] the maximum gradient" were, in fact, "pedestrian surfaces".
In summary, Mr Kiernan's evidence, as to pedestrian usage of the boat ramp, was as follows: 1. Information provided by defendant "recorded that people were using the ramp as access to the water and the beach to the south". However, further precision as to the route was not included. 2. Since the accident, "pedestrian crossing markings have been placed on the concrete ramp directing pedestrians to walk adjoining the rock edge on the southern side where the gradient is moderate and the ramp is subject to less inundation by seawater". 3. On the day of his inspection of the site, Mr Kiernan observed that "[t]he pedestrian crossing markings were not used by persons walking down the ramp". He also observed "several people walk down the ramp to enter the water for a swim". As that second observation was made in the context of a discussion about the western slab, which included a photograph of the same, it may be inferred that Mr Kiernan was referring to a westerly route down the boat ramp. 4. Following his observation as to "additional concrete slabs" between the "westerly and southerly extensions", with a gradient of 12.5%, Mr Kiernan's observed: "The boat ramp design did not take into account that pedestrians use the ramp as a short cut to enter the water for swimming and to access the beach to the south of the ramp". The short cut being referred to appears to concern pedestrians traveling in a southerly direction towards the beach (and vice versa) in order to enter and exit the water or access the beach. His criticism of that design is based upon that fact that if pedestrians were to take such a short cut, it would appear from his evidence, at or above the intersection of the existing slab and the western slab, they would, in part, be traversing a gradient of 12.5% - well above the maximum Australian Standard.

[39]

Mr Fowler and Mr Coulter's Evidence

Mr Fowler, Risk and Safety Officer of the defendant, gave evidence that the boat ramp served a dual purpose, namely, to launch boats and provide vehicle access for four wheel drives to the beach. During cross-examination, he gave evidence that he was not aware that "pedestrian access" was an intended purpose of the boat ramp. That evidence is extracted below: Q. You're also aware that the ramp was constructed for pedestrian access, weren't you? A. No, I wasn't told that. Q. Has anyone ever told you that it was there for the purpose of pedestrian access? A. No.
That evidence needs to be considered in the context of the following: 1. As Risk and Safety Officer, Mr Fowler conducted regular inspections of the eight public boat ramps within the defendant's area. During cross-examination, he stated: Every time there's a public liability complaint, or could potentially be a public liability complaint, I go out and have a look to obviously gather some evidence and also to determine whether to obviously accept the complaint, or not to. 1. The 2012 refurbishment of the boat ramp was completed prior to the commencement of Mr Fowler's employment with the defendant. 2. On 30 January 2014, following an inspection of the boat ramp, in response to a separate slip and fall incident prior to the accident, Mr Fowler sent the following communication to Mr Coulter: Michael, I inspected all of our sea boat ramps on Tuesday and found that Scott's head was no better or worse than the other ramps. It did appear to be in a better state of repair though. The difference being that it allows 4x4 access to the beach … The problem is not boaties using the ramp as intended, but instead lazy pedestrians taking a short cut across the ramp to the car park rather than using the pedestrian ramp. Other than deep grooves cut into beach access ramps (any other treatments would be wrecked by 4x4s wheels & the action of the salt water) & additional signage I'm not sure what else could be done. … The complaint that sparked that communication was forwarded by Mr Peter McNally, a former captain (2012-14) and vice-captain (2014-15) of the surf club (and is set out below). 1. On 23 April 2015, following notification of the accident, being a potential public liability complaint, Mr Fowler visited the site of the accident. Mr Fowler took photographs of the site, which included a close up of pedestrian crossing markings that had been painted onto the eastern slab (some time after the accident). 2. During cross-examination, Mr Fowler gave the following evidence: 1. He accepted when driving through the area around the boat ramp you would have to be very careful of pedestrian and vehicle traffic in the area, which included: tourists, children, cyclists, people walking dogs and any vehicles that were on the boat ramp. 2. He was "not aware" that people with prams used the boat ramp. 3. He was aware that the surf club used to the boat ramp to "launch their rescue gear". 4. He would not recommend climbing over the rocks on either side of the boat ramp entrance. 5. He accepted that pedestrian used the grass area to the north of the boat ramp. He stated: "I saw pedestrians walking everywhere including on the ramp".
As to his knowledge of pedestrians frequenting the area, Mr Fowler gave the following evidence: Q. And knowing that you believed that the ramp wasn't for the use of pedestrians, as a safety officer did that concern you? A. It did and if you notice in the photos that's why I've got those white squares painted on there as a walk way. Q. When did they go off? A. Some time in 215/216. Q. Yes, it was after Mr Bowman's accident? A. Yeah. Yeah. We discussed a number of things to improve the safety of those ramp - well, that particular ramp, but I didn't realise people were actually walking straight off the grass over the rocks onto the ramp, because it's something I wouldn't have done.
The reference to "off" in the second question appears to be an errata and the question should read "When did they go on". The reference to "white squares" appear to be a reference to the pedestrian crossing markings pictured in the photographs annexed to Mr Fowler's statement (referred to above).
Mr Coulter, General Manager of the defendant (as earlier mentioned), gave evidence that the boat ramp was not for pedestrian access to the beach and identified the relevant pedestrian access to the beach as being "around 70 metres away from the bay". By that evidence he referred to "stairs down the other end of the surf club were still available. They were wooden type stairs that went down".
During cross-examination, Mr Coulter was taken through the BBP application form and accepted that, the defendant's position, at the time of submitting that application, was that the boat ramp "was for use for persons wishing to get down to the beach" - not just persons launching boats.
During cross-examination, Mr Coulter also gave evidence that participants in the surf club's "Nippers" program utilised the boat ramp. That evidence is extracted below: Q. If the surf club is running a carnival type day - you have those quite regularly during summer, don't you? A. Yes. Q. How many children would show up on one of those types of days? A. For a Nippers day we might have 80 to 100 children. Q. That 80 to 100 children are all using the ramp to access the beach? A. The large majority. Q. Is it correct to say that often what happens is that those Nippers and other persons are required to congregate on the ramp to get their activities worked out before moving onto the beach? A. No, no. It's a multi-use ramp. There's people launching boats. For example, I launch a surf boat from the ramp. There's lots of activities around the ramp. Pedestrians don't tend to stand on it for that very reason.
The plaintiff sought adverse findings be made against the defendant, particularly in light of the position held by Mr Fowler, namely, that the two employees of the defendant were unaware that pedestrians used the boat ramp to access Forster Beach.
The plaintiff submitted: 1. The Court would be entitled to find that, due to the fact that Mr Fowler was unaware that the ramp was used for pedestrian access to the beach, that lack of knowledge, having regard to his position as Risk and Safety Officer for the defendant, "showed a failure to investigate and/or to put into place appropriate means of removing the risk of injury which was well known and admitted to by the defendant". 2. The defendant was aware via Mr Coulter of a large proportion of children using the ramp to access the beach as part of the Nippers Program as well as many hundreds of people using that ramp during the summer seasons without any appropriate warnings being put into place.
In reply, the defendant contended, the objective reasonableness of the defendant's response to the risk cannot rationally be determined from Mr Fowler's subjective understanding of the facts giving rise to that risk. In any event, Mr Fowler had no involvement in the boat ramp, or any investigation into its slipperiness, until two months after the plaintiff's accident. This is evident, it was contended, from Mr Fowler's first statement. Further, it was contended, that the factual conclusions flowing from the analysis concerning the place of the fall and the characteristics of the ramp in that location deprive the submission of relevance.
The defendant also highlighted the following aspects of Mr Fowler's evidence from the hearing: 1. he was aware that the boat ramp in fact had a lot of pedestrian and vehicle traffic, especially in the summer periods; and 2. he was aware that the surf club used the ramp to launch their rescue gear.
In reply, the plaintiff submitted: 1. The defendant's submission that Mr Fowler was aware that the boat ramp had a lot of pedestrian vehicle traffic, especially in the summer months, is a misreading of Mr Fowler's evidence. I do not accept that reflects Mr Fowler's evidence. 2. Mr Fowler set out the evidence in relation to what would occur if you were driving into the eastern car park and drove past the surf club. It was indicated that you would then drive past the ramp on your left hand side, that there is a lot of activity on the beach, a lot of people in the area, lots of cars are moving in and out of the area, there are a lot of tourists and children in the area and that they are all within at various times the area around this ramp. 3. Mr Fowler went on to describe the pedestrians and traffic within the area, especially during summer periods, but specifically stated when asked whether he was aware that often people with prams used the ramp that he was not aware. He was unaware of anything occurring on the ramp except for the surf club launching their rescue gear. His answer that he was "not aware" was in answer to a questions directed to his knowledge of "people with prams us[ing] the ramp" and the scope of use by the surf club.
Overall, I accept the submissions of the defendant in this respect.

[41]

Travelling west down Boat Ramp

As to evidence of pedestrian access to Forster Beach via the boat ramp, in a westerly direction from the eastern to western slab, the following was before the Court: 1. Both James and the plaintiff gave evidence of accessing the boat ramp via two separate points along the rock wall to the north of the boat ramp. It is accepted that upon reaching the eastern slab, the plaintiff proceeded in a westerly direction, down the boat ramp, towards his son. 2. The complaint by Jamie Lamont dated 5 February 2013 (set out below), indicated the boat ramp was used by surfers to access the water by walking from the eastern slab down to the western slab. 3. The complaint by Mr McNally dated 24 January 2014, made on behalf of a 60-year-old woman who fell at the bottom of the ramp at low tide, indicated that pedestrians may utilise the length of the boat ramp from the eastern slab through to the western slab at low tide. 4. During cross-examination, Mr Coulter gave evidence that "the majority" of participants in the Nippers Program would utilise the boat ramp as access to Forster Beach. The witness was not asked to clarify the route taken in this respect.
As to the intention of the boat ramp being used as "access to the beach", the defendant contended that submission was "only partially correct". Reliance, in that respect, was placed upon the engineering plan and the evidence of Mr Kiernan (summarised above). It was contended, in light of that evidence: 24. Logically, the various references in the documentation and in the evidence of Mr Peter McNally, the surf club captain, to the ramp being intended for pedestrian use to access the beach must be understood by reference to the southerly or south-westerly direction most pedestrians would walk to access the beach. This can be seen from the photograph in Ex 8, p 27, which looks from the ramp entrance to the beach towards the south. 25. Hence those pedestrians would be walking on the "higher level" and the "southern leg" as described by Mr Kiernan. [Emphasis added.]
The photograph referred to in that submission is extracted below as Photograph 12.

[43]

Conclusion - Pedestrian Access to Boat Ramp

The BBP application made clear that the boat ramp was intended to provide better access for boat launch by the construction of a wider and longer ramp (for high and low tides and the elimination of dip at the access road end) and to provide pedestrian access to the beach after the demolition of a wooden stairway to the beach (a replacement not being possible due to erosion). Regard was had to disabled or frail persons not being able to traverse the rock wall.
The reconstructed ramp was to provide "safe and easy access to the beach" removing "the sharp drop off onto the rocks which occurs with the current ramp". It may be inferred that this is a reference to the southern eastern side of the existing ramp.
Reference was made to potential safety issues for beach goers and the general public from the reconstruction of the boat ramp, but this was subject to the engineering design.
The engineering plan (and construction of the boat ramp in accordance with the plan, save for some minor variations) demonstrated that a different engineering regime was drawn between the western and eastern slabs both in terms of the thickness of the slab and the gradient of the slab which corresponded to the location and use of the slab. The eastern slab would have much less exposure to the sea and bear less load from launching boats and was accordingly thinner. The gradient on the eastern slab (including the southern leg) was 7-10%, which was within the maximum gradient for pedestrian access under the Australian Standard whereas the western slab was between 10-16% corresponding to the ramp extending to a lower level, to give little water access. The existing slab, situated between the eastern slab and western slab, it follows, had a gradient between 7-10% (corresponding with the gradient of the respective slabs bordering the existing slab).
Mr Kiernan also opined that the "upper levels" had a safe slip resistant surface in contrast to the lower levels which were smoother and more greatly affected by algae and the like.
The design and construction of the boat ramp provided access to the beach from the access road and northern and southern car parks via the eastern slab using a south-western transit. It was not suggested that that "pathway", which was marked after the accident with a zebra crossing, was unsafe either in terms of gradient, surface or mode of access or egress.
Access to the water or beach via the western slab, or the additional concrete slabs between the western slab and southern leg, presented much greater risk of harm by virtue of gradient, slab surface and/or the increased presence of seawater and the growth of algae and moss.
Evidence as to the use of the boat ramp for pedestrian access to the beach at or about the time of the accident was limited, although the complaints to which I will refer in the next section of this judgment and the evidence of Mr McNally would suggest that some persons were travelling down the boat ramp to the sea in a western direction.
There is little or no evidence as to access by pedestrians to the beach via the south eastern extension or southern leg.
Overall, however, it is clear that the boat ramp was used for pedestrian access to the beach at and before the accident.
One view taken after the accident reveals a substantial number of persons accessing the beach via the boat ramp. Mr Kiernan's evidence is, in effect, that persons were traversing the ramp in a south westerly direction to access the beach. It would appear this occurred at the lower section of the boat ramp travelling down the ramp in a westerly direction.
Mr Fowler also referred to alternative route taken by the pedestrians. In response to a slip and fall that occurred at the western slab, he described a "short cut" route taken by "lazy pedestrians" which was not the "pedestrian ramp". Whilst the short cut was not precisely defined it may be inferred that he was referring to the lower levels of the boat ramp. His reference to the "pedestrian ramp" was, it may be inferred, referring to the upper levels on the eastern slab and a pedestrian movement in a south easterly direction across the eastern slab. That reference to a "pedestrian ramp", however, gives rise to an inference that at least the Risk and Safety Officer of the defendant perceived that such a route was an acceptable pedestrian pathway. This is further illustrated by the fact that after the accident, Mr Fowler arranged for the painting of pedestrian crossing markings (in the form of "white squares" resembling a zebra crossing) onto that section of the boat ramp.
Further, as to plaintiff's contentions vis-à-vis the knowledge of the defendant as to the fact of pedestrians accessing the beach, I accept, as previously noted, the submission of the defendant that the objective reasonableness of the defendant's response to the risk cannot rationally be determined from Mr Fowler's subjective understanding of the facts giving rise to that risk.

[47]

The Complaint by Jamie Lamont - 5 February 2013

On 5 February 2013, by email from Jamie Lamont to Mr Coulter, an accident was reported by Mr Lamont that as a result of there being "a large amount of slime" on the boat ramp and "no traction". An extract of that communication appears below: Unfortunately today I had an accident on the new boat ramp at Scotts Head and felt it necessary to get this acknowledged by Nambucca Council. At approximately 10.30AM I was chatting to a fellow at the boat ramp surfboard under arm. I walked from the dry area of the ramp down to the wet area to get in the water to go for a surf. The boat ramp I found out has a large amount of slime on it down near the wet area and as there are no cuts or ribs in the concrete there is no traction. Anyway I ended up with my two feet in the air landing on my back and elbow. My near new surfboard hit the concrete very hard and has received quite a bit of damage (dents, scratches and cracks). I was very lucky that I did not hit my head on the concrete. The fellow I was chatting to came over to assist me and I heard some people sitting on the grass yell out. The fellow that helped me said that this was not the first accident on the slippery surface. At present I have a very sore area at the back of my rib cage and I hope that this is a lot better tomorrow.
On 6 February 2013 at 7.38am, Mr Coulter forwarded the email of Mr Lamont onto Ms Joanne Hudson, Manager of Human Resources for the defendant. That communication is extracted in full below: Joanne, I think something needs to be done to provide better traction on the wet section of the boat ramp. Putting a series of cross cuts in might be one solution. But there may be others. Can you please discuss with Kev Clews what he reckons should be done. In relation to the surf board, I'd suggest asking Jamie to provide us with a quote for its repair. thanks [sic] Michael Coulter
By an email dated 6 February 2013 at 8.43am, Ms Hudson directed her reply to Mr Coulter's inquiry to Mr Chapman (with Mr Coulter copied into the communication). Her response is extracted in full below: Noel I spoke to AI about the ramp. It is on the Parks and Reserves maintenance program to be pressure cleaned once per month and at the moment, they are just waiting for a low, low tide. I have advised Michael that cross cuts will be ineffective (as advised by AI) but he wants more investigation into a solution, such as installing a hard rubber surface. Apparently, signage is adequate. As the Surf Club is aware of a number of slips on the boat ramp (the one below is the only official report to Council), Michael has asked that the matter be addressed as a matter of urgency. Can you please report back to Michael on the action taken. Thanks, Jo
Mr Coulter sent a reply to Ms Hudson at 8.55am, again including Mr Chapman, in the following terms: My query is that a structural solution should be investigated. I know that programmed maintenance with a pressure cleaner and algaecide would do the job but my concern is that if the maintenance doesn't get done for whatever reason (floods, tides, illness etc) the risk is significant. Jason [O'Donnell] believes that cross sections should be saw cut and a series of valleys cut out with a jack hammer. But there may be other options.
Shortly after the receipt of the communications from Ms Hudson and Mr Coulter, Mr Chapman sent the following communication at 9.31am: I have instructed that the ramp either be cleaned or closed immediately. Longer term solutions will be investigation. Any solution will have to be applied to all boat ramps.
An email communication was sent by Ms Hudson to Mr Lamont at 3pm on 7 February 2013, responding to his complaint. That communication was not before the Court. However, Mr Lamont's reply to that communication was tendered and is extracted below: Thank you for your response Joanne, I would like to point out some further information in regards to this incident. 1. You mention that there is adequate signage stating (warning of the slippery surface) I had a look at it this afternoon and note that there is a small image on the left hand side of the sign that is partially obscured by a tree. Also the fact that when I park at the point I always park on the east side of the ramp where there is seating and more room. When driving through the car park one must be looking out for other vehicles, children, dogs, pedestrians, fishing and surf club boats which tends to take your vision away from any sign especially one that is partially obstructed by a tree. I must admit I don't remember this sign and I note it looks quite new. So anyone that parks on the east side of the ramp that didn't happen to get a glance of the sign in question and then notice the little square image on the left hand side as they drive by watching for any pedestrian distractions who then gets out of their car and walk straight down on the ramp onto the slime and falls heavily is at fault. I feel a better warning for the ramp would be a lot safer for all, maybe something on the actual ramp. 2. you [sic] have stated that the ramp can't be maintained/cleaned until there is a low tide of around .2 meters, I note that the ramp was cleaned with a high pressure washer on Wednesday I understand and that on that day there was a low tide of .4, I also have been advised that the cleaning had been requested a few times and this had not happened. Funny how quick this was undertaken after my email. 3. The ramp itself has obviously been designed without any possible traction issues taken into account. I have used quite a few ramps in my time and most will have some sort of cross ribbing or grooving that assists with traction. I have been advised that a young girl also slipped in the same area earlier this year and hurt a wrist and also a car got into a lot trouble trying to retrieve a boat from the water, there is clearly some concern with this ramps surface. I can't accept your decision that I am at fault with the information I have listed above. If the ramp was 1 designed correctly, 2 maintained properly and also better warning signs about the ramp was more visible I can't help but feel i would not be writing this email. I look forward to your response. Jamie Lamont
A further email sent by Ms Hudson to Mr Lamont at 5.33pm on 8 February 2013, responding to his above communication. That communication was not before the Court. However, Mr Lamont's reply to that communication was tendered and is extracted below: Thanks for your response Joanne, I will use your correspondence and the information I have supplied to council and seek external advice on council's duty of care on this matter as I feel someone will get seriously injured on this ramp. Lucky all I got was a painful back and a few dings on the new board (could have been a lot worse). I will be in touch soon.

[48]

The Complaint by Peter McNally - 24 January 2014

By email dated 24 January 2014 at 8.37am, between Mr McNally and Mr Coulter, notice was given of a fall that occurred on 23 January 2014 on the boat ramp. That communication is extracted in full below: Michael Yesterday Afternoon at 6pm, a 60year old woman had a very heavy fall on the Scotts Head Beach Ramp. Jeff the Ambo, Jason and myself ran to her aid. She was crying and took a few minutes to get back up. She made a very load bang when she fell, and we were surprised she didn't break her hip or back. This accident was due to algae build up on the ramp, and as it was low tide, the bottom part of the ramp was exposed. The bottom few feet of the ramp were not properly cleaned last time it was done, as it wasn't low tide. This accident would have ruined the ladies holiday, and the Council is lucky not to have been sued over the accident. Could you please arrange for the ramp to be cleaned urgently, as it is peak period on the beach at the moment. We also have a Junior branch Championships event coming up soon, which will attract 300 - 400 people to Scotts Head. Thanks for your previous cleaning of the ramp before Xmas. Could you consider scheduling the ramp cleaning to a monthly basis please. Regards Peter McNally Club Captain Macksville Scotts Head SLSC
On 24 January 2014 at 8.56am, Mr Coulter forwarded the communication from Mr McNally to Mr Chapman and made the following request: Could you please arrange for the ramp to be cleaned and the requested monthly scheduling. The monthly cleaning schedule will need to be based on tide times to ensure the whole ramp is accessible.
Mr Fowler and Mr Richard Watts, another employee of the defendant, were also copied into that communication.
At 9.33am, Mr Chapman sent the following reply to Mr Coulter: The ramp is currently inspected and cleaned at least monthly, if not more frequently. We have no control over the tides and complete the works as best as possible and within all other works within our program. To this end the 1mps are often cleaned at weekends to fit in with tidal movements. Not all tide cycles provide full access to the ramp. Does this facility take precedence over all other works? As this is a "Boat Ramp" facility subject to tidal inundation and algae growth pedestrians should show due diligence and not use it as access to the water. A sign indicating the hazards will be relocated immediately adjacent to the ramp in order to provide greater public awareness.
Following that response from Mr Chapman, Mr Coulter sent the following communication to Mr Fowler at 10.10am: Ken Can you please have a look at this issue and see if you can figure out a better system for cleaning them. From past experience I don't necessarily accept Noel's assessment that it's all too hard. We obviously need to have a handle on when the low tide will expose the bottom of the ramp. There may be other treatments which can be used to improve grip - maybe a removable heavy duty rubber matt. There are a lot of coastal councils which have the same problem who might have some ideas. With the pattern of accidents on this ramp unless we do something it will only be a matter of time before we get a claim. Michael Coulter
In response to the 9.33am email of Mr Chapman, Mr Watts sent the following reply at 10:01am (and copied in Mr Coulter): Noel, monthly cleaning takes place on all ramps regularly but is subject to tide movement, kind tides and weather. Scotts Head ramp was last cleaned on 24/12/13 which is one month to the day. As for weekend cleaning, yes this has been quite regular but also necessary in trying to maintain safety. (UNTIL RECENTLY) Scotts Head ramp would not doubt benefit from a more frequent cleaning regime quite simply because of the large storm water outlet at Fosters Beach which does in fact aid in creating the blue-green algae. Is weekend cleaning acceptable and should it be more frequent?
Mr Coulter forwarded the email of Mr Watts to Mr Fowler at 10.11am.
In reply to that communication, Mr Fowler sent the following message to Mr Coulter (which is extracted earlier in this judgment, but repeated below for ease of reference): Michael, I inspected all of our sea boat ramps on Tuesday and found that Scott's head was no better or worse than the other ramps. It did appear to be in a better state of repair though. The difference being that it allows 4x4 access to the beach … The problem is not boaties using the ramp as intended, but instead lazy pedestrians taking a short cut across the ramp to the car park rather than using the pedestrian ramp. Other than deep grooves cut into beach access ramps (any other treatments would be wrecked by 4x4s wheels & the action of the salt water) & additional signage I'm not sure what else could be done. …

[51]

Conclusion: Risk of Slipping at the Boat Ramp

It is not disputed that the boat ramp was subject to tidal inundation, which results in the presence of algae growth and moss, particularly on the western end of the boat ramp which, by its location and design is more frequently covered and/or submerged by water. The tidal levels impact upon access to the boat ramp, in particular, for the purpose of any cleaning regiment. The above correspondence repeatedly sites the requirement of "low tide" in order to carry out pressure cleaning.
The factors of algae and/or vegetation growth and tidal levels create a risk of slipping on the boat ramp. However, as mentioned in the discussion of pedestrian access, the nature of the risk varied depending upon the section of ramp a person may stand. The two documented complaints do not provide precise locations as to the respective falls. On the account of Mr Lamont, he distinguished between two areas of the boat ramp: the dry area and the wet area. He identified the area of his fall as occurring in "the wet area", which he walked to as a means of entering the water "to go for a surf". Similarly, turning to the complaint reported by Mr McNally, the location of the woman's fall occurred at "the bottom of the ramp". The bottom of the ramp was exposed due low tide and had visible algae growth. It may be inferred that "the wet area" and "the bottom of the ramp" referred to the western slab of the boat ramp, although the part of the western slab where the accidents occurred is not clear on the evidence.
Whilst the defendant accepted that there was a risk of slipping when walking on the boat ramp, as will be discussed later, the defendant contended such a risk was obvious.
In light of the above evidence I make the following findings with respect to the slipperiness of the boat ramp: 1. Prior to the accident, there was evidence of marine growth and/or vegetation on the western slab of the boat ramp. This resulted in at least two slip and fall incidents. The first instance concerned a surfer accessing the water via the western slab. The second instance concerned an sixty-year-old woman that proceeded to walk in a westerly direction down the western slab, at low tide. 2. There was no evidence of marine growth and/or vegetation on either the eastern or western slab on the day of the accident. I accept that at the time of the accident, whilst the eastern slab was not submerged or inundated with water, the eastern slab was slippery due to the presence of rain and/or a residue of tidal waters or both. The evidence does not sustain a finding that the eastern slab was slippery due to marine growth and/or vegetation at the time of the accident (nor was that the ordinary course of things). 3. Given my findings below as to the location of the plaintiff's slip and fall, namely, slightly past the juncture of the eastern and existing slabs, I find that the boat ramp was slippery at that location due to the presence of water but it was not slippery due to the presence of vegetation growth and/or moss or a coverage of sea water. 4. I will find there was an obvious risk of slipping on the boat ramp if walking down the boat ramp in a westerly direction.

[57]

The Warning Sign

During cross-examination, the plaintiff accepted that he had seen the information displayed on the warning sign at the boat ramp prior to the accident. He gave the following evidence: Q. … You'd seen it before the accident, hadn't you? A. Yes, I'd seen a - a sign. Q. And you could see on it that, for instance, there was circles with lines through objects down the bottom, couldn't you? A. Yes, yes. Q. And that would suggest, in your experience as a security guard, that that was telling you that that involved something you weren't allowed to do there? A. Yes. Q. And then above that you could see the yellow diamond shaped things. You could see those, couldn't you? A. Yes. Q. And that would tell you that there's some sort of warning going on, is that fair enough? A. Yes. Q. And then indeed above those is the word, "Warning," written in red, isn't it? A. It's hard to see. Yes, there is. Yes. Q. There's some small print to the right of it. Were you aware of that? No, not on the - in the sign. A. I don't - no, I don't know what - I don't know what any - any prints or writing, I don't know. … Q. … If you look below it in the second line of yellow triangles, the first one on the left A. Yes. Q. you can see, can't you, that that is a sign which has beneath it, "Slippery area"? A. Yes. Q. And it shows, doesn't it, a person falling over backwards? A. Yes.
During re-examination, the plaintiff returned to his evidence with respect to seeing the warning sign "before the day of the accident" (as opposed to immediately prior): Q. At transcript 25, line 45, or 43, you were asked this question: "This sign, that is, in this photograph," and remember you were being shown a photograph of the sign. A. Yes. Yes. Q. You'd seen that before the day of the accident, hadn't you? A. I've seen a sign. Q. That's what you said, I think, at line 2, "Yes, I'd seen a sign." What did you mean by, "A sign?" A. I never took it - notice of what was on it. Just that there was a physical sign standing there. Nothing stood out to me.
Mr McNally also gave evidence with respect to his perception of the warning sign. He stated that he had only noticed the "slippery" warning, depicted on the warning sign, two days prior to giving his evidence and was critical of the functionality of the sign based upon its size.
Whilst he conceded the sign was warning of danger, he said "it's warning of too many things in the one sign" and suggested that "nobody" gets up close enough to read all the warnings.
During cross-examination, Mr McNally was asked the following questions: Q. Tell me this, Mr McNally, if it was down to your choice would you have 22 signs placed here? A. I'd have signs appropriate with the - the most necessary signs being the largest and things like, you know, "Boat ramp," which is very obvious, you know, that doesn't really deserve a sign. Q. When you say, "It's very obvious," it's obvious-- A. Well-- Q. --to you that a boat ramp cam be slippery, isn't it? A. Well, the boat ramp was slippery at that time, yeah. Q. But all boat ramps tend to become slippery, don't they? A. Yes, yep.
On 23 April 2015, as earlier mentioned, Mr Fowler visited the site of the accident some two months after the accident. During cross-examination, Mr Fowler gave the following evidence in response to questions concerning the adequacy of the sign: Q. As a safety officer, I want to suggest to you that that sign was inadequate. A. It meets the guidelines. Q. So that is the test that you put down, is it? A. It is. Q. But that test is subject to the fact that you didn't know that the ramp was open to pedestrians. A. It's the same sign we use on every other boat ramp. Q. But does every other boat ramp have pedestrian access? A. Potentially, yeah. Q. It's not the only means of access, on all other boat ramps, to a beach, is it? A. I'm trying to remember all our boat ramps. Now, potentially, yeah, there is one or two. Q. One or two that access the beach? A. Yep. Q. Are those boat ramps designed to have pedestrian access? A. They are just concrete slopes into the water.
The defendant contended that the above responses had nothing to do with "the adequacy of the sign in warning people of slipping on the ramp and nor did it relate to the slipperiness of the ramp for pedestrians". I accept that submission. The above evidence supports a finding that the boat ramp signage, based upon the experience and knowledge of Mr Fowler, met the requisite "guidelines" and was not dissimilar to the signage posted at the remaining boat ramps within the defendant's control including those providing pedestrian access to the sea.
At this juncture, it is sufficient to note the controversy that existed vis-à-vis the adequacy of the warning sign. It is not in dispute that the defendant erected a warning sign. I will return to a resolution of the issues in dispute, in this respect, in the context of a discussion of the law and submissions as to the availability of statutory defences under the CLA.

[59]

Arrival and Afternoon-tea at Forster Beach, Scotts Head

On 22 February 2015, at around mid-afternoon, the plaintiff arrived at Scotts Head in a car with Mrs Bowman, James and James' then girlfriend. James gave the following account of the decision to drive to Scotts Head in his evidentiary statement: 5. On 22 February 2015, the four of us drove to some local markets to spend the morning looking at the stalls. However, when we arrived we found that the markets were closed for the day. We then went to a picnic spot in the nearby national park for lunch. After lunch, it was quite humid, so we decided to drive to Scotts Head to cool down on the beach by the water. 6. At approximately mid-afternoon the four of us arrived at Scotts Head and we parked the car at the boat ramp. To get to the boat ramp you need to drive past the surf life save club. As you drive towards the boat ramp the club is on your right-hand side. The surf club is next to the boat ramp.
As earlier mentioned, there is a car park on both the northern and southern sides of the entry to the boat ramp. As mentioned, James, who was driving at the time, drove past the boat ramp and parked the car in the northern car park. The northern car park was to the right of the boat ramp entrance and was closes to the table that the family wished to have afternoon tea. Upon parking the car, the family proceeded to have afternoon tea at the "whale-shaped" table overlooking the beach.
Photograph 4 depicts the view from persons seated at the table, looking south in the direction of the boat ramp.
The plaintiff gave evidence that the normal way in which he negotiated between the table and the boat ramp was to walk along the dirt track. However, as to the precise route he took on the day of the accident, he could not recall.
As earlier mentioned, the dirt track is a worn path, which proceeds to the boat ramp by passing behind the warning sign, which was erected near the top of the boat ramp on the northern side, and in front of some trees. In written submissions, the plaintiff submitted that the sign was "facing in a generally south western direction". The photographs before the Court reveal that whilst only the rear of the signage, which was unmarked, was visible from the dirt track, the signage provided a prominent display that was visible to vehicles driving north on the access road. A photograph of the signage from the viewpoint of the dirt track appears below as shown in Photograph 18.
The plaintiff gave evidence that he does not recall being at the boat ramp at Scotts Head on 22 February 2015, his last memory of events on that day was prior to arriving at the boat ramp, this was due to the impact of the plaintiff's head with the concrete ramp when he fell. His evidence, in that respect, is extracted below: Q. Do you remember what you had on your feet, Mr Bowman, on the day? A. No, I don't, sorry. I don't remember. I think Q. Do you know where you were going? A. In the morning? When I Q. No, then. When you A. No. I - no, I've got no memory of the day, sorry, at all.
In the result, the evidence as to the day of the accident, in particular the events surrounding the plaintiff's slip and fall were primarily derived from the accounts of James and Mrs Bowman.
At this juncture, it may be noted the defendant submitted that no finding can be made as to the plaintiff's footwear, if any, at the time of his fall. He had no recollection of what he was wearing, and no evidence was adduced on the issue.

[61]

Photograph 17

In his evidentiary statement, James provided the following account of his approach to the water: 8. On 22 February 2015 I was driving, I recall parking the car on the eastern side of the boat ramp. There is a distinct table on the eastern side of the boat ramp made of concrete and in the shape of a whale. I parked the car next to it and we had afternoon tea on it. 9. While we were at the headland I stepped in some dog poo and I had to walk down to the water to wash my feet. I walked down to the water by walking down the rocks on the eastern side of the boat ramp. 10. After I washed my feet I was standing at the bottom of the boat ramp enjoying the cool water. I could feel sand under my feet, I believe there was also concrete under the sand. The water was up to about my ankles. As I was standing in the water I noticed my father was walking down the boat ramp towards me. I was facing directly towards him, my mother was 2 to 3 metres away from him.
During examination-in-chief, James gave the following evidence as to his path to the water: Q. In order to go down and wash your feet, are you able to indicate from that photograph the path that you took? A. Part of the path, yes. Q. Which way did you go, in relation to the vehicles, or the logs, or the trees? A. I went to the right hand side of the logs. There's a well trodden path in the grass there. Q. How far did you go towards the ramp? A. I went up to about 2 metres from the ramp itself and went down to the rocks. Q. "To the rocks", does that refer to rocks that were near the ramp? A. They were about 2 metres away from the ramp. Q. Did you go down and wash your feet? A. I went down to wash my feet. Q. Can I then take you to photograph number 6. In relation to that photograph can you indicate where you walked? A. Yes, I can. Q. Where was it? A. Initially, I started off next to the posts that were in the left hand side of the photograph and then I went in front of the trees, trying to identify a place where I could get into the water to wash my feet.
During cross-examination, James provided further details as to making his way past the rocks or "boulders" to the water. That is extracted below: Q. I presume that you walked down, or climbed down these boulders, frontwards? A. At times frontwards, other times I was side-stepping down. There was a couple of large boulders, so my body would twist and turn at different periods. Q. What did you actually have on your feet, apart from the remnants of the dog's business? A. Yes. I had a thong on one foot, and I took that thong down in my hands and I had faeces on my feet as well. So I was barefoot. Q. And I take it you needed to exercise some care as to where you placed your feet in those rocks, because you were bare-footed. A. It was the tactile nature of getting down, yes. Q. Did you use your hands at all to get down? A. No. The boulders aren't that large. Q. But in any event, the general direction in which you approached the beach from the top of the rocks was frontwards. That is, the front of your body going down the rocks. Is that right? A. Not the entire time. Q. How much of the time? A. I couldn't boil it down to a percentage, but there were times when I had side stepped down a rock and I could see my father. Q. Which direction did you side-step down the rock? A. Right leg down. Q. Right leg down? A. Yes. Q. So you would have turned slightly to your right to do that, wouldn't you? A. No. Q. How would you accomplish that? A. I can demonstrate to you. Q. Just describe it to me first. A. Okay. If I put my right leg down first in a side-step motion, I tend to twist. And then I can see my father to my left.
Mrs Bowman also provided an account of James' approach to the water and his proximity to the plaintiff. The account is extracted below: 12. James walked across some rocks on the north east side adjacent to the concrete ramp (the right as you were facing down the boat ramp to the water's edge). After James had entered the water I saw Colin start to walk down the concrete ramp towards where James was in the water. I was standing on the grass on the north eastern side of the ramp. I estimate that I was 10 metres away from Colin.
During cross-examination, Mr Kenneth Neil Fowler was also questioned about the "rocks" on either side of the boat ramp: Q. Around each side of the ramp there are rocks? A. Yep. Q. You're aware that those rocks are of a nature that sometimes people climb over them, sometimes they don't? A. It's not something I would recommend. No. Q. If you weren't going to climb over the rocks and you are somewhere in those two car parks, the way you would get down to the beach is by going down the boat ramp? A. I wouldn't, because it's a boat ramp.

[64]

Photograph 19

In that same photograph, a hand drawn "X" is also visible. During re-examination, James was also asked to mark with a cross where he first saw his mother at the top of the ramp. He said "it was basically the same site". This was consistent with the evidence of Mrs Bowman who stated she was "a couple of metres" from the boat ramp and "standing on that grassed area".
During cross-examination, Mrs Bowman gave evidence that the plaintiff was, at the time James was beginning to make his way down the rocks, "within a couple metres of me".
Based on the evidence of both James and Mrs Bowman, the plaintiff walked down the boat ramp from near the beginning of the boat ramp on the eastern side towards the location of his son.
During cross-examination, James was cross-examined at length about his ability to view his father whilst he made his decent down the rocks to the water. First, he was questioned with respect to his need to focus on his decent, as follows: Q. Your concern would have been to get down the rocks without injuring yourself, wouldn't it? A. Well, you could say that, but it's a general activity, climbing down a rock. Q. It's not something you'd done at this location, is it? A. Not at this location. Q. And you didn't know anything about these rocks before you started climbing down them, did you? A. Rocks tend to be different at all locations, so the general activity is the same wherever you go. Q. There could have been broken glass in the rocks. A. I've never come across broken glass on rocks prior to this. Q. Never? A. No. Q. Never seen broken glass at the beach? A. No. Q. There could have been sharp objects within the rocks, couldn't there? A. A rock could be sharp. Q. And you'd want to avoid that in bare feet, wouldn't you? A. To some degree, yes, but it's not a dangerous activity by any means. Q. If you feel it could be dangerous, couldn't it? A. If that situation arised. Q. One of the ways in which that situation could arise would be if you missed your footing. Would you agree with that? A. Possibly. Q. And if you missed your footing, you could fall - what, from the top of these rocks to the bottom? A. Yeah. It's a good 30 or 40 centimetre of a drop. Q. It's a good 30 to 40 centimetre drop, is it? A. Over the entire thing. It's not a huge exercise to get down to the water level.
Second, James was then cross-examined at specifically about his ability to view his father. That evidence continues below: Q. You, at that stage, have no idea where your father was, do you? A. That is not correct. I - during the entire time I had a clear field of view of my father. Q. But he was behind you, was he not? A. He was to my left, behind me, so, yes, I could still see him. Q. How far away from you was he? A. Within a metre or two. Q. When you saw him just before he fell he was coming down the ramp, wasn't he? A. Yes. Q. You couldn't have stepped onto the ramp from the rocks where you went down, could you? A. If you traversed along the rock would you would eventually arrive at the ramp. Q. You'd need to traverse along the rock wall beyond this tree that I've drawn your attention to, wouldn't you? A. The tree is in the same line of where I've gone down. As I said previously, this photograph has been foreshortened and it doesn't accurately portray where I have gone down. Q. The fact of the matter is that you couldn't get to the ramp along the rocks without having to crouch under this tree, could you? A. I wouldn't say that you have to crouch. Q. What would you say? A. Yeah, if you're traversing across the rocks, of course, you could walk standing upright. If you can see within this image there's two people standing there and there is clearly enough space under the tree. … Q. You see, immediately before your father fell you saw him coming down the ramp, didn't you? A. I saw him traversing across from the grass. As I stated previously, I was standing in the water looking up and saw him walking onto the ramp. Q. At the top of the ramp? A. Yes. Q. He then started to come down the ramp, didn't he? A. Yes.

[65]

Whether James' evidence vis-à-vis viewing his father's approach should be accepted?

The defendant contended that James' evidence, that he saw the path the plaintiff took to the ramp, should be rejected. Further, the defendant submitted that the evidence does not permit a finding as to whether the plaintiff walked behind or in front of the warning sign when approaching the ramp.
In support of those contentions, the defendant advanced the following submissions: 1. The defendant submitted that the "narrow" path taken by the plaintiff from the table to the boat ramp "would have required the plaintiff to squeeze between the back of the sign and a bush that had pointy palm-like fronds at the level of his upper torso and head, before descending down some rocks onto the ramp". By that submission, the defendant appears to suggest that given the narrowness, it is unlikely the plaintiff utilised it as means of accessing the boat ramp. 2. James' evidence, that he saw the path the plaintiff took to the ramp, should be rejected. Rather, the defendant submitted that James had stepped in dog faeces, and had walked off in a different direction from the direction the plaintiff was walking, to approach the water from the rock wall, so that he could wash his feet in the water. 3. There is no rational explanation as to why or how James kept sight of the path the plaintiff took behind the sign, when he himself had turned to face a different direction, past some trees and bushes, and was presumably attending to the dangerous climb down 40cm of rocks to the water and then to washing his feet of faeces. James' suggestion that he nonetheless kept an eye of what the plaintiff was doing, through his peripheral vision or some process of, it was contended, is implausible. The defendant further submitted, the fact that this evidence did not appear in James' evidentiary statement casts further doubt on its reliability. 4. In contrast, the plaintiffs ex-wife, Mrs Bowman, who was walking in the same direction as the plaintiff, a couple of metres behind him, said that she was watching James go down the rocks and did not see how the plaintiff got down to the ramp.
Whilst no written submissions were advanced in reply to the above contentions, the plaintiff relied upon the evidence of James and Mrs Bowman on this question. As earlier mentioned, the plaintiff has no memory of the day but, noted, the dirt track was a path he had previously taken to the boat ramp. Whilst it may be accepted that James did not have an unobstructed or direct view of his father's path to the boat ramp, I accept his evidence that he saw his father in his peripheral view make his way to the boat ramp via the dirt track. I do not consider that credit findings are required in this respect as the objective evidence adequately supports such a conclusion. That evidence is also supported by the dirt track itself, which is well worn, indicating its regular use as a track to the boat ram; which dirt track, as earlier noted, passes behind the warning sign and in between some trees. Further, the plaintiff recalled previously using that track and the regularity of his actions may also be taken into account. I also reject the submission by the defendant that the "narrow" nature of the path supports a finding that such a path was unlikely to be taken as, notwithstanding the location of a bush that had "pointy palm-like fronds" behind the sign, there appears to be adequate room.

[66]

Evidence of James

On James' account, his feet were in the water at the time at which his father fell. Paragraphs 10-11 of James' statement appear below: 10. After I washed my feet I was standing at the bottom of the boat ramp enjoying the cool water. I could feel sand under my feet, I believe there was also concrete under the sand. The water was up to about my ankles. As I was standing in the water I noticed my father was walking down the boat ramp towards me. I was facing directly towards him, my mother was 2 to 3 metres away from him. 11. When my father was about two metres away from me, just before the waterline, I saw him slip and fall backwards. I saw him hit his head and back on the concrete ramp. I recall the snap and cracking sound of his head hitting the concrete.
On the day after the incident, James made a phone call to the defendant to tell them his father had slipped on the boat ramp at 4pm.
During examination-in-chief, James gave the following evidence as to his father's fall: Q. You saw your father fall, you've indicated that in your statement? A. That's correct. Q. Did you have the ability to observe him before he fell? A. Yes, I did. Q. And over what period of time would you say he was on the ramp? A. About ten seconds, I would say. Q. Can you describe the way he was moving on the ramp? A. He was walking slowly. Q. Do you have any recollection of the way or where he was looking or where he was facing, I should say? A. He was facing towards me. Q. Had you seen him actually get onto the ramp? A. From the periphery of my vision, I - I saw him going from the - the rock to the edge of the - the slab, and then when the time that he was on the ramp, I was looking directly at him.
During cross-examination, with reference to "photograph 38" (extracted above, see Photograph 8), James gave further evidence as to his position proximate to his father at the time of the fall: Q. Can I take you over to photograph 38. At paragraph 10 of your statement you state you were standing in the water, you noticed your father was walking down the boat ramp towards you. A. That's correct. Q. In relation to photograph 38, are you able to indicate where in relation to the person that appears in that photograph you were standing? A. In the foreground to the person, so yes. Q. About how far from that person? A. I would be at the bottom of the page, to the left. Q. At the time you saw your father, where was he? A. He was walking down the ramp at that stage. Q. In relation to the ramp are you able to describe which part of the ramp he was walking on? A. Yes, I can. Q. What was that? A. He was on the - the left section of the concrete. Q. Can you indicate about how far from the edge. A. He would have been pretty close to where the colour change is on the photograph. Q. And the colour change you're referring to is a change in colour between the part of the ramp which is closer to the photographer relative to the part of the ramp which is further away, is that right? A. That's correct. Q. And when you say he was pretty close to it, you mean that he was above it on the ramp, do you not? A. It'd be around that general vicinity. Q. But he hadn't come past the colour change when you saw him slip, is that right? A. As I answered, he'd be in that general vicinity. Q. In terms of his position across the width of the ramp, how far from the left hand edge, as depicted in photograph 38, was he? A. He would generally be in the middle of that left hand edge. Q. So, please, if this is not the process you've gone through - can you see a dividing line in about the middle of the upper section of the ramp in that photograph? A. I can. Q. And when you said, "In the middle," you meant in the middle of the section of concrete to the left of the dividing line? A. He would generally be in the middle of the section to the left of the dividing line, but this is quite a general area.
For ease of reference, "photograph 38" is also extracted below (see Photograph 20), partially cropped and with annotations added by the defendant, which reflect the plaintiff's location based upon the above evidence of James.

[69]

Defendant's Submissions

In light of the above evidence, as to the location of the plaintiff's fall, together with expert evidence, the defendant submitted: 1. If one compares the location of the plaintiff's fall identified by James with the concrete slabs shown in the engineering plan (see Photographs 20 and 21 above), it is clear that the plaintiff slipped either on the 160mm-thick "parking/entry slab" at the eastern end of the ramp, namely, the eastern slab, or on the "existing slab" retained from the old ramp. The slip did not occur on the steeper and often inundated 200mm thick slab on the western end of the ramp (where grooves had been designed but not built) and where Mr Kiernan had assumed the fall took place when he prepared his report. 2. The slip resistance of the "upper" part of the boat ramp, where the defendant submitted that the plaintiff's slip occurred (accepting James' evidence), was described by Mr Kiernan as having a "safe dry slip resistance surface" and "would not be inundated by the tidal waters as often as the lower levels of the ramp". 3. The gradient of the upper or eastern part of the boat ramp where the plaintiff's slip occurred was measured by Mr Kiernan as a moderate 7%. That slope was thus, significantly less than a gradient of 12.5% or 1 in 8 which, according to Mr Kiernan, was the maximum permitted gradient for pedestrian surfaces under AS 1657-1992 and the RMS Boating Guidelines.
In my view, on the evidence before the Court, the plaintiff slipped at the eastern level of the existing slab slightly after the juncture of the eastern slab and existing slab. That finding broadly conforms with James' evidence as to the vicinity and the distance his father was from his location. It is also consistent with the slip occurring immediately upon entry of the existing slab as its surface differs from the eastern slab and the gradient increases from 7% to 10% (at the western slab). Further, the evidence does not support, as presumed by Mr Kiernan, that the plaintiff fell on the western slab. It may be inferred that the fall occurred at or around 4pm on the day of the accident.

[70]

Responses to the Plaintiff's fall

In his evidentiary statement, James provided the following account of the immediate response to his father's slip and fall: 13. My immediate reaction after seeing him fall, was that my father had died. There was a lot of blood coming from the back of his head onto the concrete. As I attempted to go to his aid I also slipped on the boat ramp. I also recall my mother, who came rushing to help my father, also appeared to slip as she came down the boat ramp. 14. Two bystanders also came to assist. As they came I saw the male (the other was female) also fell. I do not know their names or contact details. 15. Within about 10 seconds my father started to come to. He was lying on his back with his arms and legs scrunched up in the air. He was making some strange noises, it was like he was moaning. 16. Once he had come to, I called 000 and an ambulance was dispatched.
As to the same, Mrs Bowman deposed: 14. I do not believe that he lost consciousness, however he appeared to be confused and very dazed. He was on his back circling his legs in the air as though on a bicycle. Colin said words to the effect of: Colin: "Oh my legs." He could not stand up by himself. I saw a lot of blood coming from the back of his head, I also saw that his clothes were wet. Colin had not previously been in the water and his clothes were not previously wet. 15. Where he fell was before the waterline. 16. After Colin fell, I went straight over to where he was. I recall that the ground was very slippery, like ice. I was slipping as I attempted to reach him. When I reached Colin I grabbed onto his arm and tried to comfort him. 17. James arrived, as did two other people, I believe that they were a couple. I saw James and the male bystander that came to Colin's aide slip over while they were trying to help Colin. A female bystander tried to use a cloth to stop the bleeding from Colin's head. 18. Two mature age surf lifesaving club members came down from the surf club and got a wheelchair to help Colin. The two life guards helped Colin into the wheelchair and took him back to the surf club, where they inspected his wound. James and I went to the surf club with them.
During cross-examination, Mrs Bowman gave the following evidence as to her response to her then husband's fall: Q. When he fell, you went to his side, is that right? A. That's correct. Q. And when you went to his side, did you go to the top of the ramp and then walk down it? A. No, I didn't. I just -I - I went - I went directly from where I was standing and straight across to where he was. Q. So that you could walk straight from the grassed area to the place where he had fallen, is that correct? A. I was - I was slipping as I got to his aid. So, no, I couldn't walk straight to him. No, but the - the surface was slippery. I - I - I made the most direct route to him. He had just cracked his head open and I - my focus was on getting to Colin as quickly as I could. Q. The point I was trying to have you address was that he had - he was on a portion of the ramp that was directly opposite where you were standing on the grass. Is that correct? A. That's correct. Q. Had you not been trying to get to him quickly because of the circumstances, as they were, you would have walked up to the road and come down the ramp from its very top, wouldn't you? A. No. Well, I had - you are assuming that I was going to enter the water. Q. So you wouldn't have gone onto the ramp but for your former husband's injury? A. Exactly. And no - no particular reason. But - so you shouldn't make an assumption that I was going to walk down the ramp.

[73]

Sections 5M and 5K

The statutory defences with respect to harm suffered in the course of recreational activity are located in Div 5 of Pt 1A of the CLA.
Section 5M of the CLA is extracted below: 5M No duty of care for recreational activity where risk warning (1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff. … (3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning. … (5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk). … (10) The fact that a risk is the subject of a risk warning does not of itself mean - (a) that the risk is not an obvious or inherent risk of an activity, or (b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity. (11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity. (12) In this section - incapable person means a person who, because of the person's young age or a physical or mental disability, lacks the capacity to understand the risk warning. parent of an incapable person means any person (not being an incapable person) having parental responsibility for the incapable person.
Subsections (2), (6), (7), (8) and (9) do not arise in the present case.
A "recreational activity" is defined in s 5K of the CLA as follows: recreational activity includes - (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.
Section 5J provides that Div 5 of Pt 1A of the CLA only has application if the plaintiff was engaged in "recreational activity".
The defendant bears the onus of demonstrating that the relevant activity fits into any one of the definitions of a recreational activity in s 5K: Fallas v Mourlas [2006] NSWCA 32 ("Fallas") at [122]-[123] (per Basten JA, with Ipp and Tobias JJA agreeing).

[74]

Legal Principles - s 5K

Prior to turning to the authorities with respect to s 5M, I turn first the definition of "recreational activity" and the discussion, with respect to the same, by Leeming JA (with whom Beazley P and Meagher JA agreed) in Goode v Angland [2017] NSWCA 311 ("Goode"). The focus of the judgment is upon sport but the judgment provides a useful and broader understanding of the operation of s 5K. Leeming JA stated (at [190]-[198]): [190] … Recreational activity is defined inclusively, by reference to three limbs. Each limb is disjunctive. Each limb commences with the word "any", but yet each operates in a different way. The first is directed to the characterisation of the activity, the second to the purpose of the participant, and the third to the location. The evident purpose is for the definition to capture activities if they satisfy any or all of the stated character, or purpose, or location. Even then, the definition is not exhaustive. [191] The first limb is "any sport". The limb therefore requires an analysis of whether the activity bears a particular character, namely, whether it is a "sport". Contrary to the appellant's submission, the words "any sport" are apt to preclude a distinction between sports engaged in for recreational purposes and professional sports. The distinction for which the appellant contends is in the teeth of the ordinary meaning of "any". [192] The words "any sport" are followed by the words "(whether or not the sport is an organised activity)". Again, contrary to the appellant's submission, the bracketed words are words of generality, directed to fending off any implication that only a subclass of organised sports fall within the words "any sport". Once again, far from supporting, they tell against there being a distinction between recreational and professional sports. [193] The second inclusive limb of the definition is "any pursuit or activity engaged in for enjoyment, relaxation or leisure". The word "for" and those following it make it clear that this limb looks to the purpose of the activity. If the appellant's construction were accepted, and sport were confined to recreational activities, then this second component of the definition would amount to its entire content. But a relatively elaborate definition, such as that of recreational activity, should not be read so as to confine its operation into only one of its three limbs, leaving the balance inutile. See (in private law contexts) FBHS (Aust) Pty Ltd v Stone Homes Pty Ltd [2014] NSWCA 312 at [50] and Fitness First Australia Pty Ltd v Fenshaw Pty Ltd (2016) 92 NSWLR 128; [2016] NSWCA 207 at [42]. The purpose of the triply disjunctive definition is necessarily to expand the scope of "recreational activities" beyond those which have a recreational purpose; that is the point of the first and third limbs. [194] The third limb of the definition focuses upon the location of the activity ("at a place"). It highlights some of the practical difficulties which accompany the appellant's construction. If the location of the activity is sufficient to engage s 5K, then how does the appellant's construction distinguish between professional and non-professional sportspeople at the same location? [195] More generally, it is easy to contemplate sporting events in which some competitors participate for enjoyment or relaxation or leisure, but others do not. There must be some occasions when professionals, semi-professionals and amateurs compete simultaneously (for example, marathon running and some forms of car or motorbike racing). What of an elite high school or undergraduate rugby player who plays a game amongst professionals? It would seem most arbitrary in such a case if a player could be liable for injury negligently inflicted upon a professional but not upon the student. Constructions which yield improbable or capricious results are to be avoided on settled principles of statutory interpretation: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297; [1981] HCA 26 at 321. [196] Further, the distinction between professional and non-professional is scarcely a crisp one. It is easy to contemplate competitors who receive some remuneration, and hope as their careers progress to be able to support themselves from their sport, but whose participation is predominantly for recreational purposes, and who would not be regarded as professional. Boxing may be one example, there are many others. [197] It will also be seen that there are two components in the third limb: where people ordinarily engage in sport, and where people ordinarily engage in any pursuit or activity for enjoyment, relaxation or leisure. Those components correspond with the first and second limbs. That in turn emphasises that the definition as a whole should not be construed so that the second limb swallows up the first. [198] All these difficulties arise from seeking to impose a gloss not found in the statutory definition, and contrary to the generality and ordinary meaning of "any sport".
(See also the judgment of Harrison AsJ in Carter v Hastings River Greyhound Racing Club [2019] NSWSC 780. Her Honour considered and applied Goode at [87]-[95]).

[75]

Legal Principles - s 5M

A discussion of the relevant authority with respect to s 5M of the CLA follows.
In Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65 ("Menz"), Leeming JA (with whom Payne and White JA agreed) observed (at [125]-[127]): [125] An effective risk warning which engages s 5M has the effect that the defendant does not owe a duty of care to a person who engages in the activity in respect of that risk. There is good reason to doubt the efficacy of the risk warning in this case, in part because of the generality of the description of the risk, which may fall short of satisfying the requirement in s 5M(5) to warn "of the general nature of the particular risk", and perhaps also because it has not been shown that the Agricultural Societies Council of New South Wales Incorporated was acting on behalf of the respondent, as required by s 5M(6). But s 5M was abandoned as a defence to the claim in negligence, and all that is of present concern is its impact upon s 5B(1)(c). … [127] I accept the appellant's submission. Section 5M subtracts from the defendant's duty. Section 5B(1)(c) presupposes the defendant owed a duty of care, and identifies a necessary condition of the defendant being negligent in failing to take precautions against a risk of harm. If a risk warning is effective, no duty of care is relevantly owed. If a risk warning is ineffective, it seems strained to say that a reasonable precaution against a risk of harm is to force a participant to sign a form. The "precautions" of which s 5B(1)(c) speaks are things which will avoid or reduce the risk of harm, like requiring the plaintiff to wear a helmet. True it is that precautions may include placing a sign (say, near a treacherous cliff edge) to draw a risk to the attention of the public, but that is not the present case. The risk warning in the present case was not so much directed to informing competitors of danger, but extracting from them an acknowledgement of voluntariness and an indemnity.
In Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320 ("Uniting Church"), Leeming JA observed (at [115]): [115] Section 5M, dealing with "risk warnings", also speaks in terms to the question of generality or particularity of the risk. Section 5M(1) provides that a risk warning will in certain circumstances result in a defendant not owing a duty to take care in respect of a risk of a recreational activity. Section 5M(5) provides that a risk warning must warn of "the general nature of the particular risk", and that it is sufficient that it be a "general warning of risks that include the particular risk". It is not necessary to give a precise delineation of each separate obstacle or hazard which may be encountered: Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128 at [27]. Plainly enough, s 5M is directed principally to signage and written disclosures, and ultimately to the end that the warning "is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity": s 5M(3) and see Sharp v Parramatta City Council [2015] NSWCA 260 at [32]. That end would not be served by a provision which required a possibly lengthy list of specific warnings of individual risks, all of which were incidents of the recreational activity.
Both parties relied upon the authority of Sharp v Parramatta City Council [2015] NSWCA 260 ("Sharp"). In Sharp there was a sign at a public pool at the entrance to steps leading up to a 10 metre diving platform that read "Persons using the platform and springboards do so at their own risk". Meagher JA (Ward and Gleeson JJA agreeing) held at [28]-[31] that this amounted to a "risk warning" under s 5M(1) for the risk of injury from diving or jumping from the platform.
The test applied by Meagher JA, was whether the risk warning, when considered objectively, was given in a manner that was reasonably likely to result in people being warned of the risk before engaging in the activity: Sharp at [32]. His Honour observed: [32] The question raised by s 5M(1) is whether the relevant risk of injury "was the subject of a risk warning to the [appellant]". Section 5M(3) provides that question is to be answered in the affirmative if the warning was "given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity". It directs attention not to whether the relevant person received or understood the warning or was capable of doing so, but rather to whether the warning, by the manner in which it was given, was reasonably likely to result in "people" being warned. The "people" referred to are not all people but people in the same position as the relevant person. Such people would only have been "warned" if they were reasonably likely to have received and understood the warning said to have been given.

[76]

Defendant's Submissions

The defendant contended that the plaintiff was engaged in a recreational activity within the meaning of s 5K of the CLA and that activity involved a risk, which risk was the subject of a warning within the meaning of s 5M.
The plaintiff's claim, therefore, fails at the outset, it was contended, because the presence of the warning sign meant that under s 5M(1) of the CLA, the defendant did not owe a duty of care to the plaintiff to take care in respect of the risk of slipping when walking down the boat ramp. In support of that contention, the defendant advanced the following submissions: 1. The plaintiff's walk down the boat ramp to approach James and the water was a "recreational activity" as defined under s 5K(b), because it was a "pursuit or activity engaged in for enjoyment, relaxation or leisure". The plaintiff and his family were on holidays, and were having a walk towards the beach after having a cup of tea at the whale-shaped table. 2. The plaintiff's walk down the ramp was also a "recreational activity" as defined under s 5K(c) because it was a "pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure". 3. The risk of slipping when walking down the ramp was the subject of a "risk warning" to the plaintiff, because the warning sign at the entrance to the ramp contained a specific icon depicting slippery ground (with squiggles), a person slipping over onto their back, and the words "Slippery Area" below it. Pursuant to s 5M(4), a risk warning can be given in writing by way of a sign. 4. If there was any doubt that the icon was a warning about accessing the ramp or the surrounding area, at the top left of the sign is the word "WARNING" in red. At the top right of the sign are the words "This beach may be dangerous. Look out for hazards to yourself and people in your care." There is also a picture of a boat ramp with the words "Boat ramp" beneath it. 5. To the extent the plaintiff's submissions touch upon the warning sign at all, the plaintiff's argument seems to be that first, the plaintiff did not see the warning sign because he took a path behind it, and so the sign did not effectively communicate the risk so as to make the risk "obvious" to a reasonable person in the plaintiff's position; and second, the sign only warned of the area being slippery, not that the boat ramp was slippery. 6. As to the plaintiff's argument, the evidence does not permit a finding that the plaintiff took a path behind the sign. But even if that finding were made, the plaintiff's submissions do not apply the correct statutory test as set out in s 5M(3). The test is not whether the sign made the risk "obvious" to a reasonable person approaching it in the specific way the plaintiff did on the day of the accident. The test is whether the risk warning, when considered objectively, was given in a manner that was reasonably likely to result in people being warned of the risk before engaging in the activity: Sharp at [32]. 7. It is clear, on the face of the photographs before the Court (extracted above), that the warning sign was large, colourful and depicted a number of different hazards. It was placed right at the entrance to the boat ramp, on the right side from where the plaintiff and others such as Mr Lamont approached after parking their cars. People approaching from that side had an opportunity of seeing the sign when driving past to park their cars, and again when walking back towards the entrance of the boat ramp. Further, the plaintiff agreed during oral evidence, it would have been a simple matter for him to walk from the table down the sealed road, past the front of the sign to the entrance to the ramp. 8. In addition, the sign was placed in front of a tree in a position where it could be seen from across a wide angle, and not be obscured by vegetation or any other signs or structures. Mr McNally's evidence was that he could read the contents of the sign from 3 metres away. 9. Even those who chose to squeeze their way between the sign and the tree behind it, instead of taking the orthodox path in front of the sign to the entrance of the boat ramp, must be aware that they were walking behind an enormous sign. 10. As the concluding words to s 5M(3) provide, the defendant is not required to establish that the plaintiff in fact received or understood the warning or was capable of receiving or understanding the warning. Nonetheless, the fact that the plaintiff conceded that he was aware from previous visits as to the existence of the sign, and as to the fact that it gave warnings, fortifies the conclusion that the warning sign met the test under s 5M(3). 11. The plaintiff's complaint is as to specificity of the warning, in effect is that the warning sign did not spell out or contain separate warnings for "slippery ramp" and "slippery rocks", and perhaps also "slippery beach", "slippery sand" and "slippery water". Section 5M(5) provides that a risk warning need not be specific to the particular risk concerned, so long as the risk warning warns of the general nature of the particular risk. 12. The authorities show that for the purposes of s 5M(1) and (5), it is unnecessary for the sign to give a precise delineation of the specific obstacle or hazard which may be encountered on the boat ramp. It is sufficient for it to warn of the general nature of the risk of slipping in that area: see Uniting Church at [115]; Sharp at [30]-[31]; Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128 ("Action Paintball") at [27].
For those reasons, the defendant contended the Court should find that, by reason of s 5M(1) of the CLA, the defendant did not owe a duty of care to the plaintiff to take care in respect of the risk of slipping when walking down the ramp. It was submitted "[t]here should be judgment for the defendant on that basis alone".

[77]

Plaintiff's Submissions

The plaintiff did not cavil with the defendant's characterisation of the plaintiff's activity as a recreational activity for the purposes of the CLA. The central dispute as to the availability of s 5M, concerned whether or not the warning sign constituted a "risk warning" for the purposes of s 5M.
In answer to the s 5M defence, the plaintiff contended "there was no risk warning to the plaintiff as provided in s 5M". Section 5M is directed principally to signage and written disclosures and ultimately to the end that the warning "is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity". To submit that the only surface which could logically have posed a risk of slipping was the boat ramp, it was contended, "is to ignore totally the evidence of the rocks surrounding the ramp and/or beach area". By that submission, the plaintiff appears to rely upon the generality of the warning of "slippery" and the fact the warning was not attached to a particular area and/or surface, namely, the boat ramp.
In support of that argument, the plaintiff relied upon his submissions advanced vis-à-vis the adequacy of the warning sign (albeit with some overlap with arguments as to the defendant's knowledge of risk): 1. Mr Fowler's advice that the sign which was in place at the relevant time was suitable was "an opinion formed based on a lack of knowledge that the ramp was to be used for pedestrian access, access of handicapped persons and mothers with prams". By that submission, the plaintiff contended that the Court should afford little weight to the opinion of Mr Fowler vis-à-vis the suitability or adequacy of the warning sign. 2. The evidence established that the plaintiff was not aware of the risk that the boat ramp was slippery and that the sign was inappropriate as "it failed to warn regular users of the risk associated with use of the ramp, those users having determined that risk by their own observations only". In this respect, the plaintiff returned to its submissions as to the visibility of the warning sign and the generality of the warning with respect to the risk of slipping.
The plaintiff contended that the Court could find that there had been no warning given that the boat ramp was slippery, notwithstanding the defendant's knowledge of that fact.

[78]

Consideration

It is uncontroversial that the plaintiff's activity at the time of the accident, namely, walk towards the beach or seawater to join his son after having afternoon tea at a picnic spot meets the definition of recreational activity pursuant to s 5K(b) and (c) of the CLA, because the plaintiff was, at the time of the accident engaged in a recreational purpose, namely, a "pursuit or activity engaged in for enjoyment, relaxation or leisure" and that activity was engaged in at a place "where people ordinarily engage … in any pursuit or activity for enjoyment, relaxation or leisure", namely, a beach and recreational park lands adjoining the beach within a reserve.
The defendant's submissions, summarised above, set out the correct construction with respect to the provisions of s 5M. The risk of slipping when walking down the boat ramp was the subject of a "risk warning" to the plaintiff.
The reasons I give below for that conclusion represent the application of the provisions in s 5M in that respect but are to be reached co-extensively with my later factual conclusions as to warnings (and signage) in the consideration of the application of Div 4 of Pt 1A of the CLA and the discussion of precautions under Div 2. I have dealt separately with whether a warning was required for the purposes of s 5H(1) of the CLA.
The warning sign at the entrance to the ramp contained a specific icon depicting slippery ground (with squiggles), a person slipping over onto their back, and the words "Slippery Area" below it. Pursuant to s 5M(4), a risk warning can be given in writing by way of a sign.
Further, s 5M(5) provides that a risk warning need not be specific to the particular risk concerned, so long as the risk warning warns of the general nature of the particular risk. The warning sign sufficiently provided for the warning of the general nature of the risk of slipping in the vicinity of the boat ramp. That conclusion is supported by following aspect of the sign: 1. the top left of the sign is the word "WARNING" in red; 2. at the top right of the sign are the words: "This beach may be dangerous. Look out for hazards to yourself and people in your care"; 3. there is also a picture of a boat ramp with the words "Boat ramp" beneath it; and 4. an icon depicting slippery ground (with squiggles), a person slipping over onto their back, and the words "Slippery Area" below it.
The test under s 5M is not whether the sign made the risk "obvious" to a reasonable person approaching it in the specific way the plaintiff did on the day of the accident. The test is whether the risk warning, when considered objectively, was given in a manner that was reasonably likely to result in people being warned of the risk before engaging in the activity: Sharp at [32].
As the concluding words to s 5M(3) provide, the defendant was not required to establish that the plaintiff in fact received or understood the warning or was capable of receiving or understanding the warning. Nonetheless, the fact that the plaintiff conceded that he was aware from previous visits as to the existence of the sign, and as to the fact that it gave warnings, fortifies the conclusion that the warning sign met the test under s 5M(3).
On the fact and circumstances of this matter, the only surface that could logically have posed a risk of slipping was the boat ramp, which was directly behind the warning sign, and the presence of which was also the subject of the sign. In any event, any lack of specificity in the warning does not negate its applicability to the boat ramp. Rather, it implies that all surfaces will or may be slippery, including the boat ramp, which is specifically referred to on the sign.
Further, it necessarily follows from the plaintiff's contention that for the warning sign to satisfy the requirements of s 5M, it would need to contain a separate icon or warning for each slippery surface that anyone might encounter near the ramp. Thus, according to Mr McNally, who gave evidence in the plaintiff's case, there should have been a separate sign to warn of the risk of slipping on the ramp. Logically, lest any particular risk warning be overlooked as being of lesser importance, each of the slippery surfaces would then need to be the subject of a separate sign; and each of the 15 other warnings on the warning sign would need to be the subject of a separate sign. Not only would this lead to an absurd outcome, as Leeming JA said in Uniting Church at [115]it is plainly contrary to the legislative intent behind s 5M. It would also be contrary to RMS's advice that there should be a single signage board.
Thus, in the circumstances, by reason of s 5M(1), the defendant did not owe a duty of care to the plaintiff in the circumstances of the accident to take care in respect of the risk of slipping when walking down the boat ramp. This finding constitutes a basis to give judgment for the defendant.

[81]

Legal Principles - Obvious Risk

Sections 5F, 5G and 5H of the CLA appear in Pt 1A Div 4 "Assumption of risk". The relevant sections are extracted below: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. …
Subsections (2) and (3) of s 5H do not arise in the present case.
The test of obvious risk as set out in the statute requires identification of the risk which actually materialised and caused the injury to the plaintiff and then determining, prospectively, whether such a risk would have been clearly apparent to and understood by a reasonable person in the defendant's position.
In Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308, Basten JA, with whom McColl JA agreed, addressed the question of obvious risk and its operation within the CLA as follows (at [15]-[17]): [15] The concept of an "obvious risk" operates in two ways in the Civil Liability Act. First, under Pt 1A, Div 4, it removes the duty to warn another person of a risk; secondly, in Pt 1A, Div 5, it denies liability in negligence for harm which is the materialisation of an obvious risk of a dangerous recreational activity: s 5L(1). [16] In so far as Div 4 deals with "obvious risk", there is no limitation on liability for harm suffered as a result of the materialisation of an obvious risk. Rather, the Division has two operative provisions. First, s 5G provides that a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk. That presumption will feed into other elements in the assessment of negligence, including, frequently, contributory negligence. [17] Secondly, s 5H deals with a duty to warn. Although the definition of "obvious risk" in s 5F(1) refers to a risk that "in the circumstances" would have been obvious to a reasonable person "in the position of" the plaintiff, there may be some doubt as to the extent to which "the circumstances" and "the position of" the plaintiff operate so as to affect the level of generality at which the risk is identified. It is clear that s 5G(2) does address that issue, but it does not operate otherwise than for the purposes of s 5G.
A similar approach was taken by Meagher JA in Bruce v Apex Software [2018] NSWCA 330 at [29].
In Collins v Clarence Valley Council [2015] NSWCA 263 ("Collins"), McColl JA (with whom Macfarlan JA) agreed summarised the case law in relation to obvious risk. At [136] it was said: [136] The focus of the enquiry is not upon the punitive tortfeasor but upon the person who has been injured or, more accurately, a reasonable person in his or her position. The test is an objective one and must take account of the objective circumstances of the person whose conduct is being assessed. In that enquiry the plaintiff's state of mind is not determinative, but rather what a reasonable person in his or her position would regard as obvious.
In Collins, the Court stated that "obvious" means that both the factual scenario facing the plaintiff and the risk are apparent to and would be recognised by a reasonable person in the position of the plaintiff exercising ordinary perception, intelligence and judgment. See also Streller v Albury City Council [2013] NSWCA 348 at [30]-[31] (per Meagher JA).
In making such an assessment, the Court will take into account the age and level of experience of the plaintiff. A risk may be obvious, even if it has a low probability of occurring and is not prominent, conspicuous or physically observable. The plaintiff's actual knowledge of the risk of harm is irrelevant except insofar as it is relevant to the forward looking inquiry as to whether the risk would have been obvious. However, as the "obvious risk" inquiry is into the knowledge that a reasonable person in the plaintiff's position should be taken to have had, it may be relevant to know the extent to which they were actually aware of the relevant risk.
It is further relevant to consider what others have done in respect of the risk in considering the question of obviousness of the risk and whilst that in itself, may not be determinative it is a relevant consideration having regard to the onus which lies upon the defendant: Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 350 at [62]-[64] (per Emmett JA).
In Menz, Leeming JA (with whom White and Payne JJA agreed), made the following observations about the nature of an obvious risk at [70]-[74]: 1. an obvious risk is, in principle, to be specified with a degree of generality. There may well be no single "correct" specification of the obvious risk, and the statute proceeds on the basis that a greater level of generality is sufficient (see also Kempsey Shire Council v Five Star Medical Centre Pty Ltd at [12]); 2. the specification of the obvious risk must be sufficiently precise as to capture the harm which resulted from its materialisation on the facts of the particular case. If it is too generally expressed, such that the nature of what occurred is mischaracterised, then a greater degree of specificity is required; 3. a combination of foresight and hindsight is in play here. The obviousness of the risk is to be considered from the perspective of the plaintiff, prior to the incident occurring. However, the causal connection can only be satisfied after the risk has materialised and the resulting harm has been suffered, and determining the appropriate level of particularity in the formulation of the risk of harm requires looking at the position with the benefit of hindsight; 4. there is much to be said for the view that "as a result of" in s 5L, in a context which speaks of harm materialising from an obvious risk, requires a close causal connection between the harm and the risk which materialises. The section is directed to harm which materialises as a result of a risk of which the plaintiff ought reasonably to have known. If the risk is obvious, it may be expected that there is a close causal connection between the risk which materialises and the harm; and 5. the proper characterisation is fact-dependent, and will turn on the evidence in any particular case of what occurred, and why the risk is one that is obvious.
In Kanwar v Lynch [2020] NSWCA 152 at [44]-[52], Basten JA applied the principles set out in Menz and made the following further observations with respect to the characterisation of risk: [51] There is a danger of over-intellectualising the process of determining whether, in a particular case, the risk which materialised should be characterised as "obvious". The language of s 5F includes within the phrase "obvious risk", risks which are "patent or a matter of common knowledge", risks having "a low probability of occurring" and risks which are not necessarily "prominent, conspicuous or physically observable." None of this language is technical; none invokes a legal concept. [52] The law of negligence is replete with definitional criteria which cannot be identified with precision. Thus, a defendant can only be liable in negligence if a reasonable person in his or her position would have foreseen that the conduct giving rise to harm involved a risk of injury to a class of persons including the plaintiff. On the other hand, a risk foreseeable to the defendant will not give rise to liability if the risk was obvious to a reasonable person in the position of the injured party, in circumstances falling within the scope of s 5L. In such a case the risk must be foreseeable, but not obvious. There is limited value in further exegesis. As Priestley JA pertinently remarked in relation to Lord Atkin's exposition of the duty of care, and later case law, "[t]he modern abundance of authority would not however make Lord Atkin much wiser." [Footnotes omitted.]
Both parties made reference to the Court of Appeal decision in Fallas. In Fallas, the plaintiff was sitting in the passenger seat of the vehicle being used by a party of men engaged in kangaroo shooting by "spotlighting". The defendant returned to the driver's seat and began cocking his gun back and forth. Asked by the plaintiff to stop, the defendant assured him that the gun was not loaded and that it was safe. The gun accidently discharged, injuring the plaintiff. The defendant was held to be negligent. Whilst the appeal primarily concerned whether the activity constituted a "dangerous recreational activity" and whether the defence of s 5L applied, it is the Court's observation with respect to s 5F that are relevant to the current proceedings.
As to the observations of the Court, which consisted of Ipp, Tobias and Basten JJA, with respect to characterisation of the relevant risk, each differed: 1. Ipp JA characterised the relevant risk as being the risk of the plaintiff being harmed by gross negligence, and found that it was not obvious. 2. Tobias JA characterised the relevant risk as being the risk of the plaintiff being injured when someone carries a potentially loaded gun into the car, and found that it was obvious. 3. Basten JA characterised the relevant risk as being the risk of the plaintiff being injured from the accidental discharge of a firearm pointed at him, and found that it was obvious.
Thus, notwithstanding the differences of approach, the majority held the risk of injury to plaintiff, in the circumstances, was obvious.
The logic of Div 4 of Pt 1A of the CLA is that once the s 5F obvious risk is identified, s 5G deems the person injured to be aware of that risk and places the burden on that person to prove to the contrary. It is irrelevant whether the person is aware of the precise nature, extent or manner of the occurrence of the risk - under s 5G a person will be aware of a risk if the person is aware of the type or kind of risk: Collins at [153], [198] and [202].
Section 5G extends the rebuttable presumption of awareness of obvious risks to cases where the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. Section 5G proceeds on the basis that the "risk of harm" is sufficiently general that it may be described as a "type" or "kind" of risk, whose precise details need not be known. Section 5G should be read with ss 5C and 5B. (See Uniting Church at [112]-[114]).
In Council of the City of Sydney v Bishop [2019] NSWCA 157 ("Bishop"), by majority (per Basten and Macfarlan JJA), the Court of Appeal held that the Council did not owe Ms Bishop a duty of care. Ms Bishop had tripped and fell on a kerb in a pedestrian precinct. She sustained injuries to her right hip as a result. The kerb separated a walkway from a footpath. In the Court below, the primary judge found in favour of Ms Bishop, holding that that the Council owed her a duty of care and had been negligent in failing to install - or requiring the developer to install - a yellow reflective strip along the kerb, and ordered that the Council pay her substantial damages. On appeal, the Court of Appeal held the risk of tripping on the kerb was an "obvious risk", such that the Council's duty did not extend to warning her of it: Bishop at [10], [28]-[29]. Further, the risk of a person tripping on the kerb was not such that a reasonable person in the Council's position would have taken the precaution of installing a yellow reflective strip. (For completeness, even if duty or breach were established, the Court of Appeal found Ms Bishop had not established causation).
Although a finding that a risk of harm is an "obvious risk" eliminates any common law duty to warn, it does not automatically prevent a defendant being held liable for breach of duty: Glad Retail Cleaning Pty Ltd v Alvarenga.
The defendant bears the onus of proving a plea of obvious risk: Fallas at [122].

[82]

Legal Principles - volenti non fit injuria

In Carey v Lake Macquarie City Council [2007] NSWCA 4 at [85], McClellan CJ at CL set out the three elements required to make out the common law defence of volenti non fit injuria, as follows: 1. that the plaintiff perceived the existence of the danger; 2. that he or she fully appreciated it; and 3. that he or she freely and voluntarily agreed to accept the risk.
The onus falls upon the defendant to establish the defence.
McClellan CJ at CL also provided a summary of the interaction of the common law defence with the Pt 1A of the CLA at [86]-[99], extracted below: [86] Until the recent statutory amendments provided by the Civil Liability Act 2002 (NSW) a defendant faced a difficult task to prove volenti. Although a plaintiff may be aware of a risk that they might be injured, unless the defendant could prove that they appreciated the risk that they might be injured in a particular manner or to a particular extent the defence would fail. As Lord Halsbury LC said in Smith v Charles Baker & Sons [1891] AC 325 at 336, "a person who relies on the maxim must shew a consent to the particular thing done." Indeed, the defence has been so stringently applied that Campbell J noted in Tingle v J B Hinz & Sons [1970] Qd R 108 at 113 that: "Glanville Williams in Joint Torts and Contributory Negligence at p 307 says that in almost every negligence action of modern times where the defence has been raised it has failed. Fleming in his work on Torts (3rd ed.) at p 259, predicts that the defence will disappear eventually into the limbo of forgotten things." [87] Division 4 of Pt 1A of the Civil Liability Act 2002 (NSW) - particularly ss 5F and 5G - was designed to address this issue. The second reading speech to the Civil Liability Amendment (Personal Responsibility) Bill refers to the Ipp Report, which at p. 129 indicates that the intention of Division 4 was "to encourage greater use by the courts of the defence of assumption of risk." It was noted in the Report that: "The more narrowly a risk is defined, the less likely it is that a person will have been aware of it. For instance, a person may be aware of the risk of suffering bodily injury as a result of engaging in a particular activity. But the person may not be aware of the risk of suffering bodily injury in a particular way." [88] Accordingly, the Report recommended the enactment of the following provisions: · A provision to the effect that for the purposes of the defence of assumption of risk, it would be presumed that the person against whom the defence is pleaded was actually aware of an obvious risk unless that person could prove, on the balance of probabilities, that he or she was not aware of the risk (para 8.30); · A provision to the effect that for the purposes of the defence of assumption of risk, the test of whether a person was aware of a risk is whether he or she was aware of a risk of the type or kind of risk and not of its precise nature, extent or manner of occurrence (para 8.31). [89] Sections 5F and 5G of the Civil Liability Act 2002 (NSW) are in the following terms: … [90] The effect of these provisions is that a plaintiff is rebuttably presumed to be aware of a risk where the risk would have been obvious to a reasonable person in the position of the plaintiff. A plaintiff cannot rebut the presumption by claiming that even though he or she was aware of the general risk of harm, he or she was not aware of all its possible manifestations, including the one that eventuated. [91] This of course begs the question: what risks are the provisions directed to? It serves no purpose to answer that they are directed to "obvious risks," because no conclusion can be reached as to whether or not a risk is obvious until the risk itself is identified. This problem was noted by Bryson JA in C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136. That case involved a woman who injured herself in a hotel when she slipped on a wooden floor. Her fall was caused by a residue of polishing liquid that had not been properly removed from the polished floorboards. A cleaner was in the room polishing a different section of the floor when she slipped. Bryson JA said (at [172]-[175]): "The course of argument requires consideration whether Ms Hutton-Potts' injury was caused by an obvious risk [as defined in s 5F] of such an injury occurring. Much depends, in the application of provisions dealing with obvious risk, upon the degree of generality or precision with which the risk is stated. Rejecting more highly generalised statements, such as that bad things sometimes happen in hotels or that people sometimes fall over when walking on floors, the risks which confronted Ms Hutton-Potts can be stated at several different degrees of intensity. In a room in a hotel where a cleaner is polishing the floor with a buffing machine there is a risk that a recently polished floor will be slippery, because it is polished. I do not think that it would be correct in fact to see this as the risk which matured. If it were to be said that that risk was obvious it would, in the application of the meaning of 'obvious risk' to the facts, have to be said that a reasonable person in the position of Ms Hutton-Potts who entered the room would have seen that Mr Elder was in the room, and would have gone further and considered what he was doing, and would have gone further and noticed that he was buffing the floor with a buffing machine; and that it would have been obvious to the reasonable person who did those things that there was a risk of slipping on the floor because it was recently polished. However that would not be enough to show that Ms Hutton-Potts suffered harm from an obvious risk, because it was not the recent polishing of the floor which caused her injury. A higher degree of intensity is required in stating the risk. Her injury was caused by there being polishing material on the floor which was not visible, and had not been removed in the buffing process. The finding that the risk which caused her injury was an obvious risk involves attributing to the reasonable person in her position discernment, as an obvious matter, that there may (even with a low degree of probability) be polishing material on the floor which was not visible. This is the risk which matured and caused her injury. Involved in this is not only advertence to what Mr Elder was doing, but advertence to the risk that he was not doing it properly. When the risk is stated at this degree it is in my opinion quite unsustainable that it should be found as a fact that there was an obvious risk to which the provisions of Div 4 applied; obviously so." [92] In Great Lakes Shire Council v Dederer [2006] NSWCA 101 Ipp JA said (at [157]-[159]): "In dealing with the defence of voluntary assumption of risk raised by the RTA and the Council, Dunford J [the trial judge] said: 'What must be established for that defence is that the plaintiff not only knew of the risk or danger, but he fully comprehended the nature and extent of the risk and accepted such risk. For the reasons given above in relation to obviousness of the risk, I am satisfied that the plaintiff did not fully comprehend the nature and extent of the risk involved, and accordingly this defence fails.' This finding, I think, means that Mr Dederer knew of the risk that he might be injured by diving from the bridge but did not fully comprehend that the risk was of diving into shallow water and that the risk was of serious injury to the spine. This reasoning is directly contrary to s 5G(2) of the Civil Liability Act … I would add that Dunford J appears to have decided the question of obviousness of risk by reference to what Mr Dederer subjectively knew and not by reference to a reasonable person in his position, as s 5G requires." [93] The question which must be asked in the present case is whether the conduct of the plaintiff involved a risk of harm that would have been obvious to a reasonable person in his position. [94] In Fallas v Mourlas [2006] NSWCA 32 Ipp, Basten and Tobias JJA determined that "the position of the plaintiff" comprehended the particular circumstances in which the risk materialised and the harm was suffered. Ipp JA (Handley and Tobias JJA agreeing) adopted the same approach in Dederer [151]-[152]). The position of the plaintiff will include the plaintiff's knowledge and experience of the relevant area and conditions (see Ipp JA Dederer at [152] and Santow JA in C G Maloney Pty Ltd v Hutton-Potts and Another [2006] NSWCA 136 at [106]-[108]). [95] In Dederer, a 14 year old boy suffered severe spinal injury after diving off a bridge into a lake. Ipp JA, applying Fallas v Mourlas, said: "Whether this risk was obvious (within s 5F of the Civil Liability Act ), to a person in the position of Mr Dederer, has to be answered objectively, attributing to the notional reasonable fourteen and a half year old person the knowledge of the area and conditions possessed by Mr Dederer at the time." [96] His Honour noted at [164] that it was not "Mr Dederer's state of mind that counts, but that of a reasonable person in his position. Nevertheless, his evidence, I think, is relevant to a consideration of what a reasonable person would know about the risk." Ipp JA took into account Mr Dederer's knowledge that there was variable water depth, a sign prohibiting diving, and a sandbar near the place in which he dived. [97] The "reasonable person in the position" of the plaintiff has also been held, in several cases, to take account of the age, experience and personal characteristics of the person. Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818 concerned an accident where a child fell through the skylight of a community centre. Ipp JA (Spigelman CJ and Tobias JA agreeing) at [70] rejected the argument that the risk was obvious under s 5F. His Honour considered that to a young boy the risk of climbing on the roof was not an obvious one, particularly where this was a common pursuit. Likewise, Doubleday v Kelly [2005] NSWCA 151 concerned an injury to a child who attempted to roller skate on a trampoline. Bryson JA (Young CJ in Eq and Hunt AJA agreeing) at [28] held that the risk was not obvious to a reasonable person in the child's position. His Honour noted that: 'The characteristics of being a child of seven with no previous experience in the use of trampolines or roller skates, who chose to get up early in the morning and play unsupervised, is part of that position.' [98] In the present case a "person in the position of the appellant" would be an experienced cyclist in his 50s, with knowledge of the presence of the bollards within Caves Beach Park and with knowledge gained as a pedestrian that there was a bollard on the lower path. It would have been obvious to a reasonable person in that position that riding along the lower path in the dark would involve the risk of hitting unexpected obstacles, the most obvious of which may have been pedestrians or another cyclist. The effect of s 5G(2) is to deny the appellant an opportunity to avoid the defence of volenti by pleading that he was not aware of the "precise nature, extent or manner of occurrence of the risk." Accordingly, as it must be concluded that he was aware of the risk of hitting an obstruction in the dark, the appellant could not successfully plead that he was not aware of the risk of hitting a bollard or of hitting this particular bollard. [99] However, before the defence is made out the defendant must prove that the plaintiff voluntarily accepted the risk of which he or she is deemed to be aware.
His Honour made the following further observations as to a Court's assessment with respect to "voluntary" assumption of risk: [103] I should emphasise that there may be cases where a court can infer that a plaintiff has voluntarily assumed a risk from the fact that the plaintiff has exposed themselves to a risk of which they were aware. This will usually be the only way in which the third element of the defence of volenti can be made out. However, this inference is not available merely because the plaintiff knew of the risk when they engaged in the relevant conduct. The drawing of the inference is always a question of fact that must be considered on a case by case basis. [104] In the present case, the appellant's evidence is inconsistent with the inference that he voluntarily assumed the risk that he might hit unexpected obstacles. That is not because the appellant says he was not aware of the risk. Rather, it is because the appellant says - and the trial judge accepted his evidence on this point - that even though he was aware of the risk, he did not advert to it when he turned down the lower path. This is not a logically inconsistent or even a far-fetched proposition. On a day-to-day basis people expose themselves to known and obvious risks without thinking about them. Everyone knows that when they drive their car there is a risk of being injured by the negligence of other drivers. The risk is obvious but it is not a risk that most people advert to when they get into their cars. It is not a risk that they voluntarily accept, even when their decision to drive is entirely free from external compulsion (such as the need to get to work or to take a relative to hospital and so on). If this were not so then it would be hard to see how, in light of ss 5F and 5G, a driver who is at fault in a collision with another moving vehicle could ever be held to be liable in negligence, except in circumstances where the plaintiff's decision to drive was not free and voluntary in the sense already described. This would have the absurd outcome that people who are injured whilst driving to work could recover from the defendant, whilst people who are injured in exactly the same circumstances could not recover if they were on their way to the cinema, or leaving on a holiday. It is not hard to think of other examples. The point is that a person can be aware of an obvious risk without adverting to it when they expose themselves to the risk. [105] Courts have been careful to distinguish between the concepts of awareness of risk and acceptance of it since at least the nineteenth century. In Smith v Charles Baker & Sons [1891] AC 325, Lord Halsbury LC said: "… in both Thomas v Quartermaine [18 QBD 685] and in Yarmouth v France [19 QBD 647], it has been taken for granted that mere knowledge of the risk does not necessarily involve consent to the risk. Bowen LJ carefully points out in the earlier case ( Thomas v Quartermaine [18 QBD 685 at 685]) that the maxim is not 'Scienti non fit injuria,' but 'Volenti non fit injuria.' And Lindley LJ, in quoting Bowen LJ's distinction with approval, adds ( Yarmouth v France [19 QBD 647 at 660]): 'The question in each case must be, not simply whether the plaintiff knew of the risk, but whether the circumstances are such as necessarily to lead to the conclusion that the whole risk was voluntarily incurred by the plaintiff" (emphasis added). [106] Indeed, in the context of voluntary assumption of risk, the reason why a defendant has to prove that a plaintiff has knowledge of the risk is because knowledge is an ingredient of the wider concept of voluntary agreement. It is merely a step on the way to proof that a plaintiff has voluntarily assumed a risk. [107] The question is not simply whether the plaintiff freely and voluntarily decided to embark upon a course of conduct that involved a risk of which he or she was aware. There must also be some conscious advertence to the possibility that the known risk might eventuate, and a decision to proceed with the conduct regardless. It is not enough that the plaintiff knows of the physical facts or circumstances that constitute the risk and exposes him or herself to them, although proof of this will in many cases be sufficient to support an inference that the plaintiff voluntarily assumed the risk. After citing the above passage from Lord Watkin's judgment in Smith v Charles Baker & Sons [1891] AC 325 at 335, Balkin and Davis state in the second edition of their work Law of Torts (at p 354): "This means that, for the defence to operate, it must be proved that the plaintiff has assumed not merely the risk of physical injury but also the legal risk consequent upon that injury." [108] If all that can be proved is that the plaintiff knew about a risk but did not think about it when he or she engaged in conduct that exposed him or her to the risk, the defence has not been made out. To assume a risk, a plaintiff must know about the risk, he or she must turn their mind to it at the relevant time, and he or she must persist in the risky conduct regardless.

[83]

Plaintiff's Evidence

During cross-examination, the plaintiff gave the following evidence as to the importance of weather conditions to his decision to launch a boat: Q. I take it that before putting a boat in at either of those or any location, you needed to know something about the tide? A. Yes. Q. And why was that? A. It's so - so that you wouldn't bottom the boat out when you were in the car, so you wouldn't lose your trailer, so you can back down the boat and go in safely. Q. And if the tide was not right for the particular boat ramp, you would either not be able to launch the boat or you might have to submerge too much of the trailer or even the car, is that fair? A. We wouldn't launch the boat. Q. You wouldn't launch the boat? A. No. Q. And you'd also need to know what was happening with the weather conditions in terms of which boat ramp you'd select, wouldn't you? A. Yes. Q. And why was that? A. For safety. Q. What was the issue if A. Rough water, boating - safe boating. Q. So you didn't want to launch your boat into rough water, is that right? A. No. No. For small boats. Q. So if the wind was coming from one direction which would create a problem with rough water if you were launching the boat at one particular boat ramp, you'd try to find a boat ramp that didn't have that exposure to the particular weather on the day, is that fair? A. It hasn't happened to me, but I suppose
The plaintiff accepted the following propositions put to him in cross-examination, with respect to his knowledge of the impact of tides on boat ramps: Q. You knew about the existence of tides, didn't you? A. Yes, sir. Q. You'd been a scuba diver, hadn't you? A. Yes, sir. Q. So you knew the tides came and went every day. Didn't you? A. Yes, sir. Q. You knew that it's of the essence of the tide that the water rises and the water falls. A. Yes. Q. You knew all that before the accident 2015, didn't you? A. I knew it happens, but I didn't know what time. Q. I'm not asking you about the time, but you know-- A. Yes, yes. Q. --that if you go to this place at the same time every day for a week, the water is going to be at a different level each day, isn't it? A. I suppose it would, sir. Q. Because the tide comes and goes. A. Yes, sir. Q. And you know that it's of the very nature of the boat ramp that part of the boat ramp goes underwater, doesn't it? A. Yes, sir. Q. Because when you're launching a boat, depending on the tide, you may have to go further down the boat ramp one day than you do the next day. A. Yes, sir. Q. And the boat ramp has to be able to get your boat into the water, doesn't it? A. Yes, sir. Q. And what that means, I suggest, and you understood that that meant that parts of the boat ramp would be covered by sea water from time to time. Didn't you? A. Yes.
The plaintiff's evidence was that when he approached boat ramps he would always do so on the basis they could be slippery. That evidence is extracted below: Q. In making your way onto the beach on this boat ramp, not on the day of your accident, but on prior occasions, you recognised, didn't you, that the ramp might be wet from the sea having been on it in the relatively recent past. A. I may have. Q. You may have? A. Well, I can't recall exactly, sir. Sorry. Q. Well, you've seen the situation, haven't you, where the water is-- A. Yes. Q. --out from the ramp, but parts of the ramp are wet. A. Yes. Q. Do you agree with that? A. Yes. Q. And you would recognise, wouldn't you, that in those situations, the ramp being wet would be prone to be slippery. A. Yes. Q. And depending upon what else was on it, it might be very slippery. Would you agree with that? A. Yes. Q. It could get oil from vehicles. A. I don't know. Q. You don't know? A. No. Q. But you agree that any boat ramp that you've ever used - you would approach any boat ramp on the basis that it could be slippery, wouldn't you? A. Yes.
During re-examination, he clarified that evidence concerned the need "[t]o be cautious". The plaintiff was cross-examined with his knowledge vis-à-vis slippery boat ramps: Q. Have you ever had the experience when you were launching a boat of the wheels of your vehicle spinning-- A. Yes, sir. Q. --on the concrete? A. Yes, sir. Q. What did you think that was due to? A. Slippery. Wet. Q. And when you say slippery, slippery because of things that might be on the concrete ramp. A. Yes. Q. And that was an experience you had, that is of your wheels spinning, when the water was not particularly near where your wheels were. Would you agree with that? A. Yes, sir. Q. So the spinning of your wheels when you're launching a boat on a boat ramp was something you had to take care of when launching your boat, didn't you? A. Yes, sir.
During cross-examination, the plaintiff conceded the following: 1. He fished from time he was a child. 2. He had used boat ramps in many places. 3. He had seen the boat ramp at Scotts Head before the date of the accident. He knew that the boat ramp would have been covered in sea water from time to time. He knew that vegetation can grow on it because it has sea water over it from time to time. 4. He had experience of his car wheel spinning on a different boat ramp because of slipperiness and because of things that might be on the ramp. This had occurred even when the water was not near the wheel of the car. He was aware that this was something to take care of when launching a boat. 5. He had seen occasions when the Scotts Head ramp was not under water but wet. He recognised that on those occasions the ramp being wet would be prone to be slippery. He recognised that depending on what else was on the ramp it could be very slippery. 6. He would approach any boat ramp on the basis that it could be slippery.
In my view, the plaintiff was aware of the risk of harm, namely, the risk of slipping when walking down the boat ramp on the day of the accident.

[84]

Defendant's Submissions

The defendant advanced the following submissions in support of its case vis-à-vis obvious risk: 1. The risk of slipping whilst walking on any marine surface including a boat ramp, such as the Scotts Head ramp (whether due to the wet surface, marine growth, or otherwise), is a matter of common knowledge, and is an "obvious risk" as defined under s 5F. This conclusion is fortified by the plaintiff's concession that he would approach any boat ramp on the basis that it could be slippery. It is also fortified by Mr McNally' evidence that all boat ramps tend to become slippery. 2. The plaintiff's submissions argue by reference to Fallas that the application of s 5F should be determined by reference to all of the circumstances of the accident in question. The submissions then point to the fact that the plaintiff was walking in a "slow and appropriate" manner and the fact that the ramp was the main access to the beach for hundreds of people as somehow displacing the obviousness of the risk of slipping on it. In contrast to Fallas, the present case concerns a risk that could only be characterised as the risk of someone slipping on the ramp whilst walking on it. The plaintiff's attempts at mitigating the risk of slipping by the way he walked on the ramp do not diminish the objective obviousness of the risk. If anything, they demonstrate it: he walked slowly because he perceived the risk. The fact that hundreds of people take the risk (including many who do slip - according to Mr McNally) does not diminish the objective obviousness of the risk, no more than hundreds of people playing contact sports or undergoing sky diving diminishes the obviousness of the risks of those activities. 3. The only relevant circumstance potentially impacting the evaluation of obviousness in the present case, it was submitted by the defendant, might be the wetness of the boat ramp surface. Mr Coulter's unchallenged evidence was that on 22 February 2015 the beach was closed before 2pm due to rough seas, and it had been raining. Similarly, Mrs Bowman's evidence was that after the plaintiff fell (before reaching the water's edge), his clothes became wet. This increases the obviousness of the risk of slipping. 4. If the Court finds that the risk of slipping on the ramp whilst walking on it was an "obvious risk" under s 5F, the effect of s 5H(1) is that the defendant did not owe a duty of care to the plaintiff to warn him of that risk. In the absence of any duty of care to warn, the "failure to warn" parts of the plaintiff's case must fail. This includes the allegations that the defendant should have installed different or better warning signs (see ASOC at para 14, particulars (i) and (ii)). 5. For completeness, it should be noted that pursuant to s 5M(10)(a), the existence of the warning sign does not of itself mean that the risk of slipping is not an obvious risk of walking on the ramp.
As to the availability of the common law defence of volenti non fit injuria, the defendant submitted: 1. If the Court finds that the risk of slipping on the ramp whilst walking on it was an "obvious risk" under s 5F, then under s 5G(1) the plaintiff is presumed to have been aware of that risk. 2. If anything, the evidence showed that the plaintiff was aware of it. He gave detailed evidence as to his previous experiences of slipperiness on ramp surfaces, including his experience of car wheels spinning on a ramp because of lack of grip. To that should be added the evidence that the ramp surface was wet. 3. This has implications for an assessment of breach of duty, it gives rise to the question whether the plaintiff voluntarily assumed the risk of injury from slipping on the ramp.
In support of the third element of the common law defence, namely, that the plaintiff "freely and voluntarily agreed to accept the risk", the defendant relied upon the following evidence: 1. According to Mrs Bowman's evidence, before James decided to enter the water to wash dog faeces off his foot, the intention of the party had been to take a walk towards the beach. It is unclear whether the plan had been to walk along the beach, or to go into the water. 2. It appears that after James entered the water, the plaintiff decided to walk down the ramp towards him, and slipped before he reached the water's edge. Mrs Bowman stayed standing on the grass on the north eastern side of the ramp. Mrs Bowman's actions suggest that the intention had not been to proceed down the ramp in a westerly direction. 3. The plaintiff chose to walk down the ramp towards James, even though he knew that the ramp, as with any marine boat ramp, might be slippery or very slippery, particularly in the weather conditions then present. In doing so, he freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it: Letang v Ottawa Electric Ry Co [1926] AC 725 at 731; Rootes v Shelton (1967) 116 CLR 383. 4. If the Court is satisfied that the defence under the common law doctrine of volenti non fit injuria has been established, the defendant, it was submitted, is not liable for any injury the plaintiff suffered when the risk of slipping on the ramp surface came home. 5. If the defendant is unsuccessful on its defences under s 5M and under the common law doctrine of volenti non fit injuria, it is necessary to consider whether the plaintiff has established that the defendant breached a duty of care to the plaintiff.

[85]

Plaintiff's Submissions

The plaintiff submitted: 1. The fact that the defendant was aware of the risk and/or others within the area such as the surf club were aware of the potential risk does not assist in the determination of the knowledge of a reasonable person in the position of the plaintiff. This is especially so in circumstances where the plaintiff is unfamiliar with the area having only been there on a yearly basis. It does, however, become relevant when considered in the circumstances of this matter having regard to the evidence of persons who do frequent the area such as Mr Lamont but are still not aware of potential risk. 2. It further becomes relevant in relation to the question of the suggested warning sign when the fact that neither Mr Lamont nor Mr McNally who were frequently in the area were aware of the warning if the warning could even be found to be relevant to the boat ramp.
As to warning, the plaintiff submitted: 122. Consideration must be given to the question of warnings, however, factors such as the positioning of the sign, the contents of the sign and what the sign actually informs the reasonable person considering it must all be taken into consideration. The primary question is whether the sign effectively communicated the risk which materialised so as to make the risk obvious to a reasonable person in the plaintiff's position [Queensland .v. Kelly [2014] QCA 27 at 39-40] 123. The response to any warning therefore must take into consideration not only the availability of the warning but the contents of the warning having regard to the area in which it is contained. There is little doubt that the climbing over rocks which surrounded the ramp on both the western and eastern sides and which were exposed to the elements could be slippery but that is not the warning that was given. The warning that was given was simply that it was a slippery area. When that is considered having regard to the only available means of entering the beach being the ramp then the warning is liable to be misleading to a reasonable person as appears to have been the factual matters in the current proceedings. 124. It is further relevant to consider the decision in Randwick City Council .v. Muzic. While this was not a proceeding which fell within the ambit of the Civil Liability Act it is relevant that factually and having regard to one of the opinions of the council officers, namely to close the ramp. 125. In Muzic the plaintiff slipped as a consequence of a risk of which he was aware, namely algae on a promenade. That algae had not been properly removed by the council. The Court of Appeal held at 39-40 that the council was liable and that the failure to close the promenade was a reasonable response to the risk of injury where the injury was significant. In Muzic there have been numerous injuries as a result of contamination and notwithstanding the fact that the risk was known to the plaintiff the defendant was still found liable.
The plaintiff further submitted: 103. The question as to whether or not the risk was obvious must incorporate all of the circumstances in the current matter. That includes that there was in reality only one means of gaining access to the beach in the relevant area as climbing over the rocks was clearly an obvious risk. The nature of the boat ramp and its construction would not dictate that walking on the area was of any risk in all of the circumstances. To the extent that this can be examined the evidence of the history of falling of other persons together with the use made of the ramp by hundreds of people are considerations in the objective test as to whether or not there was a risk in the use of the ramp for a purpose for which it was actually designed. 104. The then question is whether a warning had been given in all of the circumstances. The simple placement on a sign of a pictogram together with numerous other signs did not in the circumstances provide a warning. The unchallenged evidence was that the plaintiff while in a vehicle drove past the sign to the far end of the eastern car park then walked back along the grassed area and entered the ramp from behind the sign. The council was aware or ought to have been aware due to the track or path which led to the rocks which led down onto the ramp. 105. The fact that Mr McNally who had been the club captain in the years prior to the said incident did not become aware of the sign to the extent that it warned or purported to warn of a slippery area until shortly prior to the court hearing is telling as is the evidence of other witnesses. 106. Even if it were found, which it is submitted it cannot having regard to the nature of the evidence, that the plaintiff had seen the sign and identified the actual pictogram one must question how that provides a warning that the ramp itself is slippery as opposed to the rocks or any other area which may then direct persons not to use the rocks but to use the ramp as access to the beach. 107. For a warning to be given the warning must identify the risk and in this case the risk was not identified except as to provide that somewhere in the area there was a risk of slipping. 108. To the extent that the defendant relies upon an obligation upon the plaintiff to look where they are going, perceiving and avoiding risks or hazards the defendant has not established that the plaintiff was in any way contributory to the fall the evidence being that he walked slowly onto the ramp, was looking ahead of him towards where his son was and that there was nothing to alert the plaintiff to the risk.
In reply, the plaintiff advanced the following submissions: 1. The obviousness of the risk must by its very nature take into consideration of what a reasonable person not only would consider but the manner in which they address the circumstances that confront them. In this matter, the plaintiff approached the ramp knowing to proceed carefully and doing so thus removing the obviousness of the risk. 2. Addressing the question of warning, the plaintiff being unaware of the obviousness of the risk, the plaintiff would only be warned if he was reasonably likely to have received and understood the warning said to have been given: see Sharp at [32]-[33]; Uniting Church at [115]. 3. In addressing the issue as to the sign, care must clearly be taken of the use to be made by the photographs which have been provided within the proceedings. Reference, in that respect, was made to the decision in Angel v Hawkesbury City Council; the Court noted the deceptive nature of photographs is that they focus on a particular scene that is static as opposed to a real world position. As was referred to with the decision at paragraph [71]: [71] The judge ought not, in my opinion, attempt to read or construe the photograph himself; he looks at the photographs in determining which of the explanations given by the witnesses appears to be the most worthy of acceptance. 1. In this regard, it was submitted, Mr McNally gave clear evidence in relation to the sign and its ability to convey a warning that the ramp was slippery.
The plaintiff advanced the following submissions in reply with respect to the defence of volenti non fit injuria: 1. In addressing the question of obvious risk, where a plaintiff has limited his participation in the activity thereby reducing the risk to a point where they are not significant risks of physical harm then it would be unfair or unjust for the plaintiff to have to face a s 5I defence. 2. There is no dispute that the plaintiff was walking in a slow and appropriate manner in all of the circumstances. 3. Relied upon the approach of the court in Fallas. 4. The defendant in the current proceedings only pleads that it is a recreational activity and does not rely upon it being in any way dangerous.

[86]

Consideration

The determination whether the harm suffered by the plaintiff was the result of the materialisation of an "obvious risk" under s 5F requires regard to be had to the particular circumstances in which the harm was suffered and a determination whether the risk which resulted in the harm would have been obvious to a reasonable person in the plaintiff's position: see Fallas at [98].
As mentioned, in this matter the relevant risk of harm was the risk that a pedestrian might slip on the boat ramp.
The risk of slipping whilst walking on a marine surface such as the boat ramp due to wetness or marine growth is a matter of common knowledge but, in any event, that assessment is buttressed by the concession made by the plaintiff and Mr McNally that any or all boat ramps could be slippery to walk on.
In this case, the plaintiff walked behind the warning sign and commenced walking in a westerly direction from the eastern slab facing his son. He had an unobstructed view of the boat ramp in daylight.
The evidence was that James was situated on the western slab with his ankles submerged in sea water. The evidence does not support a conclusion that the tide had reached the location where the plaintiff fell at the time of his fall but evidence reveals that the beach was closed at 2pm due to rough seas and it had been raining (although not at the time of the fall). The surface of the boat ramp was wet either through the rain or the residue of the receded tidal waters or both. It may be noted, in that respect, the plaintiff's fall occurred before reaching the water's edge, and his clothes (which had earlier been dry) became wet after the fall.
The plaintiff's approach to James would have indicated that there was a downward gradient because of James' relative position to the plaintiff as the plaintiff looked in a downward direction.
The "slow" pace by which the plaintiff descended the boat ramp, as observed by Mrs Bowman, does not diminish the objective obviousness of the risk but rathe demonstrates the fact of the risk of slipping whilst walking on the day of the accident.
There were alternative means of accessing the beach via the boat ramp which did not involve the risks associated with the plaintiff's movement towards James, namely, a southerly movement along the eastern slab which could have underscored the risks associated with the pathway taken by the plaintiff.
I accept the contention of the defendant that the obvious nature of the risk is not diminished by the fact that hundreds of people take risk, with some slipping.
The plaintiff erroneously sought to rely upon the apparent frequency at which boat ramp users, namely, Mr Lamont and Mr McNally, used the boat ramp and their corresponding level of knowledge of the risk. The requisite objective standard is that of a reasonable person in the position of the plaintiff and not an assessment informed by evidence or contentions regarding frequent users.
For the above reasons I consider the risk of slipping, whilst walking down the boat ramp at the time of the accident, was an obvious risk for the purposes of s 5F(1) in that the risk would have been obvious to a reasonable person in the position of the plaintiff as he walked down the boat ramp at that time.
Further, the effect of s 5H(1) is that the defendant did not owe a duty of care to the plaintiff to warn him of that risk. In the absence of any duty of care to warn, the "failure to warn" parts of the plaintiff's case must fail. This includes the allegations that the defendant should have installed different or better warning signs.
Whilst a resolution of the question of warning (and appropriate signage) are, therefore, not strictly necessary, I propose to briefly address the issue and, in doing so, conclude that I do not accept the submissions of the plaintiff that that it was reasonably likely that the plaintiff did not receive or understand the warning said to be given by the sign erected by the defendant at the entrance to the boat ramp and that the signage and warning provided were inadequate precautions (as later discussed).
I will first return to the balance of the plaintiff's submissions in that respect.
In addition to the submissions of the plaintiff above, the plaintiff contended that the position of the sign was not obvious to sufficiently warn any person visiting the area or who was even regular to the area of the risk of slipping on the ramp. Reliance, in that respect, was placed upon the evidence as to the route taken by the plaintiff to the boat ramp on the day of the accident and the evidence of Mr McNally: 1. It was contended that the route which the plaintiff took was such that he would not have seen the sign and even if he had seen the sign itself would not be aware that the ramp was slippery as opposed to some other area including the rocks. 2. Mr McNally gave evidence that he only noticed the "slippery" warning, depicted on the warning sign, two days prior to giving his evidence and was critical of the functionality of the sign based upon its size. He suggested that "nobody" gets up close enough to read all the warnings displayed on the warning sign.
The plaintiff's submissions should be rejected for the following reasons: 1. As earlier found, the risk of slipping when walking down the ramp was the subject of a "risk warning" to the plaintiff, namely, the warning sign. Further, on the face of the photographs before the Court (extracted earlier in this judgment), the warning sign was clearly visible: it was large, colourful and depicted a number of different hazards. People approaching from picnic area had an opportunity of seeing the sign when driving past to park their cars, and again when walking back towards the entrance of the boat ramp. 2. The plaintiff did not advance a case that the warning sign should have been placed at a different location, or demonstrate why that particular alternative location would have been improved visibility. In January 2014, it had already been moved to the right-hand-side of the entrance to the boat ramp, so that it would be directly in view of those, like the plaintiff, approaching the ramp from the car park to the north. It was not suggested that the warning sign should have been moved closer to the bush behind it - which would no doubt have led to complaints about the sign being insufficiently distinct or being obscured by part of the bush. Even those who chose to squeeze their way between the sign and the tree behind it, instead of taking the orthodox path in front of the sign to the entrance of the boat ramp, must be aware that they were walking behind an enormous sign. 3. The plaintiff has not proven that a reasonable person in the defendant's position would have placed the sign in a different position. Nor has he proved what that position would have been or that it would have made any difference to the course of events, particularly having regard to the facts that the plaintiff knew of its existence, that it was a warning and of the nature of the risks to which the sign referred. 4. Further, the defendant correctly submitted, the plaintiff did not advance a case that the warning sign should have been placed at a different location, or demonstrate why that particular alternative location would have been improved visibility. Nor did the plaintiff adduce evidence as to any applicable standard or test for the design, size, layout, separation or placement of warning sign(s) at public locations where multiple hazards exist. 5. The plaintiff did not adduce evidence as to any applicable standard or test for the design, size, layout, separation or placement of warning sign(s) at public locations where multiple hazards exist. The parts of Mr Kiernan's report which touch on this issue. 6. Mr McNally said that he personally would have had a separate "slippery area" sign, but as a lay witness with no identified expertise concerning public signage, his personal mindset on the topic is not evidence of any objective standard to which the defendant should be held. 7. The remaining evidence comes from the suggestion in the RMS letter to the defendant dated 8 May 2012, in which RMS notified the defendant that the then Maritime signage was outdated and that the local Maritime Boating Safety Officer would be able to work with the defendant on some suitable signage encased in one frame, or on a single signage board. 8. To the extent the plaintiff's contention is that the "slippery" icon should have been on a separate sign specifying that the ramp is slippery, it necessarily follows that, lest any particular risk warning be overlooked as being of lesser importance, each of the slippery surfaces would then need to be the subject of a separate sign; and each of the 15 other warnings on the warning sign would also need to be the subject of a separate sign. Besides the absurdity of this outcome, which if upheld would be imposed as the standard of reasonableness in New South Wales, there is no evidence that having a plethora of signs makes each one more noticeable than having a single sign board with multiple warnings. Even so, the causation issues would still arise. 9. The plaintiff submitted that the warning sign did not convey a warning that the boat ramp was slippery, I have earlier dealt with that submission. The warning sign effectively communicated the risk which materialised so as to make the risk obvious to a reasonable person in the plaintiff's position. 10. The plaintiff's approach ignores, in my view, the fundamental requirement that the test of any response is reasonableness. Further, the approach also, impermissibly, invokes hindsight. 11. The plaintiff has not proven that a reasonable person in the defendant's position would have placed the sign in a different position. Nor has he proved what that position would have been or that it would have made any difference to the course of events, particularly having regard to the facts that the plaintiff knew of its existence, that it was a warning and of the nature of the risks to which the sign referred. 12. I am not satisfied that the plaintiff has made its case with respect to the contended precaution of different signage.
In light of the findings I have made under Div 5 of Pt 1A of the CLA and the further finding I will make below under Pt 1A vis-à-vis negligence, it is not strictly necessary to make a further finding relevant to the common law defence of volenti non fit injuria. However, I note there is substance in the submissions advanced by the defendant in that respect.

[88]

Section 5B

The question of breach is governed by s 5B of the Civil Liability Act. The relevant sections of that Act are set out in Pt 1A Div 2 and extracted below: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
Consistent with my earlier observations, it has been repeatedly stated that identification of the relevant risk of harm is critical for a proper evaluation of breach of duty under the CLA, because it enables assessment as to whether that risk was "foreseeable" for the purposes of s 5B(1)(a) of the CLA, whether it was "not insignificant" for the purposes of s 5B(1)(b), and whether the defendant failed to take reasonable precautions in response for the purposes of s 5B(1)(c): see Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151; Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 at [35].
The relevant risk of harm must encompass the circumstances of the kind suffered by the plaintiff: see Uniting Church at [110] and [118]. In a case where different risks are present, particularity is required: Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 at [116]; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 at [67]. That particularity requires some articulation of the general causal mechanism of the injury sustained: McKenna v Hunter & New England Local Health District [2013] NSWCA 476 at [266] per Garling J (in dissent, but not on this point).
As earlier found, the relevant risk of harm in this matter was the risk that a pedestrian might slip on the ramp and suffer physical injury.

[90]

Section 5B(1)(c)

To establish breach of duty under s 5B(1)(c) of the CLA, the plaintiff has the onus of demonstrating that a reasonable person in the defendant's position would have taken those particular precautions in response to the risk of harm.
The plaintiff's case is that the defendant failed to take the following precautions in response to the risk of harm: 1. place better or different warning signs about the risk of the ramp being slippery to walk on; 2. pressure-clean the ramp more regularly; 3. cut 25mm x 25mm gaps or grooves in the ramp; 4. build the ramp with no more than a 1 in 8 gradient; 5. install large rubber mats on the ramp; 6. otherwise investigate a means of reducing the risk of slipping; and 7. close the ramp.
Prior to reaching a conclusion as to s 5B(1)(c), as part of that evaluative process, the Court must evaluate each specified precaution against the mandatory considerations in s 5B(2) and s 5C of the CLA: Bunnings Group Ltd v Giudice [2018] NSWCA 144 at [38]. The Court must also assess the cumulative effect of the various precautions deemed reasonable: Weber v Greater Hume Shire Council [2019] NSWCA 74 at [197]. I will turn to the evaluation exercise, with respect to the above listed precautions, following a summary of the relevant principles that inform that assessment and my overall conclusion, in a cumulative sense, with respect to precautions.
It is not enough for the plaintiff to show there was a risk, or that before the plaintiff's accident other people had also reported slipping on the ramp. The Court must still turn to the second part of the enquiry posed by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48 (now enacted under s 5B(1)(c)), namely, what a reasonable person in the position of the defendant would do by way of response to the risk). As Ipp JA said in Waverley Council v Ferreira [2005] NSWCA 418 at [47], s 5B(1) was adopted to emphasise to trial courts the distinct nature of these steps.
In Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103, Meagher JA observed at [54]: [54] In assessing what reasonableness requires in response to a particular risk of harm, the reasonable person in the occupier's position is entitled to take into account "with due allowance for human nature, [that] a person he permits to be on his premises will use reasonable care for his own safety": per Mahoney JA in Phillis v Daly (1988) 15 NSWLR 65 at 74; a passage cited with approval in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [45] fn 69 (Gummow J); [2007] HCA 42. The weight to be given to that expectation is in each case a matter for factual judgment: Thompson v Woolworths (Q'land) Pty Limited (2005) 221 CLR 234 at [35]; [2005] HCA 19; and the matters to be considered include the "obviousness of [the] risk, and the remoteness of the likelihood that other people will fail to observe and avoid it" (at [36]). The Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) continued (at [37]): The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.
The defendant contended that, on several occasions in the plaintiff's submissions, the plaintiff incorrectly characterised the inquiry under s 5B(1)(c) as being whether, having knowledge of the risk of slipping on the ramp, the defendant has acted to prevent or to remove the risk. The plaintiff's case, it was submitted, was thus directed to the means by which an occupier could eliminate risk altogether, which, it was contended, was irrelevant to an assessment of breach: see Neindorf v Junkovic [2005] HCA 75 at [8] (per Gleeson CJ) and [91]-[95] (per Hayne J). I accept that submission.
In Neindorf v Junkovic, Gleeson CJ observed (at [8]): [8] This development in the common law resulted in a generalised standard of care, described as what a reasonable person would, in the circumstances, do by way of response to a foreseeable risk. Developments in legal principle do not, however, alter the practical realities to which legal principle must be applied. The same problems of everyday living that were sought to be addressed by the old, categorical approach to liability still had to be accommodated by the new approach. Those practical realities include the following. Not all people live, or can afford to live, in premises that are completely free of hazards. In fact, nobody lives in premises that are risk-free. Concrete pathways crack. Unpaved surfaces become slippery, or uneven. Many objects in dwelling houses could be a cause of injury. People enter dwelling houses for a variety of purposes, and in many different circumstances. Entrants may have differing capacities to observe and appreciate risks, and to take care for their own safety. An ordinary kitchen might be reasonably safe for an adult, and hazardous to a small child. The expression "reasonable response in the circumstances" raises a question of normative judgment which has to grapple with all the practical problems that the law had earlier attempted to solve in the manner described by Professor Fleming. The problems did not disappear. They now require consideration under a somewhat different rubric. The fundamental problem remains the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises. That problem is no longer addressed by prescriptive legal rules which attempt to establish precise and different standards of care for different classes of entrant. Yet the problem remains.
It is also apt to recall what Gleeson CJ said in Jones v Bartlett (2000) 205 CLR 166 at [23]-[24]. The comments were directed to dwellings, but apply equally to outdoor amenities: [23] There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense. [24] In Phillis v Daly, Mahoney JA said: "There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed."
Bryson J (Meagher and Heydon JJA agreeing) warned in Waverley Council v Lodge [2001] NSWCA 439 at [29] about the difference between foresight of risk and an obligation to act on the risk: [29] This passage, in which a majority of the High Court concurred, shows that decision on foresight of risk of injury is quite distinct from decision on reasonable response. Mason J's expressions show that foresight of risk is readily available, but they also show that foresight does not commit to action. Shirt's case does not in my view show a short pathway to a ready conclusion but requires the Court to address the degree and magnitude of the risk, its degree of possibility and other relevant factors, with openness to a possible outcome that no response should be made, even though simple and cheap measures can be suggested; those measures though simple and cheap may not be the response of the reasonable person. The facts of the instant case are to be addressed, and generalisations of outcomes cannot be reliable.
As to principles relevant to breach of duty and with particular reference to the later discussion of the burden of taking precautions in this judgment, the plaintiff relied upon the following summary of principles set out by Basten JA in Weber v Greater Hume Shire Council [2019] NSWCA 74 at [94]-[101]: [94] First, the requirement in ss 5B(2)(c) and 5C(a) that the court consider "the burden of taking precautions" refers, in relation to a public authority, to the allocation of necessary financial and other resources, additional to those already deployed, to achieve the precautions that would have been taken by a reasonable council, for the purposes of s 5B(1)(c). [95] Secondly, that assessment must take into account the additional burden which would be required to avoid "similar risks of harm" in other activities conducted by the authority: s 5C(a). [96] Thirdly, in determining whether it would be reasonable to require the taking of additional precautions, the court must apply as a principle the assumed fact that such financial and other sources as are reasonably available are "limited": s 42(a). That is not to say that the court cannot find that an additional allocation of resources was reasonably required to meet the risk of harm, so long as the broader inquiry, extending beyond the circumstances of the plaintiff's case, is undertaken in accordance with s 5C(a). [97] Fourthly, the reference to "functions required to be exercised by the authority" in s 42(a) is to be understood as referring to functions which may involve similar risks of harm, so as to operate coherently with s 5C(a). The phrase "the broad range of its activities" in s 42(c) would not, in the present case, require reference to the activities of the Council in maintaining libraries, roads or other services with no direct relationship to the operation of waste management sites. Nor would it include management of Council lands not used for waste disposal. [98] Fifthly, the court is not permitted to allow a plaintiff to "challenge" the general allocation of "those resources", being the resources that are reasonably available for the exercise of the functions identified in s 42(a), as understood in accordance with the broad range of activities identified in s 42(c). There is, of course, no reallocation of resources as a result of the court's order; rather, the defendant authority will be required to pay damages to compensate the plaintiff's loss. What is prohibited, however, is the conclusion that additional resources should have been made available, although they had, at the relevant time, been allocated to the exercise of other functions. [99] Sixthly, while there can be no challenge to the general allocation of the resources so identified, the court can conclude that more unallocated resources should have been provided. No claim in negligence against a public authority can succeed unless the plaintiff establishes that there were precautions available which a reasonable public authority in the position of the defendant would have taken. In most cases that will involve the putative allocation of resources at a time prior to the point at which the risk of harm materialised. [100] If this understanding of the operation of s 42 (read in the context of ss 5B and 5C) is correct, it is less likely, in comparison with a broader reading, that its application will disrupt the efficient disposal of the plaintiff's negligence claim. In any event, the purpose of s 42(b) is to prevent, rather than encourage, the tender of large volumes of accounting material by a public authority, as occurred in the present case. [101] Thus, the Council tendered evidence at trial from its general manager, Mr Steven Pinnuck, and an officer involved in preparing Council's accounts, Mr David Smith. Their statements annexed or exhibited more than 1,400 pages of financial reports. Of those, fewer than 250 were included in the appeal books. Even when questioned by the Court, a very small proportion even of those pages were referred to in the course of submissions.

[94]

Evidence of Mr Fowler

In his supplementary statement dated 13 November 2018, Mr Fowler gave evidence by reference to the defendant's electronic database, the Reflect Maintenance Management System ("the Reflect System") and hardcopy timesheet records (collectively, "the records"), as to inspections and pressure cleaning of the boat ramp in the months prior to the accident on 22 February 2015.
The Reflect System records all work orders and inspection and maintenance activities carried out by the defendant's employees and officers. Mr Fowler stated that there was an expectation that the officer's activities would be entered into the Reflect System as soon as possible after the tasks were completed.
Mr Fowler gave evidence that in 2014 and 2015, the officer performing the task would fill out a timesheet showing the tasks they had completed each week. Their manager would then collect the officer's timesheets and enter the activities from the timesheet into the Reflect System.
Mr Fowler was cross-examined with respect to omissions from the Reflect System: Q. In your statement of 13 November 2018, you refer to the fact there is no entry in the reflect spreadsheets at attachment A and attachment B, for the pressure cleaning carried out by Mr [Sippel] on 30 December 2014. And you're unable to explain why there is no entry. Is that correct? A. Correct. Q. Could it be that the reason there is no entry is because Mr [Sippel] wasn't down there for the purpose of pressure cleaning? A. I wouldn't know. Q. You see, if you go over to - pardon me a moment. Can I show you this document. It might be a bit easier to read. I'll show you the four page document. A. Thanks. Q. That's a copy of, again, the reflex documents. A. Yeah. Q. And you see they're actually divided into headings. A. Yes. … Q. Sir, the reason that Mr Sippel might have been down there was for other purposes, apart from the ramp? A. Potentially, yeah. … Q. But by that stage, the ramp hadn't been cleaned since November? A. There's no records of it. No. Q. Well, if we accept the Council records as being accurate? A. I wouldn't. I have to say - and I - I'll say this that at that particular time there was a real issue with people actually recording what they were doing. So what they would tend to do is lump a whole heap of things under one cost centre, because it was easier. They just didn't like doing paperwork. Q. So does that mean where we see, "Pressure Cleaning," in the-- A. It would have been done. Q. Why would you say it would have been done if there was that time where people would lump it all-- A. They would lump things together. So brush - and I'd actually witnessed the guys do that. Where they would pressure clean the ramp and also did brush cutting and they put it all down to brush cutting. Q. But there's simply no evidence that that occurred? A. There's no evidence. No. I agree.
Mr Fowler was also cross-examined as to his knowledge of the storm water outfall and the risks that presented: Q. You are aware, also, are you not, that to the west of the ramp, further around, there is a storm water-- A. Yeah. Q. --outfall. A. Yeah. Q. And you are aware that as a result of there being the storm water outfall there, the council was aware of the risk of algae blooms being more frequent. A. I wasn't aware of that. No. Matter of fact, most of the stuff you're referring to now, I wasn't aware of until after Mr Bowman's unfortunate incident, including the design, the drawings, and all that sort of stuff. Q. Are you aware that one of the suggestions which were made by Mr Coulter was that the council could put a heavy rubber mat on the ramp. A. I did see that suggestion. Q. And you're aware, are you not, that other investigations into what else could be done to assist in taking the slipperiness out of this ramp was suggested by Mr Coulter. A. Some of them. Yeah.
In light of the evidence of Mr Fowler, the plaintiff submitted: 1. The omissions in the Reflect System support a conclusion that cleaning had not been carried out on the boat ramp in accordance with either the defendant's recommendations or knowledge of the potential risk associated with failing to carrying out such cleaning regime. 2. There was no evidence of cleaning from 3 January to 22 February 2015, which according to all of the evidence, the plaintiff submitted, created a substantial risk of injury to the persons using the boat ramp at the time of the accident, which at that time of year would comprise many hundreds of people.
The defendant submitted that the records show that in the half-year prior to the accident, inspections of the ramp occurred roughly every month, followed usually by pressure cleaning within about a fortnight. A summary of that evidence follows: 1. On 15 July 2014, the boat ramp was inspected. 2. On 17 July 2014, the boat ramp was pressure cleaned. 3. On 12 August 2014, the boat ramp was inspected. 4. On 3 and 15 October 2014, the boat ramp was pressure cleaned. 5. On 6 November 2014, the boat ramp was inspected. 6. On 12 November 2014, the boat ramp was pressure cleaned. 7. On 17 December 2014, the boat ramp was inspected. In the inspection report dated 17 December 2014, there was a request that the ramp be cleaned. 8. On 30 December 2014, the boat ramp was pressure cleaned. The defendant conceded that this activity was not recorded in the Reflect System. However, it was recorded in a handwritten timesheet of the defendant worker who carried it out. Mr Fowler accepted that Mr Sippel, who attended the boat ramp, may have been present, for purposes other than pressure cleaning but he also stated that employees had not been consistently recording what they had been doing at the time. He considered the records showed the work had been done. His reference to there being no evidence of cleaning was, in my view, merely a reference to the absence of a Reflect System record. 9. On 6 February 2015, the boat ramp was inspected. However, Mr Fowler could not locate an inspection report for that inspection. Mr Fowler agreed that Mr Watts who attended would not have cleaned the boat ramp. 10. On 24 February 2015, the boat ramp was pressure cleaned.
I consider the process of inspection and cleaning had not significantly departed from the pattern of above monthly inspections, starting from August. Further, whilst pressure cleaning did not occur between 3 January and 22 February 2015, it did occur slightly before that date range on 30 December

[95]

Evidence of Mr Coulter

During cross-examination, Mr Coulter was taken through his January 2014 correspondence with respect to the then recent slip and fall at the boat ramp. He confirmed his concerns as to the importance of maintenance of the boat ramp for safety.
Mr Coulter gave unchallenged evidence as to some reasons why despite the monthly schedule, it was not always possible to perform pressure cleaning at exact one-month intervals, particularly during the period immediately before the accident: 1. When there is a build-up of sand over the bottom of the boat ramp, it cannot be pressure cleaned. 2. When there are large seas such as those generated by cyclones to the north or "east coast lows" the boat ramp cannot be cleaned. 3. When there are higher than usual tides it is not possible to access (for cleaning) the parts of the boat ramp likely to become affected by marine growth. 4. Depending upon the sequence of tides and the prevailing weather conditions it may not be possible to gain access to the boat ramp for the purposes of cleaning for long periods of time. 5. In February 2015, the team of the defendant's employees responsible for cleaning the boat ramp worked a nine day fortnight with a fixed rostered day of leave on a Friday. 6. The tides, big seas, and work roster made it difficult to find a window where the team could pressure clean the boat ramp. 7. During the summer of 2014 and 2015, the bottom of the boat ramp was frequently covered with water. 8. There was bad weather and rough seas in the period leading up to the plaintiff's accident.
Mr Coulter agreed in cross-examination that the boat ramp should be cleaned at least monthly for safety reasons. He also stated the boat ramp should be cleaned as required, although he was unclear as to whether a cleaning system of less than one month had been sought, merely citing "people" who had suggested that course.
In light of the evidence of Mr Coulter, particularly his correspondence in January 2014, the plaintiff submitted: 1. Mr Coulter was aware and by emails made others aware that the precautions needed to be taken, including the provision of warnings specifically addressing the fact that the ramp was slippery, and that there was a need for regular cleaning at least on a monthly basis, if not more often. 2. Not only did the defendant have the foresight of the risk as was clearly shown by the documents upon which Mr Coulter was cross-examined and Mr Coulter's evidence, but also were aware of the need to address the issues by appropriate cleaning regimes which had not taken place and were likely to lead to injury to persons using the ramp.
The plaintiff also sought the Court to draw an adverse inference from the fact that the defendant did not call witnesses other than Mr Fowler and Mr Coulter to give evidence as to the cleaning of the boat ramp, namely, that such evidence would not have assisted the defendant. Those submissions are extracted below: 67. The plaintiff submits that the evidence is such that the court would be entitled to find in the absence of evidence to the contrary that the various witnesses, apart from Mr Fowler and Mr Coulter, who had been named within the cross-examination of Mr Fowler and Mr Coulter, and were not called would not have assisted the defendant's case. 68. No explanation is given for the failure to call these witnesses including any witness who may have been able to give evidence as to when they attended for the cleaning of the ramp.
In reply to that submission, the defendant submitted it put into evidence its documentary records of inspection and cleaning, and exposed Mr Coulter and Mr Fowler to cross-examination on the defendant's other documentary records. Those records were not challenged, and the plaintiff does not identify any specific inference the Court should draw against the defendant, against which the calling of specified defendant witnesses might detract. The submission of the plaintiff is, therefore, without substance and should be rejected. I accept that submission.
As earlier mentioned, Mr Kiernan produced an investigation report with respect to the accident. The investigation report was requested by the plaintiff's solicitors. They instructed Mr Kiernan to visit the site of the accident and prepare a report for the purposes of providing an opinion about the circumstances of the accident and the viability of the claim. More particularly, Mr Kiernan was asked to address, inter alia, the following question: How the boat ramp can be made safe through engineering or other means?
Mr Kiernan opined that any remedial measures with respect to improving slip resistance should take into account the different concrete surface finishes and slopes of each concrete slab. For example, the eastern slab is "higher" than the western slab; the investigation report of Mr Kiernan recorded that, as a result, the eastern level would be inundated with tidal water "less" than the western level. This is significant as it is less exposed to water and the risk of algae growth as a result.
Mr Kiernan observed: Council's current method to maintain an acceptable slip resistant surface on the boat ramp is to apply pressure cleaning about monthly and carry out regular inspections as part of routine maintenance. This maintenance program relies on Council's staff being able to access the boat ramp in all weathers and including the range of tides to clean the lower sections of the ramp. Thus to reduce the potential for slip accidents, improvements ramp slip resistance on the lower sections of the ramp are required.
By that evidence, Mr Kiernan recognised the limitations within the current cleaning system.
As to the burden of taking precautions to avoid that risk, the plaintiff contended it was not great. That conclusion was based upon the fact the defendant had already committed itself to a course of action in that respect. I have earlier accepted that submission.
As to the social utility of the activity, the plaintiff submitted it was important in view of the fact that the boat ramp was used as an access for hundreds of members of the public and/or children engaged in surf lifesaving training. I accept that factor would indicate the need for a precaution to be taken.
I will return to the consideration of application of s 5B(1)(c) below.
There are four aspects of the plaintiff's case as to precautions which received little development in final submissions: 1. the construction of 25mm x 25mm gaps and/or the cutting of grooves; 2. the gradient of the boat ramp; 3. the use of large rubber mats; and 4. further investigation.
I will consider those factors in the overall consideration of precautions, but given the approach of the plaintiff to these issues, they may be shortly dealt with at this juncture before returning to them in conclusions. Each contains issues as to the precautions significance in the light of the accident.

[101]

Consideration: s 5B(1)(c)

The onus with respect to s 5B(1)(c) falls to the plaintiff to demonstrate that a reasonable person in the defendant's position would have taken those particular precautions identified by the plaintiff in response to the risk of a pedestrian slipping on the boat ramp.
The Court has previously dealt with particular aspects of the plaintiff's case in this respect because there is a connection to a related consideration, such as, the discussion of signage and warnings in the case of the consideration of the existence of a "obvious risk" or because the plaintiff less rigorously addressed some precautions relied upon such as submissions concerning grooves, the gradient of the boat ramp, the use of rubber mats, and the conduct of further investigations. The plaintiff's contentions were rejected for the reasons given in that context.
I propose to deal with two more aspects of the plaintiff's case in this respect before turning to an overall conclusion, namely, the failure to reasonably maintain the boat ramp by the use of pressure cleaning and a failure to close the boat ramp on the occasion of the accident.
As to the first of those considerations, I do not consider the plaintiff has failed to establish that a reasonable person in the defendant's position would have ensured that the boat ramp was cleaned at least once every month. Nor do I consider that, if such an obligation existed, it was breached (there are further issues with respect to causation which I discuss below). Mr reasons, in that respect, are as follows: 1. There is no evidence as to whether that the defendant's system failed to meet, met, or exceeded, an applicable standard for routine pressure cleaning of marine boat ramps, which would properly permit a conclusion that any departure from the plan (such as it occurred) amounted to a departure from a reasonable standard of care. 2. The defendant's regime for pressure cleaning was not for it to occur "at least every month" or more often. In fact, it was much more irregular due to numerous factors identified by Mr Coulter which restricted the time when cleaning was possible. 3. Mr Kiernan observed that, because the defendant's system of pressure cleaning was "about monthly", and the carrying out regular inspections relied on staff being able to access the boat ramp in all weathers (catering for the range of tides that might prevent cleaning of the lower sections of the ramp), it was necessary to improve the slip resistance on the lower sections of the ramp. Thus, his evidence was not critical of the defendant's system of inspections and cleaning, which he acknowledged did not lead to pressure cleaning each and every month. His point was that because of the inherent limitations in such a system, a more permanent solution was needed for the lower sections of the boat ramp which were often inundated and had marine growth. 4. As the Court of Appeal observed in Bunnings Group Ltd v Giudice at [34] (per Leeming JA, White JA and Emmett AJA): [38] … Paragraph (c) of s 5B(1) is directed to the precautions, the failure to take which is alleged to be a breach of duty. The point is that it is for the plaintiff to show not merely that there were precautions available to address the risk, but also that a reasonable person in the defendant's position would have taken those precautions. The onus of demonstrating that rests with the plaintiff, whose action must fail if this cannot be shown. [Emphasis added.] 1. In any event, the records of the defendant show that the cleaning in the months before the accident substantially conformed with a monthly regime of inspection followed by cleaning. 2. In those circumstances, the plaintiff has not proven that the defendant's implementation of its system of inspections and pressure cleaning fell short of reasonable standards.
As to the contentions of the plaintiff as to the closure of the boat ramp at the time of the accident, I do not consider the plaintiff has made good its contentions for the following reasons: 1. The plaintiff's case is that a very large number of people used the ramp for access to the beach, in part because other means of access were either unavailable or far away. The documents tendered by the plaintiff show that: 1. the boat ramp afforded safer access to the ocean for boats; and 2. there was broad community support and socioeconomic benefits to the ramp. 1. Although there was evidence from Mr McNally that he had seen a number of pedestrians slipping on the ramp, there were only isolated instances in the evidence of people suffering injury or complaining to the defendant and the slipperiness of the boat ramp surface. It can be inferred that the hundreds of pedestrians using part of the ramp to access the beach were aware that it could be slippery but nonetheless managed to walk on it with care without slipping. Unlike in Randwick City Council v Muzic [2006] NSWCA 66, which concerned sea baths with concrete promenades that had heavy surface algal growth, there is no evidence here of numerous people suffering severe injury, including back and neck injuries, from slipping on the boat ramp. 2. More globally, there is considerable force in the defendant's submissions The plaintiff's contentions seems to be that any public location that poses a risk of injury should be closed, even if the risk is obvious, the subject of a warning sign, and able to be accommodated by people taking care for their own safety.

[103]

Section 5D

The question of causation is governed by s 5D of the CLA. The relevant sections of that Act are set out in Pt 1A Div 3 and extracted below: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
The application of the CLA requires the plaintiff to establish factual causation and scope of liability. The plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation: s 5E of the CLA.
The relevant authority on causation was summarised in Weber v Greater Hume Shire Council [2018] NSWSC 667 at [85]-[94], which I adopt and extract below: [85] The traditional approach to the question of causation requires a determination of a question of fact, namely what was the cause of a particular occurrence: Fitzgerald v Penn (1954) 91 CLR 268; Stapley v Gypsum Mines Ltd [1953] AC 663; [1953] 2 All ER 478 (at 681). This factual determination is generally described as the "but for" test or "causa sine qua non". [86] The common law approach to the issue of causation has since developed by reference to two distinct considerations, succinctly set out by Mason CJ in March v E & MH Stramare Pty Ltd (1991) 99 ALR 423; [1991] HCA 12 ("March v Stramare") (at 430) and summarised as follows: (1) The application of the "but for" test (as well as the further question of whether a defendant is contributory negligent for damage if his or her negligence has played some part in producing); and (2) The applicability of value judgments and considerations of policy. [87] In March v Stramare, the High Court ruled that the "but for" test should not be treated as the definitive test of causation where negligence is alleged. Rather, in certain circumstances, causation is to be determined by policy and/or a value judgment involving ordinary notions of language and common sense. [88] This development addressed the oft-cited difficulty in application of the "but for" test in circumstances where there were two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The limitations of the test, particularly where there are two or more acts or events, each of which would be sufficient to bring about the plaintiff's injury, or where a defendant seeks to rely upon a "supervening cause" or "novus actus interveniens", are well established: March v Stramare at 430; Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 ("Chapman v Hearse") at 124-125. This difficulty was summarised by Mason CJ (March v Stramare at 431-432) and extracted below: … the "but for" test does not provide a satisfactory answer in those cases in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation which would otherwise have resulted from an earlier wrongful act. Many examples may be given of a negligent act by A which sets the scene for a deliberate wrongful act by B who, fortuitously and on the spur of the moment, irresponsibly does something which transforms the outcome of A's conduct into something of far greater consequence, a consequence not readily foreseeable by A. In such a situation, A's act is not a cause of that consequence, though it was an essential condition of it. No doubt the explanation is that the voluntary intervention of B is, in the ultimate analysis, the true cause, A's act being no more than an antecedent condition not amounting to a cause. But this explanation is not a vindication of the adequacy of the "but for" test. The facts of, and the decision in, M'Kew illustrate the same deficiency in the test. The plaintiff would not have sustained his ultimate injury but for the defendant's negligence causing the earlier injury to his left leg. His subsequent action in attempting to descend a steep staircase without a handrail in the normal manner and without adult assistance resulted in a severe fracture of his ankle. This action was adjudged to be unreasonable and to sever the chain of causation. The decision may be explained by reference to a value judgment that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant's wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff. But in truth the decision proceeded from a conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action. The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk: see Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN(NSW) 1070. To deny recovery in these situations because the intervening action is deliberate or voluntary would be to deprive the duty of any content. … As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the "but for" test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it. [89] Deane J also relevantly observed (March v Stramare at 435-436): … the mere fact that something constitutes an essential condition (in the "but for" sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a "cause" of that occurrence as a matter of either ordinary language or common sense. Thus, it could not, as a matter of ordinary language, be said that the fact that a person had a head was a "cause" of his being decapitated by a negligently wielded sword notwithstanding that possession of a head is an essential precondition of decapitation. Again, the mere fact that a person makes a gift of money to another is not, in any real sense, a "cause" of the damage sustained by that other person when his agent negligently loses the money notwithstanding that the loss would not have occurred "but for" the original gift. As Lord Reid pointed out in Stapley (at 681): The question [of 'what caused an accident from the point of view of legal liability'] must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally. [90] Further relevant developments by the High Court, cited in March v Stramere, included the following: (1) In Chapman v Hearse, the High Court rejected reasonable foresight as a test of causation (at 124-5). Rather, "it marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act" (at 122). (2) In Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 1 59 ALR 722; [1985] HCA 37, the High Court observed (at 725): A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens: M'Kew v Holland & Hannen & Cubitts [[1970] SC(HL) 20 at 25]. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone: see Chapman v Hearse (1961) 106 CLR 112 [at 124-5]. Whether such a line can and should be drawn is very much a matter of fact and degree (ibid, at p 122). [91] The two-fold common law approach in March v Stramare, set out above, is now reflected in s 5D of the Civil Liability Act. A determination that the defendant's negligence caused particular harm requires satisfaction of the following: (1) whether the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (2) whether it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). [92] Causation will be established if the evidence justifies, in light of the statutory test, a finding or inference of "probable causal connection between the breach of duty and the harm suffered": C Sappideen and P Vines (eds), Fleming's The Law on Torts (10th ed, 2011, Thomson Reuters) at 226-227. If the probable causal connection is established, the law treats as certain that to which there may be no conclusive answer: Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5 at [70]. [93] Causation in tort is not established because a tortious act or omission increases the risk of injury, even though the relationship between risk and causation must be assessed. The mere existence of an association between one occurrence and another does not, of itself, establish factual causation for the purposes of s 5D(1)(a). [94] In Carangelo v State of New South Wales [2016] NSWCA 126 ("Carangelo") at [71], Emmett AJA (with whom Macfarlan and Gleeson JJA agreed) stated, in this respect: [71] Causation in tort is not established merely because the allegedly tortious act or omission increased a risk of injury. The risk of an occurrence and its cause are quite different things. However, the relationship between risk and causation must be considered. Ordinarily, risk refers to a challenge or danger, or the chance or hazard of loss. The existence of an association or a positive statistical correlation between the occurrence of one event, and the subsequent occurrence of another, may be expressed as a possibility which may be no greater than a real chance that, if the first event occurs, the second event will also occur. The mere existence of such an association or correlation does not justify a statement relevant to factual causation in law, that the first event creates or gives rise to or increases the probability that the second event will occur. Such a statement contains an assumption that, if the second event occurs, it will have some causal connection to the first. However, if the association between the two events is shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the first event has been at least a contributing cause. An inference of causal connection may be reached on the balance of probabilities after the event, notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a mere possibility or a real chance that the second event would occur, given the first event. (Amaca Pty Limited v Booth [2011] HCA 53; 246 CLR 36 at [41]-[43]).

[105]

Conclusion: s 5D

In my view, the plaintiff has failed to establish factual causation for the purposes of s 5D for the following reasons: 1. In relation to the signage, the plaintiff was aware of the warning sign having previously seen it. He was also aware that it provided warnings. He already had experience of boat ramps being slippery, and agreed that he would approach any boat ramp on the basis that it could be slippery. In those circumstances, a separate sign warning only of a slippery ramp could not, on the evidence, have changed the outcome, particularly as there was no evidence as to where such a sign would have been placed so as to make it more noticeable or more visible to the plaintiff. 2. In relation to the pressure cleaning, the part of the boat ramp where the plaintiff slipped was not inundated, and was not exposed to marine growth at the time of the accident. It is therefore difficult to see how additional pressure cleaning, even if it had occurred about a month after it last occurred on 30 December 2014 but before the accident on 22 February 2015, would have made any difference to the slip resistance of that part of ramp. Further, the plaintiff has not proven that the difference between the amount of growth if cleaned one month after the last cleaning and the growth present when the slip occurred would have been such as to avoid the harm. 3. In relation to the grooves precaution, the part of the boat ramp where the plaintiff slipped was never designed to have grooves. According to Mr Kiernan, the thickness of the eastern level was not compatible with having grooves cut into it. Because it was not inundated or exposed to marine growth, there is no evidence to suggest that grooves would have changed its slip resistance at all, or improved it sufficiently to avoid the accident. Mr Kiernan after all conducted no slip resistance testing. 4. In relation to the gradient case, there was no evidence as to how changing the gradient from a 7% slope (to maximum 10% - see my earlier finding) would have made any difference to the outcome. Nor is there evidence to support the removal of the existing slab so as to alter the slope in the ramp at the slip location. 5. In relation to the rubber mat and further investigation cases, the same problems identified in relation to the assessment of breach apply equally to an assessment of causation.
Accordingly, I am not satisfied that causation has been established with respect to any relevant breach of duty, if a breach had been established.

[107]

SECTION 42 OF THE CLA

The defendant raised a defence under s 42 of the CLA.
Section 42 provides: 42 Principles concerning resources, responsibilities etc of public or other authorities The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies - (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.
The Court of Appeal in Weber v Greater Hume Shire Council [2019] NSWCA 74, provided guidance with respect to the construction of s 42 of the CLA: 1. The drafting of s 42(a) is awkward, but it is the resources available for the exercise of functions which are limited, not the functions themselves: [59]. 2. In determining whether it would be reasonable to require the taking of additional precautions, the Court must apply as a principle the assumed fact that such financial and other sources as are reasonably available are "limited". A court can, however, find that an additional allocation of resources was reasonably required to meet the risk of harm, so long as the broader inquiry, extending beyond the circumstances of the plaintiff's case, is undertaken in accordance with s 5C(a): [97]. 3. The reference to "functions required to be exercised by the authority" in s 42(a) is to be understood as referring to functions which may involve similar risks of harm, so as to operate coherently with s 5C(a): [98]. 4. A court is not permitted to allow a plaintiff to "challenge" the general allocation of "those resources", that is, the resources reasonably available for the exercise of the functions identified in s 42(a), as understood in accordance with the broad range of activities in s 42(c). A court may not reach the conclusion that additional resources should have been made available although they had been allocated to the exercise of other functions at the relevant time. A court can conclude, however, that more unallocated resources should have been provided: [99]-[100].
In Bathurst Regional Council (as Trustee for the Bathurst City Council Crown Reserves Reserve Trust) v Thompson [2012] NSWCA 340 ("Bathurst Regional Council v Thompson"), the appellant council submitted the primary judge erred in failing to take into account the principles under s 42. The factual background concerned the respondent who fell when descending the steps of a rotunda and sued the appellant owner and occupier of the relevant park.
In Bathurst Regional Council v Thompson, Hoeben JA (as he then was) observed, to succeed under s 42, there has to be evidence of the financial and other resources that are available to the authority, the general allocation of those resources, and the range of the authority's activities. Without such evidence, such matters cannot be taken into account by a Court, and there is no subject matter to which the s 42 principles can be applied (at [46]-[50]): [46] Implicit in the appellant's submission is an assumption that the trial judge was obliged to take into account those "principles" even if no evidence of any of the matters in s42 was adduced. That is not so. A simple reading of the section makes that clear. There has to be evidence of "the financial and other resources" that are available to the authority and "the general allocation by it" of those resources. There needs to be evidence as to the range of the authority's activities. Without that basic material, a court has nothing upon which to apply the principles in the section. [47] If there were any doubt as to the correctness of that approach to s42, it was resolved by the careful analysis of the section by Campbell JA and Sackville AJA in Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263. There, Campbell JA relevantly said: "395 The effect of section 42(a) in the present case is that what the RTA can be required by the law of negligence to do is limited by the financial and other resources that are reasonably available to the RTA for the purpose of carrying out the care, control and management of freeways and any other roads that are under its care, control and management. Its budget for that purpose is so large that any expenditure that would have been involved in earlier screening of the Glenlee Bridge, or indeed in earlier screening of all overpasses on freeways would have been well within its budget. 396 When section 42(b) uses the expression "those resources" it is referring back to section 42(a). What section 42(b) requires not to be challenged, in the present case, is the "general allocation" by the RTA of those resources that are reasonably available to the RTA for the purpose of the care control and management of freeways and other roads under its care control and management. 397 There is an important difference in prepositions between section 42(a) and section 42(b). Section 42(a) is concerned with the resources reasonably available to the authority, while section 42(b) is concerned with the allocation of those resources by the authority. In other words, section 42(b) starts from the position that certain resources are reasonably available to the authority, and considers the allocation that is made by the authority of those resources." [48] Sackville AJA made observations to similar effect: "449 Subject to the effect of ss 42 and 43A of the Civil Liability Act, I see no compelling reason in the present case, whether deriving from distinctions sometimes drawn between policy and operational matters or otherwise, for the Court to shy away from undertaking the assessment contemplated by s 5B, in particular weighing up the matters identified in s 5B(2). This requires the Court to determine whether a reasonable person in the position of the RTA would have fenced the Glenlee Bridge notwithstanding competing claims on its resources to address similar risks of serious injury elsewhere. In making this determination, the Court needs to consider whether the RTA's ordering of priorities was a departure from standards to be expected from a reasonable person in the RTA's position. The Court should also take account of the opportunities reasonably available to the RTA to gain additional funding from the Commonwealth or other sources for the purpose of addressing particularly acute risks of which it was aware or should have been aware. 450 Campbell JA's analysis of the facts in this case seems to me to show that the RTA appreciated in a reasonably timely fashion the nature and magnitude of the risk to road users, including the risk to users of the F5 from the Glenlee Bridge, by reason of objects being thrown or falling from overpasses. The RTA's response to the risk, having regard to the burden of taking precautions to alleviate the risk of harm to all road users from similar sources, was not shown to be unreasonable. The RTA adopted a rational and apparently systematic (although not perfect) approach to assessing priorities for the erection of protective fencing on the basis of the magnitude of risk. It acted on that assessment within the limits of available resources. The evidence does not demonstrate that a reasonable authority in the position of the RTA would have sought additional funding from the Commonwealth or that, if it did, such funding would have been made available for fencing the Glenlee Bridge before the incident that led to Mr Evans' death." [49] Not only do those paragraphs helpfully set out how s42 is to be applied but it is apparent from their content that the issues there under consideration depended upon the evidence which the RTA gave concerning the particular subject matter of s42. Without that evidence, there was no subject matter to which the s42 principles could be applied. [50] No evidence of any of those matters was adduced by the appellant. It follows that even if his Honour had found that s42 applied to this case, the section had no practical application in the absence of some evidence with respect to the various subject matters referred to in it. These grounds of appeal have not been made out.
The plaintiff submitted: 91. It is further to be noted that the council prepared and managed the reconstruction of the boat ramp with allocated funds for that purpose. 92. To the extent that the defendant seeks to rely upon limited financial and other resources, the resources had already been put into place for the cleaning of the ramp and the grant itself included signage.
The defendant did not develop and has not established on the evidence a statutory defence under s 42 of the CLA.

[108]

CONTRIBUTORY NEGLIGENCE

In McNeilly v Imbree (2007) 47 MVR 536 at [106], Basten JA said of the "just and equitable" test, where used in assessing contributory negligence: The test of apportionment, based upon what is "just and equitable", undoubtedly requires an evaluative judgment of an imprecise kind, permitting the trial judge a reasonably broad range within which any particular finding will not be open to challenge: see Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492.
In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529, another case of contributory negligence, the High Court said (at 532-533): The making of an apportionment as between a plaintiff and a defendant of the respective shares in the responsibility for the damage involves a comparison of both culpability, ie. of the degree of departure from the standard of care of the reasonable man and the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.
The plaintiff submitted: 108. To the extent that the defendant relies upon an obligation upon the plaintiff to look where they are going, perceiving and avoiding risks or hazards the defendant has not established that the plaintiff was in any way contributory to the fall the evidence being that he walked slowly onto the ramp, was looking ahead of him towards where his son was and that there was nothing to alert the plaintiff to the risk. 109. To the extent that the defendant particularises its contributory negligence it has failed to establish that the plaintiff was not taking care in the circumstances. It failed to establish that the plaintiff was walking in water, that being contrary to the evidence of James Bowman, it failed to establish that the risk was obvious or that he saw warning signs or ought to have seen warning signs or that he was wearing unsuitable footwear. 110. The balance of the contributory negligence pleadings are also not established.
The defendant contended that the following factors necessitate a finding of contributory negligence in the present case: 1. The plaintiff was aware of the warning sign, having previously seen it. He was also aware that it provided warnings. He already had experience of boat ramps being slippery, and agreed that he would approach any boat ramp on the basis that it could be slippery. 2. The plaintiff chose to walk down the ramp towards James, even though he knew that the ramp, as with any marine boat ramp, might be slippery or very slippery, particularly in the weather conditions then present.
Based upon my earlier findings, the defendant's submissions, in this respect, must be accepted. Further, I have found that there was an obvious risk of slipping whilst the plaintiff walked down the boat ramp.
Taking these matters into account, if required to determine contributory negligence, I would find the loss should be apportioned 10% to the defendant and 90% to the plaintiff.

Bowman v Nambucca Shire Council

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (112 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (62)

Cited By (1)