I have quoted almost verbatim from the transcript: doubtless Mr Gormly's submissions ran more smoothly than they have been recorded.
80 However, there was just no evidence that anything that the Club did other than perhaps erecting a sign which said "Coleambally Ski Beach" that could be any attraction at all. This was not a case like Nagle where there had been a deliberate attempt by the occupier of the site to attract tourists to it. To my mind it is going too far to say that a person who uses public land with permission for its activities and erects facilities thereby owes a duty to members of the public whom it might reasonably suspect would come on to the site.
81 (3) The third point raises two issues which I have set out above. I will deal with the second immediately, that is, that his Honour erred because of a failure to analyse sequentially duty, foreseeability and breach.
82 Mr Gormly said that courts do not assess obviousness as though it were a cut-throat defence like volenti non fit iniuria. Courts do not look at the plaintiff's behaviour and say he did something foolish and therefore he doesn't recover. Instead the law looks at what the defendant did. It considers whether the defendant had a duty of care, whether the risk foreseeable, applies the Shirt calculus and the court then considers breach of duty. His Honour just did not carry out this task. He merely assumed, because the risk was obvious, there was no duty.
83 I do not consider that this is quite fair to his Honour. One does not necessarily get a different answer if one examines duty, foreseeability, breach in that order, or whether one takes an overall view of the scenario. As I have said, it is sometimes difficult to distinguish between the non-existence of a duty and the existence of a duty but the non-breach of the duty. His Honour did direct his mind to the activities of the defendant and indicated that the duty did not extend to a situation where an adult person was doing something foolhardy.
84 This brings me to the other aspect of Mr Gormly's third point, and that is, the distinction between the objective assessment of an obvious risk and foolishness or contributory negligence with its subjective requirements.
85 Mr Gormly says:
"You don't assess obviousness as though it were a cut-throat defence like volenti, and look at the plaintiff's behaviour and say he did something foolish and therefore he doesn't recover, one has to follow the law and say did the defendant consider this component of alleged obvious risk, and added up with the other factors in its knowledge, then produce an adequate response to that risk."
86 In Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, 474, Gleeson CJ said:
"What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all the circumstances, of which the obviousness of a risk may be only one. And, as a proposition of fact, it is not of universal validity. Furthermore, the description of a risk as obvious may require closer analysis in a given case."
87 This Court considered this matter in some depth in Wyong Shire Council v Vairy, a judgment given in a rolled-up form with that in Mulligan v Coffs Harbour City Council, both being coded [2004] NSWCA 247. The Court, to hear both appeals, consisted of Mason P, Beazley JA and Tobias JA, the leading judgment being given by Tobias JA.
88 One can take up the judgment at para [144] where Tobias JA notes the distinction of a hidden rather than an obvious danger. He then noted that Spigelman CJ in Waverley Municipal Council v Swain [2003] NSWCA 61 at [104] [116] to [118] that nowadays greater weight has been given to the proposition that people take reasonable care for their own safety and that the degree of obviousness of the risk of diving into a wave without knowing the formation of the floor as high albeit not at the end of the spectrum described as "inherent in body surfing" in Prast v Cottesloe (2000) 22 WAR 474.
89 Tobias JA then pointed out at [150] and [151] that whilst in Swain the fact that the degree of obviousness of the risk did not reach the level of being blatant prevented that fact from otherwise being the determinative factor in the case, the question of obviousness of risk has been determinative in other cases not involving diving such as University of Wollongong v Mitchell [2003] NSWCA 94.
90 At [161] and following, Tobias JA noted, that according to his research, no Australian case attempts to define what was meant by the term "obvious risk". He said it was appropriate to draw a distinction between an "obvious danger" and an "inherent danger", the point being that an obvious danger is not necessarily an inherent danger. He concluded at [168]:
"If the danger is found to be both obvious and inherent, then this may serve to add weight to an occupier-defendant's argument, when the time comes to consider the application of the Shirt calculus to the facts, that the reasonable response to the relevantly foreseeable risk was to do nothing, and in particular, not to warn. … If the danger is obvious but non-inherent, the fact that the danger could be removed by warning (and perhaps equally by the entrant checking) may be a relevant consideration when determining if the scope of a duty of care involved a duty to warn. However the inherent nature of the risk would always seem to be a secondary factor and generally subservient to whether the danger was hidden or obvious in the first place."
91 At [195] Tobias JA said:
"So long as this Court is bound to apply the Shirt calculus, it would be wrong to elevate the obviousness factor into some doctrine or general rule of law … . All the circumstances must be looked at of which the obviousness of the risk is only one. Factors such as whether the risk is obvious to a young person as distinct from an adult will play their part in the balancing process required by the Shirt calculus. But all things being equal, the trend of authority does establish that diving (particularly from a height) into a natural body of water of unknown depth is an inherently risky enterprise."
92 His Honour then said that what Henry LJ had said in Whyte v Redland Aggregates Ltd (English Court of Appeal 27 November 1997 unreported) that diving when you cannot see the bottom clearly enough to know that it is safe to dive is dangerous unless you have made sure by reconnaissance or otherwise that the diving is safe was plain common sense. Tobias JA continued:
"Although one can accept, in terms of the Shirt calculus, that the magnitude of the risk may be great in that quadriplegia is likely to be sustained if one's head hits the bottom of a water body that is too shallow to safely accommodate a particular dive, the degree of probability of its occurrence is low because the obviousness of the risk will by that fact alone generally encourage adult persons to avoid the risk in the first place by either not diving or by first testing the depth of the water."
93 At [209] Tobias JA dealt with the submission that both Messrs Vairy and Mulligan had seen people dive in the vicinity without mishap. He said that the response to this submission is that it did not neutralize or otherwise detract from the obvious risk of diving into water of unknown depth, particularly where a person was aware that the water depth was variable.
94 It does not seem to me from his judgment that his Honour considered that obviousness of the risk was a matter to be taken as a defence in itself. At [53] of his judgment he referred to the decision of Whealy J in Mulligan v Coffs Harbour City Council at first instance [2003] NSWSC 49 [298] and this reference shows that his Honour Cripps AJ was directing his mind to the defendant reasonably assuming that the individuals concerned would take reasonable care for their own safety.
95 In other words, the point made by Mr Gormly may be a valid one, but it was not a matter of his Honour falling into error in not observing the validity of the point.
96 It is true that there is a distinction between the defence of volenti and there being no duty or no breach of duty because a defendant can assume that people will not injure themselves through obvious risk. At Black 363 Mr Gormly put to his Honour that there was a great danger of volenti being revivified under the name of "obvious risk" or something like it. It is true that with volenti the Court must look to see whether the injured person has consented to assume the risk and absolve the defendant from responsibility for it. It as Fleming on Torts puts it, 9th ed (LBC, Sydney 1998) p 327, a waiver of duty. Obviousness of the risk is, on the other hand, as Mr Gormly rightly submits, a factor that is taken into account when assessing the duty. Again, the proposition put by counsel is correct, but is not a matter which constitutes an error into which his Honour fell.
97 In Tomlinson v Congleton Borough Council [2004] 1 AC 46 at 85, Lord Hoffman said:
"A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger or the despair of prisoners which may lead them to inflict injury on themselves."
98 A comment was made by the trial judge during Mr Gormly's final address that "volenti has almost gone out" (Black 363J). This accords with what one reads in books such as Fleming. As Ipp JA said during argument, that may be too broad a statement. Certainly, in situations where a person gets into a car driven by a drunk driver volenti may not operate as a defence that will convince the Judge or jury. However, when it comes to open space and enjoyment by the community of open space, there has grown a reluctance to find the occupier of the open space negligent where the occupier does not have a great deal of money or resources or staff and is not carrying on its activities for a profit. An illustration of this is found in Tomlinson v Congleton BC at p 85, although that was actually an obvious risk case.
99 It is always distressing in a case like this to see a severely injured person who is unable to obtain compensatory damages for his injuries. However, the law has drawn a line at where injured persons are entitled to be compensated and where they are not, and to my mind, his Honour was correct in finding that the appellant falls on the wrong side of the line.
100 Accordingly, in my view the appeal should be dismissed with costs.