Clarke v Coleambally Ski Club Inc

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT 20885/01 FILE NUMBER(S) : LOWER COURT Acting Justice Cripps JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 41202/03

BEAZLEY JA IPP JA YOUNG CJ in EQ

Monday 18 October 2004 CLARKE v COLEAMBALLY SKI CLUB INC Judgment

1 BEAZLEY JA: I agree with Ipp JA. 2 IPP JA: I have had the advantage of reading the reasons to be published by Young CJ in Eq. I agree with his Honour's statement of the facts and his Honour's conclusion. 3 Cripps AJ found that the Club "occupies a small part of the Billenbah stock travelling route reserve". The Billenbah Reserve, as his Honour noted, is an area of about 96 hectares with a one kilometre frontage bordering the southern bank of the Murrumbidgee River. 4 Cripps AJ said: "The Club 'occupied' land in the reserve for a length of approximately 200 metres along the river bank but how far in from the shore is not clear".

His Honour placed the word "occupied" in parenthesis as the Club's rights in respect of the area in question were very limited. 5 By statute the Billenbah Reserve was under the control of the Pastures Protection Board. In 1990 the Club was advised that the Board had approved it building an amenities block on the site. In 1993 the Commissioner of Soil Conservation Service gave the Club an "authority to occupy". From time to time the Club obtained permission to lop trees on the site. Its most recent permission was granted by the Conservation Commissioner, pursuant to the Soil Conservation Act 1938 (NSW), to lop trees within "a stream length of 200 metres along the Murrumbidgee River". The Club had no right to keep members of the public out of the site and it had no control over activities by members of the public present at the site. 6 The Club, in practice, exercised some de facto control over the site. Over many years it had brought about alterations to the site, built facilities (such as toilets), arranged for motorboat access to the river and erected signs regulating use of the site. It held working bees where members cleaned up the site, removed cans and glass, and performed other activities to make the area more amenable for its purposes. Members at times cut down branches that could fall on vehicles parked underneath. Occasionally, a member would find a rope hanging from a tree next to the river and would remove it. Members thought that ropes constituted a danger to children who could use them to swing out across the river and hurt themselves. 7 In my view (and here I disagree with Young CJ in Eq), the Club had sufficient control over the area to attract to it a duty to exercise reasonable care for the safety of those persons who visited it. 8 A duty described in these terms is often referred to as a "generalised" duty of care. The scope of the duty is limited by the qualification of "reasonableness". In the present case, in determining what was "reasonable", regard must be had to several factors. These include the restricted control the Club had over the site, the composition, nature and purpose of the Club and the nature of the site. 9 I have mentioned the restricted rights the Club had to the site. I turn now to the nature of the site within the Billenbah Reserve and the Club itself. 10 The site is about 40 kilometres from the town of Coleambally. For many years the population of Coleambally has been about 700. The site is situated in typical Australian bushland. Access to it is along a track that leads off a larger road passing through Coleambally. 11 In the Coleambally area, water skiing is a popular activity in the summer months. The only river in the vicinity on which water skiing can take place is the Murrumbidgee. There is no restriction on the use of the river for recreational activities and there is free access to it. 12 The Club was formed largely by farmers in the Coleambally district who wished to provide themselves and their families with adequate facilities to water ski in safety. This was the only object of the Club. It was not a social club and had no other sporting functions. In November 1998, when the appellant was injured, the membership of the Club was about 30. By then, the Club had been in existence for at least 10 years. 13 The first meeting of the Club on the site was held usually in about October each year and meetings were thereafter held about once a month through the summer months. The Club was not active in the winter. Thus, the number of days each year when members of the Club utilised the site and its facilities were extremely limited. It was in the order of eight to ten days a year. 14 The site attracted not only members of the Club but members of the public. When water skiing took place, part of the river was demarcated for safe swimming. This occurred by means of a rope to which floats were attached. When the skiing ended, the rope demarcation was removed. When there were no Club meetings, the site, unless it was being used by members of the public, was deserted like any stretch of bushland along the length of the river. No person on behalf of the Club looked after the site. 15 Turning to the conduct of the appellant, it has to be said that his actions were foolhardy to the extreme. He knew that it was dangerous to dive into a river. He also knew the configuration of the river bottom at the point where he was injured. He had walked up the bank to get out of the river after his first attempt to jump in using the rope. He knew that it was shallow at the bank and sloped gradually towards the middle. Knowing this, he repeated his first attempt, by means of the rope, to fling himself over the deeper part of the river and, by doing a backwards-flip somersault, to land on his feet. By accident he landed on his head. 16 Had the appellant merely swung on the rope to the centre of the river and dropped down feet first, it is highly unlikely that he would have been injured. Through a sense of adventure and high spirits he attempted to execute the highly dangerous manoeuvre I have described. 17 Mr Gormly SC, who put the case of the appellant with thoughtfulness and care, submitted that the trial judge had attached too much weight to the obviousness of the risk. This, Mr Gormly described as a "new legal principle". The obviousness of the risk, however, is neither new nor a legal principle. It is merely a factor that may be taken into account in determining whether, in certain circumstances, a duty of care exists, or whether, in other circumstances, reasonable steps have been taken in discharge of an existing duty of care. 18 For example, in Richmond Valley Council v Standing [2002] NSWCA 359 Heydon JA (with whom Handley and Sheller JJA agreed) said (at [29]): "The existence of a duty must be assessed in part by reference not to any requirement that the footpath 'be safe … in all circumstances', but by reference to the position of 'users exercising reasonable care for their own safety'".

This statement was made after Heydon JA had referred to the observations of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council ; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 (at 581, [163]). Their Honours said there: "In general, [pedestrians] are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards …"

In several other cases the obviousness of the risk has been a significant factor in determining whether a duty of care has been breached; that is, when considering whether the defendant was required to perform some positive act such as warning of the risk in question: see Wyong Shire Council v Vairy ; Mulligan v Coffs Harbour City Council [2004] NSWCA 247 and the authorities cited in this connection by Tobias JA. 19 The obviousness of the risk is relevant to the question whether a duty of care has been breached because, as Mason P (with whom Hodgson JA and Tobias JA agreed) said in Francis v Lewis [2003] NSWCA 152 (at [40]): "The duty [of care] is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiffs are themselves expected to act reasonably and take care for their own safety when determining what is reasonable." 20 It is in this context that consideration must be given to whether the Club was negligent in failing to lop off the branch to which the rope was attached. As Mr Gormly said in the course of argument, "[i]t constantly comes back to that". 21 The tree from which the rope was suspended was not a tree near the regular area of the river used by the Club for swimming while water skiing took place. About 50 metres on either side of the tree there were many other trees growing along the riverbank from which ropes could be suspended. As the length of the site along the riverbank was approximately 200 metres, there was no reason to think that cutting down one branch would put an end to the practice of tying ropes to branches overhanging the river. There was about 100 metres of trees which had branches from which ropes could have been hung. 22 In addition, the lopping of branches in this way would be a time consuming and difficult exercise. It is obvious that cutting down branches overhanging the river for a distance of some 100 metres would require much climbing of trees and work that would require some expertise. 23 In the circumstances, I do not think that it was unreasonable for this small recreational Club, limited as it was to 30 members, with limited rights over the site, and which used the facilities (which were at all times open to the general public) less than about a dozen times a year, to rely, generally, on visitors to take reasonable care for themselves. The Club was entitled to expect visitors to the site to act reasonably and to take care for their own safety should they see a rope dangling from a branch nearby the riverbank. 24 In particular, in my view, the Club was entitled to rely on the fact that swinging across the river on the rope and attempting to somersault backwards into the water was so obviously dangerous that no person, taking reasonable care for his or her safety, would do such a thing. 25 Mr Gormly submitted that the scope of the duty of care owed by the Club should extend to all persons who used the land it occupied, even those who indulged in activities that involved a high degree of risk, including the taking of obvious risks. He submitted that any lesser duty of care would subvert the operation of the statutory provisions relating to contributory negligence contained in the Law Reform (Miscellaneous Provisions) Act 1965 (NSW). 26 The duty of care of road users extends to exercising care in respect of careless and inattentive drivers and pedestrians; even those whose faculties are impaired by alcohol: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 (at 520 per Deane J). Road users are expected to have regard to the fact that other road users often, negligently, take obvious risks to their own detriment. 27 The law also holds that employers must take reasonable care for workers and, in doing so, must expect that some workers may be careless of their own safety even by taking obvious risks. 28 These are illustrations of the general proposition that in some circumstances the law of negligence considers it to be reasonable to pay due regard to the possible negligent conduct of others, even in respect of obvious risks. There are other similar examples. 29 As a general rule, however, walking along footpaths in the open air and participating in recreational activities in large areas of open land and water (such as national parks or reserves) fall into a different factual category. Two reasons for this are the following. 30 Firstly, while it is by no means unknown for participants in such activities to take obvious risks, it is common knowledge that such behaviour does not occur with anything like the frequency as does the lack of care for their own safety that is displayed by persons such as road users and workers in the employment context. 31 Secondly, there are usually serious practical difficulties (that may involve the incurring of considerable expense - often required to be borne, at least indirectly, by the general community) and environmental and aesthetic problems in taking effective steps to make areas such as footpaths, national parks, reserves and other areas of open space safe for persons who do not take proper care for themselves. 32 On the application of these matters to what has become commonly known as the Shirt calculus (Wyong Shire Council v Shirt (1980) 146 CLR 40), the conclusion usually arrived at (depending of course on the circumstances of each case) is that occupiers of such areas may reasonably rely on entrants exercising due care for their own safety and having the good sense to avoid obvious risks. 33 This explains, it seems to me, the view taken of the limited scope of the duty of care owed by a local authority to a person walking along a footpath (see Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council) and to visitors to national parks (see Secretary to the Department of Natural Resources and Energy v Harper (2000) 1 VR 133). It also explains the limited scope of the duty of care that is the basis of the diving cases such as Prast v Town of Cottesloe (2000) 22 WAR 474 and Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council. 34 Underlying this approach is the reasoning exemplified by the following remarks of Lord Hoffmann in Tomlinson v Congleton Borough Council [2004] 1 AC 46 (at 84-85): "I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair. … A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice."

His Lordship concluded (at 85): "[L]ocal authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers."

See also the remarks of Lord Hutton (at 89) and the statement of Henry LJ in Whyte v Redland Aggregates Limited (unreported, 27 November 1997; Court of Appeal (Civil Division)) cited by Lord Hutton with approval. 35 The subsidiary argument advanced by the appellant concerning a notice to warn must fail as such a notice would have told the appellant nothing that he did not know already. 36 I agree that the appeal should be dismissed with costs. 37 YOUNG CJ in EQ: This is an appeal from a decision of Acting Justice Cripps sitting in the Common Law Division. His Honour dismissed with costs the claim brought by the appellant for damages for personal injury arising out of an accident that occurred on 28 November 1998. On that date the appellant, with three friends, arrived at a site adjacent to the Murrumbidgee River about 40 km out of Coleambally. That site which is part of what is known as the Billenbah Reserve was vested in the Narrandera Rural Lands Protection Board as a reserve for a stock travelling route. The Board had given the respondent permission to use a strip of about 200 metres along the river bank for the purposes of its activities. 38 Over the years, the respondent had built boat ramps, a shade shelter, toilets and a water tank for use of its members though the facilities when it was not using the site were open and unsecured. Members of the respondent Club mowed the lawns, kept the site clean and occasionally, with permission, lopped trees. Under the Act and Regulations governing such reserves, members of the public are entitled without the approval of the Board, to use a travelling stock reserve on any day between sunrise and sunset for any recreational activities prescribed by the relevant regulation. That includes swimming. Thus the respondent did not have authority to exclude members of the public from the site. 39 The evidence before the learned Judge, which he accepted, was that there was often times a rope attached to a particular tree on the site, which I will call "Tree X". Although the limb has now been cut down, Tree X had a projecting limb over the river and persons unknown (not the Club or, as far as could be seen, members of the Club), from time to time attached a rope to the limb on Tree X so that, employing the pendulum principle, people could project their bodies into the river from which they could drop into the river. The evidence was that from time to time officials of the Club cut and removed the rope. 40 It would seem that 28 November 1998 was one of the first hot days of the summer of 1998. The appellant and three of his friends had been out drinking the previous night and had not arrived home (that is, the home of one of the friends, Mr Kelly) until about 4 am on 28 November. Some time between then and 11 am the four people drove to the reserve. His Honour was not able to fix the exact time but he thought it was between 11 am and a little after noon. The appellant swung on the rope from Tree X; he had to lift his feet to clear the bank which he did. He said that his male friends, Messrs Kelly and Fairweather, had also swung on the rope before he did and he saw them drop from the rope and into the water feet first. He attempted to execute a backward somersault after leaving the rope and to enter the water feet first. He said that on the first occasion he attempted it he was unsuccessful and he landed in deep water and had to swim to shore. He said that in the course of swimming to the shore he touched the bottom which he felt was muddy and squishy. 41 Although the appellant had used the rope before the accident he said he did not check the water when he attempted his backward somersault the first time because Messrs Kelly and Fairweather had indicated that the water was deep enough and some time well before the day of the accident he had seen other people swimming in the general area. He was aware by reason of what he noticed when he swam ashore the first time and by what he saw of Messrs Kelly and Fairweather after they had dropped into the water, that the bottom of the river sloped down and that it was only waist deep some 7 to 8 metres from the water line. 42 After that first unsuccessful jump the appellant said, and his Honour accepted, that he "… took a few steps back with the rope to get a sort of run-up, swung out and went to release to do the somersault and it seemed to somehow get dragged back into the riverbank a little too far which brought me into shallower water and managed to somehow - so me head was going down first and hit the bottom of the river." 43 The learned Judge found that the appellant swung out intending to do a backward somersault and to enter the water feet first. Either because his feet were caught (as he seemed to think), or because he misjudged the time he should let go of the handle on the rope, he may not have dropped out at the extremity of the swing. If not, he probably dropped just as it was returning. He entered the water head first, struck his head on the bottom and suffered tragic and catastrophic injuries which left him a quadriplegic. 44 The parties agreed before the learned trial judge that if there was to be a verdict for the plaintiff, the appropriate amount would be $7,567,086.00. 45 As I have said, his Honour dismissed the claim. 46 His Honour said at para [47]: "Mr Gormly [counsel for the appellant] has submitted that by reason of its activities the Club 'encouraged' members of the public to enter upon the site. In terms he eschewed a case of allurement or inducement. I do not conclude that the Club encouraged members of the public to enter its site. Such evidence as there is before me concerning the attitude of the Club to members of the public would indicate the contrary …

And later at para [51]: "The real question in this case, in my opinion, is whether the Club came under a legal duty of care to the plaintiff in the circumstances of the plaintiff's presence on site and what he did when he was there. If the existence of the duty depends upon foreseeability of injury it could be said that it was foreseeable that someone would be injured using the rope swing. That had never happened in the past but the conduct of the defendant persuades me that it was the sort of danger it wished to avoid. But foreseeability is not the end of the inquiry. Foreseeability merely defines the limits of liability. The plaintiff was not a member of the Club, he was a member of the public who had the right to come on the premises and the right to use the swing. The Club did not erect the swing and it could not legally have stopped the plaintiff from using it." 47 His Honour then went on to say at paras [53] and [54] respectively: "The circumstance that the possibility of injury was foreseeable does not of itself create a legal duty of care. The depth of the water in the present case was not relevantly a hidden or unusual danger. It was known to the plaintiff before he attempted the manoeuvre which resulted in his injury. He had seen Mr Kelly and Mr Fairweather in the water. In my view the plaintiff took a foolhardy risk in attempting to exercise the backward somersault manoeuvre … "But assuming contrary to the view I have held that the Club was under a duty to take certain steps by reason of it being aware that members of the public would come on the site and that those people might use the swing which the Club considered to be dangerous. A question remains whether it had an obligation to erect a warning sign or an obligation to remove the limb of the tree."

His Honour held that the failure to erect the sign did not cause or materially contribute to the plaintiff's injuries. He then said at para [55] that: "… even if there were a duty of care imposed on the defendant, I do not think it was in breach of that duty because it did not lop branches that overhung the river. If it was it necessarily came under an obligation to lop every limb overhanging the river from which a swing could be attached." 48 His Honour then said at paras [57] and following: "I have approached this case upon the basis that the presence of the tree had some relevancy to the occupancy of the Club in the sense that the tree was within a larger area used by the Club for its recreational purposes. But I do not think that the Club relevantly occupied the tree. Its members were entitled to use the tree for recreational purposes as was the plaintiff. "Because I have come to the conclusion that the Club did not owe the plaintiff a legal duty of care to warn him against the dangers of using the rope, or to lop the branches of the trees overhanging the river to prevent him from using the swing …"

The Judge considered he need not consider the claim for contribution by the respondent against the third party. 49 Thus essentially his Honour found that there was no duty on the respondent to prevent people such as the appellant being injured by their own foolhardy acts. 50 On the appeal, Mr J Gormly SC and Mr D Graham appeared for the appellant, and Mr D G Nock SC and Mr S E McCarthy appeared for the respondent. 51 There was discussion during the argument on the appeal as to whether his Honour should have found a duty and taken into account the facts and circumstances as to whether there was a breach of that duty, or whether he correctly approached the matter as the non-existence of a duty. I do not consider that there is much purpose in the present state of the law of tort in examining which of these analyses is correct as the application of the facts will produce the same result, no matter which is chosen. 52 Mr Gormly refined his argument into saying that there were three points:

(1) His Honour failed to address the appellant's principal argument;

(2) His Honour failed to assess the factors that showed there was a breach of duty by the Club;

(3) His Honour failed to distinguish between: (a) an obvious risk with its objective criteria on the one hand and foolishness and contributory negligence with subjective criteria on the other hand; and (b) failed to analyse sequentially duty, foreseeability and breach. 53 I will deal with these submissions in turn. 54 (1) Mr Gormly spelt out his first point by saying that when the appellant used the rope the reason he did not wade out in the water and check was because he thought the rope had the sanction of the Club and was part of their water sport site. He followed friends down to the area, they being friends who knew this site better than he did, and he had seen people swimming there before. He drew a conclusion in a sense from the mode of occupation of the respondent of this site that the rope was part of its site and safe to use. 55 Later on in argument Mr Gormly put the point slightly differently that the trial judge did not really consider the "Shirt calculus" against the circumstances. 56 Dealing with the first statement of the first point, it may be, strictly speaking, correct to say that his Honour did not directly deal with the proposition. However, the facts found by his Honour show why this is so. First, as I have already set out, the appellant did in fact check the depth in his first foray into the river. Secondly, the Judge noted that he was unable to conclude that the Club encouraged members of the public to enter the site. Thirdly, his Honour noted that the appellant's counsel eschewed a case of allurement or inducement. 57 Fourthly, it seems to me that the words "mode of occupation of the site" in the submissions carry with them the overture that the Club was the occupier of the site in the legal sense. It is to be noted that his Honour found that the Club was not the occupier of Tree X. At first sight this seems odd, but from time to time the authorities speak in terms of occupiers of scaffolding etc; see eg Woodman v Richardson & Concrete Ltd [1937] 3 All ER 866. 58 There is little guidance in the authorities as to who is an occupier under circumstances such as the present. Where the Club was actually carrying on activities and had marshals to see that the Club rules as to the site were obeyed, it may well be that there was sufficient control to make the Club the occupier. As was said during argument, it was a some time occupier. However, at times when the Club was not using the site, it does not seem to me that the mere fact that it had its facilities there constituted it an occupier. 59 In Wheat v E Lacon & Co Ltd [1966] AC 552 at 578, Lord Denning pointed to the definition of "occupier" in the then current edition of Salmond on Torts that an occupier is a person who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons as too narrow by far because, as his Lordship said at 579: "There are other people who are 'occupiers,' even though they do not say 'come in.' If a person has any degree of control over the state of the premises it is enough." 60 In Kevan v Commissioner for Railways [1972] 2 NSWLR 710, this Court considered the case of a right of way granted to the then Commissioner for Railways through the Mark Foys building in order to get to Museum Station. The Court, after referring to the passage in Wheat, to which I have drawn attention, said at 713 that it was clear that the immediate supervision and control in relation to the staircase on the right of way to get to the station was in the Commissioner for Railways and that he was the occupier. The Court applied the decision of the High Court in Gorman v Wills (1906) 4 CLR 764 that although not forming part of his lease, a tenant constantly used a staircase for the purpose of his business and that accordingly when one of the tenant's customers slipped and fell the tenant could be considered by the jury to be the occupier of the staircase. 61 Although the concept of control was said by Gummow and Hayne JJ in Jones v Bartlett (2000) 205 CLR 166, 214, to be a fiction, the actuality or fiction of control is now so embedded in the law as the kernel of who is an occupier to make it difficult for a tribunal of fact to find that a person is an occupier in the absence of some sort of actual or notional control. In the instant case, particularly because of the fact that the Club had no power to exclude or to control the activities of members of the public who were going swimming, it is very difficult indeed to see how the Club could be classed as an occupier with the attendant duties. 62 However, this is not the end of the matter as one has to look at the second way of putting the first point. 63 By "Shirt calculus" counsel referred to the well-known passage in the High Court's decision in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, that a tribunal of fact must first ask itself whether a reasonable person in the defendant's position would have foreseen that his or her conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer is affirmative, then the tribunal must assess what a reasonable person would have done by way of response to that risk. This involves a consideration of the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action, and other conflicting responsibilities. A risk of injury which is remote in the sense that it is extremely unlikely to occur may constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors. 64 Mr Gormly puts that the Club knew that from time to time ropes reappeared on the overhanging limb from Tree X notwithstanding that it kept removing the rope. This must have engendered in any reasonable person the realisation that unless there was a lopping of the branch the great likelihood was that people would continue to tie a rope to the limb. The Club realised that the rope was dangerous. It should also have foreseen that there was a risk of very serious injury, namely quadriplegia. Accordingly, it had a duty which it breached by not lopping the limb. 65 Although appellant's counsel kept talking about "the rope" and the Club appreciating the dangers of people swinging from "the rope", it is important to distinguish ropes from ropes. This is because it would seem that the length of the rope and the place where it was affixed to the limb could vary from rope to rope and some ropes would be more dangerous than others. There was no evidence that the rope from which the appellant fell was the same length, longer or shorter than any previous ropes. 66 Furthermore, his Honour accepted the evidence of Mr Tooth, a club member, that it was not easy to cut down the ropes because you had to get on something high to get up to them. 67 However, the evidence as to the site was that there was another tree about 50 metres away which might possibly have been used to attach a rope to swing into the river, and there were many other trees along the river bank outside the strip over which the Club had rights. 68 The submissions made this connection, especially those in the appellant's written submissions in the Orange Book that focus on the Club being the occupier of the site. However, putting this aside, the submission seems to be that if a person which can be called "the Club" uses public land for its activities and erects facilities for its own use though it should know that members of the public will use them and there is adjacent to those facilities a tree with a rope over a river which members of the public may assume is part of the Club's facilities and so safe to use and the Club foresees that the use of the rope is dangerous and could cause serious injury, then there is a duty on the Club to take steps to see that the dangerous situation is not so presented to the public. 69 At first sight that proposition carries some convincing force. 70 Mr Nock, in his written submissions, said that his Honour was not asked to consider whether persons were attracted to the site by reason of the Club's activities. There was no evidence from any member of the public that they were encouraged and the Judge held that the Club did not intend to encourage people on to the site. The mere fact that other persons had been noted to swim in the area or had used a rope, does not, of itself, attract other people to do the same thing; see Romeo v Conservation Commission (NT) (1998) 192 CLR 431. 71 I will return to Romeo's case shortly. However, first I should note the High Court's decision in Nagle v Rottnest Island Authority (1993) 177 CLR 423 which might be thought to be the high point of a plaintiff's success in this type of case. In that case a person was injured when he dived into the water at a reserve managed by the defendant authority and hit a submerged rock. The authority promoted the reserve for swimming and related recreational purposes. There were no signs warning of the presence of submerged rocks. The majority (Brennan J dissenting), held that the risk of injury to a diver was reasonably foreseeable notwithstanding that diving at the site may have been foolhardy or unlikely. They also ruled that "a person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety." (page 431). 72 In Romeo at p 454, Toohey and Gummow JJ, after referring to the statement I have last mentioned said: "But this does not mean that the respondent was obliged to ensure, by whatever means, that those coming on to the Reserve would not suffer injury by ignoring an obvious danger."

They said at 455 that "In the present case the risk existed only in the case of someone ignoring the obvious." 73 I note in passing that the High Court spoke in terms of "obvious danger", whereas the trial judge, Angel J, had spoken in terms of "inherent danger"; see Romeo v Conservation Commission (NT) (1994) 123 FLR 71, 80. 74 The present case is much weaker than either Nagle or Romeo. The Judge held that the Club did not encourage people to come on to the site, the Club was not an occupier of either the tree or the site, there were other trees from which ropes could be hung had the limb been lopped, in any event the Club would have needed the permission of the Board before it could have lopped any trees (though that permission was likely to have been forthcoming) and the appellant was involved in something which was obviously dangerous. 75 It seems to me that his Honour addressed all these matters and it could not be fairly said that he failed to address the appellant's principal argument. 76 (2) The second attack was essentially that his Honour failed to assess the respondent's breach of duty. This is, of course, technically quite correct as his Honour found no duty. However, he did in fact deal with this question. Mr Gormly says that the scenario was that the Club was an occupier, Fairweather, Kelly and the appellant were three young men there together, attracted to the site because it was the Coleambally Ski Club site and they wanted to get a free ski or going swimming on the first hot day of summer; there was this tree with the rope there that the Club knew was dangerous; the Club knew that ropes were habitually hung from that tree, appreciated the danger, yet did not lop the limb. 77 I have already dealt with virtually all of these matters when dealing with the first argument. 78 However, I have not, as yet, considered the submission in para 70 of the appellant's written submissions that his Honour misconstrued the distinction between allurement on the one hand, and inducement or encouragement on the other. 79 This point highlights the fact that, at Black 13, Mr Gormly told his Honour that he was not running an allurement argument. The transcript says: "Mr Gormly submitted he was not running an allurement argument. He stated the public were not lured into the site and they were not in any way encouraged to go to the site, on the contrary."

Earlier he had said (Black 9): "In summary then the plaintiff's case will be put in this way: If you seek the privilege of the use of public land for private use to which the public can still come and in fact to which the public is attracted, then there are certain responsibilities to maintain the site safe, not only for the club members but for those who may be attracted to the site because of what the club does."

In closing address Mr Gormly said: " …there is a distinction between being induced to do something that is directed by a series of events, as distinct from an allurement, that is an idea that in itself alone is attractive to the extent that there is a difference. One would say this is a case where the plaintiff was induced by a sign, prior knowledge of seeing activities on the site and the rope, to go swimming. He wasn't just around lured by the rope. It's not like a child who's lured on to a site and isn't locked out. He came down and drew reasonable inferences at however low a level by reason that he has just come on to a recreation site, that is, much more in the nature of being induced to believe that that rope was part of the amenities of the site. That's the distinction we are trying to draw."

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.

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