A. Yes."
13 Peter Remfry was the second witness to be called. He said that he is very familiar with the beach where the party went ashore. He used it regularly when water skiing and had used it since 1970. He said that the beach was half a kilometre long and was very popular, particularly on weekends. Mr Remfry gave evidence inconsistent with the evidence of the plaintiff, that the plaintiff had followed some cows which in fact had been down near the shore. Mr Remfry described how later on he, his wife and the plaintiff's wife had gone looking for the plaintiff. He said that it proved to be relatively easy to find the plaintiff, having been attracted by his cries. Unlike the plaintiff, Mr Remfry, although not certain of this, thought it was a reasonable assumption that the land beside the beach was private land. He explained how it had been necessary to go over steep and rocky terrain to look for the plaintiff. It was not necessary, he said, to climb a cliff face. He agreed with the proposition that he had to "carefully pick" his way and it was necessary to climb, so that he could not walk up the grade in an unbroken stride. He agreed that he had to use rocks and vegetation to assist in the climb but he said he "just clambered straight up". He agreed that the area around the point where the plaintiff must have fallen from was "very rough and craggy and that the rocks were covered with something green". As to the point at the top of the crevice into the which the plaintiff must have fallen, Mr Remfry said he could not see the plaintiff looking down into the crevice because looking down there was "a step" and he could not see below it. He was asked this question and gave this answer:
"Q. You got to a point at which you could look down into what was obviously a crevice for a distance in depth of eight to ten feet; that's right?
A. Yes."
14 Mr Remfry agreed that the area in which this crevice was located was an uninviting area of land.
15 Like the plaintiff, Mr Remfry said he saw no fences and he observed no notices of any kind on the beach or when walking about before the plaintiff's whereabouts were discovered. However, when later he was assisting to rescue the plaintiff he said that he observed a fence and the line of it was quite close to the crevice, being only about ten or twenty metres away from its top. He agreed that there was no worn track which led away from the top of the crevice in any direction.
16 Mrs Critchley, the plaintiff's wife, gave evidence that she was the first to go looking for her husband and she said she climbed an embankment to look for him. Her first climb was unsuccessful. Later she climbed the same embankment a second time, and heard his voice. She described how she went along flat grass and on her way across to the point from which the plaintiff must have fallen she said she had to use her hands to push away bushes. She said that the ground was "a bit rocky". Like her husband and Mr Remfry, Mrs Critchley said that she noticed no signs of any description and no fences.
17 Mrs Critchley was cross examined concerning her description of the terrain. She did not agree with the proposition put to her that the incline away from the beach was steep and said that the climb was not a difficult one. Mrs Critchley agreed in cross examination that the climb may have been "a little uneven, but it wasn't bad." Mrs Critchley agreed with the description of the area at the top of the crevice as being "an uninviting place".
18 The evidence which the plaintiff, his wife and Mr Remfry gave satisfies me on the balance of probabilities that the plaintiff did step into a crevice between the two rocks and that he fell a distance of some thirty to forty feet to the ground below. There is no dispute but that he sustained serious injury as a result.
19 A survey was carried out to determine whether the plaintiff fell on the defendant's property. However it is unnecessary to refer to the survey evidence because it was not in issue as the trial proceeded that the crevice into which the plaintiff stepped was in fact on the land the defendant owned at the relevant time.
20 A photographer, Christopher Munster, was called in the plaintiff's case. He visited the scene of the accident on 14 February 1999 and took sixteen photographs of the area. These photographs were introduced into evidence and I shall refer to them presently.
21 The only other witness called in the plaintiff's case was a fencing contractor, Warren Wood. He was asked to consider the practicability of fencing of the crevice. Before this could be done Mr Wood said that there was a great deal of vegetation that would have to be cleared away. His evidence was that the area could be made safe however by embedding posts in the rock strata and using chain wire security mesh fencing. The cost he quoted for this work was $10,000-15,000 (see Exhibit 6). The oral evidence that he gave costed relevant work on the cliff top at today's prices in the sum of $15,000-20,000.
22 Mr Wood considered that it was feasible to put up fencing along the river edge, but he considered such fencing would be exposed to the damage that regular flooding of the river would cause. In cross examination he said that further fencing could be erected, a "man proof security fence" 1.8 metres high, to fence off the approach to the cliff face at or near its bottom.
23 Dr Cross gave evidence. The defendant is now retired but practised for many years as an obstetrician and gynaecologist. Dr Cross was carrying on such practice when she purchased her property, known as "The Point", in 1970. Dr Cross said that "The Point" was a very old farm, used essentially for agistment when purchased, but the plaintiff said that she spent a considerable amount of money on it, installed new fences and had two cottages built there. Pasture improvement was undertaken and attention was directed to slashing and clearing the area adjacent to the sandy beach. According to Dr Cross this area was used for cattle but they were not left there for any long period of time because the cattle could stray from there past or through fencing that separated her property from the adjoining property and thus enter the property next door. Dr Cross had some fifteen head of cattle on the property in 1987, so that the use to which the property was being put was very modest.
24 Dr Cross said that she had never entered the area surrounding the crevice into which the plaintiff fell and it was only some years after the accident that she first learned of its precise location. Whilst Dr Cross had owned the property by 1987 for some seventeen years, she said that did not pretend to have walked over every square inch of the fifty-one hectares of her property.
25 Dr Cross said that she was aware that the sandy beach was popular with water skiers and picnickers, particularly on weekends in the summer. There were always caretakers who lived on her property, and in the period leading up to 1982 Mr and Mrs Winchester worked there. Indeed Mr Winchester gave evidence that he worked there from 1975 to 1984. The Winchesters were followed by the Hargraves, and Mr Hargraves gave evidence that he worked there from 1982 onwards, for about ten years. According to Dr Cross, and her evidence in this regard was supported by Mr Winchester, Mr Hargraves and Mr Croot, Dr Cross gave instructions to her caretakers to put up notices alerting visitors to the beach that they were trespassing. The form of notice erected was a notice bearing the legend "No trespassing. Private Property."
26 Whilst neither the plaintiff, his wife nor Mr Remfry observed any notice on the defendant's land on 5 July 1987, I accept that Dr Cross gave instruction for such notices to be put in place for the information of visitors to the sandy beach. I also accept that it proved difficult to keep notices of this type in position. There was evidence that the notices were fired at (by trespassers), that they were used for firewood, and that they were frequently taken down by visitors. However, Mr Winchester, Mr Hargraves and Mr Croot all gave evidence of periodic inspections of the beach area. The procedure was if, on inspection, a sign was found to be down it was put back if it was in working order or alternatively it was replaced if necessary.
27 I have referred already to the evidence given by John Hargrave and Peter Winchester. John Hargrave had not visited the spot from which the plaintiff fell but he described the area generally as "very, very rough". He said that "nobody ever really went up there."
28 Peter Winchester described the notices as variously placed on star pickets and also as being nailed to trees. He said there were such signs in the first half of 1987.
29 Gordon Croot lived at "The Point" between March 1987 and 1989, and his duties included the inspection of signs. He said there were a couple of signs in the vicinity of the beach in the first half of 1987.
30 I accept not only that Dr Cross gave the instructions to which I have referred but that the instructions were in force as at the time of the plaintiff's accident. I accept that regular inspections were made to see that the appropriate notices were in place, and in this regard I accept that there were generally two notices in the area of the beach. However I am quite unable to determine whether there was any notice actually standing in the relevant area on the day of the plaintiff's accident.
31 I do not find that in requiring notices to be put in position and kept there, Dr Cross was motivated by a concern that some trespasser might stray into the area above the cliff and fall into the crevice as the plaintiff did. Indeed I accept that Dr Cross was not aware of the existence of that hazard nor did the wording of the notices specifically address it.
32 Stephen Weir, fencing contractor, was called in the defendant's case. Like Mr Wood, Mr Weir prepared a quotation to erect fencing on the cliff area where the plaintiff met with his accident. Mr Weir arrived at an estimated cost of $24,000. Mr Weir is familiar with the Nowra area and he has never erected chain wire fencing of the type referred to by Mr Wood and himself on a rural property, nor as I understand his evidence has he seen such fencing on a riverside property.
33 I do not find that any witness who was called to give evidence in this case sought to deceive the Court but the ultimate issue I have to address is the reliability of the evidence which has been introduced and the significance of such evidence as I find to be reliable.
34 Just how accessible was this crevice into which I find the plaintiff fell? The plaintiff unfortunately reached its cliff top entry point, and so too did Mr Remfry and Mrs Critchley in their search for him. However, it is important to consider its location and the general features of the terrain on the defendant's property.
35 I am satisfied on the evidence to this effect, particularly coming from Dr Cross and Mr Wood, that this riverside land was subjected to flooding and was also affected by tide. I accept that the height and width of the grassed area immediately adjacent to the sandy beach would alter from time to time depending upon events such as flooding. However, I accept, in general terms, that the grass area extended for something of the order of 50-100 metres from the edge of the beach inland. Then the terrain rose.
36 According to Dr Cross, the terrain rose steeply and there was a cliff, the face of which extended from fencing near her home, which fencing ran inland from the river. The cliff then stretched along the land owned by the defendant and onto land owned by the adjoining neighbour upriver. There was a fence from the cliff marking the neighbour's boundary and this fence extended down to the river. This meant, according to Dr Cross, that one approach from the beach up to the point where the plaintiff fell was by walking upriver, over or round the end of the neighbour's fence and then going up a track which the neighbour had placed on his land to help the movement of cattle, up onto the area at the top of the cliff. A person who did this could then walk downriver to the point where the crevice was.
37 Another approach was to go through the fence that the defendant had beside her house, then to go through dense lantana and other vegetation and to proceed in a direction generally upriver, although Dr Cross pointed out that there was an internal fence running along inside her property which was set back from the cliff face so that a person heading towards the crevice and having first passed through the fence near her cottage would also have to negotiate the internal fence above the cliff.
38 The third possibility, according to Dr Cross, was to climb the cliff itself. The cliff was high. At its eastern end it was thirty feet high but it rose, on her estimation, to the height of a six storey building. However there was a dip which Dr Cross attributed to wear occasioned by water cascading down the cliff. This produced a cleft. That cleft was steep and full of lantana and kunzia and Dr Cross said that ascent where that cleft was would be difficult. Assuming it was achieved, this would place the climber approximately 100 yards from the hole into which the plaintiff fell.
39 Dr Cross is, of course, much more familiar with the features of the property that she owned for so many years than the plaintiff, his wife and Mr Remfry. For this reason I find the description of Dr Cross, in general, to be more reliable than that of any of those called in the plaintiff's case. I accept in general the defendant's description of her property, but I am satisfied that it was possible to climb to the top of the cliff and to reach the crevice into which the plaintiff fell by a route other than those suggested by Dr Cross. It was the route which was indicated to me when I visited the property during the course of the trial for a view. That view I am of course entitled to use in the manner provided for by s 54 of the Evidence Act. One of the photographs taken by Mr Munster shows part of this route, at a point below the top of the rocky ledge and some twenty metres from the hole (Exhibit C, photo 12).
40 The parties are agreed that the grass bank adjacent to the sandy edge of the beach is considerably steeper now than it was in 1987, and that there are now many more wattle trees growing at and below the bank than there were then. Further, the grassed grazing area above the bank (shown in part on Exhibit C, photo 2) is bracken covered now but was not in 1987. Where the land rises steeply to the south of this grassy area, it may be that the vegetation is denser now than it was in 1987, but I do not accept Mrs Critchley's evidence that the rise is steeper and rockier now than when her husband was injured. No explanation has been advanced such as would account for the grade from the base of the cliff face now being steeper or more rocky than it was in 1987. I consider it more probable than not that the grade and the rocky features in this area have remained unchanged since then.
41 If the plaintiff proceeded up a cattle track to the top of the cliff, then in doing so the probability is that he was then on the neighbour's property and not the property of the defendant. I do not find on the evidence that there was any cattle track up to the crevice within the property of the defendant. So far as Mrs Critchley and Mr Remfry are concerned, I am unable to determine whether in their search for the plaintiff they followed the same route he had taken earlier, but the evidence satisfies me that the climb to the top of the crevice, proceeding towards it by the route shown on the view, and probably taken by Mr Remfry and Mrs Critchley, is a steep and difficult climb. I make this assessment of the route via the locality in Exhibit C, photo 12, and no more accessible way of approaching the top of the cliff whilst inside the defendant's property has been proved.
42 I find that the area surrounding the crevice into which the plaintiff stepped was generally uninviting, that it was rough and craggy and that it contained thick vegetation. I find that there was no worn track to the crevice approaching in any direction. Exhibit C contains photos of this area which bear out this description. There are a number of photos that show the point of the plaintiff's entry into the crevice itself. That point of entry I find on the evidence to have been plainly visible at the time that the plaintiff was so unfortunate as to step down off the rock and into it.