Critchley v Cross

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Tuesday 8 February 2000 20459/95 DENNIS JOHN CRITCHLEY v JANET BUCHAN CROSS

1 HIS HONOUR: Dennis John Critchley has brought proceedings against Janet Buchan Cross claiming damages for serious spinal injury which he claims to have sustained when he fell into a crevice on the defendant's property located beside the Shoalhaven River on 5 July 1987. That property is in a lonely heavily timbered area a considerable distance from the town of Nowra. 2 The plaintiff bases his action in negligence: it is his case that the defendant, as the occupier of the land where the accident happened, owed to him a duty of care and the plaintiff has pleaded that the defendant was in breach of duty in the following respects (referring to para 4 of the statement of claim): "(a) Failing to warn the Plaintiff of the danger in approaching or of the danger traversing the property. (b) Failing to take any or any adequate steps to fence the crevice. (c) Failing to fill in or barricade the crevice. (d) Failing to take any or any reasonable precautions to prevent injury to the Plaintiff. (e) Failing to take any or any adequate precautions for the safety of the Plaintiff. (f) Exposing the Plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care. (g) Failing to provide any or any suitable warning signs warning the Plaintiff of the presence of the crevice or hole." 3 The defendant has denied negligence and in the alternative has pleaded contributory negligence. 4 Although the accident happened so long ago and the statement of claim was not filed until May 1995, the issue under the Limitation Act was earlier resolved in favour of the plaintiff, so that at this trial the relevance of the lapse of time since the accident has only been to consider its impact upon the recollection of the various witnesses who have given evidence, and any relevant changes on the property where the plaintiff met with his accident.

The evidence reviewed 5 The evidence at the trial has been relatively short and I propose to review it. 6 At the time of his accident the plaintiff was a field officer with the New South Wales Dairy Corporation. He was, and is, a married man and he was born on 1 June 1943, so that on the day on which the events occurred which give rise to this action he was forty-four years of age. 7 On Sunday 5 July 1987 the plaintiff was on an outing with his wife and two friends, Peter Remfry and his wife. Mr Remfry had a boat at the time and he was an enthusiastic water skier who was familiar with the Shoalhaven River. The party of four proceeded in Mr Remfry's boat along the Shoalhaven River and drew ashore at a sandy beach on what I propose to refer to as the southern side of the river. Various witnesses have not agreed on the relevant compass points but nothing turns upon this disagreement. The difficulty is that the river does not proceed in a straight line from its mouth but, on the contrary, there are many bends. However, for present purposes, I propose to treat the river as running from the east at its mouth and in a generally westerly direction upstream. On this approach the sandy beach where the party, including the plaintiff, came ashore was on the southern bank of the river. 8 I review the evidence that the plaintiff gave. 9 The plaintiff gave evidence to the effect that the party arrived at this beach about midday and after it had done so the plaintiff left his wife and friends in order to relieve himself and for this purpose he went to some bushes a distance of approximately 100 metres further west from where the boat was brought ashore. Having relieved himself the plaintiff said that he heard the sound of cattle and decided to take a look at them. He said that he set off uphill, away from the river. His route took him to a level at which he saw a house being built, and he said he then realised he was on private land. Until this time, the plaintiff said it was his belief that he was on Crown land. He said he decided to go back to the river but he did not take the same route. He said that going up the hill he was on some sort of cattle track, but going down he was not. He walked across some rocks and he gave this account then as to what happened: "I was on top of a ledge, about the size of an office desk and there was another rock adjacent, about four feet away and I decided it was a little bit far to jump between, so I decided to step down between the two rocks that's probably the last I remember." 10 According to the plaintiff he saw no fences of any description and no signs of any description from the time that he stepped on to the beach until the time that he fell. The day was fine and he had not been drinking intoxicating liquor. 11 The plaintiff was cross examined on his account of the circumstances of his fall. He agreed that there were no problems with visibility as he made his way away from the clump of trees to where he could see the house and that there was no problem with visibility as he made his way from there to the scene of the accident. He agreed that as he turned away from the house he moved onto terrain which was both rocky and bushy. Having reached the point where there were the two rocks and the gap that he saw between them, he agreed that he could possibly have walked back away from those rocks. I record the following questions and answers from the cross examination of the plaintiff (T 18-19): "Q. It is not then the situation, that you could see the two rocks and had you chosen to do so, you could have walked around them?

A. As I just said, I found myself on the first rock. It was at the level I was at. I could have possibly walked back again and come at a different angle but I was on the first rock.

Q. Notwithstanding that the visibility was good, you believed that there was a dirt surface between the two rocks, didn't you?

Q. Again, when you gave evidence before Master Malpass p 10 line 50, you were asked, 'Did the terrain appear to be damp?' Your answer was, 'From memory I think it was but I am not too sure.' Mr Critchley, are you saying that the dampness appeared to you to be in some mossiness on the rock?

Q. You knew enough, when you endeavoured to step on to and indeed off the rock, that mossiness could cause you to lose your footing didn't you?

Q. Not to put too fine a point on it, it was unwise of you to endeavour to negotiate those two rocks wasn't it?

A. In hindsight but I made the choice not to jump across them because I thought I might fall.

Q. Is this not a fair statement, Mr Critchley, that the area where you had your fall, was an extremely rough area indeed?

Q. The area where you had your fall, I suggest to you, was very rocky?

Q. At the time this mishap overtook you, you knew you were on somebody else's property?

Q. You didn't know of anybody else who had been to that spot, did you?

Q. All you knew was that the friends you were with had been to that sandy beach before. That so?

Q. Certainly nobody that you were with, indicated to you that they had gone up away from the river, as it were, into the area that you penetrated to?

A. No." 12 The plaintiff was then shown some film which had been taken at the time of his rescue following his fall and later shown on television. The cross examination proceeded (T 20-21): "Q. That type of very craggy, rocky terrain, is absolutely typical of conditions where you fell isn't it?

Q. That's the sort of terrain you were choosing, of your own volition, to try to negotiate wasn't it?

A. It's not the way I went up there but it's certainly the way I come down, obviously.

Q. There was nothing to prevent you from seeing exactly what it was like, as you endeavoured to make your way down. Was there?

KING: Q. Not only were there irregular craggy rocks with a lot of moss on them, but there was a lot of lantana like vegetation in the immediate vicinity, wasn't there?

KING: Q. You strayed into an area which was obviously extremely dangerous to negotiate didn't you?

Q. You strayed into an area, which in order to negotiate it safely, required you to take the greatest care didn't it?

Q. To try to step from one rock to another in that vicinity, without anything to hang on to, was extremely foolish, wasn't it?

A. I didn't step from one rock to another. I decided against that and stepped down between them.

Q. Even to step on to a rock and try to step off it, without something to brace yourself with, or hang on to, was extremely foolish wasn't it?

HIS HONOUR: Q. Did you look to see where you were stepping?

A. I do. To me it was part of the track that I'd come up on dirt, between the two rocks, yes.

Q. Obviously what it must have been, I take it from what we have seen, is just a sheer drop?

A. No, I certainly didn't step off a sheer drop. I was looking and --

KING: Q. Let me put this to you. One thing is for certain, there was absolutely no track at all in the vicinity of where you fell was there?

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.

The issue of negligence 43 Mr Terracini of Queen's Counsel submitted that the defendant owed to the plaintiff a duty of care by reason of the following circumstances:

(i) the defendant was aware that trespassers were accustomed to come to and use the beach on the defendant's property;

(ii) the defendant was aware that there were repeated acts of damage to or destruction of signs posted to deter trespassers;

(iii) the defendant should have foreseen that trespassers would intrude upon the beach and traverse the grazing area and the area beyond, including the cliff area. 44 Mr Terracini submitted that the discharge of the duty of care required that the defendant alert herself to hazards on her property and warn against them. At the very least, Mr Terracini submitted that the discharge of the duty of care required that the defendant alert herself to the potential hazards that the cliff face presented, if not to the very crevice into which the plaintiff fell, and having so alerted herself, the defendant ought to have posted suitable warning notices. These notices should have been located in the immediate vicinity of the cliff face, or, alternatively, the notices should have been affixed to the cliff face. The notices should have carried words in or to the following effect: "Danger - Cliffs". 45 Mr Terracini, in the alternative, submitted that the discharge of the duty of care extended to the erection of fencing to prevent access to the cliff top edge and the crevice into which the plaintiff fell. 46 Mr King of Senior Counsel has submitted that the defendant did not, in the circumstances of this case, owe any duty of care to the plaintiff, and, further, that even if there was a duty owed, no breach of duty has been proved. 47 Until relatively recent times the liability of an occupier for harm occasioned to a trespasser by reason of the state of the occupier's land was narrowly based. In the judgment of the Privy Council in Southern Cement Limited v Cooper (1974) AC 623, which judgment was delivered by Lord Reid, their Lordships said at 644: "The rights and interests of the occupier must have full consideration. No unreasonable burden must be put on him. With regard to dangers which have arisen on his land without his knowledge he can have no obligation to make inquiries or inspection. With regard to dangers of which he has knowledge but which he did not create he cannot be required to incur what for him would be large expense. If the occupier creates the danger when he knows that there is a chance that trespassers will come that way and will not see or realise the danger he may have to do more…" 48 The hazard that occasioned the plaintiff's harm was one naturally occurring, not one created by the defendant. Further, as I indicated earlier, I accept that the defendant was not aware of the existence of the crevice and had never been into that area on her property where it was located. In the past, these features of the case would have stood in the plaintiff's path in the pursuit of this claim. What is the significance of the recent developments in the law affecting the liability of an occupier for harm suffered by an entrant on to the occupier's property? 49 In the course of the past fifteen years the notion that the liability of an occupier for harm occasioned to an entrant upon the occupier's land depended upon a stringent classification as to the status of the entrant has been firmly set aside by decisions in the High Court.

50 In Hackshaw v Shaw (1984) 155 CLR 615 the High Court had occasion to consider the liability of a farmer who fired a weapon at a suspected thief's vehicle when the thief drove on to the farmer's property to steal petrol. A shot hit a passenger in the car.

51 The question arose as to whether there might co-exist with the special duty of care by reference to the occupier/entrant category, also a general duty of care under the general law of negligence. In this case it was decided that the farmer's liability was not limited to a consideration of the duty of care owed by an occupier, but that there arose for consideration a duty under the general law of negligence.

52 Later in Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 it was determined that it was unnecessary to consider whether one or both types of duties considered in Hackshaw existed, and that it was necessary only to determine whether in all the relevant circumstances the defendant owed a duty of care under the ordinary principles of negligence.

53 In Zaluzna Mason, Wilson, Brennan, Deane and Dawson JJ adopted the statement of principle of Deane J in Hackshaw. Their Honours said at p 488: "We think it is wholly consistent with the trend of recent decisions of this Court touching the law of negligence, both in this area of an occupier's liability towards entrants on his land and in the areas which were the subject of consideration in San Sebastian Pty. Ltd. v. Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 68 ALR 161 and Cook v. Cook (1986) 61 ALJR 25 ; 68 ALR 353 , to simplify the operation of the law to accord with the statement of Deane J. in Hackshaw, at pp 662-663- '... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.'" 54 In none of the cases since Zaluzna to which counsel have taken me, or to which my independent research has led me, did the duty of care allegedly arise in circumstances such as the present, where the property in point is a large rural property, the hazard was naturally occurring and the occupier was unaware of it. 55 For instance:

(i) in Zaluzna the hazard arose by reason of the state of the floor caused by the entry of customers in the course of the defendant's business;

(ii) in Phillis v Daly (1988) 15 NSWLR 65 the hazard was man-made by the predecessors of the occupier of the hotel, in deliberately putting in place a log in the carpark;

(iii) in Morgan v Sherton Pty Limited (1999) 46 NSWLR 141 the hazard was again one introduced by the occupier, with the planting-out of a garden bed at a shopping complex and the subsequent failure to prune a bush.

I add that in none of the above cases was the entrant a trespasser.

(iv) Nagle v Rottnest Island Authority (1993) 177 CLR 423 concerned the liability of a statutory authority for the condition of a swimming reserve which it controlled and to which it permitted the entry of bathers;

(v) Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 concerned the liability of the Conservation Commission to an entrant on to a nature reserve controlled by the Commission under a statute and the alleged negligence was the failure to fence the edge of a cliff of which the Commission was, of course, well aware. 56 Whilst the liability of the defendant is now to be determined by reference to the general duty of care, it does not follow that the circumstances in which the plaintiff entered on to the land of the defendant become irrelevant. The relevance of those circumstances was expressly stated by Deane J in Hackshaw in the passage later cited in Zaluzna and which I set out earlier. The relevance of these circumstances was further considered by Samuels JA in his judgment in Phillis v Daly (supra) where his Honour said at 67-68: "As their Honours pointed out in Australian Safeway Stores Pty Ltd v Zaluzna (at 488), what constitutes reasonable care will vary with the circumstances of the plaintiff's entry upon the premises. That means, I take it, that the classical categories of entrant may still be accorded some potency. It is perfectly rational to assume that the degree of care which is appropriate to a trespasser, whose entry may fall at any point in a long continuum of knowledge, perception and expectation on the occupier's part, may be much less than that which can reasonably by demanded by the business visitor, whose appearance is anticipated and welcomed, and less than that owed to someone whose entry is anticipated but merely tolerated. Equally, the nature of the danger will be a necessary constituent in working out whether any breach has occurred since it will be material to the foreseeability and magnitude of the risk, and the requirements of the defendant's response." 57 In his judgment in Phillis v Daly Mahoney JA specifically addressed the issue of knowledge when he said at 72-73: "This feature, the fact that the risk was obvious, is of general significance in that it illustrates the extension which, if applied according to their terms, Australian Safeway and subsequent cases, have made to the liability of occupiers of premises and their insurers. That extension involves, inter alia, two things. First, under the law as it previously existed: see Indermaur v Dames (1866) LR 1 CP 274 at 286; 288 and Gautret v Egerton (1867) LR 2 CP 371 at 375; an occupier was liable to a licensee only in respect of "a hidden danger": see Aiken v Kingborough Corporation (1939) 62 CLR 179 at 208; or to an invitee only in respect of "an unusual danger": see Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42 at 56. Those limitations have now been removed and an occupier is liable in respect of dangers, that is, risks, whether hidden, unusual or obvious. And, secondly, there were limitations on the occupier's liability by reference to his knowledge of the risks. In the case of a licensee, he was liable only if he actually knew of the danger; in the case of an invitee, he was liable only if he knew or ought to have known of it. Now, his liability is not so limited." 58 In deciding whether the defendant owed to the plaintiff a duty of care in this case, I must apply the test as expressed by Deane J in Hackshaw and as adopted by the majority of the judges in Zaluzna. I must have regard to "all the relevant circumstances" and this includes "the manner of the plaintiff's entry". It is, I consider, a further relevant circumstance that the defendant was not aware of the existence of the crevice. I remind myself that "a prerequisite to any such duty is that there be the necessary degree of proximity of relationship." I further remind myself of "the touchstone of its existence", namely "that there be reasonable foreseeability of a real risk of injury to a visitor or to the class of person of which the visitor is a member." 59 Whilst I am satisfied on the evidence that the defendant was aware that persons came by boat up the Shoalhaven River and used to trespass upon the beach area on her property, there was no evidence that any trespasser had in the past ventured as far from the beach as the plaintiff did on this occasion. There is no evidence that any trespasser had before trespassed as far as the base of the cliff, still less that any trespasser had proceeded to the top of the cliff. Mr Remfry said that on all his past visits he had stayed upon the beach. Both the plaintiff and Mrs Critchley were upon the defendant's property for the first time. So far as the defendant is concerned, she had never been to where the plaintiff fell and neither had Mr Hargrave. The defendant had never seen cattle trying to enter the relevant area and there is no evidence to indicate that cattle ever did. On the day of the plaintiff's fall, Mr Remfry noticed no sign "within ten or fifteen metres" of the crevice that the area was "regularly frequented by man or beast". Moreover he said there was no worn track leading away from the crevice in any direction. 60 The plaintiff, Mrs Critchley and Mr Remfry agreed in cross examination that the area into which the plaintiff ventured and where the crevice was located was an uninviting one. I have earlier expressed my own findings on the evidence consistent with these concessions. 61 There was evidence that the defendant was aware that timber notices had been used for firewood and Mr Terracini submitted that it was reasonably foreseeable that a trespasser might venture into the relevant area looking for firewood. I do not accept that submission. Whilst the evidence has established that the cliff area (and I use this to embrace the area from the commencement of the rise on the southern side of the level grazing area as far as the top of the cliff) carried vegetation, much of it was lantana, and I am not persuaded that it was foreseeable that any trespasser would have ventured as far as the base of the cliff looking for firewood, still less that it was reasonably foreseeable that any trespasser would have undertaken the climb from that base for such a purpose. There was no evidence that any person had been seen engaged in such an activity in the past, nor was there any evidence that any material had been taken from there in the past for use as firewood. 62 I have come to the conclusion on the evidence that it was not reasonably foreseeable that a trespasser might venture to where the plaintiff had his fall, and I am not satisfied that there existed the necessary degree of proximity of relationship to give rise to a duty of care by the defendant towards the plaintiff. 63 If, contrary to the conclusion I have reached, a reasonable person in the defendant's position would or should have foreseen a risk of injury in the relevant circumstances, the further question would arise as to what such person would or should have done by way of response to the risk. In the much cited passage from the judgment of Mason J, as he then was, in Wyong Shire Council v Shirt (1979-80) 146 CLR 40 at 47-48 his Honour said: "The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." 64 If it be assumed that the risk of some trespasser venturing up to the crevice into which the plaintiff fell was a foreseeable risk, I consider that risk of injury was nevertheless extremely unlikely and improbable. I accept the submissions Mr King made in this regard. 65 It seems to me that there was no possibility that anyone would venture into the relevant area other than in the daylight. I accept, as Mr King has submitted, that anyone who did so in the daylight would need to be quite agile because of the difficult terrain. That same terrain would impress upon the entrant the need for extreme care in negotiating it. The crevice was, I find, clearly visible, and it was unlikely that an entrant would step into it, even though I accept that is what the plaintiff did. 66 Assuming for present purposes a foreseeable risk in the relevant sense, it does not seem to me that the reasonable person's response to it would have been to put up fencing. I so conclude having considered the cost of fencing, its practicability and its possible effectiveness, together with the extent of the assumed foreseeable risk. To fence along the river front in the vicinity of the beach would have involved maintenance difficulties with flood and tide. To fence effectively south of the river grazing area would have involved putting up man-proof security fencing not only to deter approach from the base of the cliff area but also along the cliff top itself. The hazard in question was not man-made, and I accept the evidence in Mr Weir's report, Exhibit 5: "Owners of rural properties with river frontages do not have the type of fences suggested here by myself or by Warren Wood." 67 The alternative submission advanced by Mr Terracini was that warning notices should have been erected in the vicinity of the cliff face and/or attached to it, alerting any entrant on to the property to the presence of the rock face and danger that may be associated with proceeding further. Again I am not persuaded that the reasonable person would have adopted such a measure. 68 I accept that throughout the period that the defendant owned and occupied this property those who acted as caretakers were instructed and encouraged by the defendant to erect signs to deter trespassers and to carry out regular inspections to see that the signs remained in place, and, if not, to replace them. I accept the evidence on this topic which the defendant, Mr Winchester, Mr Hargrave and Mr Croot gave. I accept that the defendant's instructions were followed. It seems to me that these measures to deter trespassers were a reasonable response in attempting to discourage such visitors. It would have been neither reasonable nor practicable to have extended in a closely set line along the beach area a succession of notices warning that the area was private land and prohibiting trespassing. Whilst in the past the notices displayed had not stopped trespassing, and whilst it may be that neither the plaintiff nor his companions saw any notice on the day of the plaintiff's accident, it does not seem to me to follow that the measures taken by the defendant were unreasonable. 69 Where were the notices of the type proposed by Mr Terracini to be posted, and in what numbers? The cliff face extended the length of the defendant's property from the point of its commencement indicated on the sketch, Exhibit 4. It would not have been practicable to put up notices in a closely set line along the base of the cliff any more than it would have been practicable to do so along the beach front. Indeed, the cliff line was longer than the accessible beach area. It seems to me that if beach front notices were not effective to deter trespassers, it is unlikely that notices set further away from the beach would have proved any more effective, and I am not persuaded that the reasonable person would, in all the relevant circumstances of this case, have considered it a reasonable and proper measure to put up further notices of the type for which Mr Terracini contended. 70 The consequences of this fall have been tragic for the plaintiff and I have much sympathy for him. However, I cannot of course allow myself to be influenced by sympathy in determining the outcome of this case. Bearing in mind the extent of the foreseeable risk assumed for present purposes, I do not conclude that the reasonable man would have done anything in response to such risk other than to do as the defendant did in seeking to discourage trespassers at the point of entry, namely the beach itself. For the above reasons, I am not satisfied that the plaintiff has established either a duty of care owed to him by the defendant or, assuming the existence of such a duty, any breach thereof. 71 In the result the plaintiff's action fails and there must be judgment for the defendant. 72 Costs would ordinarily follow the event in this case but I defer making any order to afford counsel the opportunity of making any appropriate submissions about costs. **********

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