1 On 7 February 2003 Samantha Gosling (SG) died as the admitted consequence of striking her head on a concrete drain cover the previous night while attempting to descend an embankment ('the embankment') leading from Mountjoy Parade, a section of the Great Ocean Road in the centre of Lorne, towards the Lorne ocean beach. Her family ('the appellants') claimed damages from the Foreshore Committee ('the Committee') and the Surf Coast Shire ( 'the Shire') in respect of injury in the nature of nervous shock. The quantum of damages having been agreed between the parties, the trial proceeded on the question of liability.

2 The Committee conceded that it was an occupier of the area including the embankment and that it owed a duty of care to persons on and in the vicinity of the embankment. It accepted also that it owed a duty of care to the appellants, and that the appellants had suffered reasonably foreseeable nervous shock as a result - put shortly - of SG's death. Thus, a number of issues which might have been agitated were not;[1] and, so far as the claim against the Committee was concerned, the only issue before the trial judge was whether the Committee had breached the duty of care which it owed to the appellants. That involved consideration whether in the circumstances the Committee had failed to take reasonable care - at common law or as mandated by statute - for the safety of SG.

3 The trial judge gave judgment for the defendants. So far as is presently relevant, he held that the Committee had not breached the duty which it owed to the appellants.

4 Now the appellants appeal. It was not in debate at trial, or on appeal, that no distinction was to be drawn between the duty owed by the Committee to the appellants at common law and under the occupier's liability provisions of the Wrongs Act 1958 (Vic). Having regard to other matters that were admitted, to which we have already referred, it will be understood that the sole question raised by the appeal is whether the trial judge erred in finding that the Committee had not breached that duty of care.[2] In that connection, the findings of fact made by the trial judge were not put in issue - but rather the conclusions to be drawn from those facts. Thus it was further accepted by both parties that, if the appeal was upheld, this Court would be in a position to determine the question of breach and give judgment for the successful party without the need to remit the matter for further hearing.

5 The appeal requires the application of settled principle of law to the circumstances of the case. In our opinion, for the reasons which follow, it should be allowed.

6 The notice of appeal, as amended by leave at the hearing on 18 June 2009, specified 10 grounds of appeal. But written submissions and the oral argument confined argument to the narrow issue whether the learned trial judge had erred in his approach to the question of the reasonableness of the response of the Committee to the danger caused by the embankment. His Honour concluded that there had been no want of reasonable care in the Committee having done nothing to alleviate a foreseeable risk of injury to persons who used the embankment to access the foreshore. Appellants' counsel submitted that his Honour wrongly assessed the risk posed by the embankment because he failed to give sufficient weight to a hidden danger of the slope (called in the appeal, 'the drop-off') which became steeper toward the bottom of the embankment. Counsel submitted that his Honour's failure to attach proper weight to the hidden 'drop off' had led him to erroneously conclude that the 'obviousness' of the risk was such that the Committee's lack of action was a reasonable response.

7 As we have said, the findings of fact made by the learned trial judge were not disputed by either party on this appeal, although a number of conclusions reached by his Honour on the basis of these facts were contested by the appellants.

8 The appellants are the family of SG, who was aged 18 at the time of the accident and was visiting Lorne with friends. The Committee was a self governing body, responsible at the relevant time for the management of some 13 to 15 kilometres of foreshore, that including the foreshore in the town of Lorne. The Committee's general responsibility for the foreshore area included the embankment where the accident occurred. We shall say more about the particular location of this embankment later in these reasons. The Committee received substantial funds from the Government to discharge its functions and it provided amenities such as off street parking, a swimming pool, toilets, showers, tracks, stairs and beach access.

9 The sole eye witness to the accident called at trial was Sam Davies. He testified that he arrived in Lorne in the early evening of 6 February 2003 to spend some time with SG and some friends. They were staying at the Erskine River Campground. Some time later, after drinking at the camping ground, he and three others - there were two men and two women in all, SG being one of the women - departed for the Lorne Hotel. They walked along Mountjoy Parade on the 'shop side' of the road. They arrived at the hotel at about 10.00pm.

10 After about half an hour, the second young woman left the hotel. She crossed Mountjoy Parade and sat at the top of the embankment, which was opposite the hotel. About ten minutes later, the rest of the group joined her.

11 After a short period, the group decided to return to the campground via the beach. The beach was located not far from the bottom of the embankment. Between the base of the embankment and the beach was the Lorne Lifesaving Club premises.

12 The witness said that he was aware, or would have known, that some distance to the left of the group (as they faced the beach) was the road entrance to a car park which was situated not far from the Club premises, which entry road also provided access to the beach. It was put to the witness that the entry road was '20 or 30 metres or so' to the left. He may be taken to have assented, although evidence given by the Committee's works supervisor and photographs put in evidence suggest that the distance was greater than that.[3] The group had walked past this entry road when on their way to the hotel from the camp site, although they had walked on the shop - or opposite - side of Mountjoy Parade. Somewhat nearer to the point where the group sat on the embankment, it is convenient to add, was a set of stairs which led partway down the embankment to an old driveway that was no longer in use. Offset to those stairs was a second set of stairs which led from the old driveway to beach level.[4]

13 The witness knew that the embankment had tracks down it that gave people access to the beach. He described the embankment as quite steep and containing gullies and said that a person would not 'sensibly' walk down it. He said that from the position where he was sitting at the top of the embankment he could discern the area at the foot of the slope. He said also that from the top of the embankment he could not see the bottom of the embankment. That was because of the drop-off.

14 Having decided to access the beach via the embankment, the three others moved about a metre down the embankment. They then stopped for a minute or two. They were seated. Then they set off again. The witness noted that the SG's companions did so by sliding on their bottoms. The witness first noticed SG when she was halfway down the embankment, descending by a track which had a gravel surface. When he first saw her she was on her bottom, though he could not say if she had started her descent that way. He observed her twisting, and rolling horizontally down the remainder of the embankment. She rolled sideways through 360 degrees twice before continuing down on her stomach and coming to an abrupt halt when she hit the concrete drain cover at the foot of the embankment. Her head made contact with the concrete drain cover.

15 The track which SG descended effectively led directly to and terminated at the drain cover.[5]

16 Evidence of the geography of the embankment and the surrounding area, and of use of the embankment, was given by a number of witnesses.

17 Sergeant Matthews of the Lorne Police gave evidence that he had measured the total distance from the top of the embankment to the drain cover at 13.5 metres. He said that the slope was 'fairly steep', and that the drop-off, which began 9.6 metres from the top, was 'almost vertical'. He said that he did not think that the slope would be 'quite that obvious' to people standing at the top of the embankment. The terrain flattened out, he said, shortly before the drain cover.

18 The trial judge said that he 'accept[ed] from the photographic evidence that it was approximately one metre'. What he meant by that is not clear. If he meant that the vertical drop was one metre, then it was a one metre drop in a distance of about 4 metres. Even allowing for a flat area between the base of the embankment and the nearest point of the pit cover, such a meaning would not sit comfortably with either the oral or photographic evidence concerning the degree of slope of the drop-off.

19 Sergeant Matthews stated that on occasions he had walked down the embankment without difficulty, but said that he had fallen once while chasing an offender. He said that, prior to the incident involving SG, no accident had ever been reported to Lorne Police whilst he had been stationed there. Cross-examined by counsel for the Shire, he agreed that the embankment had been used by 'people of all shapes and sizes over a long period of time before this accident'. It was, he agreed, 'well known to [him] as a means of going to the highway or going to the beach'. In re-examination, he said that the track used by SG, although the steepest, was probably the most used.

20 There was other evidence that the embankment was often used.

21 Scott Kerr, a member of the Lorne Surf Lifesaving Club for eight years, said that when leaving the hotel 'you'd go down the embankment on your bum to go the beach and go for a swim after you'd finished'.

22 Anthony Flynn, the works supervisor employed by the Committee from 1998, testified that he had heard of no complaints or any reports of injury in relation to the embankment. He said he had seen people go up and down what he described as 'goat's tracks' on the embankment. Use of the embankment, he was aware, 'was a day to day occurrence'. He had seen more people go up than go down.

23 The Committee called Christopher Marshall. He had been a member of the Committee between 1996 and 2003. He said he was not aware of any concerns about the safety of the embankment, nor aware of any reports or complaints of incident or injury occurring on the embankment. He testified that he had noticed 'that goat track', but had not observed anyone using it. Although, he said, it was not his belief that it had 'been used very frequently', he knew because of the presence of the track that it must have been used. He was unaware that Sergeant Matthews knew of it as a 'common pathway used by people wanting to go to the beach'. He said there was nothing unusual about such 'goat tracks' all over the coast. It was part of the Committee's job, he agreed in cross-examination, to fence off areas regarded as dangerous or a risk to the public. Areas at risk had to be prioritised.

24 The witness agreed that the embankment was located in a busy area. About two kilometres of the foreshore in the area of the Lorne township was busier than any other area of the Committee's responsibility. The area directly in front of the hotel was, he agreed, 'presumably busier than anywhere else within that two kilometre area'. He said that had he known the embankment was frequently used by persons at night to access the Club premises from the hotel, he 'would have been concerned about that'. He conceded that it would make a 'pretty dangerous situation'. He agreed that had he been aware that the embankment was frequently used, it would warrant looking at fencing it off.

25 Following the accident the Committee erected a fence along the top of the embankment at modest cost.

26 The judge found, and it not contested on this appeal, that there was a reasonably foreseeable risk of injury 'to someone who slid down this embankment at night'. He found that the Committee owed SG a duty of care 'whilst she was on the embankment'. That was so 'despite the fact that she had been drinking, that it was at night and the embankment was steep, and it was obviously foolhardy for her to descend the embankment in these circumstances' and '[s]he was obviously not exercising reasonable care for her own safety'. Again, we note, there was no challenge on the appeal to the finding that such a duty was owed - which, as the case was conducted, translated into a duty owed to the appellants.

27 The Committee having taken no steps to address the foreseeable risk of injury which gave rise to the duty of care, the judge correctly identified the critical question as being, so far as the claim against the Committee was concerned, whether that was a reasonable response in all the circumstances, or else constituted a breach of the duty owed.

28 Having concluded that the risk of injury to someone who slid down the embankment was reasonably foreseeable, the judge also found that the probability that death would occur was low and that the risk of injury to SG 'was of a very low probability'. He noted that, despite the frequency with which the embankment was used, no one had been injured until SG's accident.

29 Counsel for the appellants at trial submitted that a reasonable response by the Committee might have been the installation of a pool-type fence preventing access to the area, a light, or a warning sign. His Honour rejected the submission that a reasonable response demanded any of the suggested measures.

30 The learned judge did not consider installation of a light or a warning sign a reasonable response. Although he accepted that the drop-off 'would probably not have been seen by [SG]', he concluded that 'there was sufficient light to discern that it was a steep embankment'. It was the steepness of the embankment which constituted the risk to the plaintiff and such risk was sufficiently obvious. He concluded that a light or warning sign would only have drawn attention to something that was already apparent.

31 His Honour concluded, 'judged retrospectively', that there was no doubt that the erection of a pool-style fence would in all likelihood have prevented SG from being injured because it would have prevented her having access to the embankment. But he held, having regard to the impracticality of fencing-off the large areas under the control of the Committee, that there was nothing about the particular area which, without the benefit of hindsight, would have made this necessary.

32 At a number of points, the judge found that the embankment presented an obvious danger or risk that could clearly be appreciated by a prospective user. His conclusion that it was reasonable for the Committee to have taken no step in response to the foreseeable risk of injury rested - this was scarcely if at all debated before us - upon his characterisation of the risk and its obviousness.

33 His Honour drew upon observations by members of the High Court in Mulligan v Coffs Harbour City Council,[6] Vairy v Wyong Shire Council,[7] and Romeo v Conservation Commission of the Northern Territory[8] concerning the 'obviousness of the risk' and its relevance to determining what is a reasonable response. He considered that SG's decision to descend the embankment was in essence analogous to the circumstances of those cases, which concerned persons diving into a river or walking near unfenced cliffs. He concluded that there was 'nothing hidden' about the dangers of the embankment and that the Committee was therefore under no duty to take steps to protect the public from this 'obvious danger'.[9]

34 The question whether breach of duty was established fell to be determined by adopting the approach stated in Wyong Shire Council v Shirt:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. 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. [10]

35 Counsel for the appellants drew attention to that part of his Honour's reasons where he said:

It may well be that the concrete drain lid and its surrounds were not obvious from the top of the embankment, just as the shallow creek bed was not obvious in Mulligan. To this extent, the facts of this case are similar to the diving cases where the plaintiffs dived without being able to see the bottom. That, however, does not detract from the obvious danger that the embankment itself presented. I find that this could be clearly seen by [SG] and her friends when they were sitting on top of the embankment.

In my view, there was nothing hidden about the dangers that may be encountered by anyone who used this embankment as a shortcut to the beach.[11]

36 Counsel submitted that the trial judge identified the relevant risk simply as the embankment and not the risk caused by the embankment in combination with the steep drop-off and drain cover at its base - which, we observe, were in line with the track down which SG descended. Counsel further submitted that the consequence of the approach of the trial judge resulted in the 'true source of the injury'[12] being given inadequate weight in assessing the magnitude of the risk.

37 It is necessary to correctly identify the risk so as to assess the reasonable response to that risk.[13] In our opinion, the trial judge failed to correctly identify the risk. In consequence, he failed to bring the full extent of the true risk to account when analysing whether the Committee's inaction was reasonable. Accordingly, his reliance on the observations of Brennan CJ in Romeo was misplaced. Brennan CJ had observed :

The duty is to exercise reasonable care to prevent injury from dangers arising from the structure or condition of the premises which are not apparent and are not to be avoided by the exercise of reasonable care on the part of the entrant. There is no warrant for extending the statutory duty to the taking of steps to protect particular entrants from the consequences of their failure to take reasonable care to protect themselves.[14]

38 We agree with the submission for the appellants that the risk had to be viewed more broadly than the way in which the judge viewed it, so as to include the danger posed by the drop-off in combination with the concrete drain cover. That is to say, the risk of injury or death caused by losing control whilst descending the steep embankment would be informed by the degree of likelihood that someone descending might lose control and the potential consequences of doing so. If the embankment had continued its observable slope without a drop-off and with a soft surface at its base, the risk of losing control and the risk of injury or death might be low. The danger presented by an embankment that led to a drop-off of the kind in the present case was part of the circumstances that made up the risk posed by the embankment. So also was the fact that what Sergeant Matthews described as the most-used track terminated, in substance, at the drain cover. Those features bore upon the nature and magnitude of the risk and the probability of its occurrence. It was an error to consider the reasonableness of the Committee's response without regard to them.

39 Counsel for the appellants further submitted that his Honour erred in treating the risk as 'obvious' and determinative of what was a reasonable response to that risk. In our view, once the risk was properly characterised, neither the likelihood nor the magnitude of the danger would have been obvious to a person in the position of the deceased. As his Honour in substance found, the drop-off and the concrete drain cover could not be seen at night from the top of the embankment. The risk which they created, in combination with the slope of the embankment generally, was not obvious to a person in the position of a user of the embankment.

40 This was not, therefore, a case where it could be said that the deceased chose to take a risk that was obviously present. We doubt that it can rightly be maintained that SG 'failed to take reasonable care to protect [herself]' where critical aspects of the danger were hidden, and where there was no evidence that she knew of those aspects. That said, it is not a matter we need stay to consider. We are not here concerned with the existence of the duty of care or with contributory negligence. In the context of breach of duty, even if a person in SG's situation might be said to have assumed a risk in descending a steep embankment, such person could not be said to have assumed the risk posed by the unknown and hidden drop-off and the concrete cover below it. We consider that the analogy which his Honour drew with the facts in cases like Romeo, Vairy or Mulligan was unsound.

41 Counsel for the appellants submitted, still further, that the trial judge wrongly regarded what he considered to be the obviousness of the risk as the determinative factor in the Shirt calculus. Counsel contended that obviousness of risk is only one factor in the 'interplay of considerations' that will be taken into account in determining the reasonableness of a response to an identified risk.[15]

42 In Thompson v Woolworths (Queensland) Pty Ltd, Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ said this:

When a person is required to take reasonable care to avoid a risk of harm to another, the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend upon the circumstances of the case. To take a commonplace example, in ordinary circumstances a motorist in a city street, approaching a pedestrian crossing, will reasonably assume that the pedestrians assembled on the footpath will observe the lights which control the crossing. Most people drive as though it may be expected that other road users will be reasonably careful. At the same time, it is often judged reasonable to expect a motorist to allow for the possibility that some other road users will be inattentive or even negligent.

The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response ...

The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence.[16]

43 In Central Goldfields Shire v Haley,[17] Redlich JA referred to two further decisions of the High Court in the same year as Thompson in which the relative importance of obviousness of the risk was further considered. He summarised the position this way:

In Mulligan v Coffs Harbour City Council Gleeson CJ and Kirby J, who were in the minority, but not as to this issue, concluded that 'the obviousness of a danger can be important in deciding whether a warning is required'. In _Vairy v Wyong Shire Counci_l McHugh J thought it seldom that the obviousness of a risk created or permitted by a defendant who owes a duty of care would require no action by that party. Gummow J did not regard the obviousness of the risk as a concept necessarily determinative of questions of breach of duty or the existence and content of the duty. He expressed agreement with Hayne J's observation that the description of a risk as 'obvious' was apt to mislead and could not be used 'as a concept determinative of questions of breach of duty' nor should it be elevated into some doctrine or general rule of law. Callinan and Heydon JJ referred to their reasons in their judgment in Mulligan v Coffs Harbour City Council that in a particular case obviousness might be of such significance as to carry with it such a very high degree of importance, as to be overwhelming and effectively conclusive and that in Ghantous v Hawkesbury City Council, 'five judges of this Court stressed, and treated obviousness as a decisive factor'. They referred to the observations of Gleeson CJ in Woods v Multi-Sport Holdings Pty Limited with whom Hayne J agreed, that obviousness may be decisive in relation to the recreational activity in which the plaintiff was there engaged. In Woods v Multi-Sport Holdings Pty Limited Gleeson CJ said that what reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law and as a proposition of fact, it is not of universal validity.

Following the decisions in Thompson, Mulligan and Vairy, Ipp JA dealt with the concept of obviousness of risk in Consolidated Broken Hill Ltd v Edwards. He said:

A common expression of principle as to the concept of obviousness of risk is manifest from the unanimous decision in Thompson and the judgments of those justices in Mulligan and Vairy who formed a majority on this issue. It can be articulated as follows. Obviousness of risk is not a phrase that denotes a principle or rule of the law of negligence. It is merely a descriptive phrase that signifies the degree to which risk of harm may be apparent. It is a factor that is relevant to whether there has been a breach of the duty of care. ... The weight to be attached to the obviousness of the risk depends on the totality of all the circumstances. In some circumstances it may be of such significance and importance as to be effectively conclusive.[18]

44 Whilst the weight to be given to obviousness of risk will vary from case to case, it is only one fact amongst a number in a 'fact-value complex'[19] that combine to determine whether the response of a person with a duty of care is reasonable in the circumstances. Accordingly, the question arises whether in the present circumstances it warranted the significance which it was given by the trial judge. In our opinion it did not do so, at the least because it was founded upon an incorrect identification of the risk.

45 Counsel for the Committee, however, drew attention to two particular circumstances. First, he submitted, there was nothing about this particular area which, without the benefit of hindsight, made it any more dangerous than any other part of the 15 kilometres of coastline under the control of the Committee. 'Goat tracks' like that on the embankment were common along that stretch of coast. It would be both impractical and undesirable, counsel contended, for the Committee to install pool-style fences, or lights and warning signs, along the coast. Second, counsel submitted, the fact that the embankment had been used for many years without incident demonstrated that the risk posed by the embankment was sufficiently low that it was reasonable for the Committee to take no steps to ameliorate that risk.

46 In response, counsel for the appellants pointed to the particular dangers associated with this particular embankment and submitted that in distinction from other areas along the coast, it was frequently used during the day and night. The drop-off and concrete cover at the foot of the embankment were unexpected as well as hidden dangers in a much frequented public area in the town in contrast to the foreshore tracks remote from the township. Counsel submitted that the heavy use of the embankment increased the risk that an accident like that which occurred would eventuate, even though there was no evidence of a similar accident on any prior occasion.[20]

47 The matters upon which counsel for the Committee relied do not solve the problem, from his client's standpoint, that there were specific errors in the learned judge's application of principle to the facts of the case. But they were matters which could nonetheless be relied upon to support the orders made below. In our opinion, however, all things considered they do not have that effect.

48 As to the first of them, the response of appellants' counsel was both consistent with the evidence and convincing.

49 We turn to the second matter relied upon. The frequency with which a particular risk is taken by persons to whom a duty of care is owed is, subject to what we say below, a factor in determining what discharge of that duty requires. In Edson v Roads and Traffic Authority Ipp JA, with whom Beazley JA and Hunt AJA agreed, said:

Where the exigencies of life and human nature combine to cause large numbers of persons to take grave risks in utilising areas under the control of a statutory authority, the community expects that the authority itself will take reasonable steps to limit the harm likely to result.[21]

50 Similarly in Consolidated Broken Hill Ltd v Edwards Ipp JA, with whom Giles JA and Hunt AJA agreed, considered that the defendant's knowledge of the frequency that a risk taking activity is undertaken will be a relevant factor in assessing the reasonableness of a response. His Honour said:

CBH knew that the way in which it used the bridge gave rise to a risk of serious injury to persons who cycled or even walked across the bridge. It, nevertheless, allowed members of the public to traverse the bridge on a regular and frequent basis. These are serious matters that affect the determination of whether CBH responded unreasonably to the risk.[22]

51 The significance of the frequency with which a risky practice was being followed again fell for consideration in Roads and Traffic Authority of New South Wales v Dederer.[23] The respondent had dived from a bridge and hit his head in the bed of an estuary. Diving from the bridge was a widespread and longstanding practice. The respondent had dived from the bridge before. Signs had been erected prohibiting diving from or climbing on the bridge. The respondent understood the signs and knew that the estuary contained channels of variable depth. Gummow J, who was in the majority, and with whom Heydon J agreed,[24] cautioned against too close a focus upon the frequency with which persons are exposed to a risk, observing that to do so might result in distraction 'from a proper evaluation of the probability of [the] risk occurring'.[25] His Honour said:

The first error can be seen in Ipp JA's characterisation of the 'startling frequency' of 'large numbers' of people jumping and diving from the bridge; a practice that was 'continuing unabated' notwithstanding the pictograms. Such a characterisation incorrectly focused attention on the frequency of an antecedent course of conduct, namely jumping and diving, and not on the probability of the risk of injury occurring as a result of that conduct, namely impact in shallow water. As Lord Porter observed in Bolton v Stone. 'in order that the act may be negligent there must not only be a reasonable possibility of its happening but also of injury being caused' (emphasis added). In the present case, the frequency of jumping and diving was only startling if one ignored the fact that no-one was injured until Mr Dederer's unfortunate accident. Far from being a risk with a high probability of occurrence, the probability was in truth very low, and this fact was masked by the Court of Appeal's characterisation of the relevant risk.[26]

52 Thus, the frequency with which an activity is undertaken may increase the possibility that a risk associated with that activity might eventuate. On the other hand, the fact that an activity has been undertaken many times without incident, may inform the assessment as to how dangerous the activity actually is. We do not understand Gummow J to suggest that injury must previously have occurred, or that the risk must have at some point eventuated, before it will constitute a risk that requires a response. Rather, the frequency with which the activity is undertaken and the fact that no injury has been caused are matters that must be weighed in the overall consideration of what is a reasonable response in the circumstances. Depending on the circumstances, a response may be called for, even where the risk of serious injury or death might be objectively low. What is required, as is made plain in Shirt, is an assessment of all the circumstances including the likelihood of death or injury and the cost and practicality of any possible response.

53 This embankment was located close to a busy town precinct. It was adjacent to a bus stop and directly opposite the hotel. It was regularly used during the day and at night as a means of access from the hotel and the street to the car park, Club premises and beach. From the hotel, it provided the most direct route to the beach, the Club premises and the car park. The Committee - at least through its works supervisor, Mr Flynn, who said that he was aware that use of the embankment was a day to day occurrence, and assumed that use would take place at night as well as during daylight hours - knew that the embankment was frequently used as this means of access. The 'goat tracks' of themselves were a stark indication that the embankment was so used. It had been so used even when the old driveway, which was closer to the Club premises, had been in use. The lighting at night time was poor. The embankment was steep. There was a danger of people losing control while using the embankment. Whilst the Club premises and car park were discernible at night, the drop-off and concrete cover were not visible to a person who might decide to use the embankment. SG was not shown to have used the embankment before, or to have known of the drop-off or the concrete cover at the base of the embankment. The embankment, in combination with the drop-off and cover which would not have been visible to a person such as SG when at the top of the embankment, particularly at night, gave rise to foreseeable risk of injury, although in assessing the magnitude of the risk it was in point that no instance of injury had hitherto been reported. Installation of a pool-style fence, as was constructed shortly after the accident, was a cheap way of preventing access to the embankment, and one which would have mandated use of the entry road or the stairs.[27] Installation of lighting alone, or in combination with a warning sign, would have alerted a person who decided to use the embankment at night to the existence of the drop-off and the concrete cover. The desirability of using the entry road or the stairs would thus have been highlighted. These were all aspects of the matrix of facts which were to be evaluated.

54 Bearing in mind the warning by Hayne J in Vairy[28] that the Shirt calculus must be undertaken looking forward so that the determination of breach of duty is be made prospectively and not retrospectively, we consider that the Committee's failure to take any steps was unreasonable and constituted a breach of duty. Had the learned trial judge correctly identified the risk, and then considered breach by giving 'obviousness' its proper place in the overall assessment whether inaction was a reasonable response, the conclusion should have followed that the Committee had breached its duty of care by failing to ameliorate that risk. As was found by the trial judge, a pool style fence would have been an inexpensive and easy way of preventing a person from attempting to descend the embankment. Persons such as SG who wished to go to the carpark, the lifesaving Club premises, or the beach would then have had to use the carpark entry road or the stairs to which we have earlier referred. Further, installation of lighting or a warning sign, or both, may well have been sufficient to highlight the hidden danger of using the embankment. Any of these steps - but particularly the first of them - would have been a reasonable response in all the circumstances of the case, and would have meant that the Committee had discharged the duty of care which it owed to the appellants.

55 We would therefore allow the appeal and enter judgment for the appellants.

[2] The trial and the appeal were conducted on the footing that, for all relevant purposes, no distinction was to be drawn between the individual appellants.

[3] The supervisor, Mr Flynn, agreed that the old driveway - which was nearer to the point where he understood SG to have fallen than was the new entry road - was 25 metres or so from that point.

[4] The evidence was clear that the first set of stairs was in situ at the time when SG sustained injury. It was not quite so clear in respect of the second set of stairs. But nothing turns on it.

[5] This is most clearly depicted by photograph 12 of exhibit C.

[6] [2005] HCA 63; (2005) 223 CLR 486, 499 [37]-[38] (Gummow J), 502 [52](Hayne J), 509-510 [75]-[79] (Callinan, Heydon JJ).

[7] [2005] HCA 62; (2005) 223 CLR 422, 470 [163] (Hayne J).

[8] (1998) 192 CLR 431, 447 (Brennan CJ), 454 (Toohey and Gummow JJ), 488-9 (Hayne J).

[10] [1980] HCA 12; (1980) 146 CLR 40, 47-48 (Mason J).

[12] Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330, 351 [60] (Gummow J).

[13] Ibid 337-338[18], 351[59] (Gummow J); Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, 428 [10] (Gleeson CJ and Kirby J).

[14] Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, 443-444 [19], (Brennan CJ).

[15] Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234, 247 [37] (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ).

[17] [2009] VSCA 101.

[18] Ibid [115]-[116] (citations omitted).

[19] Berrigan Shire Council v Ballerini [2005] VSCA 159; (2005) 13 VR 111, 134 [54] (Nettle JA).

[20] We note that some evidence suggested the likelihood - a matter which should reasonably have been known to the Committee - that the embankment was likely to become even more used than hitherto. A new Lifesaving Club premises had been constructed in 2001-2. Whilst a new carpark entry road had also been constructed at that time, it was further away from the vicinity of the Club premises than had been the old driveway - and even with the old driveway, the embankment had been used.

[21] [2006] NSWCA 68; (2006) 65 NSWLR 453, 469-470 [104].

[22] [2005] NSWCA 380 [57].

[23] [2007] HCA 42; (2007) 234 CLR 330.

[27] Even if only the first set, leading to the old driveway, was then in situ.

[28] [2005] HCA 62; (2005) 223 CLR 422, 462 [128].