Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor

DECISION: (1) The appeal by the Council is upheld with costs. (2) The orders made by Dunford J against the Council are set aside and substituted by a judgment in favour of the Council with costs. (3) Mr Dederer is granted a certificate under the Suitors Fund Act 1951 (NSW) if he is otherwise entitled. (4) The appeal by the RTA is partially upheld. (5) The orders of Dunford J in regard to the apportionment of damages is set aside and substituted with an apportionment of 50 per cent. (6) Otherwise, the appeal by the RTA is dismissed. (7) No order is made as regards the costs of the appeal by the RTA.

CATCHWORDS: NEGLIGENCE - boy rendered paraplegic after diving off bridge - duty of care owed by Council as Road Authority for public road under Roads Act 1993 (NSW) - miscellaneous defences - obviousness of risk - fourteen year old boy - Civil Liability Act 2001 (NSW) s 5F. - NEGLIGENCE - duty of care owed by RTA - consequences of RTA's predecessor designing and building bridge - knowledge of RTA of allurement and dangers constituted by bridge - signs prohibiting diving - signs ineffective for many years - RTA's knowledge that signs not achieving purpose - situation was "accident waiting to happen" - whether different signs should have been installed - whether bridge should have been modified to make diving more difficult - the justifiability of policy decisions in cases of negligence involving statutory authorities - availability of resources and competing priorities - causation - contribution negligence. D

Civil Liability Act 2002 (NSW), Pt 1A, ss 5F, 5G(2), 5K, 5L LEGISLATION CITED: Main Roads Act 1924 (NSW), s 25 Roads Act 1993 (NSW), ss 4, 7(3), 7(4), s 48(1), 63, 64, 71, 145(3), 249(1) Transport Administration Act 1988 (NSW) Sch 7 Pt 5 cl 24(e) and (g)

Ainger v Coffs Harbour City Council [2005] NSWCA 424 Australia Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Berrigan Shire Council v Ballerini [2005] VSCA 159 Black v City of South Melbourne (1964) 38 ALJR 309 Brodie v Singleton Shire Council (2001) 206 CLR 512 Bujnowicz v Trustees of the Roman Catholic Church (2005) Aust Torts Reports 81-824 Carlen v Drury (1812) 1 Ves & B 154 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Edson v Roads and Traffic Authority (2006) Aust Torts Reports 81-839 Fairfield City Council v Petro [2003] NSWCA 150 Fallas v Mourlas (2006) Aust Torts Reports 81-835 Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540 Hackshaw v Shaw (1984) 155 CLR 614 Hill v Commissioner for Main Roads (1989) LGRA 173 McPherson's Ltd v Eaton & Ors (2005) Aust Torts Reports 81-825 Miller v McKeon (1905) 3 CLR 50 Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 Munnings v The Hydro-Electric Commission (1971) 125 CLR 1 Nagle v Rottnest Island Authority (1993) 177 CLR 423 CASES CITED: New South Wales v Bujdoso (2005) 80 ALJR 236 Pledge v Roads and Traffic Authority (2004) 205 ALR 56 Public Trustee v Sutherland SC (1992) 75 LGRA 278 Roads and Traffic Authority v McGregor [2005] NSWCA 388 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Rosenberg v Percival [2001] 205 CLR 434 RTA v Palmer (2003) Aust Torts Reports 81-693 Southern Portland Cement Ltd v Cooper [1974] AC 623 Stovin v Wise [1996] AC 923 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Swain v Waverley Municipal Council (2005) 79 ALJR 565 Thompson v Woolworths (Q'land) Pty Ltd (2005) 79 ALJR 904 Vairy v Wyong Shire Council (2005) 80 ALJR 1 Waverley Council v Lodge (2001) 117 LGERA 447 Waverley Council v Ferreira (2005) Aust Torts Reports 81-818 Webb v South Australia (1982) 56 ALJR 912 Wilkins v Council of the City of Broken Hill [2005] NSWCA 468 Willis v The Commonwealth (1946) 73 CLR 105 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Wyong Shire Council v Shirt (1980) 146 CLR 40 Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754

CA 40257/05 Great Lakes Shire Council (Appellant) Philip James Dederer (First Respondent) PARTIES: Roads & Traffic Authority of NSW (Second Respondent) CA 40294/05 Roads & Traffic Authority of NSW (Appellant) Philip James Dederer (First Respondent) Great Lakes Shire Council (Second Respondent)

CA 40257/05 M McCulloch SC/S Glascott (Appellant) D T Kennedy SC/G Graham (First Respondent) COUNSEL: M J Cranitch SC/A C Casselden (Second Respondent) CA 40294/05 M J Cranitch SC/A C Casselden (Appellant) D T Kennedy SC/G Graham (First Respondent) M McCulloch SC/S Glascott (Second Respondent)

CA 40257/05 Phillips Fox (Appellant) Emery Partners (First Respondent) SOLICITORS: Henry Davis York (Second Respondent) CA 40294/05 Henry Davis York (Appellant) Emery Partners (First Respondent) Phillips Fox (Second Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWSC 185

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40257/05 CA 40294/05 SC 20122/02

HANDLEY JA IPP JA TOBIAS JA

Thursday 5 October 2006 GREAT LAKES SHIRE COUNCIL v DEDERER & ANOR ROADS AND TRAFFIC AUTHORITY OF NSW v DEDERER & ANOR

On 31 December 1998, the respondent, Mr Philip James Dederer, dived off the Forster/Tuncurry bridge and was rendered a paraplegic. Mr Dederer was fourteen years and six months old at the time.

The general area is a busy tourist destination attracting families and children. For many years young people, particularly in the summer months, frequently jumped and (less often) dived off the bridge into the estuary below. Mr Dederer had spent holidays in the area since he was a very small boy. He had frequently observed children and adults jump and dive off the bridge.

The Forster/Tuncurry bridge had two flat central horizontal railings beneath a flat top railing. Mr Dederer was able to use the two central railings to step on to the flat top railing. At first, Mr Dederer planned to jump off the bridge but at the last moment, on impulse, he decided to dive. He used the flat top railing as a platform for diving off the bridge. Mr Dederer dived off the bridge at a point that was about nine meters from the surface of the water. He dived into approximately two meters of water, struck his head on a sandbar, and was rendered paraplegic.

There were pictograph signs on or at the approaches to the bridge prohibiting diving and signs in words prohibiting climbing on the bridge. Prior to diving, Mr Dederer saw and understood these signs but ignored them.

There was evidence that the Roads and Traffic Authority ("the RTA") had been aware of people frequently jumping off the bridge and in 1990 had conferred with police to attempt to prevent this. However, attempts to enforce the prohibition against jumping proved futile. The response of the RTA and the Great Lakes Shire Council ("the Council") was to replace existing pictorial signs with the "No Diving" pictographs in 1995, but these had virtually no effect. The Council, but not the RTA, admitted that it knew that the practice of people jumping off the bridge was continuing.

Mr Dederer brought a claim against the RTA and the Council for damages for personal injury.

The Civil Liability Act 2001 (NSW) did not apply to Mr Dederer's action against the RTA as that action was brought before the Act commenced. The Council, however, was not joined as a defendant until after the commencement of the Act.

The trial judge, Dunford J, upheld Mr Dederer's claim and decided that both the RTA and the Council were negligent. He further held that Mr Dederer had been guilty of contributory negligence and apportioned Mr Dederer's share of responsibility for his own injury at 25 per cent. As between the RTA and the Council, his Honour found that the RTA was 80 per cent responsible for Mr Dederer's damages and the Council was 20 per cent responsible. The parties had agreed on the quantum of damages.

The RTA and the Council appealed against the findings of negligence and apportionment made by the trial judge.

The liability of the Council Held per Ipp JA (Handley and Tobias JJA agreeing):

i. There are several provisions in the Roads Act 1993 (NSW) which indicate that a main road is part of a public road for the purposes of the Act. The Forster/Tuncurry bridge forms part of a public road and therefore the Council at the relevant time was the Road Authority in respect of it. In addition, the Council exercised a substantial degree of de facto control over the bridge and assumed responsibility for certain aspects of it. Therefore, the Council owed the class of persons into which Mr Dederer fell a general duty of care.

ii. The risk that materialised in this case was that of serious spinal injury flowing from the act of diving off the bridge. Whether this risk was obvious (within s 5F of the Civil Liability Act), to a person in the position of Mr Dederer, has to be answered objectively and by reference to a notional reasonable fourteen and a half year old person with the knowledge of the area and conditions possessed by Mr Dederer at the time.

Fallas v Mourlas (2006) Aust Torts Reports 81-835 iii. Even without a pictograph sign prohibiting diving, it should have been obvious to a reasonable fourteen and a half-year old that such a dive was dangerous and could lead to catastrophic injuries. Therefore, the risk that materialised for Mr Dederer was an obvious risk of the dangerous recreational activity he was engaged in. The appeal by the Council succeeds.

The liability of the RTA Held per Ipp JA (Tobias JA agreeing):

i. The RTA, standing in the shoes of its predecessor, is to be regarded as having designed and constructed the bridge and as having created whatever danger it constituted.

ii. The RTA exercised a significant degree of control over the bridge, and performed acts that tended to attract a duty of care to it. It did not challenge the elements of Dunford J's findings, which led him to conclude that it owed a general duty of care to users of the bridge, and made concessions as to the existence of other factors important to the existence of a duty of care. Therefore, Dunford J correctly held that the RTA owed a general duty of care to the users of the bridge.

Sutherland Shire Council v Heyman (1985) 157 CLR 424, Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540, [ RTA v Palmer (2003) Aust Torts Reports 81-693 distinguished] iii. It was common knowledge for many years that the bridge was being used extremely often (and by children) particularly in the warmer months of the year as a jumping and diving platform.

iv. The RTA carried out inspections, stabilisation, dredging, sounding and general maintenance work on the bridge, virtually from the time it was constructed. Dunford J concluded that based on this evidence the RTA "must have known of the continuing practice" of jumping and diving off the bridge. The RTA called no other witness, apart from Mr Alexander whose role in the RTA was limited to financial and budgetary matters, to refute this finding. v. The existence of no diving signs on the bridge, and the replacement in 1995 of these signs with pictograph no diving signs, leads to the inference that the RTA must have known that there had been a problem with jumping and diving off the bridge. The particular sign chosen by the RTA, the pictograph prohibiting diving, strongly supports the inference that the RTA was aware that young people were diving off the bridge. vi. As part of the RTA's duty of care, it should have ascertained - over a period of almost 40 years during which it was in control of the bridge it had created - whether it was being used in an unsafe way. On that basis, the RTA ought to have known of the practice of jumping and diving. Dunford J correctly held that the RTA knew of the practice.

McPherson's Ltd v Eaton & Ors (2005) Aust Torts Reports 81-825 vii. The RTA knew from the time the bridge was built that the depth of the water under the bridge varied continually. After 1993, this knowledge would have been very detailed, being based on three monthly soundings.

viii. Thus, the RTA knew or ought to have known that persons, including children, were jumping and diving from the bridge (which was about nine to ten metres above the surface of the water) into depths that varied but were not more than two to three meters. The serious risk of devastating injury must have been obvious to the RTA.

ix. The pictograph signs prohibiting diving (which were the only measure taken by the RTA) were not serving the purpose for which they had been erected. It was common knowledge that the practice of jumping and diving off the bridge was continuing unabated. In these circumstances, the RTA knew that the signs were ineffective. x. As part of a general duty of care owed by the RTA to users of the bridge, it should - in any event - have ascertained whether the pictograph signs were proving effective. On that basis, the RTA ought to have known that the pictograph signs were ineffective.

Brodie v Singleton Shire Council (2001) 206 CLR 512 , McPherson's v Eaton & Ors (2005) Aust Torts Reports 81-825 xi. The obvious risks involved in jumping and diving off the bridge were not a deterrent. Many of the visitors to the bridge were children and young people. In these circumstances, the RTA could not assume that these persons would take reasonable care for their own safety.

Edson v Roads and Traffic Authority (2006) Aust Torts Reports 81-839 xii. The RTA is to be regarded as responsible for the construction of the bridge with railings configured in such a way that made it very easy for young persons to jump or dive off. Thus, the bridge constituted an allurement to young people to jump and dive off it. In these circumstances, the standard of care that the RTA had to exercise was higher than that required from an authority that controls land where natural features constitute a danger to the public.

Brodie v Singleton Shire Council (2001) 206 CLR 512 , Webb v South Australia (1982) 56 ALJR 912 , Ainger v Coffs Harbour City Council [2005] NSWCA 424 xiii. The fact that there had been no previous injuries sustained by people jumping or diving off the bridge made it less likely that persons would refrain from participating in these activities. That, in turn, made it even more important that the RTA should guard against the risk that persons would jump or dive into water that was dangerously shallow.

Berrigan Shire Council v Ballerini [2005] VSCA 159 xiv. A breach of duty on the part of a statutory authority may arise even when the authority erects signs prohibiting the activities that cause the injuries that are the subject of the plaintiff's claim. A sign, no matter how appropriate, is not an automatic, absolute and permanent panacea.

Wilkins v Council of the City of Broken Hill [2005] NSWCA 468 xv. Dunford J, after taking a view, held that the situation at the bridge was "an accident waiting to happen". This finding negates any inference that jumping and diving could reasonably have been regarded as safe. xvi. The no diving pictograph impliedly warned against danger. Nevertheless, in the particular circumstances, a reasonable response to the risk of injury would not have been a sign containing a mere prohibition for unspecified reasons. The pictograph sign erected by the RTA did not comply with the Australian Standard Design and Application of Water Safety Signs. The alternative word message sign proposed by Dunford J, containing similar words to "Danger, Shifting Sands, Variable Depth", was a response to and a consequence of the evidence and submissions before him. His Honour's finding in respect of the word message sign did not constitute a breach of natural justice.

xvii. A sign that prohibited diving and expressly explained and emphasised the nature of the danger would have been more effective than the sign the RTA erected or the sign proposed by Dunford J. The erection of such a sign would have been an inexpensive and reasonable step for the RTA to take and should have been taken.

xviii. The existing flat top handrail did not comply with the geometric requirements laid down by the 1992 Austroad Bridge Design Code. It is not unreasonable to expect the RTA, over at least three years of knowledge on its part that the pictographs were having no effect, to find the relatively insignificant amount of money required to modify the flat top handrail. A triangular handrail would have made diving more difficult and may have dissuaded Mr Dederer from diving.

xix. The attraction of the bridge as a place to jump or dive would have been substantially reduced had the horizontal railings been replaced by vertical pool-type railings in accordance with the Bridge Building Code. Therefore, subject to the availability of resources and the question of priorities, Dunford J was correct in finding that the installation of pool-type fencing was a reasonable response to the risk.

xx. The fact that the local community did not publicly express any concerns about people jumping and diving off the bridge is a relevant factor. However, in the light of the frequency of the practice of jumping and diving off the bridge, the youth of those involved, and the obviousness of the risk of severe injuries, it is by no means conclusive. Further, the failure of members of the public to mention the issue when responding to the RTA's call for comment is readily explicable when regard is had to the circumstances under which that call was made. xxi. It is axiomatic that our system of government requires a free and independent judiciary; it is equally a truism that one of the reasons for the existence of a free and independent judiciary is the need for the rule of law to be maintained as a bastion between the executive and the people. The maintenance of the rule of law, at times, may require the judiciary to adjudicate upon policy decisions by the executive. This applies in cases of negligence just as it does in cases of public law. Otherwise, it would seriously diminish the proper role of the judiciary as the third arm of the government. xxii. Evidence respecting funding constraints and competing priorities is admissible. It is no answer to a claim in tort that the wrongful acts or omissions of a public authority are the product of a policy decision taken by the executive. Local authorities are in no preferred position. The formulation of the duty of care includes the consideration of competing or conflicting responsibilities of the authority. Thus, if there are to be limits respecting the justiciability of funding priorities, those limits must be found by reference to criteria of reasonableness. The political nature of "setting priorities in the allocation of public funds between competing claims on scarce resources" is simply a factor that bears on reasonableness, albeit that - depending on the circumstances - it may be a compelling factor.

Brodie v Singleton Shire Council (2001) 206 CLR 512 xxiii. The perception of the response by the authority calls for a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority.

Wyong Shire Council v Shirt (1980) 146 CLR 40 xxiv. In a case where the availability of resources and conflicting priorities defence is raised, there is an evidentiary onus on the defendant to prove specifically why these matters reasonably justify its conduct in not taking particular measures for which the plaintiff contends.

Brodie v Singleton Shire Council (2001) 206 CLR 512 , Waverley Council v Ferreira (2005) Aust Torts Reports 81-818, New South Wales v Bujdoso (2005) 80 ALJR 236 at 245 to 246, [49]. xxv. After weighing the magnitude of the risk and the degree of probability that it would occur, the expense, difficulty and inconvenience to the RTA in taking the steps identified by his Honour, and the other competing responsibilities and commitments of the RTA, Dunford J correctly held that the RTA breached its duty of care.

xxvi. The fact that Mr Dederer dived, and did not jump, is not a material factor relating to the breach by the RTA of its duty of care. There can be no doubt that diving is more dangerous than jumping. But if a facility, for nearly 40 years, is a major attraction for children to jump from a high point into water, it follows that the facility will be a major attraction for some to dive.

xxvii. The issue of causation is a hypothetical question, which requires the Court to determine what Mr Dederer would (objectively) have done if there had been adequate performance by the RTA of its duty. The onus rests upon Mr Dederer to prove that, on the balance of probabilities, the performance of the duty would have resulted in the avoidance of the injury.

xxviii. The question of causation has to be considered by having regard to the combined effect of a different sign indicating the nature of the danger, the modified flat top, and the removal of the horizontal railing and replacement by pool type fencing. Had all these steps been taken Mr Dederer would probably not have dived off the bridge. In determining this issue, much depends on an assessment of a plaintiff's character and personality - this was essentially a matter for the trial judge.

i. Dunford J's finding that the situation at the bridge was an "accident waiting to happen" was not influenced by hindsight but merely confirmatory of what his Honour rightly regarded as reasonably foreseeable given the evidentiary findings, which he had made.

ii. It would be entirely inappropriate for the RTA to be able to disregard the danger created by its statutory predecessor upon the basis that although it was aware of the danger so created, it could nevertheless ignore it because it did not create it in the first place.

iii. Based on the evidence, it was not reasonable for the RTA to adopt a "do nothing" approach with respect to the foreseeable risk that the bridge posed. Nor did the evidence justify a conclusion that it was reasonable for the RTA to neither recognise nor respond to the danger because it had focussed its attention in terms of resource allocation on other aspects of its responsibilities as a road authority.

iv. There is no reason to believe that the combination of remedial steps, such as the installation of an appropriate sign and pool-type fencing, would not have been a deterrent to young people who engaged in the practice of jumping and/or diving from the bridge with the result that the extent of the practice, at the very least, would have been significantly reduced. In those circumstances, Mr Dederer's observation with respect to others jumping and diving from the bridge would not have provided him with the reassurance that it was safe to do so as he apparently assumed at the time of his accident.

Held per Handley JA (dissenting): i. The fact that the RTA's predecessor was responsible for the construction of the bridge in 1959 cannot be relevant to the liability of the RTA for an accident which occurred in 1998. If the bridge had been private property the contractor and the original owner who had since sold the bridge would not be responsible for an accident many years after the sale. In such a case the responsibility, if any, must be that of the current owner or occupier based on its acts or omissions.

ii. Dunford J's finding that the RTA was aware of a continuing practice of diving from the bridge was contrary to the evidence.

iii. The absence of any recorded injury over the 39 years before Mr Dederer's accident is eloquent testimony to the fact that the common practice of jumping off the bridge was not unsafe. Diving was much more dangerous and those who dived before Mr Dederer must have dived into deeper water or when the tide was higher, or at a safer angle, or from the ledge rather than the top railing or when some combination of these factors was present.

iv. Mr Dederer had no assurance of safety when he dived from the top railing about nine meters above the water into water that was only approximately two meters deep. There was a serious risk of injury because for all Mr Dederer knew the water below could be too shallow. The only safe dive from such a height is a dive into water known to be sufficiently deep.

Vairy v Wyong Shire Council (2005) 80 ALJR 1 v. Dunford J's finding that the situation at the bridge was "an accident waiting to happen" was a finding influenced by hindsight. The Court must endeavour to apply a test of reasonable foresight as at a time before the accident had occurred.

Vairy v Wyong Shire Council (2005) 80 ALJR 1 , Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 vi. The foresight of concerned members of the public and an independent body such as the Council, supported by a history of no serious accident from jumping or diving for over 39 years, provides the best evidence of what reasonable foresight required. This evidence should be given greater weight than an impression formed on a view after a tragic diving accident.

Willis v The Commonwealth (1946) 73 CLR 105 vii. None of the suggested alternatives to the "No Diving" signs would have told Mr Dederer anything he did not already know, a triangular section on the handrail would not have discouraged him from diving off the ledge, and a pool type handrail would not have stopped him getting onto the ledge. Therefore, Mr Dederer failed to establish that any breach of duty by the RTA was a cause of his injuries and the appeal by the RTA should succeed on this ground.

viii. It is always possible after the event, with the wisdom of hindsight, to identify some further step or steps that could have been taken by the defendant to avoid or reduce the risk of injury. However, the High Court has held that the enquiry must always be prospective. The RTA has State wide responsibilities for roads and road traffic in general. The focus in this case on the diving accident involving one person on one day on one bridge is inherently retrospective. ix. In any event, the Shirt calculus would have required the RTA to give priority to the perceived risks faced by pedestrians lawfully using the walkway for its proper purpose.

Contributory negligence Held per Ipp JA (Handley and Tobias JJA agreeing):

i. Against Mr Dederer's share in his responsibility for the damage he sustained, must be weighed the RTA's share of responsibility. Mr Dederer's age at the time is also a relevant consideration. A reasonable fourteen and a half year old boy should have appreciated that it was highly dangerous to dive as he did. Therefore, Mr Dederer's share in responsibility for the damage he sustained must be regarded as equal to that of the RTA.

ORDERS (1) The appeal by the Council is upheld with costs. (2) The orders made by Dunford J against the Council are set aside and substituted by a judgment in favour of the Council with costs. (3) Mr Dederer is granted a certificate under the Suitors Fund Act 1951 (NSW) if he is otherwise entitled. (4) The appeal by the RTA is partially upheld. (5) The orders of Dunford J in regard to the apportionment of damages is set aside and substituted with an apportionment of 50 per cent. (6) Otherwise, the appeal by the RTA is dismissed. (7) No order is made as regards the costs of the appeal by the RTA.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40257/05 CA 40294/05 SC 20122/02

HANDLEY JA IPP JA TOBIAS JA

Thursday 5 October 2006 GREAT LAKES SHIRE COUNCIL v DEDERER & ANOR ROADS AND TRAFFIC AUTHORITY OF NSW v DEDERER & ANOR Judgment 1 HANDLEY JA: In these appeals I have had the considerable benefit of reading the reasons for judgment of Ipp JA in draft. I gratefully adopt his summary of the principal facts and the history of the proceedings. I agree with his Honour's reasons for concluding that the Civil Liability Act 2002 relieved the Council of legal responsibility for Mr Dederer's injuries, and that his contributory negligence should be assessed at 50% rather than 25% as found by the trial Judge. Unfortunately I am not able to agree with his Honour's conclusion that the Roads and Traffic Authority (RTA) were legally responsible for Mr Dederer's injuries. My reasons will best be understood if read after those of Ipp JA. 2 The Forster/Tuncurry Bridge forms part of Main Road 111 and was built by the Department of Main Roads in 1959. On 16 September 1959 the Governor, pursuant to s 25 of the Main Roads Act (blue 3/509), with the consent of the two councils then concerned (blue 3/514-5), directed the Commissioner for Main Roads to carry out the work of maintenance of the bridge. The RTA became the universal successor of the Department and the Commissioner pursuant to the Transport Administration Act 1988 Sch 7 Pt 5. 3 This direction or arrangement became binding on the RTA pursuant to cl 24(e) and (g) of Pt 5 of Sch 7 of the 1998 Act, and continues to have effect pursuant to ss 62 and 63 of the Roads Act 1993 (the Act). The Council is the roads authority for Main Road 111, including the bridge, pursuant to s 7(4) of the Act. However since the RTA is responsible for the maintenance of the bridge the functions of the roads authority are to be exercised, to that extent, by the RTA: s 63(2). Under s 64 the RTA could exercise other functions of the roads authority with respect to the bridge but it does not appear to have exercised this power prior to the plaintiff's accident on 31 December 1998. 4 Section 71 authorises a roads authority to carry out road work on any public road for which it is the roads authority. Carry out road work is defined in the Dictionary as including "any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work", and road work is defined as including any building or structure, including a bridge, constructed or installed for the purpose of facilitating the use of the road as a road. 5 The bridge is a fixture built substantially over a tidal estuary which is presumably vested in the Crown, but it would appear that it is vested in the Council in fee simple pursuant to s 145(3) of the Act. The result is that the functions of a roads authority under the Act are shared between the Council and the RTA, but the functions of the latter were limited to the maintenance and repair of the bridge, and by necessary implication any work on it of a capital nature. 6 The RTA was responsible, as successor, for the original construction of the bridge, but it then complied with contemporary standards, and it was not suggested that the constructing authority was negligent at that stage in failing to take reasonable care for the safety of teenagers using it as a means of access to the water below. 7 The evidence, and the Judge's findings, establish that the bridge has for many years been "an allurement" to teenagers as a platform for jumping or diving into the water below. At one time an allurement would increase the duty of an occupier to children from that due to a trespasser to that due to a licensee: Munnings v The Hydro-Electric Commission (1971) 125 CLR 1; Southern Portland Cement Ltd v Cooper [1974] AC 623. 8 These distinctions ceased to be relevant after Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, but an allurement created or adopted by an occupier remains relevant in fixing the standard of care owed to an entrant. Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 is a recent example where the frequent use of the company's land, to its knowledge, by cyclists and pedestrians attracted by the shortcut it provided, was held to be relevant when determining questions of duty and breach. 9 The fact that the RTA's predecessor was responsible for the construction of the bridge in 1959 cannot be relevant to the liability of the RTA for an accident which occurred in 1998. If the bridge had been private property the contractor and the original owner who had since sold the bridge would not be responsible for an accident many years after the sale. In such a case the responsibility, if any, must be that of the current owner or occupier based on its own acts or omissions. 10 The bridge was open to traffic in 1959 and the accident suffered by the plaintiff on 31 December 1998 was the first of its kind since it opened. 11 The plaintiff had jumped off the bridge twice the day before without mishap, but was grievously injured when he dived the following day. The Court may be permitted to know as a matter of commonsense and common knowledge that jumping into water is very much safer than diving because entry is feet first and a larger area of the body's surface is exposed to the resistance of the water. 12 There was evidence in the plaintiff's case that teenagers dived from the bridge but the documentary evidence produced from the possession of the RTA and the Council only referred to persons jumping from it. On 28 January 1993 a Council Committee expressed concern at the practice of young persons jumping from the bridge (blue 1/218) and on 10 February 1993 the Council sent a fax to the Works Engineer of the RTA (blue 1/219) stating: "Re Forster Tuncurry Bridge

Problem currently being experienced with youths jumping into navigable channels from the higher parts of bridge. Danger to boating. Needs at least signs, please advise." 13 This fax led to the installation of No Diving signs on the bridge in 1995 (blue 4/1031M). In 1998 the RTA conducted a traffic survey on the bridge during the Easter holiday on 11 and 12 April. The information obtained was documented in a report by Mr Alexander, the Planning and Analysis Manager of the RTA for the Hunter Region on 30 July 1998. He recorded that the officers conducting the survey observed (blue 1/143, 4/931) "groups of young people … jumping from the bridge". Mr Alexander said in his oral evidence that it was well known before then that "kids jumped from the bridge" (black 2/415, 418, 419) but he did not know about diving and had not seen anyone jump off the bridge himself (black 2/419). He was based at Port Macquarie. 14 The Council admitted on the pleadings that it knew before 31 December 1998 that children and young people habitually dived off the bridge (red 3, 8), but the RTA made no such admission (red 1, 13). 15 The Council called Mr Keegan who had been employed for 23 years before the accident. He was not aware of any injury from jumping or diving off the bridge before that suffered by the plaintiff, and said he would have known if one had been reported during that period (black 2/312, 331-2). He knew that children jumped from the bridge but was not aware of any diving (2/360). 16 Mr Previtt was the Council's Senior Regulatory Control Officer who had held that position since 1988 and had two officers under him. In 1990 he attempted on three occasions, when in uniform, to stop youths jumping off the bridge (2/492-4), but his efforts were ignored, and on one occasion provoked abuse. He had seen uniformed police on five or six occasions attempt to prevent youths jumping from the bridge without success, and had also seen uniformed officers in the police boat attempt this, also without success. The youths continued to jump although the police were present either on the bridge or in the police boat (2/495-6). 17 Attempts by the Council to enforce the prohibition on climbing on the bridge were abandoned in 1990 (2/496-7). Mr Previtt had never seen anyone dive from the bridge (2/504). The Council received complaints about the practice of jumping from the bridge (2/505) but he believed it was impossible for the Council to stop it (2/506). 18 The Judge found that Mr Keegan had been aware for years that young persons jumped and dived off the bridge and this was common knowledge (para [34]), but the finding about Mr Keegan's knowledge of diving was not supported by the evidence (blue 1/218). Mr Keegan said that the practice of jumping from the bridge was well known (black 2/312). There was some confusion about whether a practice of diving was also well known (2/334, 336, 338) but this was cleared up by his later evidence (2/360). Mr Keegan did not say that a practice of diving from the bridge was well known. 19 The Judge correctly recorded that Mr Pevitt had not seen anyone dive from the bridge (para [41]) but overlooked this when he said later (para [82]) that Mr Pevitt had "on the spot" knowledge of the use of the bridge for jumping and diving. The Judge found that the RTA "must have known of the continuing practice" (of jumping and diving) "as Mr Alexander virtually conceded" (para [57]) and it had direct knowledge of this after April 1998 (para [57]). However Mr Alexander's concession was limited to jumping from the bridge (black 2/415) and the knowledge obtained by the RTA in April 1998 was also of jumping from the bridge: para [13] above. The Judge correctly recorded (para [71]) that the knowledge acquired by the RTA in 1993 was limited to jumping. 20 The Judge's finding that the RTA was aware of a continuing practice of diving from the bridge was contrary to the evidence. 21 The absence of any recorded injury over the 39 years before the plaintiff's accident is eloquent testimony to the fact that the common practice of jumping off the bridge was not unsafe. Diving was much more dangerous and those who dived before the plaintiff must have dived into deeper water or when the tide was higher, or at a safer angle, or from the ledge rather than the top railing or when some combination of these factors was present. 22 The RTA had maintenance work done on the bridge but this was generally done by the Council on its behalf and at its expense. It also inspected the piers at frequent intervals to monitor their safety, and it took soundings in the channels. It did not have an office or depot anywhere near the bridge, and the visits of its staff were intermittent, for other purposes, and not necessarily during the peak holiday periods. 23 As Ipp JA records (para [83]) the plaintiff dived from the top railing about 9 metres above the water into water which was only approximately 2 metres deep. His dive was almost straight down (black 1/45). He had not jumped in first or attempted a dive from the ledge which was about 1.2 metres lower. He jumped twice the day before about 11am when the tide was slowly going out (black 1/41). His first jump was from the ledge and his second from the top railing (black 2/209, 224, blue 1/118, 4/745). He did not touch bottom and could not stand (1/39). 24 When he dived the following day about noon (1/105) the tide was going out really fast (1/45). The tidal variation on that day was 1.4 metres (4/7783). The plaintiff was 182cm tall, for all practical purposes 6 feet (black 1/116), just a little shorter than the 2 metres of water into which he dived. 25 He was an experienced diver and had dived off a 10 metre tower at a swimming pool. There is more than enough depth of water in such a swimming pool, far far more than the 2 metres below the bridge when he dived. A normal dive from that height at a swimming pool would be perfectly safe. He had no assurance of safety when he dived from the bridge. There was a risk of serious injury because for all the plaintiff knew the water below could be too shallow: Vairy v Wyong Shire Council (2005) 80 ALJR 1 para [133] (Hayne J). The only safe dive from such a height is a dive into water which is known to be sufficiently deep. 26 The Judge had the benefit of a view, and this Court has not. He said that the situation disclosed at the bridge was "an accident waiting to happen". This was a finding influenced by hindsight but, as the High Court has made clear, the Court must endeavour to apply a test of reasonable foresight as at a time before the accident has occurred: Vairy para [49] (McHugh J), paras [60]-[61], [79] (Gummow J), paras [105], [124], [126]-[127], [129], [160] (Hayne J); Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43 para [50] (Hayne J). If this was an accident waiting to happen it had been waiting for a very long time. 27 In the years before the accident the community, the Council and the RTA had considered the risks created by the bridge and identified the risk to pedestrians on the walkway due to the absence of a safety barrier next to the roadway. The need to protect pedestrians from this risk was pressed on the RTA by the Council. 28 An internal RTA memo of 23 May 1994 (blue 4/825) recorded discussions with the Council about complaints received by letter relating to the safety of pedestrians on the bridge because "there is no rail between the footway and the traffic lanes". An internal memo of the following day (blue 1/240, 4/824) reviewed the options for improving pedestrian safety by erecting a protective barrier. Another memo of 1 August 1994 (blue 4/826) initiated an internal review of the options for addressing "concerns regarding pedestrians and cyclists using the narrow footway" on the bridge. 29 In January 1995 Gutteridge Haskins & Davey submitted a strategic report to the RTA (blue 4/859) on the upgrade of the pedestrian/cyclist facilities on the bridge which referred (861, 862) to the potential danger to pedestrians and cyclists and proposed the construction of a traffic separating barrier (870) and the upgrading of the external handrail. In February 1995 the firm submitted a concept report on the preferred option (blue 3/538, 4/834) which included provision of a traffic separating barrier and an upgraded hand rail under the 1992 Standards (3/547, 4/846). The latter was estimated to cost $108,072 (554, 853). 30 On 21 December 1995 the Council replied to a member of the public who had written to express his concerns over the safety of pedestrians and cyclists on the bridge (blue 1/225). On 28 August 1997 (blue 3/559) the Mayor wrote to the RTA referring to previous correspondence of 22 May 1996 and 8 May 1997 concerning the provision of a protective handrail on the pedestrian walkway. He noted that no reply had been received and on behalf of the Council and the community he sought an urgent response. He wrote: "The provision of a protective handrail is now both necessary and urgent … The safety aspects of the walk are … being raised more frequently than ever before and Council is most anxious to ensure the safety of all users." 31 A follow up letter of 13 January 1998 (3/561) referred to discussions with the RTA on 7 October 1997 and a further letter of 24 October. The letter continued: "We are now nearing the end of another peak tourist season where traffic and pedestrian volumes were close to saturation on the bridge. Fortunately no major incidents have occurred as a result of the unsafe conditions. However, as indicated previously, it is only a matter of time before a pedestrian is severely injured. Accordingly it is requested that the RTA issue a formal response to Council as soon as possible to indicate what action the Authority will be taking to improve pedestrian safety on the bridge." 32 On 15 January 1998 a Mr Coleman wrote to the Council (blue 1/228) referring to an incident at 7.45 am on 3 January when an east bound car crossed onto the wrong side of the road and then onto the footway narrowly missing pedestrians. On 22 May Mr Alexander wrote to the Council (blue 1/230) referring to a meeting at Forster on 23 March and the traffic survey conducted by RTA staff over Easter. He noted that concept designs for low cost strategies for addressing safety issues on the bridge had been placed on public exhibition for two weeks commencing 18 May. The Council responded on 24 June (blue 1/234) favouring the installation of a handrail adjacent to the traffic for improving pedestrian safety. Although the focus of the public exhibition was on pedestrian safety none of the submissions from the public raised any question concerning the practice of jumping or diving off the bridge, nor did the Council raise such a concern. 33 On 30 July Mr Alexander prepared a report on the options for improving pedestrian safety (blue 5/929) which recorded that this was being done in response to a request from the Council. He summarised the results of the traffic survey, and noted that groups of young people had been observed jumping from the bridge during the traffic survey, and that cyclists, young people on skateboards, and joggers had been observed moving from the walkway onto the roadway and back again to get around pedestrians (931). He recommended further investigation of the bridge widening options. An internal memo of 19 October 1998 (5/991) sought a detailed review of the options. Nothing further of relevance occurred before the plaintiff's accident. 34 Thus although there was considerable community concern it was focussed on the safety of pedestrians and cyclists using the walkway. In 1990 the Council and the police abandoned attempts to stop teenagers jumping from the bridge. Nothing further was done to stop or discourage this practice after No Diving signs were installed in 1995. Following the commencement of the Local Government Act 1993 prohibitions imposed by signs erected by the Council in a public place had become an offence pursuant to s 632(1) but there were no prosecutions. There is no record in the evidence of any concern expressed after 1993 by the public, the Council, or the RTA about the practice of young people jumping or diving off the bridge. 35 Where the Court has to consider future possibilities and probabilities as at a relevant date and the situation has crystallised before the trial, the Court does not assess the earlier uncertainties, but acts on the later certainties. As Dixon J said in Willis v The Commonwealth (1946) 73 CLR 105, 116 "where facts are available they are to be preferred to prophecies". The same principle should apply where the Court has to assess the probabilities and possibilities of an accident occurring. The foresight of concerned members of the public and an independent body such as the Council, charged with the general care control and management of the bridge, about the risks to public safety on this bridge between 1990 and 1998, supported by a history of no serious accident from jumping or diving over 39 years, provides the best evidence of what reasonable foresight required. This evidence should be given greater weight than an impression formed on a view after a tragic diving accident. 36 What in these circumstances was the reasonable response called for by the so called Shirt calculus? The No Diving signs did not stop the plaintiff diving from the bridge, but for all the Court knows they may have discouraged many others from doing so. Moreover the RTA did not know that the No Diving signs had failed to stop all diving from the bridge. The trial Judge held that the RTA should have installed better signs, that an external handrail with vertical bars should have replaced the wooden handrail with horizontal rails which was easily climbed, and that the use of the top rail as a diving platform should have been discouraged by adding an upward facing triangular section. 37 The proposals for improved signs, and for the addition of a triangular section to the top rail do not raise questions of trouble or expense as Mr Keegan acknowledged (black 2/347). This cannot be said of the proposal for a new external steel handrail which was estimated to cost $108,072 in February 1995 (blue 3/554). 38 The plaintiff's safety expert, Mr Fogg, made 3 reports and gave oral evidence. He assumed that there were no signs on the bridge prohibiting diving prior to the accident. In his first report (blue 3/711) of 25 September 2002 he said that signs such as those installed in 1995 should have been used. The "Diving Prohibited" sign he recommended showed a circle with a person diving into water at an angle of 45% with a diagonal bar across the diver. Signs of this type on the bridge were seen by the plaintiff on the day he dived. The other sign he recommended was a "Beware of shallow water when diving" sign which showed a diver hitting his head on the bottom. He considered that either sign would have been appropriate but had a preference for the sign showing a diver hitting his head on the bottom (3/701, 711). 39 Mr Fogg also recommended the installation of barriers to prevent young people using the bridge as a diving or jumping platform (714). This involved the installation of pool type fencing with vertical balustrading to deter people from climbing over (717-8) and a cantilevered barrier 2 metres wide outside the railing to deter persons from attempting to dive or jump from the ledge (717-8). 40 The Judge held that shallow water signs of the type advocated by Mr Fogg would probably have been ignored (para [68]). He also said that No Diving signs were not a warning against the danger of diving but, like Ipp JA, who referred to Nagle v Rottnest Island Authority (1993) 177 CLR 423, 432, I prefer the view of the High Court in that case that a No Diving sign was "perhaps the most effective form of notice warning of the danger of diving". Ipp JA agrees with the Judge's finding that a reasonable response was not a sign containing a prohibition for reasons unspecified but a sign containing words such as "Danger Shifting Sands, Variable Depth" (para [237]). However Ipp JA also finds (para [243]) that such a sign was not likely to inhibit the plaintiff from diving because it would have told him nothing he did not already know. 41 Ipp JA holds that the No Diving signs did not comply with the 1995 Standard (AAS 2416-1995), and that a sign which prohibited diving with the words "Shallow Water" would have been more effective (paras [244], [246]). This involved a reversal of the Judge's finding that a shallow water sign of the kind recommended by Mr Fogg would also have been ignored by the plaintiff (para [68]). 42 With respect I consider that the trial Judge's inference based finding, which I accept, that a "Beware of shallow water when diving" sign of the type recommended by Mr Fogg would probably have been ignored just as the "Diving Prohibited" sign was ignored leaves no room for a finding that a diving prohibited sign with the words "shallow water" would have been effective. The plaintiff knew, as the Judge recorded, para [18], that the sand moved with the current, that the depth of the channels was hard to judge and some parts were shallower than others. 43 The Judge found that the plaintiff saw the sign, and knew that it meant that he should not dive, but he deliberately disregarded it. He also knew that the depth of the water was variable, and that diving from heights could cause injury (para [92]). Thus none of the suggested signs would have told the plaintiff anything he did not already know and the failure to erect them could not be a breach of any duty owed to the plaintiff, and if there was any breach it was not a cause of his injuries: Vairy (2005) 80 ALJR 1 para [7] (per Gleeson CJ and Kirby J), para [148] (per Hayne J), para [210] (per Callinan and Heydon JJ). 44 The plaintiff's case is essentially that when he dived he was not aware of the full extent of the risk and that the No Diving signs did not give him that information. However this does not establish a breach of duty. The question was addressed by Gleeson CJ in Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at [43] quoted by Gummow J in Vairy at [91]: "It was argued that the appellant was not aware of the precise nature, and full extent, of the risk. But warnings of the kind here in question are not intended to address matters of precision." 45 The Judge was not satisfied that a cantilevered barrier outside the railing would have been effective, and thought it may only have encouraged jumpers to attempt to jump over it with a risk of serious injury if they failed to clear it. The plaintiff did not pursue this allegation in this Court. 46 The other steps which the Judge held should have been taken were the installation of an external handrail with pool fencing and a triangular section on the top, or the addition of such a section to the existing handrail. Ipp JA could not decide whether a triangular handrail would have dissuaded the plaintiff from diving (paras [258], [259]), but he holds that the attraction of the bridge as a place for jumping or diving would have been substantially reduced had the horizontal railings been replaced with pool fencing (para [261]). 47 The presence of a triangular section fitted to the external handrail would make it uncomfortable and difficult, but not impossible, for someone to stand on the top railing and dive into the water (black 2/344). It may have deterred the plaintiff from diving from the top railing but not from diving from the ledge which was only 1.2 metres lower. He would still have dived from a height of some 8 metres into 2 metres of water. There is no evidence and no basis for an inference that diving from the lower height would have made any difference. The plaintiff failed to prove that such a railing would have stopped him from diving from the ledge or prevented or substantially diminished his injuries. 48 The installation of an external handrail of pool type fencing would have prevented the plaintiff and others from using the existing horizontal rails to climb up or over the handrail, but would not have stopped him getting over. It had to be suitable for use by pedestrians for hand support and would have been no obstacle to an agile teenager. Mr Keegan was shown a photograph of the handrail on the ANZAC Bridge (blue 1/22) and asked whether it would be exceedingly difficult to climb (black 2/374). He said that it would be harder to climb than the existing railing on the Forster/Tuncurry Bridge, but this would still be possible. His evidence continued (black 2/375): "Q. It'd be a lot harder wouldn't it?

A. Depending on the size of the person. A young person, I think, would have difficulty getting over it. An adult or a teenager, I think they'd be able to spring over that." 49 The plaintiff was approximately 6 feet tall and the proposed pool type fencing would have been approximately 1.2 metres high. There is every reason for accepting Mr Keegan's evidence that such a fence would not have deterred a fit teenager such as the plaintiff who wished to jump or dive from the ledge. 50 The signs proposed would not have told the plaintiff anything he did not already know, a triangular section on the handrail would not have discouraged the plaintiff from diving off the ledge, and a pool type handrail would not have stopped him getting onto the ledge. I conclude therefore that the plaintiff failed to establish that any breach of duty by the RTA was a cause of his injuries and its appeal should succeed on this ground. 51 The appeal should also succeed on wider grounds. In the cases since Zaluzna (1987) 162 CLR 479 that have come before the higher courts arising out of diving accidents on public land outside enclosed and controlled swimming pools, the plaintiff's complaint has been that there was no or no sufficient warning of the danger of diving: Public Trustee v Sutherland SC (1992) 75 LGRA 278 (NSWCA); Nagle (1993) 177 CLR 423; Swain v Waverley Municipal Council (2005) 79 ALJR 565; Vairy (2005) 80 ALJR 1; Mulligan (2005) 80 ALJR 43 and Berrigan Shire Council v Ballerini [2005] VSCA 159 (special leave refused 16 December 2005). This does not involve the reversal of a credit-based finding. The plaintiff did not give direct evidence of his reaction to a triangular section on the top of the handrail or pool type fencing or both. A finding on causation in his favour requires the drawing of inferences. 52 It is always possible after the event, with the wisdom of hindsight, to identify some further step or steps that could have been taken by the defendant to avoid or reduce the risk of injury. However, as the High Court has held, the enquiry must always be prospective. 53 The cases arising from injuries caused by diving in areas open to the public have not raised the question posed in this case where No Diving signs in prominent positions were seen, understood, and ignored by the diver. 54 Although the bridge was an allurement to teenagers the Council and the RTA, unlike the public authorities in Nagle, Berrigan and Mulligan, had not encouraged persons to use the bridge as a diving or jumping platform. This was considered relevant in Vairy: paras [57], [82], [83], [92] (Gummow J), [139] (Hayne J), and Mulligan para [53] (Hayne J) and [66] (Callinan and Heydon JJ). 55 The public, including unaccompanied teenagers, were entitled to use the walkway as of right, and short of closing it under the Act, which has not been suggested, neither the Council nor the RTA could stop them. The fact that the public can enter public land as of right was also considered relevant in Vairy: para [5] (Gleeson CJ and Kirby J), [81] (Gummow J), [116] and [123] (Hayne J). 56 Just as in Vairy where attempts by Council lifesavers to stop diving off the rock platform were unsuccessful and provoked abuse from intending divers: paras [41]-[42] (McHugh J), [83] (Gummow J), [194], [226] (Callinan and Heydon JJ), earlier efforts in this case by uniformed Council officers and police to stop youths jumping or diving off the bridge were also conspicuously unsuccessful (paras [18]-[19] herein). 57 Participation in recreational activity, and particularly where it involves inherent risks, is voluntary. Such activity is of a different character from that undertaken in the work place, on the roads, in the market place and in other areas where people must venture: Vairy para [217] (Callinan and Heydon JJ). In the same case Gummow J quoted (para [80]) a statement from the joint judgment in Brodie v Singleton Shire Council (2001) 206 CLR 512 at [141] that the use of roads is a "basic right and necessity". 58 The RTA knew that the No Diving signs had not stopped the practice of jumping off the bridge, but teenagers may reasonably have understood from the signs that this was not prohibited. It was not aware that youths were diving from the bridge and it is somewhat unreal to consider what its duty would have been if it was. Ipp JA refers to Wilkins v Council of the City of Broken Hill [2005] NSWCA 468 where the failure by Council staff at an enclosed swimming pool to enforce a prohibition on diving was held to be a breach of its duty of care to a teenager. In my judgment that case did not establish any principle relevant to the duty of care owed by a public authority to persons using an unpatrolled bridge open to the public as a diving platform contrary to No Diving signs on the bridge. 59 The RTA has State wide responsibilities for roads and road traffic in general, and for the State's freeways in particular. The focus in this case on the diving accident involving one person on one day on one bridge is inherently retrospective. This was not perceived as a risk before it happened. 60 In Thompson v Woolworths (Q'land) Pty Ltd (2005) 79 ALJR 904 Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ said (para [36]): "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 … This is not a case about warnings. Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care. The whole idea of warnings is that those who receive them will act carefully. There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings." 61 Even if this principle did not itself exclude a finding of breach of duty in this case, the so called Shirt calculus would have required the RTA to give priority to the perceived risks faced by pedestrians lawfully using the walkway for its proper purpose. Mr Fogg, the plaintiff's expert recognised that this could be the case. He said (black 1/245): "… if we look at the bridge as a whole there may be less a priority as opposed to the pedestrian vehicular interface." 62 In Vairy the majority considered that the reasonable response of a public authority required it to consider other risks which might require action to be taken in the interests of public safety. Hayne J said (paras [159]-[161]): "There are many dangers associated with bathing in the sea … The form of danger with which this case is concerned - the danger of diving into water that is too shallow - is only one of the risks that attend this form of recreation. And the Council had to consider many forms of recreation conducted in many different areas of which the Council had the care, control and management …

Only by looking back at what actually happened in this case would it be right to confine the attention of a reasonable council to the foreseeable risks of swimming in the sea. When judged from the proper standpoint - looking forward at all forms of risk associated with all forms of recreation on or from land of which the Council had the care, control and management - what would the response of a reasonable council have been to the foreseeable risk of a diving injury like the appellant suffered?

It was not reasonable to expect the Council to warn of this particular danger. The Council had done nothing to make the danger worse and had no knowledge of some feature of this particular area that was not readily discovered by someone contemplating diving or plunging into the water at this point." 63 The RTA's proper focus would have been on the risks faced by motorists and pedestrians and not just those faced by persons engaging in recreation. When the Court considers how the RTA should have responded to this and all other perceived risks within the Hunter region for which Mr Alexander was responsible, it becomes clear that the foreseeable risk of a diving accident from this bridge with a 39 year accident free history had no reasonable claim on its further attention or resources. 64 The matter becomes even clearer when one considers the State wide responsibilities of the RTA and the many other claims on its attention and resources. The Court cannot be unaware of the extent of these responsibilities as many of them reach this Court. In Edson v Roads & Traffic Authority (2006) Aust Torts Reports 81-839 the RTA was on notice of a dangerous practice at its freeway which separated two satellite suburbs of Campbelltown. Because of the lack of a pedestrian overpass it was estimated that some 25,000 pedestrians a year crossed the freeway which had a speed limit of 110kph. 65 The practice gave rise to an increasing number of serious accidents and fatalities. This Court concluded that the Authority owed pedestrian trespassers crossing the freeway a duty of care and found that it was liable to the appellant. It would not be appropriate to make a direct comparison of the risks faced by pedestrians crossing the freeway near Campbelltown and that faced by teenagers diving from this bridge, but the case serves as a reminder of the need to put the present case, however tragic, into a much wider perspective. 66 I would therefore also allow the appeal by the RTA as well and dismiss the plaintiff's action against it. Since mine is a minority opinion it is not necessary to formulate precise orders. 67 IPP JA:

Mr Dederer's claim, the orders made by the trial judge and the grounds of appeal 68 These reasons concern two appeals arising out of proceedings whereby the plaintiff, Philip James Dederer, sued the Roads and Traffic Authority ("the RTA") and the Great Lakes Shire Council ("the Council") for damages for personal injury. 69 On 31 December 1998, when Mr Dederer was aged fourteen years and six months, he dived off the Forster/Tuncurry bridge and was rendered partially paraplegic. Mr Dederer sued the RTA and the Council alleging that they had negligently caused his injuries.

70 Mr Dederer dived off the bridge by using the flat top railing on the northern side of the bridge as a platform. There were two flat central horizontal railings beneath the top railing and he used one of these to step upwards on to the top railing. There was a lamppost on the bridge which he used for additional support to climb on to the top railing.

71 There were pictograph signs on or at the approaches to the bridge prohibiting diving and signs in words prohibiting climbing on the bridge. Prior to his dive, Mr Dederer saw and understood the signs. He ignored them.

72 The trial judge, Dunford J, upheld Mr Dederer's claim against both defendants. The judge found that Mr Dederer's spinal injury was sustained when his head struck the estuary bed as he dived. His Honour decided that both the RTA and the Council were negligent. He held, further, that Mr Dederer had been guilty of contributory negligence and apportioned Mr Dederer's share of responsibility for his own injury at 25 per cent. As between the RTA and the Council, his Honour found that the RTA was 80 per cent responsible for Mr Dederer's damages and the Council 20 per cent. The parties had agreed Mr Dederer's damages and his Honour granted judgment in favour of Mr Dederer accordingly. 73 The RTA's notice of appeal contains 17 grounds of appeal. These can be divided into the following general categories:

(a) Dunford J erred in finding that the RTA owed Mr Dederer a duty of care.

(b) The evidence did not support the finding made by his Honour that the RTA was aware of the "widespread" and "continuing" practice of people jumping or diving from the bridge.

(c) Dunford J erred in finding that the RTA's placement of signs on the bridge prohibiting diving and climbing was not a reasonable and sufficient response by it to any foreseeable risk. (d) The judge erred in finding that the RTA should have placed signs on the bridge displaying the words, "danger, shifting sands, variable depth". (e) His Honour erred in finding that the RTA should have modified the flat top railing to make it more difficult for people to use it as a platform for diving.

(f) His Honour erred in finding that the RTA should have replaced the existing railings with vertical swimming pool type fencing. (g) His Honour erred in failing to have proper regard to the RTA's resources, the other demands on it and the priorities for the disposal of its funds that it determined itself. (h) His Honour erred in finding that the modifications to the signs and railings suggested by him would have prevented persons from jumping from the bridge.

(i) His Honour erred in finding that the RTA was as much as 80 per cent liable for Mr Dederer's damages and the Council liable for as little as 20 per cent.

(j) His Honour erred in finding that Mr Dederer was guilty of only 25 per cent contributory negligence. 74 The Council's notice of appeal contains 15 grounds. These can be divided into the following general categories:

(a) Dunford J should not have found that the Council owed Mr Dederer a duty of care; principally because his Honour wrongly found that it was the Road Authority for the bridge.

(b) His Honour erred in finding that the Council should have provided a sign warning of variable depths and erred in failing to find that the pictograph was sufficient to discharge any duty of care which the Council may have owed Mr Dederer.

(c) His Honour erred in finding that Pt 1A of the Civil Liability Act 2002 (NSW) did not have the effect of rendering the Council immune from liability to Mr Dederer. (d) His Honour erred in finding that Mr Dederer was guilty of contributory negligence only to the extent of 25 per cent.

The bridge and its surrounds 75 The bridge links the twin towns of Forster and Tuncurry. It runs east - west with Forster on its eastern bank and Tuncurry on its western bank. It spans the estuary at the mouth of the Wollamba River and is approximately one kilometre south west of where Wallis Lake meets the Pacific Ocean. 76 Recreational parks are located on the sides of both the eastern and western approaches to the bridge. The Tuncurry town centre is approximately 500 metres to the north west of the bridge and the Forster town centre is approximately 200 metres to the east. There is a small marina immediately to the north of the bridge and a camping reserve is adjacent to the marina.

77 The general area is a busy tourist venue and its population swells markedly during the summer months. The ocean and beaches nearby, the lake, the estuary and the camping sites attract families and children. Some families come year after year.

78 There is a parking area on the Forster side of the bridge with an amenities block including toilets, a park area, bench seats and tables. This parking area is an incentive to people to park near the bridge, have a picnic or a meal, and walk along the walkway of the bridge, enjoying the view.

79 The bridge is made of steel and concrete and is 632 metres long. It carries a two-lane bitumen roadway and there is a concrete walkway for pedestrians on its northern side. Each lane is 3.66 metres wide and the walkway is 1.525 metres wide. Three people could walk abreast on the walkway. The roadway is part of Main Road 111. The roadway was described as "extremely" busy and the walkway as "busy".

80 The bridge rests on reinforced concrete piles and 47 piers (numbered 1 to 47 from the Tuncurry side). It passes over a large sandbar as it traverses the estuary. The southern tip of the sandbar is about level with pier 41.

81 Boats, including big trawler boats, fishing boats, ski boats, and jet skis pass through fairly deep channels near the Forster and Tuncurry sides of the estuary. Clearance for vessels using the channels was provided for "by introducing a crest vertical curve [described by witnesses as "humps"] into the longitudinal grade line over each channel". Thus, the level of the bridge rises (in the form of the humps) over the navigable channels and is lower over the sandbar. The main channel for navigation on the Forster side is between piers 43 and 44. Boats also use the passage between piers 44 and 45. Mr Dederer dived between the latter piers. 82 The tidal flow in the area is strong. The action of the tide has a scouring and dispersing effect on sand from the sandbar and this causes the depths of the water in the estuary to change continually. Mr Dederer dived at a point where the visible edge of the sandbar above the surface of the water was about ten metres to his left. Mr Dederer's father said that, although the general position of the sandbar remained constant, its length and width changed from week to week.

83 Mr Dederer dived into the channel west of the main navigable channel on the Forster side. The evidence as to the depth of the water in this channel at the time of his dive, and the height from the railing of the bridge to the surface of the water at that point, varied. It was, however, accepted that Mr Dederer dived off the bridge at a point that was about nine metres from the surface of the water, and he dived into approximately two metres of water.

84 The tide on the day in question appears to have involved a variation in depth, from high tide to low tide, of about 1.4 metres. The high water mark occurred at 7.53 am and low water at 2.08 pm. The dive occurred close to noon on the day. By the time that Mr Dederer dived, the tide had been going out for some four hours.

85 Mr Dederer's dive was by no means an unusual phenomenon. For many years, almost from the time the bridge was constructed, young people - particularly over the summer months - frequently (often in groups) jumped and (less often) dived off the bridge into the estuary below. Apparently, until Mr Dederer was rendered paraplegic, no person had sustained injuries in these activities.

86 Mr Dederer dived from the railings on the northern side of the bridge. A ledge protruded northwards, outside the railings on the northern side and there was a 0.3 metre kerb (or "water pipe") on the southern side. The railings and ledge seem to have been the more popular diving platforms, although diving also occurred from the water pipe on the south. 87 The pictograph sign that Mr Dederer observed before diving was located on a telegraph pole between pier no 47 and the Forster end of the bridge. It depicted a person diving with a diagonal line through the person. A sign in words, prohibiting fishing from and climbing on the bridge, stood at both entrances to the bridge.

The plaintiff's background and knowledge of the area 88 Mr Dederer was about 182 centimetres tall and "a fairly solid person" at the time of the accident. He was a good sportsman, played rugby league as front row forward and in 1998 was awarded Player of the Year for his school. He participated in several other sports as well. He had previously dived from a 10-metre tower at a swimming pool.

89 Mr Dederer and his family had spent holidays in the area since he was a very small boy. They stayed at a caravan park north of the Tuncurry township over weekends and school holidays. They regularly spent time swimming, water skiing and fishing in the estuary. 90 Mr Dederer became aware that, in the area of the bridge, the estuary was "very much given to tidal action". Mr Dederer and his family frequently ran their boat onto the sandbar, jumped off the back of the boat and swam in the channel. The depth of the water dropped suddenly at the edge of the sandbar and the water in the channel was "fairly deep". Mr Dederer's feet did not touch the bottom in that area. He knew that the tide shifted the sand around and resulted in a scouring of sand, particularly through the channel. He said there would not be a "sudden shift of sand" in the middle of a channel. But at times it was noticeable that "some sort of a shallowing up of the bottom" had occurred. At times when the water was clear one could see yellow patches in the channel. These were long stretches of sand indicating shallower areas. 91 Whether the shallower areas within the channels could be seen depended on the tide and the day and, Mr Dederer said, "a number of factors". He accepted that the depth of the water in the channels was hard to judge "due to the flow of the water going under the bridge". 92 Over the years, Mr Dederer frequently observed children and adults jump and dive off the bridge. He assumed from these observations that the water "must be deep". Mr Dederer had been under the bridge from time to time in a boat. He said that, from that vantage point, "the bridge looked fairly high but the water also looked very deep". The circumstances relating to Mr Dederer's injury 93 On 30 December 1998, the day before the accident, Mr Dederer went with a friend, Grant Cunial, to Forster. They walked onto the bridge and as they approached it Mr Dederer saw what he described as the "big sign" at the side of the bridge that read "Fishing and Climbing Prohibited". He had seen that sign and the identical sign at the Tuncurry end of the bridge previously. 94 He advanced some distance along the bridge and jumped into the river twice, first from the ledge at the base of the bridge and the second time from the top of the handrail. Both times his body was totally submerged and his feet did not touch the bottom. This was the first time he had jumped or dived from the bridge. That day he saw other people (who he described as "a group of kids") jumping and diving from the bridge. 95 On 31 December 1998, he and Grant Cunial drove to the parking area on the Forster side of the bridge. It was a hot day and they sat for five to ten minutes on one of the benches. During these few minutes, they watched about to 10 to 15 people jumping off the bridge.

96 They walked onto the bridge intending to have a swim. Mr Dederer said that jumping from the bridge was an easy way to get into the water. As they walked onto the bridge, Mr Dederer saw the pictograph sign attached to a lamppost. He said that the sign "just showed, just told me I shouldn't dive. It didn't sort of put any danger to it". 97 Mr Dederer climbed onto the rail without difficulty. When he got to the top of the railing on the bridge he looked at the water for about two to three minutes or maybe longer. He said: "You couldn't make out the bottom, the water [was] a green murky colour, and it was a real dark green which told me it was deep".

He explained as follows why he thought it was safe for him to dive: "Just the look of it and on my knowledge of sort of that area with the boats passing by and people jumping and diving off that area and the colour in the water and sort of being in the middle of the channel I always thought it was deep". 98 Initially, he intended to jump, but on impulse - as he stood on the top railing - he decided to dive. He listened to determine whether any boats were approaching under the bridge and then dived with his arms outstretched. He said: "At that time I was sort of a cocky 14 year old that had the attitude, well I wasn't going to dive, I was jump [sic] but then once I got up there I for some reason changed my mind". 99 He said he dived "almost straight, but at an angle", similar to that at which he had seen other people dive. He said: "I didn't jump straight down but I didn't sort of belly flop either, I sort of went in almost straight, but not dead straight". 100 The next thing that Mr Dederer remembers is coming up from under the water and not being able to feel the lower part of his body. Mr Cunial then jumped in to assist him. There was a very strong outgoing tide and Mr Dederer was worried that they might end up in the sea. After about two hours they were both rescued.

History of jumping and diving off the bridge 101 Mr Dederer's father first went to the Forster/Tuncurry area in the late 1960's or early 1970's. His parents took him there over the Christmas holidays and they stayed in the area for about four weeks at a time. During these periods he constantly observed people either jumping or diving from the bridge on the Forster side. He said that, while people were "jumping all the time", he had seen some "diving on a few occasions". Most of the people jumping and diving were 12 to 16 year olds. 102 Later, Mr Dederer's father took his own family to the region for holidays. He had had a van at the caravan site up the Wollamba River for approximately 22 years. He had driven over the bridge many times and said that, in the warmer times of the year, it was not unusual to see groups of four to six young people jumping off the bridge at a time. 103 Mr Dederer, from the age of about six or seven years, had seen people jump and dive off the bridge at the channel near the Forster shore. He said that this occurred frequently. The people who jumped and dived were of all ages, but most were young. He said that one would see "a steady flow of people jumping and diving" and "you'd get one group every five, ten minutes". He said a group would comprise from three to about ten people. The ages of the persons ranged from ten years to adults. 104 Mr Cunial had been going to the area for holidays since about 1992 and had seen persons (ranging from about 10 to 30 years old) jumping, diving, doing back flips, somersaults, "peg-legs" and bombs off the bridge at the channel near the Forster shore. 105 Mr Michael Keegan, who was called in the RTA's case, was the Asset Manager of the Council's roads, bridges and stormwater systems. Prior to that he was Works Engineer in charge of construction and maintenance activity. He had worked for the Council since 1975. He was aware for years that young persons were in the habit of jumping off the bridge. He said that it was common knowledge in the community and he had actually remonstrated with his own children for jumping from the bridge. 106 Mr Keegan testified that he was aware, 15 or 16 years before the trial in 2004 that there were signs on the bridge relating to "no diving". He said that he was aware of records indicating that the pictograph no diving signs installed in 1995 replaced signs that had previously been installed. The trial was apparently conducted on the basis that in December 1995 the Council replaced existing pictorial no diving signs. The Council had informed the RTA that signs were needed and the RTA knew that they were installed. 107 Mr John Previtt had been employed by the Council as a ranger since November 1988. He had seen many people, over the years, jump off the bridge. Some had done somersaults, but Mr Previtt said that he had never seen anyone dive. He was asked whether jumping off the bridge was a "constant thing, particularly in holiday periods" and he replied, "most definitely, yes". 108 Mr Alexander, was the Planning and Analysis Officer of the RTA Hunter region. He had been employed by the RTA since 1998. He said that, from the RTA records, he was aware of concerns expressed in February 1993 about persons jumping off the bridge. RTA officers inspected the bridge in April 1998 and reported that people were still jumping off the bridge. Mr Alexander said that it was general knowledge in his office that young people had been doing this for some time.

Attempts to prevent persons jumping and diving off the bridge 109 Mr Dederer had never noticed police officers or Council rangers talking to any of the very many people he had seen jumping or diving off the bridge. Mr Dederer's father had never seen a police officer patrolling the area or any rangers. He had been in the area countless times since the late 1960's or early 1970's. 110 Mr Previtt, on three separate occasions in about 1990, when wearing his official Council uniform, spoke to persons who were climbing onto and appeared to be about to jump from the bridge. They were 16 years of age or younger. He drew their attention to the pictograph and told them not to jump. They ignored him, however, and jumped all the same. He could not apprehend or catch them. On another occasion Mr Previtt tried to remonstrate with people who had jumped but "they just sat on the centre island, 20 yards away, and waved and laughed". 111 In about 1990 Mr Previtt had a conference with the police officers. The police agreed to attempt to prevent people jumping from the bridge. Mr Previtt, thereafter, observed police on numerous occasions stop and speak to persons who appeared to be ready to jump off the bridge. Those persons ignored the police and continued to jump. Mr Previtt said that he had seen police drive into the adjacent park and speak to people about jumping off the bridge. He had also observed a police boat trying to round up some young persons who had jumped off the bridge. People were still jumping off while the police boat was there. This continued for about 30 minutes. The police attempts were fruitless. He said that he had seen police in boats about three times and police talking to youths near the bridge about five or six times. The behaviour of the people, however, did not change. 112 Mr Previtt said that the police from time to time telephoned the Council and asked the Council to take enforcement action to prevent people from jumping and diving off the bridge. Mr Previtt, however, found that "it was just unenforceable". He said "The people just wouldn't take any notice". Mr Previtt agreed that, since 1990, the phenomenon of people jumping from the bridge was "a constant thing, particularly in holiday periods". 113 On 11 February 1993, the Council sent a facsimile to the RTA expressing the concern of the Council regarding "young persons jumping from the … bridge". The facsimile referred to "danger to boating" and mentioned "needs at least signs". It was after this (in 1995) that the Council replaced the existing signs and erected the "no diving" pictographs near each end of the bridge.

The trial judge's findings 114 Dunford J found, that both the RTA and the Council owed users of the bridge, including Mr Dederer, a duty of care.

115 His Honour said: "I am satisfied that almost from the time of its construction and certainly for many years prior to the plaintiff's accident young, and not so young, persons were regularly using the railing and ledge of the bridge as launching pads for jumping and diving into the water below, particularly, but not limited to, during the summer holidays. The reason why jumping and diving off the bridge was so popular was in part due to the flat topped railing along the outside boundary of the bridge, and the ease of access to that railing by reason of the wooden cross members which provided steps up to the top railing. Even if it was not anticipated prior to the construction of the bridge that it would be used in this way, it soon became apparent after its completion and foreseeable that the culture was likely to continue. Although the jumpers and divers entered the water in or near the main navigation channel, both the RTA and the Council were aware of the moving sands and variable depths underneath the water, and it was therefore reasonably foreseeable, and not far fetched or fanciful, that if the practice continued someone engaging in the activity was liable to suffer serious injury. I say this notwithstanding the fact that no one had in fact been injured in nearly 50 years, because the risk should have been so apparent to the officers of both defendants with knowledge of the estuary bed that it was in effect 'an accident waiting to happen'". 116 His Honour remarked: "The bridge, being a launching pad for jumping or diving into generally clear water at a holiday resort, particularly in summer was, I believe, a very strong allurement to youths of the plaintiff's age group, particularly as in a colloquial, though not accurate, sense, 'everybody else' was doing it." 117 Dunford J conducted a view at the scene. His Honour said: "My own observations at the view on 8 October 2004 were that from the place where the plaintiff indicated he dived what appeared to be the bottom could be seen, there were certainly different hues of green and there appeared to be some yellow patches some distance below the surface. The water in the navigation channel appeared to be a much deeper green and therefore much deeper … But, of course, I saw it nearly eight years after the plaintiff's accident at a different tide and when the sands had undoubtedly moved in the meantime". 118 His Honour noted that the response of the Council, with the consent of the RTA, was to erect the 'No Diving' pictographs in 1995. The RTA financed the erection of these pictographs. The pictographs had virtually no effect as the practice continued unabated. Dunford J said that he was satisfied that the signs on the bridge were not effective "in the sense that large numbers of young people continued to jump, dive, do somersaults, etc from the bridge into the water". 119 The Council admitted that it knew the practice was continuing. The RTA did not. Although the RTA did not have an office or depot in Forster/Tuncurry, it had maintenance and other crews working in the area and taking soundings of the water. Dunford J found that because the practice of persons diving and jumping off the bridge was so widespread and because of the presence the RTA had in the area "it must have known of the continuing practice". His Honour noted that the RTA "had direct knowledge after its representatives reported it in April 1998". 120 His Honour pointed to the fact, that unlike the plaintiffs in many of the leading diving cases that have come before the courts, Mr Dederer "dived from an artificial structure erected by the RTA".

121 His Honour observed: "In my opinion, it was not sufficient to ignore the fact that the signs were being disregarded and it is necessary to consider what, if any, further steps should reasonably have been taken by way of further warning signs, modification of the bridge or otherwise, to prevent injury to persons such as the plaintiff; or to put it another way, the content of the duty of care." 122 Mr Dederer argued that the RTA should have erected "shallow water" pictographs showing a person diving and striking his head on the bottom. His Honour said that it was "highly problematic" whether such "shallow water" signs would have been any more effective. He observed: "Because of the large number of young persons jumping and diving without incident, it would have been obvious that the water was not generally shallow, and in those circumstances, I consider it probable that that sign would also have been ignored, just as the 'Diving Prohibited' sign was ignored." 123 Dunford J said: "The 'No Diving' [pictograph] was a prohibition, it did not convey a warning of danger. On reflection it is easy to reason, as the plaintiff subsequently did, that the prohibition on diving was probably put in place because diving from the railing was dangerous, but that was not immediately apparent. Many prohibitory signs are disobeyed and not all of them are put in place because what they prohibit is dangerous to the persons to whom the signs are directed. For example, the sign prohibiting fishing on the bridge was also ignored but the prohibition was presumably in place because of the danger to boats passing underneath or pedestrians using the footway, not because fishing constituted a danger to the persons doing the fishing. The reasonable response to the risk of injury was a notice warning of the danger, not a mere prohibition for reasons unspecified. The danger here was not that the water was generally shallow, but that the sands were constantly shifting and accordingly, along with the tides, the depth of the water was variable. These facts were known to the defendants but not to the youths doing the jumping and diving. In my opinion, a warning sign containing words similar to 'danger, shifting sands, variable depth' should have been displayed either on the telegraph post or the bridge railing near where the plaintiff dived. Such a sign would have alerted the plaintiff to the real danger and probably have inhibited him from diving, particularly if it inhibited large numbers of others from doing likewise and so tended to break the culture or practice which had developed". 124 His Honour then turned to the construction of the railings on the bridge. He observed that, in 1959, when the bridge was built, the flat top railing and the horizontal flat central members complied with the standards of the time. By 1993 however, when the RTA's attention was drawn to persons jumping off the bridge, standards had changed. Vertical pool-type (not horizontal) members had become the norm and were specified in the 1992 Austroads Bridge Design Code. His Honour noted that the Design Code only applied to new bridges. When the wires spanning the railings rusted in 1993, they were replaced without modification to the horizontal members. 125 His Honour found that the RTA was confronted with a risk problem that required remedial action. Proposals were put before the RTA in 1995, and thereafter, for a new cycleway/walkway. These involved a new handrail and vertical members. 126 Dunford J said that a "comparatively simple" modification could be made to the flat top surface of the railing by attaching to it a triangular strip. This would make the handrail difficult and uncomfortable to stand on and almost impossible to balance on before jumping or diving. His Honour pointed out that a similar effect could be achieved by replacing the top flat member with an angled member such as already existed on the approaches to the bridge at both the Forster and Tuncurry ends. 127 His Honour noted that a pool-type fence would be difficult to climb. He observed: "Subsequently plans have been prepared and funds approved for widening of the walkway and replacement of the post and rail fence with a fence containing vertical members in accordance with the [1992] Austroads Standard". 128 The judge said that pool fences had been around for many years and there was no reason why such a structure could not have been installed earlier. 129 His Honour said, (after referring to the notional modification to the handrail and the installation of vertical, pool-type members): "I am satisfied that the failure to make either or both of these modifications to the railing constituted a lack of reasonable care on the part of the RTA and that if they had been in place, the plaintiff would probably not have dived and suffered his injuries." 130 His Honour concluded that, in failing to provide appropriate warning signs and, in the construction and subsequent failure to modify the railings, the RTA failed to take reasonable care for the safety of Mr Dederer and Mr Dederer was entitled to judgment against it. 131 In dealing with the Council, Dunford J said: "I am satisfied it owed a duty of care to persons jumping and diving off the bridge to warn them of the danger, and when the 'No Diving' [pictograph] proved to be ineffective in this regard and the practice continued, it was not sufficient to do nothing, but it required the provision of warning, as opposed to prohibition signs. I am therefore satisfied that on this issue, like the RTA and on common law principles, the Council was in breach of its duty to take reasonable care." 132 His Honour described the Council's argument, based on Pt 1A of the Civil Liability Act as being: "[That the] plaintiff's action in diving off the bridge was a 'dangerous recreational activity', as defined by s 5K, that the risk of harm was an 'obvious' risk as defined by s 5F, that the plaintiff is therefore presumed to have been aware of the risk of harm: s 5G, and that accordingly, there was no proactive duty to warn of the risk: s 5H." 133 Dunford J accepted that Mr Dederer was engaged in a "recreational activity" which was objectively a "dangerous recreational activity", but was not satisfied that the activity was an "obvious risk". 134 The judge's reasoning in this regard was as follows: "Here the plaintiff was a 14 year old who had seen a large number of persons jumping and diving off the bridge over many years, without any apparent attempt by police or Council rangers to stop them and no known cases of injury. He may have been aware that sandbars shifted (if he thought of it) and know of the variable depth of the water, but from what he had observed and having regard to his age and lack of maturity, the fact that he knew vessels passed through the channel, he looked and saw the water was dark murky green and he could not see the bottom, all of which indicated to him that the water was deep, the risk of serious permanent physical injury would not have been obvious to him, even if it would have been obvious to a mature adult. Accordingly, s 5H does not apply in the circumstances of this case, and neither does s 5L which also depends on an 'obvious risk' as defined in s 5F. The Council also relies on s 5M which provides that there is no duty of care in respect of a recreational activity if the risk was the subject of a risk warning to the plaintiff, but for reasons already given, I do not consider that the signs which were displayed constituted a warning." 135 Accordingly, his Honour held that the Council had breached the duty of care it owed Mr Dederer by failing to provide adequate warning signs notifying of the danger of diving from the bridge. 136 In dealing with contributory negligence, his Honour found as follows: "[A]lthough the plaintiff did not at the time regard the 'No Diving' [pictograph] as denoting danger, he knew it meant that he should not dive, but he deliberately disregarded it. He also knew that the depth of the water was variable, that jumping from heights could result in injury and he said that part of the thrill of diving and jumping from the bridge was the risk. He was however only a 14 year old, and the standard of care for his own safety required of him was that of a 14 year old person. … In all the circumstances, I am satisfied that the plaintiff was guilty of contributory negligence and I apportion his share of responsibility for his own injury at 25 per cent."

The duty of care owed by the Council 137 Mr McCulloch SC, who appeared with Mr Glascott for the Council, submitted that Dunford J wrongly held that the Council was a Road Authority for Main Road 111 and, hence, for the bridge.

138 Dunford J pointed out that, by s 4 of the Roads Act 1993 (NSW), the Council was the Road Authority for all public roads within its area except freeways, Crown land and certain public roads for which some other public authority was declared by the applicable regulations to be the Road Authority. His Honour said: "There is no evidence of any relevant regulation made in respect of this road and accordingly, I am satisfied that the Council is the 'Roads Authority' in respect of this road subject to the Executive Council minute by virtue of which the RTA remains responsible for the maintenance of the bridge." 139 Mr McCulloch accepted that Main Road 111 had always been a main road. He also accepted that, subject to Main Road 111 being a public road, the Council - by s 7(4) of the Roads Act - would be the Road Authority for Main Road 111. He submitted, however, that, for Main Road 111 to be a public road, it had to be declared such by a declaration made in terms of s 7(3) of the Roads Act, and there was no evidence that any such declaration had been made. Mr McCulloch submitted that Dunford J wrongly assumed that Main Road 111 was a public road and hence had wrongly held that, under s 7(4) the Council was the Road Authority in respect of it. 140 Section 249(1) of the Roads Act provides: "Evidence that a place is or forms part of a thoroughfare in the nature of a road, and is so used by the public, is admissible in any legal proceedings and is evidence that the place is or forms part of a public road."

There was unchallenged evidence that the bridge formed part of a thoroughfare in the nature of a road and was so used by the public. On that basis, Main Road 111 was a public road. 141 Mr McCulloch submitted that the concepts of "main road" and "public road" under the Roads Act were mutually exclusive. This submission cannot be accepted. Section 48(1) enables the Minister to declare "any public road" to be a main road but it does not thereby cease to be a public road. This can only happen if it is closed in accordance with Part 4. There are several provisions in the Roads Act that indicate that a main road is a public road for the purposes of the Act. Part 4, for example, deals with the closing of public roads. The notion that the elaborate provisions in that Part do not apply to main roads is incongruous. There are also other provisions in the Act that demonstrate that "main road" and "public road" are not mutually exclusive under the Roads Act but I do not think there is any need to go further. In my view, the bridge forms part of a public road and the Council at the relevant time was the Road Authority in respect of it. 142 In 1995, the Council made representations to the RTA about the need for signs because of the dangerous practice of persons jumping and diving off the bridge. The RTA agreed to finance the erection of such signs. The Council, that year, installed the pictographs (replacing the previous signs).

143 The Council also made representations to the RTA about the rusted state of the wiring that formed part of the railings. It subsequently replaced the wiring as subcontractor for the RTA. In addition, it erected some signs on the bridge on its own initiative and at its own expense and authorised local citizens to erect signs notifying local events. Mr Previtt, the Council's ranger, attempted to speak to persons jumping off the bridge.

144 In these respects, the Council exercised a substantial degree of de facto control over the bridge and assumed responsibility for certain aspects of it. 145 In my view Dunford J rightly held that the Council owed the class of persons into which Mr Dederer fell a general duty of care.

The effect of the Civil Liability Act 146 The Civil Liability Act does not apply to Mr Dederer's action against the RTA as that action was brought before the Act commenced. The Council, however, was not joined as a defendant until 22 September 2003, after the commencement of the Act. Thus, Pt 1A applies to Mr Dederer's claim against the Council but not to his claim against the RTA. 147 Section 5L of the Act provides: " No liability for harm suffered from obvious risks of dangerous recreational activities (a) A person ( the defendant ) is not liable in negligence for harm suffered by another person ( the plaintiff ) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk."

Certain of the expressions used in s 5L are defined in s 5K. Section 5K provides: "In this Division: dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. obvious risk has the same meaning as it has in Division 4. recreational activity includes: (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure."

By s 5K, 'obvious risk' in s 5L has the same meaning as it has in s 5F. Section 5F provides: "Meaning of 'obvious risk' (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstances that gives rise to the risk) is not prominent, conspicuous or physically observable." 148 As I have mentioned, Dunford J held that, although Mr Dederer was injured while engaged in a dangerous recreational activity, he did not suffer injury as a result of the materialisation of an obvious risk of a dangerous recreational activity. 149 In Fallas v Mourlas (2006) Aust Torts Reports 81-835 Tobias JA said at 68,362, [98]: "It is clear from the definition of 'obvious risk' in s 5F that one is required to have regard to the particular circumstances in which the respondent suffered the relevant harm and determine whether the risk which resulted in his suffering that harm would have been obvious to a reasonable person in his position. In other words, as with the case of determining whether the activity in which the respondent was engaged as a 'dangerous recreational activity' as defined, all of the surrounding circumstances which occurred immediately prior to the respondent's suffering the relevant harm must also be identified for the purpose of determining whether the risk which materialised was 'obvious'". 150 In Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754 Tobias JA at 65,892, [161] defined the word "obvious" as meaning that: "[B]oth the condition and the risk are apparent to and would be recognised by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence and judgment."

At 65,892, [162] Tobias JA noted that in this definition the word "condition" referred to the factual scenario facing the plaintiff. 151 The risk that materialised in this case was that of serious spinal injury flowing from the act of diving off the bridge. Section 5F requires the question whether that risk was obvious to be answered by reference to a reasonable person in the position of Mr Dederer. In accordance with Fallas v Mourlas, regard must be had to the particular circumstances in which the harm was suffered. 152 Whether the risk was obvious to a person in the position of Mr Dederer, has to be answered objectively, attributing to the notional reasonable 14 and a half year old person the knowledge of the area and conditions possessed by Mr Dederer at the time: Fallas v Mourlas. 153 The factors that persuaded Dunford J to find that the risk was not obvious within the meaning of s 5F were the following:

(a) Mr Dederer had seen a large number of persons jumping and diving off the bridge over many years.

(b) He had not seen the police or Council rangers attempt to stop them.

(e) The water was dark murky green and he could not see the bottom. 154 For these reasons his Honour found: "[T]he risk of serious permanent physical injury would not have been obvious to him, even if it would have been obvious to a mature adult." 155 Some of the factors that Dunford J relied on in holding that Mr Dederer was guilty of contributory negligence are inconsistent with his Honour's findings that the risk was not obvious. These are:

(b) Mr Dederer's knowledge that the depth of the water was variable.

(c) Mr Dederer's knowledge that jumping from heights could result in injury.

(d) Part of the thrill that Mr Dederer obtained from diving and jumping from the bridge was the risk. 156 I would add that his Honour's finding at the view that he conducted that the situation at the bridge was "in effect 'an accident waiting to happen'" is also inconsistent with his finding that the risk was not obvious.

157 In dealing with the defence of voluntary assumption of risk raised by the RTA and the Council, Dunford J said: "What must be established for that defence is that the plaintiff not only knew of the risk or danger, but he fully comprehended the nature and extent of the risk and accepted such risk. For the reasons given above in relation to obviousness of the risk, I am satisfied that the plaintiff did not fully comprehend the nature and extent of the risk involved, and accordingly this defence fails."

This finding, I think, means that Mr Dederer knew of the risk that he might be injured by diving from the bridge but did not fully comprehend that the risk was of diving into shallow water and that the risk was of serious injury to the spine. 158 This reasoning is directly contrary to s 5G(2) of the Civil Liability Act which provides: "For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk." 159 I would add that Dunford J appears to have decided the question of obviousness of risk by reference to what Mr Dederer subjectively knew and not by reference to a reasonable person in his position, as s 5G requires. 160 Mr Kennedy SC, who together with Mr Graham appeared for Mr Dederer, strenuously supported his Honour's decision as to the obviousness of the risk. He submitted that Mr Dederer knew that the depths were variable but not that the depth, where he dived, would be so shallow that he would hit his head on the sand. He submitted: "He may have known that there was moving sand, and he may have known that there was variable water. But there is a whole constellation of evidence which would indicate that his conclusions that he drew was [sic] that if there was such a movement of sand or there was a variable depth it wasn't dangerous today."

This evidence was the colour of the water and the fact that other persons had jumped and one had dived off the bridge before he dived. In addition, Mr Dederer was aware that for many years people had jumped and dived off the bridge at or near where he dived. 161 Mr Kennedy also submitted that Mr Dederer knew of the risk of injury but not of the risk of the serious injury that he in fact sustained. 162 Mr Dederer conceded in cross-examination that he was aware that sand on the sand bar moved with the current and that in the channels the depths were hard to judge and some parts of them were shallower than others. He knew from his experience in boating that the level of the river could change, over the period of a day, "by some feet in height". He knew that when he jumped there was a risk he could be injured if he did not jump the right way. It is self-evident that this applied all the more so if he did not dive the right way. He agreed that there was always in his mind a possibility of some sort of an injury from jumping from a height of about 10 metres into "any body of water". 163 In cross-examination the following exchange occurred: "Q. And you understood that diving head first from a distance of somewhere between 8 and 10 metres into water, presented the possibility of a risk of a neck injury didn't you? A. Not if I had my arms in front of me, I thought that would reduce that risk. Well eliminate that risk. Q. Well you started to say reduce that risk, didn't you? A. Yes. Q. Because you accepted that there was such a risk, correct? A. Well yes. Q. And it all depended upon how you did the dive to determine whether the risk came home or not, is that correct? A. What do you mean? Q. It depended on how well you did the dive? A. Yes. Q. As to whether or not the risk of injury became a real risk or not? A. Yes." 164 This evidence is by no means conclusive, as it is not Mr Dederer's state of mind that counts, but that of a reasonable person in his position. Nevertheless, his evidence, I think, is relevant to a consideration of what a reasonable person would know about the risk. 165 I am not persuaded that the colour of the water assists Mr Dederer. He observed the water to be a "green murky colour". This was not an indication that the water was deep. Mr Dederer knew that one could only see the bottom of shallow water if the water was clear. The murkiness of the water concealed the depth; in reality it gave no indication as to whether the water was deep or shallow. Mr Dederer himself distinguished between water that was murky green and water that became greener the deeper it got. 166 While jumping was commonplace, the number of persons diving off the bridge over the years was far less. Mr Dederer's father, although he jumped off the bridge on a number of occasions when he was a youth (he jumped three or four times in total), never dived off the bridge. He was asked why he did not dive. He replied that he was not "game". He said: "Something in my head said don't dive".

I would have thought that this was a readily understandable state of mind, brought about by the obviousness of the risk. 167 Due regard must also be had to the pictograph prohibiting diving. Mr Dederer understood that the pictograph told him not to dive, that diving was not permitted. He said he ignored the pictograph because he did not see any danger in diving. Nevertheless, in cross-examination he accepted that the pictograph was an indication that some person in authority thought that there was a risk involved in diving. 168 In Nagle v Rottnest Island Authority (1993) 177 CLR 423, the majority said at 432: "A notice prohibiting diving is but one form of notice - perhaps the most effective form of notice - warning of the danger of diving." 169 In Vairy v Wyong Shire Council (2006) 80 ALJR 1 Gleeson CJ and Kirby J at 5, [5] said: "Swimming is a popular recreational activity along the Australian coast. It involves certain risks, and sometimes results in injury, or even death. The level of risk varies according to the locality, the conditions at any given time, and the capabilities of the swimmer. Short of prohibiting swimming altogether, public authorities cannot eliminate risk. A general prohibition in a given locality may be a gross and inappropriate interference with the public's right to enjoy healthy recreation. Swimmers often enter the water by diving, or plunging head first. This, also, is risky. Diving into water that is too shallow, or diving too deeply into water in which only a shallow dive is safe, can have catastrophic results. Again, short of total prohibition, it is impossible to eliminate such risks; and no one suggests that swimmers should be prohibited generally from entering the water head-first." 170 In fact, the pictograph sign went so far as to prohibit swimmers from entering the water head first. It was generally ineffective. But it was a sign that, in my view, would have warned a reasonable fourteen and a half-year old that diving into the water was dangerous.

171 In Vairy Gleeson CJ and Kirby J said at 6, [10]: "In addressing the central question of fact in this particular case, we do not find it helpful to characterise the danger confronting the appellant at the level of diving into water of unknown depth. Such a practice, described in that general fashion, is always risky. There are, however, degrees of risk, and some risk of that kind exists every time a swimmer enters water head-first without knowing exactly how deep it is. Even if a swimmer knows the depth of water exactly, there are few people who could calculate with any accuracy the risk involved in diving or plunging into it. Most people who plunge head-first into the surf are taking some degree of risk and, if the risk materialises, the consequences may be devastating." 172 The appellant in Vairy dived into the sea from a rocky platform from a height of about 1.5 metres above water level. Gleeson CJ and Kirby J at 6, [11] said, "Diving from a height of 1.5 metres into water of approximately the same depth is very dangerous, depending, perhaps, on the angle of the dive". Mr Dederer dived from a height of some nine metres into the estuary, and entered the water about 10 metres from a visible sandbar. In my opinion, even without the sign, it should have been obvious to a reasonable fourteen and a half-year old that such a dive was dangerous and could lead to catastrophic injuries. 173 I would uphold the appeal by the Council. In the circumstances it is not necessary to address the other issues raised by it in connection with his Honour's findings that it breached the duty of care it owed.

The duty of care of the RTA 174 The RTA's notice of appeal asserted that his Honour erred in holding that it owed a duty of care to the class of persons in which Mr Dederer fell. The RTA's written submissions, however, paid very little attention to this proposition. The submissions stated that this contention was "best dealt with within the other grounds of appeal". Mr Cranitch SC, who together with Mr Casselden appeared for the RTA, did not address this issue in his oral submissions. His submissions, on the liability issue, were directed to whether the RTA breached any duty of care that it may have owed. 175 Dunford J observed that the bridge had been built by the Department of Main Roads (the RTA's predecessor) in whose shoes, it was common ground, the RTA stood. The RTA was in effect the universal successor of the Department of Main Roads. His Honour held that the Council, not the RTA, was the Road Authority in respect of Main Road 111. He held that, by an Executive Council minute, the RTA was responsible for the maintenance of the bridge and, by agreement between the RTA and the Council, the Council undertook the "caretaking" of the bridge at the RTA's expense. 176 His Honour said: "The RTA designed and built the bridge and pursuant to the executive council direction is responsible for its maintenance, and has financed works carried out by council such as replacement of the wires on the bridge, the placement in about 1995 of the 'No Diving' [pictographs], and has itself erected signs at each approach to the bridge prohibiting fishing and climbing on the bridge. It is presently about to engage in a major reconstruction of the bridge's walkway."

And: "I am satisfied the RTA is responsible for any matters related to the design or construction of the bridge including the erection of signs when the need or desirability for such signs arises from the design or construction of the bridge."

He held that the RTA owed Mr Dederer a duty of care. 177 In essence, the findings of his Honour that I have recounted under this heading were not challenged. In addition, in the course of submissions, Mr Cranitch made a number of concessions relevant to the RTA's duty of care. He accepted that the RTA was to be regarded as having created the bridge and said: "[T]he bridge structure was always the responsibility of the RTA …"

He accepted that the RTA was the sole Road Authority for the "decking" of the bridge. He said that: "As the road passed along the bridge the RTA was the sole Road Authority."

He observed: "[F]or the purposes of this case there has been no issue that we were generally responsible for the structural integrity of the bridge and its maintenance in that sense. We don't cavil with his Honour's finding in his judgment that the [RTA] was the Roads Authority in respect of the road and that includes, generally, the whole of the bridge."

In fact, as I have noted, Dunford J did not find that the RTA was the Road Authority for the bridge. Nevertheless, Mr Cranitch's observations (and the way in which the appeal was conducted) amount to an acceptance that the RTA owed Mr Dederer a duty of care. 178 In RTA v Palmer (2003) Aust Torts Reports 81-693 Spigelman CJ (with whom Handley JA and Giles JA agreed) gave full consideration to the relationship between the RTA and the relevant council in that case, and also to whether the RTA owed a duty of care to the plaintiff in that case. The Chief Justice said at 63,747, [132] that the liability of the RTA (in that case) turned on what functions of a road's authority the RTA had assumed either by s 62 or by exercise of the power under s 64 of the Roads Act 1993. In my opinion, the facts of this case are fundamentally different to those in Palmer and the observations in that case do not apply to this case. 179 A major difference is the fact that, unlike in Palmer, the RTA is to be regarded as having created the danger constituted by the bridge. In Sutherland Shire Council v Heyman (1985) 157 CLR 424 Mason J at 460 observed that a public authority may by its conduct place itself in such a position that it attracts a duty of care. His Honour said: "A common illustration is provided by the cases in which an authority in the exercise of its functions has created a danger, thereby subjecting itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory powers or by giving a warning … ."

His Honour observed that it was the conduct of the authority in creating the danger that attracted the duty of care.

See also the remarks of McHugh J in Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540 at 575 to 576, [81] and his Honour's observations at 580, [91] concerning the consequences of a public authority increasing the risk of harm to individuals. 180 In Palmer the accident occurred at a point where road works were being undertaken by a private contractor pursuant to a contract between it and the Council of the Shire of Evans. Although the project was implemented pursuant to arrangements, including funding, between the Council and the RTA, this Court held that the absence of effective control on the part of the RTA over the road works meant that the RTA owed no duty of care to the plaintiff. That is a very different case from the present where, it is common ground, the RTA is to be regarded as having constructed the bridge and created the danger. The danger being the allurement to people, particularly children, to jump or dive off the railings on the side of the bridge. 181 I would add that the RTA, in fact, carried out construction and maintenance work on the bridge. This work involved strengthening and other work concerning the stability of the bridge. It monitored the structure and inspected it at frequent and regular intervals. The RTA was concerned with traffic safety (both with regard to pedestrians and vehicles) on the bridge. It conducted public surveys concerning these issues and studied the problems that from time to time arose and sought to devise solutions to them. 182 The bridge (which was described as "beautiful") was a major tourist attraction in an area that attracted very many sightseers and holidaymakers in the summer months. The design of the bridge, with the pedestrian walkway, encouraged sightseers and holidaymakers to walk along it and use the facility it provided. The existence of the public amenities and facilities adjacent to the bridge encouraged motorists to park there and walk across the walkway. The RTA knew of all these matters. 183 Thus:

(a) The RTA, standing as it does in the shoes of its predecessor, is to be regarded as having designed and constructed the bridge and as having created whatever danger it constituted.

(b) The RTA exercised control over the structure of the bridge and, as Mr Cranitch conceded, it was responsible for its structure, its decking and its maintenance.

(c) The RTA took steps to devise solutions for the safety of pedestrians and vehicles on the bridge.

(d) The RTA did not challenge the finding by Dunford J that it was responsible for the erection of signs "when the need or desirability for such signs arises from the design or construction of the bridge". It made significant concessions as to the elements tending to establish that it owed Mr Dederer a duty of care.

(e) The RTA knew that the pedestrian walkway along the bridge attracted large numbers of people, as did the facilities for parking and picnicking near the bridge. 184 In the circumstances, Dunford J correctly held that the RTA owed a general duty of care to the users of the bridge.

The RTA's knowledge of the practice of jumping and diving off the bridge 185 The RTA challenges Dunford J's finding that the RTA knew of the continuing practice of jumping or diving off the bridge. 186 His Honour found that, almost from the time of the bridge's construction and for many years prior to Mr Dederer's accident, "young, and not so young, persons were regularly using the railing and ledge of the bridge as launching pads for jumping and diving into the water below". The notice of appeal does not contest this finding and there was no evidence to controvert it. The issue is whether the RTA knew of the practice. 187 The evidence of Mr Dederer's father establishes that the practice described by his Honour was prevalent at least from the late 1960's or the beginning of the 1970's. Mr Dederer, himself, as I have noted, frequently observed children and adults jump and dive off the bridge. This evidence supports his Honour's unchallenged finding that, for many years, young people jumped and dived off the bridge. 188 Mr Keegan (who was employed by the Council) testified: "I'm certainly aware that there would have been general knowledge in Forster/Tuncurry that people had been jumping off that bridge for a long time".

The Council, but not the RTA, admitted that it was aware that young people were diving or jumping off the bridge over a long period of time. 189 Generally, the evidence establishes that it had been common knowledge for many years in the Forster/Tuncurry area that the bridge was being used extremely often (and by children) in the warmer months of the year as a jumping and diving platform. 190 Mr Cranitch drew attention to the fact that the RTA had no presence in the area. He submitted that it could not be inferred from the evidence of the RTA's activities in regard to the bridge that any of its employees had reported the practice to any person in authority within the RTA. He submitted that the concerns expressed to the RTA in February 1993 did not support a finding by the trial judge of a widespread or continuing practice; it merely referred to a problem currently being experienced. As regards the occasion in April 1998, when an employee of the RTA reported that youths were jumping off the bridge, Mr Cranitch pointed out that the RTA's response was to notify the Council. 191 Mr Alexander commenced his employment with the RTA only in 1998. He was the Planning and Analysis Manager within the Road Safety and Traffic Management Section of the RTA's Hunter Region's office. His only knowledge of what occurred prior to 1998 in regard to the bridge came from the RTA's records. He had no personal knowledge of matters prior to 1998. 192 The role of the Road Safety and Traffic Management Section was to identify road safety and traffic management projects for construction. This section bids, together with like sections in other regions, for funding from the RTA. The funding is usually allocated by reference to what Mr Alexander called "the existing infrastructure". He explained: "[S]o we are more concerned with installation of traffic signals, pedestrian facilities and those sort of things, rather than your by-passes and those sorts of things". 193 In these circumstances, it was not part of Mr Alexander's job to know about the situation "on the ground" in areas within the RTA's scope of authority. He was concerned only with financial and budgetary matters. This also detracted from the likelihood that he would know about the practice of jumping and diving off the bridge, and the length of time that the practice existed. 194 In 1998, after Mr Alexander began working for the RTA, he spoke to two officers of the RTA about the signs that had been installed on the bridge. He agreed that these two officers "would be a lot more conversant with the issues of signs and whether they should go up or not go up" than he was. The RTA called no witness who possessed this kind of knowledge. 195 Mr Alexander knew from the RTA records that, on 10 February 1993, the Council sent a facsimile to the RTA advising that "youths" were jumping off the bridge and requested the RTA to provide signs. The very fact that the pictograph prohibiting diving was put up in 1995 at the request of the RTA indicates that, at that time, it knew of the dangers. 196 An answer by the RTA to an interrogatory establishes that on 11 or 12 April 1998 an employee of the RTA approached people jumping from the bridge and informed them that what they were doing was dangerous. The employee concerned reported the matter to a manager of the RTA at its Regional office. 197 The RTA called no witness, apart from Mr Alexander, to refute the evidence that the practice of jumping and diving off the bridge was common knowledge in the area. As I have pointed out, the RTA carried out inspection, stabilisation, dredging, sounding and general maintenance work on the bridge, virtually from the time it was constructed, yet, it called no other witness who testified contrary to the inference that the judge drew, namely, that it had maintenance and other crews working in the area and "it must have known of the continuing practice". Compare Brodie v Singleton Shire Council (2001) 206 CLR 512 at 585, [180] where Gaudron, McHugh and Gummow JJ said: "[The Shire Council] did not lead evidence to rebut any inference otherwise arising from the applicants' case that it knew the bridge was in a dangerous condition." 198 The existence of no diving signs before the installation in 1995 of the pictograph signs confirms that the problem of diving from the bridge was long-standing and was common knowledge in the area. The existence of such signs on the bridge leads to the inference that the RTA must have known that there had been a problem with jumping and diving off the bridge. The erection of replacing pictograph signs in 1995 is compelling support for this inference. 199 The specific sign chosen by the RTA, the pictograph prohibiting diving, strongly supports the inference that the RTA was aware that young people were diving off the bridge. Why else would the RTA decide that the most appropriate sign in the particular circumstances was one prohibiting diving? 200 It may be true that Mr Alexander, personally, did not know of the practice of young people diving off the bridge. But the very existence of the pictograph signs at both ends of the bridge (installed with the participation of the RTA in the way I have described) is inconsistent with its professed ignorance as to the practice of persons diving off the bridge. 201 Mr Alexander admitted that, in 1998, he knew that people were still jumping off the bridge notwithstanding the existence of the pictograph signs. 202 In Brodie, Gaudron, McHugh and Gummow JJ said at 577, [150]: "Authorities having statutory powers of the nature of those conferred by the [Local Government] Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist." 203 For the reasons I have set out, the RTA owed a general duty of care to users of the bridge. As part of that duty of care, it should have ascertained - over a period of almost 40 years during which it was in control of the bridge that it had created - whether it was being used in an unsafe way. On that basis, the RTA ought to have known of the practice of jumping and diving: see McPherson's Ltd v Eaton & Ors (2005) Aust Torts Reports 81-825 at 68,188, [93]. 204 In my view, Dunford J correctly held that the RTA knew of the practice. At the very least, the installation of the no-diving pictograph establishes that the RTA knew, since 1995, of the practice of diving off the bridge.

The RTA's knowledge of the sand movements and variable water depths under the bridge

205 A Concept Design Review by the RTA's Bridge Section was prepared, not earlier than 1981, proposing concepts for widening the walkway on the bridge. The Review stated: "Over time, sand movements in the river bed have previously resulted in insufficient pile embedment length and subsidence of the structure, especially towards the centre section of the bridge."

In 1981, because of the movement of sand, additional support piles were driven at piers 24 to 37. The Review stated: "Since these additional supports were installed, sand movements have continued to occur. Consequently, from time to time other piers have been considered to be under threat from subsidence."

The Review refers to the need to strengthen those piers (including piers 38 to 47) that were not strengthened in 1981. 206 A memo from the shire clerk of the Council dated 16 August 1988 stated that the "Department of Main Roads" (the RTA) had authorised funding for a study to be undertaken of the "siltation problems" resulting in the need "to strengthen the bridge". A Council press release of 19 July 1989 referred to a meeting of members of local bodies, including engineers and planners from the RTA, "to discuss the various alternatives that are being investigated for the stabilisation of the area under the Forster-Tuncurry bridge". The press release referred to a possibility of avoiding the high costs involved "if the sand bed moves and exposes the piles again". The press release also referred to "the changing shoal pattern" and "recent dredging".

207 A study carried out by Australian Water and Coastal Studies Pty Ltd for the RTA, referred to the lower estuary as being "highly active, as demonstrated by continual changes to the shoaling patterns and channels with time". The study stated, "[t]he natural variability of the entrance shoals and channels under tidal flows and flood events can be illustrated as far back as 1898 … The lower estuary shoals have undergone several significant re-configurings over the 90 years of available data". It stated further, "The construction of the northern breakwater in 1966 significantly increased the efficiency of the entrance. The nett result of this caused scouring of the entrance channel shoals, accompanied by deposition in the adjacent areas". And further: "By the late 1970's significant changes to the shoaling patterns occurred … By mid-1988 further channel movements had significantly scoured sand from around piers on the Tuncurry side of the bridge, over a length of some 200 metres (Piers 7 - 23). Under a commission from the Roads and Traffic Authority, the Public Works Department carried out urgent remedial works in December 1988".

According to the report these investigations were carried out on behalf of the RTA. 208 According to an RTA report in January 1989, erosion around the endangered piers had reached critical levels. The RTA took depth soundings of sand movements since 1989 and found that dredged material lasted only approximately 18 months. There is an undated RTA record of water depths at piers 44 and 45 showing the depths varying between 2.1 to 2.9 metres. Other soundings at different times show other variations in depth at these piers. The times are difficult to identify, but the soundings appear to have been taken long before Mr Dederer was injured. 209 An interrogatory answered by the RTA admits that the RTA was aware from 1 December 1993 onwards that the riverbed levels under the bridge were continually altering. Another interrogatory establishes that the RTA carried out soundings from December 1993 at about three monthly intervals. 210 The substance of the evidence is that the RTA knew, for several years before Mr Dederer was injured, that the depth of the water under the bridge was between about 2.1 to 2.9 metres but varied continually. 211 The RTA would also have known, from the time the bridge was built, that the levels of the water under the bridge varied by reason of erosion, scouring, and tidal movements generally. By the 1980's its knowledge of the varying depths under the bridge was fairly sophisticated. After 1993, it was also very detailed, being based on three monthly soundings. The RTA's knowledge of the dangers from jumping and diving off the bridge 212 There was documentary evidence from the RTA's records that in May 1988 the depth from the top of the handrail to the riverbed at pier 44 was 12.5 metres. This supports the inference that the distance from the top of the rail to water level was about nine to ten metres. This was obviously known to the RTA.

213 The evidence to which I have referred establishes that, for more than 20 years prior to Mr Dederer's accident, the RTA knew, or ought to have known, that persons, including children, were jumping and diving from the bridge (which was about nine to ten metres above the surface of the water) into depths that varied from about 1.4 metres to not more than about two to three metres. 214 During this period, the serious risk of devastating injuries to those engaged in such activities must have been obvious to the RTA. The RTA knew or ought to have known that particularly in the summer months, jumping and diving was occurring with startling frequency, involving at times, groups of young people every five or ten minutes, with a group capable of comprising 10 to 15 children aged 10 years to 16 years.

The pictograph signs prohibiting diving 215 The only measure taken by the RTA to combat this practice was to arrange for the pictographs to be erected.

216 The prohibition against fishing and climbing on the bridge was of no material value in preventing persons from jumping or diving off the bridge. That prohibition did not call attention to diving into the water. 217 There have been many decisions, including decisions of the High Court, holding that the erection of prohibitory signs is sufficient to discharge the duty of care owed by an entity in control of land on which dangerous activities may be undertaken by members of the public. But, breach of a duty of care is a question of fact, and each case depends on its own circumstances. In the present case, the signs that were erected (and that includes the signs prohibiting climbing on the bridge as well as the pictographs) were not serving the purpose for which they had been erected. They were being ignored and the practice was continuing unabated. This was common knowledge. Mr Alexander referred to it as a "well known event" and Mr Previtt and the police had found enforcement of the prohibitions displayed on the sign impossible. 218 On the evidence of Mr Dederer, his father, Mr Previtt, Mr Keegan, Mr Cunial and Mr Alexander himself, the practice of jumping and diving off the bridge continued with considerable frequency after 1995 notwithstanding the erection of the pictographs and the other prohibitory signs. The signs were not preventing children and young adults from endangering themselves in relatively large numbers on what seems to have been a daily basis over the summer months. 219 In these circumstances, the RTA must have known that the signs were, in a word, useless. And they must have known this from at least shortly after the pictographs were erected in 1995. 220 As part of the general duty of care owed by the RTA to users of the bridge, it should - in any event - have ascertained whether the pictograph signs were proving effective. On that basis, the RTA ought to have known that they were not: Brodie at 585, [180] and McPherson's Ltd v Eaton & Ors.

The reasonableness of the RTA's response to the risk 221 The obvious risks involved in jumping and diving off the bridge were not a deterrent. Many of the visitors to the bridge were children and young people. The RTA could not assume that these persons would take reasonable care for their own safety. Experience over many years had shown that, in large numbers, this was not what they were doing. 222 In my reasons for judgment in Edson v Roads & Traffic Authority (2006) Aust Torts Reports 81-839 (with which Beazley JA and Hunt AJA agreed) I said at 68,439, [93] to [94]:

"In Brodie Gaudron, McHugh and Gummow JJ said at 580; [160]: 'In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care.'

In the circumstances I have described, the factual underpinning of the proposition that a road authority is duty bound only to require a road to be safe not in all circumstances but for pedestrians exercising reasonable care for their own safety, was absent. Here, the RTA long knew that the pedestrians were not exercising reasonable care for their own safety and, in large numbers, were constantly not doing so. The RTA could not rely on residents in the vicinity of the path to look after themselves and to act with due care."

In the present case, the "factual underpinning" was also absent. 223 There were substantial incentives for the established practice of jumping and diving off the bridge. These were the unique position and prominence of the bridge, the fact that jumping or diving was an easy way to get into the water, the thrill involved, and the fact that one's peers were doing the same thing. As Dunford J pointed out, the bridge constituted an allurement to young people. It was located amidst camping grounds, beaches, lakes and other tourist attractions that were heavily frequented in the holiday seasons. The bridge and its surrounds were designed to attract persons who would walk on the bridge and enjoy the bridge from the walkway. To the RTA's knowledge, amongst the persons so attracted were those who jumped and dived off it. 224 In Edson v Roads & Traffic Authority I said at 68,440, [104]: "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. It was the very function of the RTA, after all, to promote traffic safety. Considerations of common humanity would require the RTA to act: cf Hackshaw v Shaw [(1984) 155 CLR 614] (at 674 per Dawson J)." 225 The RTA's predecessor (in whose shoes it stood) had created the danger. A road authority's responsibility for original construction is well recognised: see Webb v South Australia (1982) 56 ALJR 912 where Mason, Brennan and Deane JJ said (at 913): "The respondent created the danger by its artificial construction in the highway. In this situation the application of the reasonable standard of care calls for the elimination of risk of injury to users of the highway presented by that artificial construction, the more so where elimination of the risk can be achieved without undue difficulty and expense. It is well established that it is the duty of highway authorities to keep: '… the artificial work which they [have] created in such a state as to prevent its causing a danger to passengers on the highway which, but for such artificial construction, would not have existed, or, at the least, of protecting the public against the danger …' It would not be right or reasonable for a highway authority to ignore a risk of injury which it has created by its artificial construction in the highway, if it entails a possible risk of injury to pedestrians which, though small, is not fanciful or farfetched."

See also Brodie at 539, [54] where reference with apparent approval is made to Webb . See also Ainger v Coffs Harbour City Council [2005] NSWCA 424 at [81] to [84] per McColl JA. 226 The RTA's predecessor had constructed the bridge with railings configured in such a way that it was very easy for young persons to jump or dive off them or off the ledge on the other side of them. In these circumstances, in my view, the standard of care that the RTA had to exercise was higher than that required from an authority that controls land where natural features constitute a danger to the public. 227 In my opinion, the RTA was not entitled to rely solely on the signs once it became apparent that they were not serving their purpose and were not having any noticeable effect on persons jumping or diving off the bridge.

228 Mr Cranitch submitted that the RTA was entitled to take the view that, because the practice had been so prevalent since 1959 (when the bridge was constructed) and no injury had been reported until 31 December 1998 when Mr Dederer was injured, the likelihood of the risk of injury materialising was very low. I do not accept this submission. 229 In Bujnowicz v Trustees of the Roman Catholic Church (2005) Aust Torts Reports 81-824 Tobias JA (with whose reasons Santow JA and I agreed) said at 68,172, [42]: "Furthermore, it is well established that the absence of any prior injuries or complaints, whilst relevant to that part of the Shirt calculus relating to the degree of probability of the occurrence of the risk, is not determinative of the reasonable response of the party sought to be made liable: Fairfield City Council v Petro [2003] NSWCA 150 at [21] and [34]; Roads and Traffic Authority v McGregor [2005] NSWCA 388 at [81]". 230 In Berrigan Shire Council v Ballerini [2005] VSCA 159 a park maintained by the defendant council contained a swimming hole and a log. Nettle JA remarked at [33]: "For the whole time [from 1970 to the date of the plaintiff's injury on 29 December 1996] the log had stood at the edge of the swimming hole and been used by countless children for diving and jumping into the swimming hole without incident. In effect the log was a diving platform for diving from the park into a swimming hole which was a feature of the park. And until the time of the accident the risk that there was insufficient depth of water below it to dive was not apparent to the children that used it. In the result I consider that the log was so placed, adapted for diving and known to be used for diving that the Council owed to those children using the log for diving a duty no different to that which it would have owed if it had installed the log for the purposes of diving."

Nettle JA said at [46]: "The point about the lack of any previous serious injuries is met by the finding that, despite the past safe history of use of the log and swimming hole, the Council should have been aware of the potential for significant changes, particularly after flooding, and the risks associated with such changes. It may be added that the fact that there had been no previous injuries and that the depth had always been adequate made it more unlikely that children using the swimming hole and log would foresee the risk of inadequate depth and even more important that the Council guard against the foreseeable risks of such a change occurring cf Black v City of South Melbourne (1964) 38 ALJR 309". 231 Similarly, in the present case, despite the past safe history of the use of the bridge, the RTA should have been aware of the potential for significant changes in the level of the water under the bridge, and the risks associated with such changes. As in Ballerini, the fact that there had been no previous injury, and that the depth had always been adequate, made it more unlikely that persons would refrain from diving off the bridge. That, in turn, made it even more important that the RTA should guard against the risk that persons would dive into water that was dangerously shallow. 232 In Wilkins v Council of the City of Broken Hill [2005] NSWCA 468, the appellant dived into a public swimming pool, struck his head on the floor and sustained quadriplegia. There were two warning signs in the vicinity of the pool referring to "shallow water", one of them being accompanied by a pictograph showing a diver about to enter the water within a red circle. The appellant was aware of the signs and acknowledged that had he seen them on the day in question he would still have dived. The trial judge found that for some years it was common for children to dive into the shallow end of the pool. The enforcement of the prohibition on diving conveyed by the sign was lax. The trial judge said that in this respect the effectiveness of the prohibition was significantly weakened. Her Honour found that the failure to take steps to ensure a more consistent enforcement of the prohibition on diving fell below the standard of care that the Council owed to the plaintiff in tort. The appellant's claim at trial failed because the trial judge found that the appellant's injuries were not caused by the Council's breach of duty. This Court upheld all her Honour's findings.

233 In the present case, the failure to enforce the prohibition on diving conveyed by the pictograph sign was not in itself alleged to be an act of negligence on the part of the RTA. But Wilkins supports the proposition that a breach of duty on the part of a statutory authority may arise even when the authority erects signs prohibiting the activities that cause the injuries the subject of the plaintiff's claim. A sign, no matter how appropriate, is not an automatic, absolute and permanent panacea: Waverley Council v Lodge (2001) 117 LGERA 447 at 459 [35] per Bryson J, Meagher and Heydon JJA agreeing. 234 Dunford J found, after taking his view, that the situation obtaining at the bridge was "an accident waiting to happen". In Pledge v Roads and Traffic Authority (2004) 205 ALR 56 the High Court regarded the Court of Appeal as having erred in failing to have sufficient regard to the utility of the trial judge's experiences in inspecting the site. Callinan and Heydon JJ at 70, [49] emphasised the weight to be accorded to a view by a trial judge. In my view his Honour's findings at the view negate any inference that jumping and diving could reasonably have been regarded as safe because accidents had not occurred since the bridge was constructed.

235 In my view, in all the circumstances I have mentioned, Dunford J correctly held that - by the time Mr Dederer was injured - the erection of the signs was no longer a reasonable response to the risk that the RTA had created.

The instalment of a different sign 236 Dunford J rejected Mr Dederer's argument that "shallow water" pictographs showing a person diving and striking his head on the bottom were more likely to be effective. His Honour did so because, he said, the large number of young persons jumping and diving without incident would demonstrate the fact that the water was not generally shallow. In those circumstances, his Honour considered it probable that the "shallow water" pictographs would also have been ignored just as the "diving prohibited" sign was ignored. 237 His Honour accepted that the "no diving" pictograph was a prohibition only and did not convey a warning of danger. I respectfully disagree with this finding. I think that the prohibitory "no diving" pictograph plainly impliedly warned against danger (see Nagle v Rottnest Island Authority at 432). Nevertheless, I agree with Dunford J that, in the particular circumstances of this case, a reasonable response to the risk of injury would not have been a sign containing "a mere prohibition for reasons unspecified". 238 Dunford J said that the danger of diving off the bridge was not that the water was generally shallow, but that the sands were constantly shifting and the depth of the water was variable. For this reason his Honour concluded that a warning sign containing words similar to "Danger, Shifting Sands, Variable Depth" should have been displayed. His Honour said: "Such a sign would have alerted the plaintiff to the real danger and probably have inhibited him from diving, particularly if it inhibited large numbers of others from doing likewise and so tended to break the culture or practice which had developed." 239 The RTA contended that Dunford J had denied it natural justice in making this finding. Mr Cranitch submitted, "there was no evidence, expert or otherwise, proffered for such a sign, nor were the parties given any opportunity to address the appropriateness or otherwise of such a warning sign". 240 The "Australian Standard Design and Application of Water Safety Signs AS2416-1995" recognises that a "word-message" sign may be appropriate. A word message sign is a sign where the message displayed is entirely in words. The Standard lays down requirements for word message signs. For example, it states: "Word messages shall be complete within themselves … Regulatory signs shall have a white background, and warning signs, a yellow background. The word legend shall be black in all cases. …"

The Standard notes: "A word message sign will usually be required where no standard symbol exists …, or it is not possible to communicate the message by means of a symbol."

It is not suggested that a standard symbol existed that warned of variable depths in areas where diving took place. 241 Mr Fogg, an expert in signs, testified. Much of Mr Fogg's evidence about signs was common knowledge and his cross-examination on the effectiveness of signs would have revealed little that could not be gauged and understood by the application of common sense. Mr Fogg referred to the desirability of installing warning pictographs at the entrance to the bridge and at locations along it "to alert members of the public of the dangers of jumping and diving [from] the bridge". He said that an appropriate pictograph "should generally include visual and written advice of the changing estuary and harbour bed levels due to tidal activity." 242 The notion of word message signs being installed was apparent from material put into evidence. The possible alternative of a word message sign was apparent from the evidentiary material. The sign proposed by Dunford J was a response to and a consequence of the evidence and submissions before him. In my view, his Honour's finding in respect of the word message sign he suggested did not constitute a breach of natural justice. 243 In my opinion, however, the sign proposed by Dunford J would have been unlikely, to any substantial extent, to have inhibited Mr Dederer from diving. Mr Dederer in fact knew that there were shifting sands and variable depths and this did not prevent him from diving. 244 By notice of contention, Mr Dederer argued that his Honour should have determined that cl 3.11.1 of the Standard, AS2416-1995, applied. Clause 3.11.1 provides: "Where the Diving Prohibited symbol sign is used in situations where serious injury could result from a person diving into shallow water, the words SHALLOW WATER shall either be included with the Diving Prohibited symbolic sign as a composite sign or on a supplementary plate mounted on the same post as, and below, the sign." 245 The "diving prohibited symbolic sign" is the pictograph that in fact was erected on the bridge. It was there used in a situation "where serious injury could result from a person diving into shallow water". According to the Standard, therefore, the words "shallow water" were required to be either "included with the diving prohibited symbolic sign as a composite sign or on a supplementary plate mounted on the same post as, and below, the sign." The pictograph installed did not comply with the Standard. 246 The diving prohibited pictograph with the words "shallow water" would provide an express reason for the prohibition and indicate the dangers of diving from the bridge. I would observe that the words "shifting sands", if added to the words "shallow water" would make the nature of the danger even clearer. 247 In my view, a sign prohibiting diving would be more effective than a mere warning of dangers. On a common sense basis, a warning sign is more likely to be ignored than a prohibitory sign. A sign that prohibited diving and expressly explained and emphasised the nature of the danger would have been more effective than the sign the RTA erected or the sign proposed by the judge. 248 AS2416-1995 recognises that "combination signs with both a symbol and words" may be used. The Standard states: " Combination signs with both a symbol and words Signs in this category shall comprise, on the one signboard, one or more symbolic signs together with words which may either augment or qualify the message given by the symbolic sign or signs (commonly known as a 'composite' sign) …"

Figure 3.4 of AS2416-1995 indicates that the diving pictograph with the words "shallow water" or the words "shallow water, shifting sands" would be in accordance with the Standard. 249 Mr Dederer said that the pictograph installed by the RTA did not convey any sense of warning to him as it just told him that he should not dive. He said, "It didn't sort of put any danger to it." As mentioned, the pictograph did not in fact comply with cl 3.11.1 of the Standard. A composite sign in the terms of the notice of contention would have complied with that clause and conveyed the danger involved. 250 The RTA raised the "availability of resources" defence in answer to the proposition that other signs should have been erected, but this argument has no substance. The cost of placing other signs would have been minimal. This was accepted, in effect, by Mr Alexander. Whether this defence is an answer to the other measures that Dunford J found should have been taken is a different matter that I shall address separately. 251 In my view the erection of a different sign in accordance with Mr Dederer's notice of contention would have been an inexpensive and reasonable step to take and should have been taken.

Modifying the flat top railing 252 The existing flat top handrail did not comply with the geometric requirements laid down by the 1992 Austroad Bridge Design Code.

253 By letter of 22 May 1996 the Council requested the RTA to provide a new handrail to separate pedestrian and vehicular traffic. By letter dated 8 May 1997 the Council repeated that request. On 28 August 1997, the Mayor wrote to the regional manager of the RTA referring to the letters written on 22 May 1996 and 8 May 1997 "concerning the provision of a handrail on the pedestrian walkway …". The Mayor stated that there had been no response to these two letters and he sought the RTA's urgent response. He said: "The provision of a protective handrail is now both necessary and urgent. With people these days generally pursuing a more active lifestyle, more are using the bridge footway. A walk across the bridge is also a wonderful tourist attraction. The safety aspects of the walk are however being raised more frequently than ever before and Council is most anxious to ensure the safety of all users. I request therefore that you advise me on this matter as I intend to continually pursue the erection of the handrail as a matter of extreme priority". 254 This letter was not directed at persons jumping and diving off the bridge. The Mayor was concerned with the dangers to pedestrians from vehicular traffic on the roadway of the bridge.

255 A report to the RTA, dated February 1995 (providing a concept design for widening the footway/cycleway on the bridge), informed the RTA that the existing handrail on the footway did not comply with the 1992 Austroads Bridge Design Code. The report proposed the removal of the existing handrail and replacement with a new handrail along the outside edge of a new widened footway/cycleway. The proposed new handrail was to be constructed from steel and met the structural and geometric requirements of 1992 Austroads Bridge Design Code. 256 There was evidence that placing a triangular railing on top of the existing flat railing would not "have been an expensive exercise". The "availability of resources" defence could not seriously be suggested as being an answer to the proposition that a modified handrail should have been installed, especially having regard to the many years that, to the RTA's direct or imputed knowledge, the flat handrail contributed to the incentive and ease with which people jumped and dived off the bridge. It is not unreasonable to expect the RTA, over what amounts to at least three years knowledge on its part that the pictographs were having no effect, to find the relatively insignificant amount of money required to modify the flat handrail.

257 Mr Cranitch submitted that persons, who wished to jump from the bridge, would still have been able to climb over any modified handrail and would have been able to jump from the ledge below.

258 Whether the modification of the handrail alone would have deterred Mr Dederer is a difficult question. It must be remembered that he had first decided to jump, not dive, and, on impulse in the last two or three minutes, changed his mind. A triangular handrail, rather than a flat-topped one, would have made diving more difficult, and may have dissuaded him from diving.

259 It is not necessary, however, to decide on the effect of the handrail alone. I shall address the question of causation in relation to the combined effect of all the measures that, in my opinion the RTA should have taken in response to the risk.

The installation of pool-type fencing 260 Mr Dederer was able to climb to the top flat railing by using one of the middle horizontal railings as a step. The day before he dived he was able to climb over the top railing onto the ledge on the other side, also by stepping on a middle horizontal railing. Dunford J found that the horizontal railings should have been removed and replaced with vertical, pool-type railings that would have made climbing harder to accomplish. His Honour said: "Pool fences have been around for many years and there is no reason why such a structure could not have been installed earlier." 261 According to the 1992 Austroads Design Code for pedestrian barriers on bridges "vertical balusters without climbing footholds shall be provided (in preference to a series of horizontal railings)". The horizontal railings were part of the allurement of the bridge. The attraction of the bridge as a place to jump or dive would have been substantially reduced had the horizontal railings been replaced by vertical pool-type railings in accordance with the Bridge Building Code. In my view, subject to availability of resources and the question of priorities, Dunford J was correct in finding that the installation of pool-type fencing was a reasonable response to the risk.

Community concerns 262 There had been a history of considerable local community pressure on the RTA and the Council in regard to pedestrian safety on the walkway of the bridge. Over several years, the community had expressed fears that the narrowness of the walkway and the absence of any barrier between the walkway and the roadway could result in pedestrians being knocked over by vehicles. Eventually, prior to 1995, the RTA called for public comment on proposed changes to the bridge to alleviate this problem. The RTA had a display in the Council's foyer showing various options under consideration to protect pedestrians on the bridge. These were a chain wire fence, a guard fence, a concrete barrier, a new handrail and an extension of the walkway. Twenty-eight submissions were received from the Great Lakes area. None referred to persons jumping and diving off the bridge. 263 Mr Cranitch submitted that the absence of any submissions about jumping and diving off the bridge was relevant to decisions made by the RTA as to the priorities to be accorded to its resources. 264 The fact that the local community did not publicly express any concerns about people jumping and diving off the bridge (while it did about the narrowness and unprotected nature of the pedestrian walkway) is a relevant factor. In my view, however, in the light of the frequency of the practice of jumping and diving off the bridge, the youth of those involved, and the obviousness of the risk of severe injuries thereby being sustained (the situation being "an accident waiting to happen"), it is by no means conclusive. 265 I would add that the failure of members of the public to mention the issue of people jumping and diving off the bridge when responding to the RTA's call for comments is readily explicable when regard is had to the circumstances under which that call was made. The media release publishing the call referred to "a series of options covering the need for a barrier to separate vehicles and pedestrians on the bridge". The media release urged residents of the area "to take the time to view the concept design options, to make their thoughts known to the RTA, and to take part in the community consultation which will follow the display". No mention was made of the problem of persons jumping and diving off the bridge; the attention of the public was directed to other issues.

Changes to the walkway 266 According to an answer to an interrogatory, the RTA, between February 1993 and 31 December 1998, considered altering the type of fencing on the footway of the bridge only in conjunction with the upgrade of the pedestrian/cyclist facilities. 267 By the time of the trial, the RTA had undertaken some preparatory steps prior to commencing construction work on widening the walkway. The new design included installing a barrier between pedestrians and vehicular traffic. The widening work was not specifically designed to cater for the problems of persons jumping and diving into the estuary, but it involved installing new railings that would comply with the relevant building and design code. Mr Alexander agreed that, this preparatory work having commenced, the issues of pedestrian safety, to an extent, "have to be put on the back burner".

The justiciability of policy decisions in cases of negligence involving statutory authorities 268 Statements as to the influence of the availability of resources and competing priorities on a statutory authority's duty of care were made in Brodie v Singleton Shire Council. Gaudron, McHugh and Gummow JJ said at 559 to 560, [104]: "The postulate that, without the 'highway rule' and with the principles of negligence, statutory authorities will be subjected to fresh, indeterminate financial hazards which the common law will ignore should not be accepted. First, as has been pointed out earlier in these reasons, expenditure of public funds on litigation turning upon indeterminate and value-deficient criteria is encouraged, indeed mandated, by the present state of the law. Secondly, financial considerations and budgetary imperatives may fall for consideration with other matters when determining what should have been done to discharge a duty of care. That is the position in Canadian law. It is that advocated in this Court a century ago. In Miller v McKeon (1905) 3 CLR 50 at 60 Griffith CJ said: 'So the Government of a newly-settled country, which undertakes the first formation of a road, whether the soil has or has not been formally dedicated as a highway, is bound to use such care to avoid danger to persons using it as is reasonable under all the circumstances. These circumstances include the nature of the locality, the extent of the settlement, the probabilities as to the persons by whom the road is likely to be used, and the moneys available to the Government for the purpose.' Each element in these sentences merits careful attention. Evidence respecting funding constraints and competing priorities will be admissible."

Their Honours then said at 560, [106]: "Appeals also were made to preserve the 'political choice' in matters involving shifts in 'resource allocation'. However, citizens, corporations, governments and public authorities generally are obliged to order their affairs so as to meet the requirements of the rule of law in Australian civil society. Thus, it is no answer to a claim in tort against the Commonwealth under s 75(iii) of the Constitution that its wrongful acts or omissions were the product of a 'policy decision' taken by the Executive Government; still less that the action is 'non-justiciable' because a verdict against the Commonwealth will be adverse to that "policy decision". Local authorities are in no preferred position."

And observed at 580 to 581, [162]: "The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of materiel and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question." 269 I would also draw attention to the following remarks of Kirby J in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 485, [140]: "Virtually every suggested precaution, said to be necessary to prevent damage, has financial and economic implications, whether the defendant is a public authority or private individual. In relation to the operational decisions of a body such as the Commission, the present state of the law would not sustain its submission that such questions were exclusively for it. Nor would such consideration justify the conclusion that the Commission was released from any duty of care to entrants onto land such as the reserve or from a Court's consideration of the case which the appellant brought." 270 In Graham Barclay Oysters Pty Ltd v Ryan Gleeson CJ said at 553-554; [6]: "Decisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political. So are decisions about the extent of government regulation of private and commercial behaviour that is proper. At the centre of the law of negligence is the concept of reasonableness. When courts are invited to pass judgment on the reasonableness of government action or inaction, they may be confronted by issues that are inappropriate for judicial resolution, and that, in a representative democracy, are ordinarily decided through the political process." 271 Gleeson CJ referred to 527, [12] of the joint judgment in Brodie v Singleton Shire Council and said at 554; [7]: "In that case, three members of the majority expressly accepted that it may be proper and necessary for a court to decide whether the priorities of a local council in dealing with road repairs in various locations were reasonable. The decision in the case required that view. Even so, the scope for judicial examination of the reasonableness of governmental spending priorities was not held to be, and cannot be, at large. Raising and spending money for road repairs involves setting priorities, not only between parts of the road system, but also between all the claims upon an authority's resources, and between the interests of taxpayers and those of road users. My view remains that setting priorities by government for the raising of revenue and the allocation of resources is essentially a political matter, and that, if the reasonableness of such priorities is a justiciable issue, that can be so only within limits." 272 In RTA v Palmer Spigelman CJ said at 63,754, [182]: "This Court should be slow to extend the reasoning in Brodie by imposing liability for negligence with respect to the allocation of public funds."

The Chief Justice adopted the observation of Gleeson CJ in Graham Barclay Oysters that there were limits within which funding priorities ought to become a justiciable issue. His Honour said at [184]: "I am reinforced in this conclusion by the observations of McHugh J, a co-author of the joint judgment in Brodie , in his Honour's judgments in both [ Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 39 [93]] and [ Graham Barclay Oysters at 577 [84], 582 [96] and 583 [99]] about the particular situation of an authority which has increased the risk of harm by undertaking a relevant task. The position of the RTA in determining which projects should be undertaken and funding them is not of this character. It does not fall within the range of conduct considered in the joint judgment in Brodie at [153] to [165]." 273 In the present case the RTA is to be regarded as having created the danger by erecting the bridge and by constructing it in a position and configuration that, since its construction, attracted young people to jump and dive from it into the water some nine to ten metres below. In a material sense, in the present context, creating the risk of harm is at least equivalent to increasing the risk. In this respect the present case is distinguishable from Palmer where Spigelman CJ at 63,754, [184] accorded significant weight to the fact that the authority did not increase the risk of harm. 274 I would, in passing, refer in this context to Stovin v Wise [1996] AC 923 where the complaint against a public authority was that it had omitted to make a highway safer. Lord Hoffmann said at 943 that it was important to distinguish between such a case and a case where the authority had created the danger. He said at 944, in regard to the latter situation, that if a person "does not have the resources to take such steps as are objectively reasonable to prevent … damage, he should not undertake that activity at all". 275 Gleeson CJ in Graham Barclay Oysters and Spigelman CJ in Palmer did not assert that acts or omissions resulting from the setting of priorities in the allocation of public funds were beyond the justiciability of the Courts. Such a proposition would be directly contrary to the observations of Gaudron, McHugh and Gummow JJ in Brodie and Kirby J in Romeo to which I have referred. Gleeson CJ and Spigelman CJ emphasised the need for caution in imposing judicial views of reasonableness on considered decisions arrived at by representatives of elected bodies. The reluctance of courts to be the arbiter of decisions of this kind is familiar. It bears some analogy to the long-standing reluctance of the courts to review business decisions of directors of companies and to substitute their own judgment on the merits: see Carlen v Drury (1812) 1 Ves & B 154. 276 The exercise of caution in reviewing a decision, however, is not the same as a refusal to adjudicate upon its merits. It is axiomatic that our system of government requires a free and independent judiciary; it is equally a truism that one of the reasons for the existence of a free and independent judiciary is the need for the rule of law to be maintained as a bastion between the executive and the people. The maintenance of the rule of law, at times, may require the judiciary to adjudicate upon policy decisions by the executive. This applies in cases of negligence just as it does in cases of public law. What if a policy decision were to be one of deliberate neglect? Surely, in a common law claim for negligence, the court would not decline to pass judgment upon such a decision. Otherwise, it would seriously diminish the proper role of the judiciary as the third arm of government. 277 The role of the courts in regard to issues concerning the expenditure of public funds and budgetary priorities is made clear by Gaudron, McHugh and Gummow JJ in Brodie in the passages I have quoted. I shall repeat the propositions that are presently of particular pertinence. Evidence respecting funding constraints and competing priorities is admissible. It is no answer to a claim in tort that the wrongful acts or omissions of a public authority were the product of a policy decision taken by the executive. Local authorities are in no preferred position. The formulation of the duty of care includes the consideration of competing or conflicting responsibilities of the authority. 278 Thus, if there are to be limits respecting the justiciability of funding priorities, those limits must be found by reference to criteria of reasonableness. The political nature of "setting priorities in the allocation of public funds between competing claims on scarce resources" is simply a factor that bears on reasonableness, albeit that - depending on the circumstances - it may be a compelling factor. 279 Each case must depend upon its own circumstances. The extent and urgency of the need for remedial action, the cost of remedial action, the availability of funds and subsequent conduct will ordinarily be relevant in determining whether it was reasonable for remedial action to be taken. There may be other factors that have to be taken into account. To adapt the statement by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 to 48, the reasonableness of the response by the authority calls for a consideration, at least, of the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibilities or commitments of the authority. This is not necessarily an exhaustive list of relevant considerations.

The evidence of Mr Alexander 280 The RTA submitted that its financial resources were limited and it did not have sufficient funds available to respond to the risk as Dunford J held that it should have done. The RTA pointed out that the expressed community concerns were not directed at persons jumping and diving off the bridge. It pointed out that it had vast numbers of calls on its funds, manifold obligations to road users throughout the State, many bridges to look after, and its decisions as to the priorities of the calls upon it were resolved by a complex process that involved recommendations and discussions at many levels. It submitted that the Court should be slow to call its decisions in these respects into question. The RTA relied in this regard on the evidence of Mr Alexander. 281 Mr Alexander testified that the funds available to the RTA each year varied, depending on the priorities throughout the State. Each year the regional offices had to bid for funds for traffic and safety projects. These constituted two separate streams; traffic projects were more focussed on the efficient movement of people, and safety projects on crashes. There was a division in the traffic program for pedestrian facilities and the total budget for these facilities, over a five-year period, was about $1,400,000. The funding for pedestrian facilities was allocated to projects such as pedestrian refuges, traffic signals and extensions to footpaths.

282 The allocation in the budget for bridges in the Hunter region was about $6,800,000. There were 360 bridges within the Hunter region. About $2,000,000 was allocated to steel and concrete bridges. The balance was allocated to wooden bridges. Increased and heavier traffic has caused the RTA to be committed to repair or replace the wooden bridges. The whole of Mr Alexander's "section" in the Hunter region had an annual budget of about $30,000,000. That did not take into account asset management or development. Mr Alexander said that the only funding available to deal with problems of persons jumping off the bridge was out of the $1,400,000 for pedestrian facilities in the five-year budget for 1997 - 2002 (and not out of the bridges' budget). In 1998 the RTA had $200,000 or $300,000 available for pedestrian facilities in the Hunter region. 283 Mr Alexander said that, when he had a number of safety issues about a particular project, he undertook a risk analysis to work out how to rate the risks involved. He said: "we do a kind of benefit/cost analysis that allows us to make a judgment based on what we see as the priority." He explained that the RTA would give higher priority to an intersection where, over a given period, there had been 20 to 30 crashes, over an intersection where there had been only one crash in that period. 284 He said that there were not only budgetary constraints. He explained, "We have to spend the money on the programs that have been provided to us". He said that the issue of somebody jumping off a bridge was not covered by "any of our programs". This answer appeared to surprise the judge and led to the following pertinent exchange: "HIS HONOUR: Q. Sorry, say that again? A. The issue of somebody jumping of [sic] a bridge is not covered by any of our programs, our funding programs. Q. Why? Because it doesn't involve collisions between pedestrians and vehicular traffic or for any other reason? A. I'm not sure that's the reason your Honour, but we respond to directions from our head office that make available funding for road safety and traffic issues. Generally it's to do with the interaction between road users, I suppose, including pedestrians and cyclists and on the traffic side on improving traffic efficiency. So if we were looking at -- Q. People jumping off bridges are not part of the traffic, is that -- A. They are not part of - at the moment, our program doesn't cover that issue. If it did, it would have its own set of guidelines and we'd be looking at comparing this particular issue with other bridges and other risk factors as well." 285 Mr Alexander explained that the procedures for developing a program were complicated. He said, "it would be driven by our head office", and, "it would require policy change". Head office would have to determine the guidelines and it would be for the whole of New South Wales. He said, "it would be up to the policy people to determine those guidelines if such a program were to be implemented." Mr Alexander said: "… but you would need to look at that in the context of the number of occasions this occurs as well. So there would be a lot of bridges across water where people aren't jumping off or where people are jumping off, but where there haven't been injuries and those sorts of things, so I don't know what the history is in New South Wales." 286 According to Mr Alexander the program would not only be confined to an injury on the Forster/Tuncurry bridge. There would have to be a policy assessment at all bridges where people have an inclination to jump off. He did not identify such bridges. 287 When Mr Alexander was asked whether the RTA would be interested in preventing the practice of jumping and diving off the bridge, he said: "If it's a general concern about safety in the community I guess as individuals we all would be. But if the RTA was having to be concerned to the extent of having to fund a significant program of works then maybe the level of concern would be different."

This reply seemed to indicate a lack of interest where a "significant program of works" was involved. 288 Mr Alexander made it plain that the RTA's real concern as to the bridge "was the number of pedestrians crossing the bridge" and "the need to separate them from the traffic on the bridge". The following exchange is relevant: "Q. If it was thought that it was necessary to take some steps in respect of the railing fence in order to prevent boys from jumping into the water, into the channel, could a proposal be put up seeking funds for that? A. Well, under any - on any occasion if the RTA feels there's a need to construct something or if there's a need to address something, we can try and apply for funding. Q. And if it involves a question of safety, such as boys jumping off this bridge, would that be the type of thing that might receive a high priority? A. If it was a safety issue involving one person jumping from a bridge, it would be considered, but probably wouldn't be considered as highly as an intersection where there had been ten casualty crashes in a five year period, for example. Q. Well, we know here though that there were groups of boys on those two days that were observed by your staff to be jumping from the bridge, so we're not dealing with one incident, are we? A. That's true, we're dealing with one casualty as a result." 289 The issue was pursued as follows: "Q. Mr Alexander, I want you to assume that in fact this practice of boys jumping from the bridge, the Forster/Tuncurry Bridge, had been going on for years on a regular basis. Would those facts affect the prioritisation that would be given to any request for funding to make the bridge safer or to prevent that activity? A. In this situation with the Forster/Tuncurry Bridge, if we were to consider that, the response would be, 'What are you doing to separate the pedestrians from the traffic?' because that was our focus and that was the issue that we were getting representations about; people walking across the bridge, people on bicycles walking across the bridge, being too close to the traffic. So we would be - in reality we would be thinking that was the priority issue. Q. But you told us though that there could be an application made to try and make the bridge safer; it would have to be given some priority, it would have to be prioritised? A. Well, we'd have to look at that in the context of all the other bridges in the region, all the other pedestrian activity on those bridges."

Later Mr Alexander said: "A. Kids jumping off the bridge, I've said this before, falls outside the framework of our funding responsibilities. If something like this was to require attention, we would need to look at it in the context of all the other bridges, not only in the region, but in New South Wales." 290 In explaining the difficulties in providing funds to take steps to prevent people jumping off the bridge, Mr Alexander said: "I think that the funding priorities are set at the moment, there are limited resources, and there are strong demands on those resources for the projects that we are currently funding."

Eventually, on being pressed, he said: "I suppose if the Minister or somebody decided that the RTA would fund this and made an allocation, then we'd be obliged to look at it, we'd be obliged to consider all of the bridges and all of the activities that occur on the bridges, and come up with a list of priority and develop projects."

The cogency of the "availability of resources" and "competing priorities" argument 291 Dunford J said: "It is no answer for the RTA to say, as Mr Alexander said, that it did not have a policy to deal with such situations. It created the danger and it was accordingly incumbent on it to have, or to devise, a policy to deal with it". 292 The RTA submitted that this approach lost sight of the vast number of problems facing the RTA on a daily basis and the complex but reasonable system it had in place to make decisions as to what works to undertake and when. The RTA's argument runs very close to the proposition that questions as to deployment of resources and choice of priorities were matters for it, alone. 293 Dunford J correctly stressed the significance of the fact that, in the present case, the RTA constructed the bridge in its configuration at the time of the accident and thereby created the risk of an accident waiting to happen. The fact that a defendant actually created the structure that gave rise to the risk that materialised, and maintained the structure in a form that maintained the risk, has always been regarded as a matter of great importance in determining liability for negligence. The RTA falls into this category and, in these circumstances, the argument that there were practical difficulties that prevented it from taking steps to minimise the risk is not persuasive. 294 Another serious difficulty with the RTA's argument is that Mr Alexander was not one of the persons in the RTA who had the power to authorise the expenditure of funds to carry out the remedial measures for which Mr Dederer contended. Sometimes, in litigation, a forensic decision is taken to call only witnesses who can testify in a limited respect about the issues but who cannot address other specific and important questions (even when other witnesses are available to cast light on those other questions). But such a decision may have adverse consequences. 295 In a case where the availability of resources and conflicting priorities defence is raised, there is an evidentiary onus on the defendant to prove specifically why these matters reasonably justify its conduct in not taking particular measures for which the plaintiff contends. See Brodie at 585, [180] where Gaudron, McHugh and Gummow JJ said: "[The Shire Council] did not lead evidence to rebut any inference otherwise arising from the applicants' case that it knew the bridge was in a dangerous condition. Nor did it lead evidence of reasons why it could not or did not carry out further work on the bridge. As Samuels JA put it, giving the judgment of the New South Wales Court of Appeal in Hill v Commissioner for Main Roads [(1989) LGRA 173 at 181] 'there was at least an evidentiary onus on the defendant to bring into contention the assertion that there were exculpatory economic circumstances which it might adopt as a shield'."

See also Waverley Council v Ferreira (2005) Aust Torts Reports 81-818 at 68,083 [78], New South Wales v Bujdoso (2005) 80 ALJR 236 at 245 to 246, [49]. 296 In 1993 repairs costing $15,000 were made to the rusted wiring in the railings. Mr Alexander said that the $15,000 probably came from a "general maintenance budget". He did not testify that the necessary funds to remedy the dangerous situation on the bridge could not have been obtained from the general maintenance budget. 297 Indeed, Mr Alexander did not testify, in terms, that the RTA would not have been able to expend sufficient money after 1995 (when it knew or ought to have known that the pictograph signs were proving to be useless) to remedy the dangerous situation on the bridge. This is an issue on which it would have been appropriate for a person in the RTA with power to authorise expenditure to testify. But, no such person did so. 298 Mr Alexander's attitude was simply that he had his budget and he had to implement his program. He was not authorised to go outside his budget or his program. That for him was the end of the matter. There was no item in the budget for those who were jumping and diving off the bridge, and for that reason he formed the view that there was no money for remedial action. 299 Mr Alexander never asked any person with the requisite authority in the RTA for the money to modify the railings on the bridge. There was no evidence that anyone else asked any such person for money for this purpose. Mr Alexander at no time reported to any person of authority in the RTA that there was any urgency about the young people jumping and diving off the bridge. There was no evidence that, at any time, any person, having that authority, gave any thought to the problem. There was no evidence as to what would have happened had Mr Alexander, or some other person, prior to the commencement of Mr Alexander's employment in 1998, attempted to obtain funds to change the configuration of the railings by informing persons, having authority, of the full details of the problem. 300 The conclusion, I think, must be that the RTA did not apply its mind to the question whether it should remedy the dangers the bridge presented to young people who were attracted by its position, construction and configuration to jump and dive from it. It did not apply its mind to the question whether it should spend money on this problem. 301 The mere fact that the RTA did not apply its mind to the question does not mean that it breached its duty of care. Mr Dederer had to go further to prove that, had the RTA so applied its mind, it would have been unreasonable in the Shirt sense for it not to have taken remedial steps. But, here there was a failure to consider the problem over a lengthy period (three years from the end of 1995, when the RTA can be taken to have known that the signs were ineffective, and 31 December 1998, when Mr Dederer was injured). The risk of harm was serious and obvious. Reasonable remedial measures were relatively inexpensive. These matters militate strongly against a finding that a statutory authority in the RTA's position, acting reasonably, would not have taken the steps Dunford J found to be appropriate. 302 Mr Alexander said, more than once, that any modification to the bridge could only have been considered after investigating all similar bridges in New South Wales and, presumably, after working out whether any other bridges required like modifications and what the cost thereof would be. Why that would be necessary, when there was no evidence of any other bridges with like problems, was not explained. 303 There was in evidence a list of nine bridges, including the bridge in question, which - in January 1994 - the RTA regarded as bridges on which "signs should be erected in relation to fishing and climbing from/on". This evidence did not reveal whether there was a problem in regard to the eight other bridges involving people jumping and diving into varying depths of water below. There was no other evidence as to whether any other bridges existed in the State from which persons jumped or dived into potentially shallow water. If the RTA wished to rely on the existence of other such bridges with similar problems, there was an evidentiary onus on it to establish this: see Waverley Council v Ferreira at 68,083 [78]. 304 The cost of a new sign would have been minimal. The cost of modifying the handrail was estimated at $108,072. In the course of argument it was accepted that the cost of installing pool-type fencing would have been about $150,000. The estimated cost of the pool-type fencing is consistent with evidence that a lightweight weld mesh fence system would have cost an estimated $75,000, a guard rail safety barrier $100,000 and a two rail safety railing barrier in the order of $150,000.

305 That funds of this order were not an obstacle, and that the RTA could respond - and respond quickly - when pressure was applied to it, appears from an internal memo of the RTA dated 4 March 2004. This memo was written after Mr Dederer's injury but before the trial. It stated: "It is our intention to remove the handrails and to construct a new handrail. The new handrail will have a top and bottom RHS 100 x 50 x 5. The balustrades will [be] made from flat bar and will be centred at least 154 mm. The reason RTA have adopted a new design is to help prevent people jumping off the bridge. The existing handrail can easily be climbed over due to the middle rail. The proposed fence is more like a swimming pool fence and is harder to climb over. RTA have taken this course of action as the Authority is being sued by a man who jumped off the bridge and broke his neck when his head hit a sand bar ." [My emphasis] 306 This memo suggests that, had those in authority been fully informed of the facts, funds would not have been withheld because of lack of resources or priority issues. After all, the funds were produced once the RTA was sued. No explanation was provided as to how it was possible for the RTA to find the money once it was sued but not before. 307 In my view, Dunford J correctly held that the RTA breached its duty of care. 308 I would add as a final comment on this issue that I do not think that the fact that Mr Dederer dived, and did not jump, is a material factor relating to the breach by the RTA of its duty of care. There can be no doubt that diving is more dangerous than jumping. But, if a facility, for nearly 40 years, is a major attraction for children to jump from a high point into water, it follows, as day follows night, that that facility will be a major attraction for some to dive.

Causation 309 The issue that arises under this heading is whether Dunford J correctly held that, had the RTA taken the steps the judge identified, Mr Dederer would not have dived off the bridge. This is a hypothetical question. It requires the Court to determine what Mr Dederer would (objectively) have done if there had been adequate performance by the RTA of its duty. The onus rests upon Mr Dederer to prove that, on the balance of probabilities, the performance of the duty would have resulted in the avoidance of the injury. 310 The question of causation has to be considered by having regard to the combined effect of a different sign indicating the nature of the danger, the modified flat top railing, and the removal of the horizontal railing and replacement by vertical railings. In my view, his Honour rightly concluded that had all these steps been taken Mr Dederer would probably not have dived off the bridge. 311 In determining this issue, much depends on an assessment of a plaintiff's character and personality cf Rosenberg v Percival (2001) 205 CLR 434 at 446. This was essentially a matter for the trial judge. 312 I have held that the risks involved in diving were obvious to a reasonable person in Mr Dederer's position. From his own evidence it is apparent that he was aware of the risk of injury. He was also aware that, generally, the depth of water under the bridge was variable. Nevertheless, it seems that, immediately before he dived, he did not apply his mind to the risk of shallow water. It is one thing to be aware, in theory, of a risk. It is another to be conscious of that risk so that one bears it in mind before embarking on activities that involve that risk. This is all the more so when one is a boy, aged fourteen and a half years, and particularly a high spirited one, as Mr Dederer was. The fact that, for several years, Mr Dederer had observed children jumping and diving, apparently without intervention by the authorities, would also tend to provide him with some reassurance. 313 Dunford J was of the opinion that, had the signs made it plain that diving was dangerous - and explained the nature of the danger - Mr Dederer would not have dived. I consider that that finding, as to the effect of such a sign, alone, was open to his Honour: cf Lodge at 460, [36]. 314 I have concluded that the modification of the flat top railing would have made it difficult for persons to jump or dive and that the installation of pool-type fencing would have served as a further, and important, deterrent. Mr Cranitch drew attention to the fact that Mr Keegan saw people climb over pool-type fencing on another bridge and jump into the water below. That, however, does not mean that the combined effect of the measures I have stated would not have prevented Mr Dederer from diving. 315 Taking into account the fact that Mr Dederer dived after changing his mind, and, moreover, on impulse, I think that, had the RTA altered the signs as I have proposed, modified the top railing, and installed pool-type fencing, it is probable that Mr Dederer would not have dived as he did and he would not have sustained his injuries. Contributory negligence 316 Dunford J said in regard to contributory negligence: "[A]lthough the plaintiff did not at the time regard the 'No Diving' [pictograph] as denoting danger, he knew it meant that he should not dive, but he deliberately disregarded it. He also knew that the depth of the water was variable, that jumping from heights could result in injury and he said that part of the thrill of diving and jumping from the bridge was the risk. He was however only a 14 year old and the standard of care for his own safety required of him was that of a 14 year old person."

For these reasons his Honour found that Mr Dederer was guilty of contributory negligence and apportioned his share at 25 per cent. 317 Against Mr Dederer's share in his responsibility for the damage he sustained, must be weighed the RTA's share of responsibility. I have described the RTA's role in this respect and concluded that its conduct involved negligence to a serious degree. 318 Mr Dederer's age at the time is a relevant consideration. 319 There is little doubt that Mr Dederer was influenced by the fact that the practice of diving off the bridge had gone on for so long and was being undertaken by children of his own age. The fact that his own peers were taking the risks would have been a challenge to a cocky fourteen year old, as he described himself. This explains, but does not justify, why he deliberately disregarded the pictograph. In my view, however, a reasonable fourteen and a half year old boy should have appreciated that it was highly dangerous to dive as he did. Mr Dederer put himself in a position of great danger by diving in circumstances where the risks were obvious. Had he given the matter any proper thought, he would have appreciated the full extent and nature of the risks. 320 The apportionment determined by Dunford J is reflective of a view by his Honour that the contributory negligence of Mr Dederer was substantially less than that of the RTA. For my part, however, I do not agree. In my view, Mr Dederer's share in responsibility for the damage he sustained must be regarded as equal to that of the RTA. In my view, the apportionment of Mr Dederer's share of responsibility should be determined at 50 per cent. 321 I would therefore uphold the RTA's appeal to that extent.

Conclusion 322 I would uphold the appeal of the Council with costs. I would set aside the orders made by Dunford J against the Council and substitute judgment in favour of the Council with costs. I would grant Mr Dederer a certificate under the Suitors Fund Act 1951 (NSW) if he is otherwise entitled. 323 I would partially uphold the appeal of the RTA. I would set aside the judgment of Dunford J in regard to the apportionment of damages and would substitute an apportionment of 50 per cent. I would otherwise dismiss the appeal. 324 As regards the costs of the RTA's appeal, although the RTA has been partially successful, the major part of the appeal concerned the liability of the RTA and I have dismissed the RTA's argument in this respect. In the circumstances I would make no order as to the costs of the appeal. 325 TOBIAS JA: I have had the benefit of reading in draft the equally persuasive judgments of Ipp JA and Handley JA. After giving the matters of difference between their Honours careful consideration, I have determined to endorse the orders proposed by Ipp JA together with his reasons. However, it is appropriate that I should attempt to isolate those differences and express my own views with respect to them. 326 The essential differences between Ipp JA and Handley JA turn upon five key issues, which may be summarised in the following terms:

(a) Whether the primary judge erred in finding that the RTA was aware of a continuing practice of diving, as distinct from jumping, from the bridge;

(b) The lack of knowledge on the part of the RTA that the "No Diving" pictograph signs had failed to stop young people diving from the bridge;

(c) The fact that community concern between 1995 and 1998 had focussed on pedestrian safety in terms of the conflict between pedestrians and vehicles using the bridge and that there was no evidence of any public or Council concern expressed after 1993 to the RTA with respect to the practice of young people diving off the bridge; (d) Whether or not it would be reasonable in terms of the so-called Shirt calculus to have required a response from the RTA to its knowledge that young people continued to jump and allegedly dive from the external railing of the bridge into the water below which gave priority, given its limited resources, to the expenditure of some $108,000 on the erection of a new external steel handrail of a vertical pool style fencing design;

(e) Even if the RTA was in breach of its duty of care to the plaintiff by failing to erect such a fence, whether its erection would have prevented the plaintiff from climbing over it and diving into the water below with the consequence that its failure to erect such a fence was not causative of the plaintiff's injuries.

Differences (a) and (b) 327 It is true that there was no documentary evidence in the RTA's files that referred to the fact that young people not only jumped from the bridge but also dived from it. It is also true that after agreeing (at Black 2/419) that in mid-1998 he had made enquiries around his office and received information that it was a well-known practice for children to jump off the bridge, in response to the question "and even diving off the bridge?", Mr Alexander (the only officer of the RTA called in its case) responded "I don't know about diving, and I haven't seen anyone jump off the bridge myself." 328 In [19] of his judgment, Handley JA noted that Mr Alexander's concession as to his knowledge of the conduct of children on the bridge was limited to jumping only. It is also correct that his concession (at Black 2/415) was so limited where he agreed that it "seemed to me that it was well-known that kids jumped from the bridge." 329 On the other hand, it is to be observed that given his understanding of the height of the pedestrian footpath and/or the external top rail above the surface of the water, and the fact that the bridge had elevated areas at either end from which children jumped into the water, Mr Alexander conceded (at Black 2/425 Y-Z) that he appreciated that for somebody to jump from the elevated areas at either end of the bridge "would appear to be dangerous". This was also recognised by another employee of the RTA in April 1998: see [196] of Ipp JA's judgment. 330 Nevertheless, notwithstanding his appreciation that jumping off the bridge was dangerous, neither he, Mr Alexander, nor any other responsible officer of the RTA, took steps to have the matter investigated or to do anything about it, apart from raising the matter with the Council (at Black 2/427). Mr Alexander's evidence made it clear that he did not regard the danger to children jumping from the bridge as a matter of concern to the RTA. His attitude was brought home by the following exchange (at Black 2/430-431): "Q. Do I take it that the RTA would be concerned to attempt to prevent young people who might be diving from the bridge in circumstances of danger? A. I think that by putting up signs there's an indication that there's concern about that kind of activity, but beyond that there's an enforcement issue that the RTA isn't involved in, and I think prior to any further direction that the police or even Council might have been involved, in you know following that - the issue up. Q. Well did you make any inquiry to see whether or not there was any enforcement taking place -- A. No I didn't. Q. --attempting to prevent this practice? A. I didn't no. Q. In any event do I take it that you concede that the RTA would be interested in preventing the practice? A. Not till-- Q. Particularly if they're aware that the practice is dangerous? A. I'm not sure to what extent you mean. If it's a general concern about safety in the community I guess as individuals we all would be. But if the RTA was having to be concerned to the extent of having to fund a significant programme of works then maybe the level of concern would be different. Q. But Mr Alexander this is the RTA's own bridge that this his happening on. It's not something in the general community. This is your structure is it not? Where these boys are jumping from? A. Yes that's correct. … Q. If there are boys going onto the bridge and jumping off the bridge isn't that a pedestrian issue? A. Our concern on the bridge was the number of pedestrians crossing the bridge, and the concerns we had from the community and Council about the need to separate them from the traffic on the bridge." 331 The evidence also established that the RTA and Mr Alexander were fully aware that, firstly, "No Diving" pictograph signs had been erected on the elevated areas at each end of the bridge and that, at least so far as children jumping from the bridge was concerned, those signs were not being obeyed. Mr Alexander's evidence (at Black 2/410) was that within the Road Safety and Traffic Management Section of the RTA in which he was employed, there was an Operations Section which was responsible for all signage and that the officer who could "come and assist" the Court in relation to question of signage on bridges and roads was Mr Ken Saxby who specialised in that area. 332 Furthermore, there was a Mr Selway from the Asset Section who was also familiar with the issue of signs and Mr Alexander agreed (at Black 2/411) that those gentlemen would be far more conversant than himself with the issue of signs and whether they should or should not be erected . 333 In fact, Mr Alexander agreed that he had received information from each of those gentlemen to the effect that there were groups of young people who were observed jumping from the bridge and that they had continued to do so notwithstanding the "No Diving" signs. 334 Neither Mr Selway nor Mr Saxby were called by the RTA at the trial. Even if Mr Alexander was not personally aware of children diving from the bridge, that is not to say that other officers of the RTA, including Mr Selway and Mr Saxby, were not. Mr Alexander's answer (which I have recorded in [327] above) hardly constitutes positive evidence from which the inference can be drawn that the RTA was unaware that children dived as well as jumped from the bridge. Although he agreed that children jumping off the bridge was a well-known practice, Mr Alexander's response to the question that it was also a well-known practice that children dived off the bridge, was simply "I don't know about diving". As I have observed, that answer did not and could not constitute a positive assertion that the RTA and/or all its officers and employees were unaware of that fact. 335 Five material facts were established which militate against a finding of lack of knowledge of diving on the part of the RTA. First, the RTA was well aware of the continuing practice of children jumping off the bridge. Second, through Mr Alexander and other officers, it was aware that that practice was dangerous. Third, the RTA was aware that "No Diving" pictograph signs had been erected. Fourth, even if, as Handley JA observes at [36] of his judgment, the RTA was unaware that the "No Diving" signs had failed to prevent children continuing to dive from the bridge, it did know that they had not prevented children continuing to jump from it. Fifth, it was aware that the bridge was not only alluring to teenagers (as Handley JA acknowledged in [54] of his judgment), but was also a significant and popular facility in the context of the summer tourist season in the Forster/Tuncurry area. 336 In the foregoing circumstances, in my opinion it is difficult to accept that the RTA was completely ignorant of the fact that children dived from the bridge. As Ipp JA pointedly observes in [199] of his judgment, why else would a sign be erected to the knowledge of the RTA in 1995 which prohibited diving from the bridge, unless diving was considered by it to be a problem? At the very least, given its acknowledged responsibilities with respect to the bridge, including the carrying out of regular inspections of the bridge's piers in the circumstances referred to by Ipp JA in paragraph [208] of his judgment, it ought to have been aware that children not only jumped from the bridge but also dived. 337 As Ipp JA also observes at [199] of his judgment, the RTA's knowledge of pictograph signs prohibiting diving, together with the other evidence to which I have referred, point strongly to the inference that the RTA's officers were aware that children continued to dive, as well as jump, from the bridge in circumstances which, as a matter of common sense, it must have known to be dangerous. 338 If the RTA succeeded in establishing that it was unaware that children dived from the bridge (notwithstanding that it was aware that they jumped from the bridge, that it was dangerous to do so and that at the Council's request, it had erected "No Diving" pictograph signs), the only conclusion that one would draw from such a finding is that the RTA was ignoring the obvious. As a matter of plain common sense, it would have failed to appreciate that if children to its knowledge were jumping from the bridge and, in particular, from the top railing which provided easy access to the water for that purpose, the chances were that children would also dive from the bridge into water the depth of which was known by it to be variable in circumstances which were likely, sooner or later, to result in a tragic accident of the nature of that which befell the plaintiff. I thus endorse the observations of Ipp JA in [308] of his judgment. 339 In the foregoing circumstances, I would agree with Ipp JA that the primary judge was correct in inferring that the RTA was aware of the practice of young people diving from the bridge in contravention of the prohibition of doing so contained in the very signs which it had caused to be erected. 340 The primary judge regarded the situation disclosed at the bridge as "an accident waiting to happen", a finding suggested by Handley JA (at [26] of his judgment) to be informed by hindsight and, therefore, contrary to the test of reasonable foresight endorsed by the High Court in Vairy and Mulligan. However, given the knowledge of Mr Alexander and, therefore, the RTA that for children to jump from the bridge was dangerous and that diving from the bridge was a fortiori dangerous (an obvious fact acknowledged by Handley JA in [21] of his judgment), it is but a small step to conclude that, with the knowledge that children continued to dive from the bridge in circumstances where the water below (depending upon tidal influences) was of variable depth and at times quite shallow, it would be reasonably foreseeable that at low tide in particular, when the water was shallow on the one hand and the height between the railing and the surface of the water is some 9-10 metres on the other, sooner or later a child would dive in a manner resulting in serious injuries. As I have indicated, I would regard such a conclusion as a matter of common sense. In my view there is no logical answer to what Ipp JA has written in [212]-[214] of his judgment. 341 It seems to me that when in these circumstances the primary judge, with the benefit of a view, considered that the situation disclosed at the bridge was "an accident waiting to happen", that finding was not one influenced by hindsight but merely confirmatory of what his Honour rightly regarded as reasonably foreseeable given the evidentiary findings which he had made. 342 No doubt his Honour's view of the bridge assisted his appreciation of the relationship between the top and middle horizontal railings and the water level below, neither of which had changed since the accident. The fact that his observation that the situation disclosed by his view prompted his remark that this was "an accident waiting to happen" does not, with respect to the contrary view of Handley JA, necessarily lead to the conclusion that that finding was influenced by hindsight. On the evidence and without the view, the same observation could legitimately be made. The view merely confirmed it.

Difference (c) 343 I accept that the focus of community concern between 1995 and 1998 was not upon the practice of children jumping or diving off the bridge but related to the issue of vehicle/pedestrian conflict upon the bridge. No doubt this lack of concern with respect to the continuing practice of children jumping and diving from the bridge notwithstanding the signs prohibiting such activity was due to the fact that no serious accident had occurred over the previous 39 years. 344 However, that fact does not, in my opinion, detract from the Council's concern which was conveyed to the RTA and which resulted in the erection of the "No Diving" signs or as to the concern which ought, in my opinion, have registered with the RTA, given its responsibilities with respect to the bridge, that young children were using the structure for the purpose of jumping and diving into the water below in circumstances which were obviously dangerous. 345 I therefore agree with Ipp JA (at [264] of his judgment) that the fact that the local community did not publicly express any concerns about young persons jumping and diving off the bridge, although a relevant factor, is in no way conclusive. It was, as his Honour points out in [265] of his judgment, easily explicable. 346 Furthermore, it was common ground that both the Council and the RTA regarded the problem as one of law enforcement, which to their knowledge had failed. Lack of expressed public concern with respect to the problem may have been due to the fact that the activity, although obviously dangerous (whether it was jumping or diving), had not resulted in any child being seriously injured. In these circumstances, the RTA did not regard the problem as one which required its attention: see [330] above. As Mr Alexander said (at Black 2/415V), "there wasn't a lot we could do given that it was a well-known event and that Great Lakes Council would have been aware of it and the police would have been aware of it".

Difference (d) 347 There are two aspects with respect to this difference between their Honours. First, with knowledge that neither the Council nor the police had been able to prevent young people jumping or diving off the bridge, did this known fact call for different measures to be adopted by the RTA to prevent the practice at least of jumping off the bridge, assuming that its knowledge went no further than that? 348 Second, given that there had been no reported accident arising from young people or children jumping or diving from the bridge and the then focus of the RTA with respect to the expenditure of its limited resources, a reasonable response to any foreseeability of the risk of injury from such an activity, given its low probability of occurrence due to the fact that there had been no injuries reported in the 39 year history of the bridge would not have extended to the expenditure of some $108,000 on a new external pool-style fence with vertical balustrades. 349 As to the first matter, at [35] of his judgment, Handley JA remarks in the context of the necessity to avoid hindsight and to concentrate on foresight, that the reasonable response called for by the so-called Shirt calculus on the part of the RTA should be considered in the context of not only the lack of public concern with respect to the relevant activity but also the history of no serious accident from jumping or diving from the bridge in its 39 year history. That evidence, his Honour indicated, should be given greater weight than an impression formed after the tragic diving accident that befell the plaintiff. 350 Furthermore, according to his Honour, as the RTA knew that the "No Diving" signs had not prevented the practice of children jumping off the bridge on the one hand but was unaware that they were diving from the bridge on the other. Given community concern with respect to vehicular/pedestrian conflict on the bridge, the so-called Shirt calculus would only have required the RTA to give priority to the perceived risks faced by pedestrians lawfully using the walkway for its proper purpose rather than to those children and young persons who were using it unlawfully for an improper purpose. 351 Thus, in his Honour's judgment, given that the RTA has State-wide responsibilities for roads and road traffic in general and for the State's freeways in particular, any focus in the present case on a diving accident involving one person on one day on one bridge was inherently retrospective and was not reasonably perceived by the RTA as a risk before it occurred. 352 As I understand his Honour's reasoning, in these circumstances there could be no breach of any duty of care owed by the RTA to persons using what was an unpatrolled bridge open to the public as a right who used it as a diving platform contrary to "No Diving" signs erected thereon. This was particularly so because although the bridge was alluring to teenagers, the RTA had not encouraged persons to use it as a diving or jumping platform. 353 I have already indicated my respectful disagreement with his Honour's view that the fact that there had been no serious accident resulting from the practice, well-known to the RTA, of children jumping from the bridge did not give rise to a foreseeable risk of injury occurring, albeit with a low probability of occurrence. Given the RTA's knowledge that the bridge was being used as a platform for children to jump into the water below, at the very least it ought to have known that there was a foreseeable risk that at least some children would also dive from the bridge in circumstances which would in fact enhance the risk of injury if they dived into shallow water at low tide or when the tide was running out. 354 Although it is true that the RTA was required to focus on the risks caused by the vehicle/pedestrian conflicts on the bridge particularly in busy times during the summer holiday season and not just upon the risks faced by "persons engaging in recreation" by jumping and/or diving off the bridge, (see [63] of Handley JA's judgment), it does not follow that it was reasonable for the RTA to ignore the well-known practice of children jumping from the bridge in defiance of "No Diving" signs erected by or on behalf of the RTA simply because there had been no diving accident from the bridge in its 39 year history. In my opinion, the "do nothing" response, which is that favoured by Handley JA, was not a reasonable response in the circumstances. 355 In [62] of his judgment, Handley JA cites a passage from the judgment of Hayne J in Vairy. In that passage Hayne J had said: "It was not reasonable to expect the council to warn of this particular danger. The council had done nothing to make the danger worse and had no knowledge of some feature of this particular that it was not readily discovered by someone contemplating diving or plunging into the water at this point." 356 In my opinion that passage is not applicable to this present case. First, Vairy was a case of an adult diving from a natural rock formation so that his Honour was justified in remarking that the council had done nothing to make the risk of diving from those rocks worse that what it was. Second, in the present case we are dealing with young children who, to the knowledge of the RTA, were at the very least jumping from a height of 9-10 metres into what, at times, was very shallow water. Third, the RTA had made the danger worse as its predecessors were responsible for the construction of the bridge and, in particular, the type of external railing which provided an easy platform to the RTA's knowledge for children to utilise for the purpose of jumping into the waters below. 357 In this last respect, I respectfully disagree with the view expressed by Handley JA in [9] of his judgment that the fact that the RTA's statutory predecessor was responsible for the construction of the bridge in 1959 cannot be relevant to its liability for an accident which occurred in 1998 unless it was based on its own acts or omissions. His Honour's comparison with the responsibility of an owner of private property with respect to a danger created by that owner's predecessor in title is not, in my respectful opinion, apt. 358 It would be entirely inappropriate, in my respectful opinion, for the RTA to be able to disregard the danger created by its statutory predecessor in creating a platform for jumping and diving into the waters below the bridge upon the basis that although it was aware of the danger so created, it could nevertheless ignore it because it did not create it in the first place. To suggest otherwise would invite government to avoid liability in a case such as the present by the device of simply passing legislation which replaced the public authority who created a relevant danger by a new public authority whose responsibilities were no different from its predecessor. As I have indicated, I do not regard the analogy with the successor in title of a private landowner as being appropriate in the circumstances of a case such as the present. 359 In any event, although I accept, as Handley JA observes in [57] of his judgment, that pedestrians were lawfully entitled as of right and necessity to use the bridge and that participation in the recreational activity of using the handrail of the external fence as a jumping and diving platform was a voluntary activity notwithstanding its inherent risks, it does not follow from those factors that it was reasonable for the RTA to simply ignore what it clearly knew to be a dangerous activity in which children were partaking and who could be expected to be oblivious to the risks involved. 360 I therefore turn to the second aspect under this heading which concerns Handley JA's finding (at [63] of his judgment) that the foreseeable risk of a diving accident from this bridge with a 39 year accident-free history had no reasonable claim on the RTA's further attention or resources. I have already dealt with the first aspect of that proposition but it necessary to deal with the second. To some extent the two overlap. 361 The relevant principles are set out in [268] et seq of the judgment of Ipp JA which Handley JA does not seem to contest. The fact that a public authority has limited resources and the necessity for it to prioritise its expenditure of those resources is a factor to be taken into account in the balancing exercise contemplated by the so-called Shirt calculus. The difficulty in the present case, as Mr Alexander indicated in his evidence part of which I have extracted in [330] above, was that although there would be a general concern about safety in respect of the practice of children jumping from the bridge, if the RTA was required to be concerned with such a practice to the extent of having to fund a significant program of works in order to prevent the practice, then its level of concern would, apparently, diminish. 362 On a number of occasions during the course of his evidence, Mr Alexander emphasised two things. The first was that in the years leading up to the plaintiff's accident, it was focussed upon the acknowledged concern of separating pedestrian and vehicular traffic on the bridge. This was, therefore, a priority issue. Second, even if children jumping from the bridge was regarded as giving rise to a safety issue, the fact that there had been no previous history of serious injuries occurring from what was otherwise acknowledged as a dangerous activity, would not have been considered as highly, in terms of the expenditure of resources, as an intersection where there had, for example, been ten casualties over a five year period. 363 The truth of the matter, however, as stated by Mr Alexander (at Black 2/438), was that children jumping off the bridge fell outside the framework of the RTA's funding responsibilities. If it was something that required attention, it would be necessary to look at it in the context of all other bridges, not only in the region but in New South Wales. When asked (at Black 2/439-440) "If the continued practice of young people jumping of the Foster-Tuncurry Bridge was established to be unsafe, would the RTA do anything about it?"

Mr Alexander responded in these terms: "…at this time we wouldn't be able to do anything about it other than perhaps report it to an enforcement authority. If the mood was right and there were opportunities to develop a program, that would be a policy issue at head office and they'd need to make funding available, they'd need to set very clear guideline, and we'd need to review the behaviour of kids at a large number of bridges throughout New South Wales. But I can't say even then that the RTA would pick up on a policy to fix bridges so that kids wouldn't jump off them." 364 It is clear from that response and from Mr Alexander's evidence which immediately follows, that prior to the subject accident, the RTA's funding priorities were set and that it had no policy with respect to dealing with the problem of children jumping and diving from its bridges into the water below. If it was aware of a danger associated with the subject bridge, then head office would need to determine a policy not only with respect to that bridge, but with respect to all bridges in New South Wales where children might be tempted to use them as a jumping and diving platform. 365 I have already referred to the authorities examined by Ipp JA on this issue at [268] et seq of his judgment. In my opinion, the critical point which emerges from his Honour's review of the authorities is that the reluctance of courts to impose their views on the reasonableness of resource allocation decisions by public authorities assumes on the one hand, that the authority has recognised the relevant danger and, on the other, has made a considered policy decision based on a risk analysis as to whether or not to allocate resources to the elimination of the danger in light of its other responsibilities and priorities. 366 The questions to be answered in the present case, therefore, are first, whether the RTA recognised the danger, as in my opinion it ought, of young people including children, jumping and diving from the bridge and, second, whether it had made a considered policy decision in light of its funding restrictions and other priorities to defer any reconstruction of the external fence which would eliminate the danger until it was in a position to carry out the work necessary to respond to the vehicle/pedestrian conflict issue which had been identified as a significant danger requiring remedial action. Even if the first question is answered in the affirmative, it is clear that the second must be answered in the negative. 367 As Mr Alexander's exchange (set out by Ipp JA at [284] of his judgment) makes clear, no decision had been made by the RTA that even recognised that there might be a danger to young people and children jumping and/or diving off its bridges including the subject bridge. That simply was never on its radar. 368 In the foregoing circumstances, I would respectfully endorse the reasons of Ipp JA in [294]-[307] of his judgment. Mr Alexander's evidence referred to in those paragraphs did not, in my opinion, justify a conclusion that it was reasonable for the RTA to adopt a "do nothing" approach with respect to the foreseeable risk that the external horizontal handrails of its bridge provided a platform for children to jump and dive into the water below in circumstances which were obviously dangerous. Nor did that evidence justify a conclusion that it was reasonable for the RTA to neither recognise nor respond to that danger because it had focussed its attention in terms of resource allocation on other aspects of its responsibilities as a roads authority.

Difference (e) 369 The thrust of the difference between Ipp JA on the one hand and Handley JA on the other with respect to the issue of causation is that even if the RTA had installed an external handrail of a pool-style fencing design with vertical, rather than horizontal, members, the latter considered that in view of Mr Kegan's evidence, although such a railing would be harder to climb, it would still be possible, particularly in the case of an agile teenager to climb over it. As the plaintiff was approximately 1.8m tall and the proposed fence only 1.2m high, Handley JA has concluded (at [49]) that there was "every reason for accepting Mr Keegan's evidence that such a fence would not have deterred a fit teenager such as the plaintiff who wished to jump or dive from the ledge." 370 I would accept his Honour's finding if confined to the case of a teenager who was determined, rather than one who merely wished, to dive from the bridge. But even in the case of causation, we are dealing with probabilities and not certainties. The question is whether in the circumstances of this case such a fence would have deterred this particular plaintiff from diving from the bridge on this particular occasion. 371 The evidence did not establish that the plaintiff, prior to committing himself to diving from the top horizontal railing of the existing external fence, had determined to dive rather than jump or that he even wished to do so in a pre-determined way. His clear evidence was that immediately before he dived, he intended to jump from the bridge but on impulse changed his mind and dived at the last moment. 372 There was no suggestion that the plaintiff was of reckless or unthinking disposition. It is true, as observed by Ipp JA in [312] of his judgment, it was apparent to him that diving from the bridge involved a risk of injury, particularly if the depth of water under the bridge was variable. He had observed others jumping and diving, without incident, from the bridge which gave him some reassurance. There was nothing to suggest that his character was such that he should be regarded as completely irresponsible notwithstanding that he knew that diving from the bridge was prohibited, although, as he said, the "No Diving" sign did not indicate to him that it was dangerous to do so. 373 The primary judge and Ipp JA concluded that a combination of an appropriate sign on the one hand and the installation of pool-style fencing on the other would have served as an entirely different deterrent to young people such as the plaintiff diving from the bridge. There is no reason to believe that the combination of such remedial steps to the danger that otherwise existed would not have been a deterrent to young people who engaged in the practice of jumping and/or diving from the bridge with the result that the extent of that practice, at the very least, would have been significantly reduced. In those circumstances, the plaintiff's observation with respect to others jumping and diving from the bridge would not have provided him with the reassurance that it was safe to do so that he apparently assumed at the time of his accident. 374 As I have indicated, ultimately the test is an objective one to be determined on the balance of probabilities. In the circumstances referred to, the primary judge held that it was probable that the plaintiff would not have dived as he did and, therefore, would not have sustained his injuries. That was finding which, as Ipp JA observes, was clearly open to the primary judge on the evidence and one which is not vitiated by error which would justify the intervention of this Court.

Conclusion 375 I have had the unenviable task of considering the judgments of my brethren, each of which contain powerful arguments in favour and against the RTA's appeal being upheld. I have attempted to isolate the differences between their Honours and to express my own views as to how those differences should be resolved. At the end of the day, for the reasons I have given, I have resolved them in favour of the RTA's appeal other than with respect to the apportionment of damages, being dismissed. I therefore agree with the orders proposed by Ipp JA. **********

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