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?