The primary judge's findings with respect to a dangerous recreational activity
76Although not necessary for his decision having found no breach of duty, the primary judge proceeded to consider the respondents' submission that they were not liable for the harm suffered by the appellant as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by him.
77The relevant statutory provisions are to be found in Division 5 of Part 1A of the CL Act and are as follows:
5J Application of Division
(1) This Division applies only in respect of liability in negligence for harm to a person ( the plaintiff ) resulting from a recreational activity engaged in by the plaintiff.
(2) This Division does not limit the operation of Division 4 in respect of a recreational activity.
5K Definitions
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.
5L No liability for harm suffered from obvious risks of dangerous recreational activities
(1) 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."
78An " obvious risk " has the same meaning as it has in Division 4, the relevant provisions of which are as follows:
5F 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 circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
5G Injured persons presumed to be aware of obvious risks
(1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2) 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.
5H No proactive duty to warn of obvious risk
(1) A person ( the defendant ) does not owe a duty of care to another person ( the plaintiff ) to warn of an obvious risk to the plaintiff.
79At [167] of his reasons the primary judge noted that the proper approach to the application of the foregoing provisions was discussed by this Court in Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Rep 81-952. At [27] - [28] of my judgment in that case, with which Campbell JA and Handley AJA agreed, I noted that the question of obvious risk involves the determination of whether the plaintiff's conduct involved a risk of harm which would have been obvious to a reasonable person in his position. The test is an objective one and thus must take account of the objective circumstances of the person whose conduct is being assessed.
80At [35] of my reasons in Jaber I said this:
"Whether or not a risk is " obvious " may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to a reasonable person in the position of the plaintiff."
81I then referred to the definition " obvious " which I had adopted with the agreement of Mason P in Wyong Shire Council v Vairy [2004] NSWCA 247 at [161] to the following effect:
"' obvious ' means that both 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."
82At [36] of my reasons in Jaber I cited the following passage from my judgment in Vairy :
"[162] In this definition 'condition' refers to the factual scenario facing the plaintiff. Thus in a diving case the condition might typically be the fact that the plaintiff is faced with water of unknown depth. Under such a condition the risk would be that diving into the water (while the depth remains unknown) might result in (serious) injury. This risk would be considered obvious if, in the context of the case, it was perceptible to a reasonable person in the position of the plaintiff that if you do not know the depth of a body of water into which you are about to dive, then to dive into such water under such conditions inevitably brings with it the risk of injury."
83In Jaber I then went on to consider whether the diving activity involved in that case was one that should be categorised as a " dangerous recreational activity " within the meaning of s 5K of the CL Act in that it involved a significant risk of physical harm.
84Having referred to passages from the judgments in Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31], Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [5] and [10]; Falvo v Australian Oztag Sports Association [2006] NSWCA 17; (2006) Aust Tort Reports 81-831 at [28] - [31] and Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 at [13] - [18] per Ipp JA and at [144], [145] per Basten JA, I drew upon those judgments to summarise in my judgment in Fallas what I considered to be the appropriate approach to adopt with respect to s 5K (repeated by me at [50] of Jaber ):
"90 ... If, as I believe to be the case, the word "significant" in the context of the subject definition means a risk which is not merely trivial but, generally speaking, one which has a real chance of materialising, then the subject activity was clearly capable of involving a significant risk of physical harm. This is consistent with the third approach referred to by Basten JA in [144] of his judgment and which I would respectfully adopt as the correct approach to a case of the present kind ...
91 I am conscious of the observations of Ipp JA in [18] of his judgment that "significant" means a standard somewhere between a trivial risk and a risk likely to materialise. A real chance of the risk materialising lies somewhere between these two standards although probably closer to the second than the first. I accept that there is merit in not seeking to define the term with precision, as its application requires a normative judgment in light of the particular facts and circumstances of each case. However, I see no danger in adopting as no more than a general guide that the risk should have a real chance of materialising for it to qualify as significant. But I emphasise that such a standard, which as I have said lies between the extremes articulated by Ipp JA, is to be regarded as what it is - no more than a general guide.
92 It will thus be appreciated that I prefer the approach of Ipp JA that, for the purposes of the definition of "dangerous recreational activity" in s 5K, the scope of the relevant activity must be determined by reference to the particular activities engaged in by the respondent at the relevant time being the period immediately prior to the respondent suffering the relevant harm as a consequence of the appellant's negligence. In other words, as his Honour notes at [43], [46] and [47] of his judgment, in determining whether the relevant recreational activity involves a significant risk of physical harm, one must identify that activity at a relatively detailed level of abstraction by including not only the particular conduct actually engaged in by the respondent but also the circumstances which provide the context in which that conduct occurs."
See also Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) 174 LGERA 208 at [75] and [76] per Beazley JA with whom McColl JA and, relevantly, Basten JA agreed.
85At [171] of his reasons, the primary judge set out his findings with respect to the appellant's knowledge of the circumstances in which he found himself:
"The [appellant] was aware that [Mickey] had hit the bottom when he dived in after the vessel had been anchored for a time at the first anchor point. He was aware that the sole purpose of moving the vessel from the first to the second anchor point was to find a position where [Danny] and [Mickey] considered that the water was deep enough to dive into safely. The [appellant] did not know that the topography of the sea bottom in Botany Bay was rarely level and that it was likely that there would be places where shallow banks would be found. There was nothing which indicated to him that the bottom of the bay was not of an even grade and did not increase in depth as the vessel was moved further from the shore. As the vessel was driven towards the second anchor point the colour of the water become darker and the bottom of the bay could not be seen. The [appellant] had dived into the water safely from the bow of the vessel at the second anchor point, had swum to the shore and returned to the vessel before the second dive. The [appellant] had seen the other three people dive safely from the bow. The [appellant] did not know that between his first and second dives that the sports cruiser had drifted a short distance on its anchor line. Immediately before he made the second dive, the [appellant] noticed that the water was slightly lighter in colour than before the first dive but was still dark blue. The [appellant] presumed that it was the same spot from where he had safely made the first dive. He then exercised his own judgment in deciding that it was safe to dive from the vessel a second time."
There was no challenge to these findings.
86The primary judge then set out some cross-examination of the appellant where he acknowledged that there was a risk of serious injury if he dived into water without knowing its depth or into water of uncertain depth. Accordingly, his Honour found (at [174]) that as the appellant knew in a general sense that diving into water of uncertain depth might result in serious injury, that was a risk which was apparent to him and, therefore, apparent to a reasonable person in his position at least before he made his first dive. His Honour then distinguished the facts in Jaber on the basis that in that case Mr Jaber had not dived in from the bollard from which he did dive prior to injuring himself: nor had seen any other persons dive from that bollard. In contrast, in the present case at least seven dives were made safely from the vessel's bow before the appellant's second dive and he was aware of that fact.
87The primary judge concluded this aspect of his findings in the following terms:
"[175] A reasonable person in the position of the [appellant] would have held the belief that the water was sufficiently deep to dive into safely. Such a reasonable person, however, would not have considered that there was no risk of injury when diving into the waters of Botany Bay from the bow of the anchored sports cruiser. This was not a case, such as a swimming pool, where the depth of the water was indicated and was certain. The uncertainty and risk of injury from diving from the vessel into the bay had been demonstrated at the first anchor point where there had been safe diving before [Mickey] had come into contact with the sea bottom. A reasonable person in the position of the [appellant] would have concluded that the risk of harm was low."
[176] Whilst his first dive from the bow at the second anchor point and the observations that he made of the other persons who had dived in, may have led him to believe that the risk of harm was low, that does not mean that on the objective facts that there was not an 'obvious risk' that would be readily apparent to a reasonable person in the [appellant]'s position. It does not matter that there was a low probability of the risk occurring: s 5F(3) Civil Liability Act . Nor does it matter that the movement of the vessel and the existence of the shallow bank were inconspicuous or not physically observable: s 5F(4) Civil Liability Act .
[177] I find that the risk of serious injury to the [appellant] arising from impact on the bottom of the bay upon diving into water of uncertain depth would have been obvious to a reasonable person in the [appellant]'s position: s 5F(1) Civil Liability Act ."
88The primary judge then turned to the issue as to whether the activity in which the appellant was engaged was a " dangerous recreational activity " within the meaning of s 5K of the CL Act . After referring to the passages in the authorities which I have recorded at [ 84 ] above, his Honour concluded (at [183]) that
"[o]bjectively considered, the risk of the [appellant] suffering serious injury by diving from the vessel's bow into the uncertain depth of Botany Bay could not be regarded as trivial or very slight. Although the risk of harm was low, the potential harm was catastrophic: Falvo v Australian Oztag Sports Association [2006] NSWCA 17 at [31]. In my view, the [appellant] was engaged in a 'dangerous recreational activity' within the meaning of s 5K CLA.