Morris v Redland City Council & Anor [2015] QSC 135

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - AFFECTING PUBLIC AUTHORITIES - where the plaintiff was holidaying on North Stradbroke Island - where the plaintiff believed that there were stairs leading to the beach somewhere across the road from their rental house - where the plaintiff had consumed alcohol - where the plaintiff tried to locate the stairs at night - where the plaintiff followed what he considered to be a path to the edge of a cliff - where the plaintiff leant against a tree to look for the stairs and fell to the beach below, suffering serious injuries - whether the path existed - whether the risk that someone might fall from the top of the cliff was reasonably foreseeable - whether the respondent should have erected warning signs - whether the respondent should have conducted a risk assessment - whether the respondent breached its duty of care - whether the risk of injury was an obvious risk

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS - where, at the beginning of the trial, the plaintiff elected to not lead any evidence against the second defendant - where judgment was entered for the second defendant by consent - where there was a relevant Calderbank offer - where the first and second defendants issued contribution notices to each other - whether the claim by the plaintiff against the second defendant was a hopeless case

Civil Liability Act 2003, s 13, s 15, s 47

Calderbank v Calderbank [1975] 3 WLR 586

Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225

Di Carlo v Dubois [2002] QCA 225

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397

Mulligan v Coffs Harbour City Council (2005) 223 CLR 486

Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631

Re J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers [1993] FCA 42

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

State of Queensland v Kelly [2014] QCA 27

Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422

[1] At about 10pm on 5 February 2010 Andrew Morris fell some 20 metres from the top of a cliff onto Frenchman's Beach at Point Lookout on North Stradbroke Island.

[2] He suffered many serious injuries including fractures of the spine and some ribs. As a result of those injuries he has numerous dysfunctions, including paraplegia. The issue of quantum was settled before the trial.

[3] Mr Morris commenced proceedings against the Redland City Council ("the Council") and the company which was the trustee of a trust trading as Ray White North Stradbroke Island. When the trial commenced Mr Fleming QC (who appeared for the plaintiff) announced that no evidence would be led against the second defendant. Those parties agreed that I should give judgment for the second defendant and deal with the question of its costs when I gave judgment in the action.

[4] In the Further Amended Statement of Claim (FASOC), the plaintiff pleads that the Council was negligent in a number of respects. By the end of the trial, the plaintiff's claim had been distilled to these elements:

"14. The Plaintiff's personal injuries, loss and other damage were caused by the negligence and/or breach of duty of care on the part of the First Defendant, its servants or agents, particulars whereof [are] as follows:

(a) failing to adequately or at all warn the plaintiff of the existence of the cliff face, and in particular the obvious danger and major risk associated thereof by:

(i) erecting warning signs alerting the public of the existence of the cliff edge; and/or

(ii) erecting warning signs alerting the public not to walk through the grass/vegetation; and/or

(vi) erecting directional signage to pedestrian thoroughfares;

when a reasonably prudent authority would have done so.

(b) causing and/or allowing a grassy path to exist which lead (sic) to a dangerous vicinity, when a reasonably prudent authority would not have done so;

(c) failing to conduct a formal assessment of the major risk associated with persons entering via the boardwalk and grassy path prior to the Plaintiff's accident, when a reasonably prudent authority would have done so."

[5] The Council admits that:

• (a) it was the local government authority for the area containing the headland;
• (b) it was exercising the functions of a public authority;
• (c) it had a duty to take reasonable care to avoid foreseeable risk of harm whilst the plaintiff was present at Point Lookout; and
• (d) at most, it has a duty to eliminate a foreseeable risk whenever it was unreasonable not to do so.

What happened on the evening of 5 February 2010?

[6] The plaintiff and eight friends had rented a house on Mooloomba Road at Point Lookout, North Stradbroke Island. They intended to stay there for a few days to celebrate the plaintiff's and Mr Lewis' 40th birthday. They all arrived on the afternoon of 5 February 2010. Some of them, including the plaintiff, prepared dinner on the barbecue at the house they were renting. Before, during and after dinner, the plaintiff drank what he said were four Coronas and four mid-strength beers.

[7] At about 9pm the plaintiff, Mr Jones and Mr Lewis, left the house to look for the steps to the beach. There was a plan to go fishing the next morning and the plaintiff said he "wanted to go down to the beach and have a look for fishing the next morning".

[8] Each of the men was about 40 years old, employed in responsible positions, and clearly intelligent. None of them suffered from any disability in sight or mental acuity. None of them had any familiarity at all with the area they were seeking to walk through. The plaintiff had received some guidance earlier that day as to where the steps to the beach were, but that guidance was either incomplete or he misunderstood it.

[9] It is also alleged in the statement of claim that there was no street lighting in the area. Compelling evidence was called by the Council which satisfies me that there was street lighting at the intersection of Mooloomba Road and Midjimberry Road. The street light was both in an elevated position and protruded out towards the roadway from the eastern side of Mooloomba Road. None of the three men who had ventured out looking for the steps to the beach could remember seeing any light at that time in that place. It may be that the reason they did not see the light is that they did not proceed as far along Mooloomba Road as they thought they did.

[10] In any event, had they proceeded a little further up Mooloomba Road, they would have seen the light and would have seen the entrance to the steps. The quality of the light under the street light was such that a person could have read a newspaper by it.

[11] It was also pleaded that there were no signs indicating that there were stairs to the beach. That is clearly not so. The exhibits demonstrate graphically that there were signs which would have been able to be seen at night by virtue of the illumination from the street light.

"I don't think I held onto the tree. I was just - it was there and I just grabbed hold of it. It was just next to me and it was that rotten and that brittle that it just was enough for me to lose my balance and over I went.

But the reason you held onto it was so that you could lean out? --- No. No. It was just to - just like when you're just standing next to something and there's a pole there or something and you just hold on to it."

[17] The evidence from Mr Morris, Mr Lewis and Mr James was all to the effect that there was some form of path but the manner in which they described it differed. The plaintiff said it was a "well defined track" and that the area on either side of the path and around it had been mowed. It was, he said, a "formed path". Mr Lewis said there was a "distinct path" which was, he thought, "the result of being well used". Mr James said that it was a "formed path" in the sense of the bushes "forming-down onto the ground". He later said that it was a "bush path" or a "beach path". He said that it was a "bit of both". He also described the path as "more of a sandy rocky path".

[18] The only illumination available to the three men was a head lamp worn by Mr Morris and a hand held torch taken by Mr James.

[19] Each man gave evidence of taking a different route. That is not surprising for the reasons I have set out above. But it is inconsistent with the idea that there was a path. Aerial photographs were exhibited of the area and reference was made to them during the evidence when each of the men was asked to point out, as best he could, the way in which they proceeded on that evening. The interpretation of aerial photographs is a skill which no witness possessed nor any of the lawyers appearing for them. At best it can be said that the photographs demonstrate areas with a lot of vegetation. The photographs were taken in December 2014. They are useful, though, for the contour lines which demonstrate that the ground was undulating and became steep immediately before the cliff edge.

[20] The Council called its North Stradbroke Island coordinator, Angela Ritchie. She was employed by the Council as the Supervisor of the Parks and Conservation teams on North Stradbroke Island. She had held the position for 10 years at the time of trial. She was familiar with the area as she used to live directly across the road from the headland. She had lived in a house (which has since been demolished) next to the house which was rented by the plaintiff and others. She gave evidence of the work that was done in the area of the headland with respect to the removal of weeds and the replanting of native plants. It was part of her job to be aware of the condition of the headland and to direct the teams as to the work they had to perform. She was familiar with the area and, in particular, was required to identify those parts which required regeneration of native plants.

[21] She said that no paths had been created by the Council on the headland in the area traversed by the three men. The only work which was undertaken in that general area was weeding and brush cutting. There were some cleared areas close to Mooloomba Road where some mowing was done but that was confined. It was put to Ms Ritchie that there were "trodden down, man-made paths ... not in straight lines but meandering paths through this vegetated area". She said she had no knowledge of such paths and after some questions about the possibility of paths being created by kangaroos or wallabies she said she had no knowledge of any "delineated paths however ... made through this undergrowth".

[22] It was not put to Ms Ritchie that:

• (a) There was a path which ran for some 70 to 90 metres through the headland which had been created in some way by the Council;
• (b) That there was such a continuous path; and
• (c) That the path led to the headland cliff from which the plaintiff fell.

[23] Ms Ritchie went to the headland on 17 February (about two weeks after the incident) and could find no paths which would match those described by the three men.

[24] Two months after the incident, Mr James returned to the Island and went to the headland. He took a number of photographs. Some other photographs were taken by the plaintiff's parents who accompanied Mr James. There were some photographs taken of Mr James as he was walking through bush. He was asked:

"And is that you retracing the route that you took on the night in question? - - - I don't recall.

Well, can you think why you should have been walking through that area at that time and a person taking a photograph of you? --- More than likely I was trying to walk down the path.

And does that accurately depict - although, I appreciate that there's been two months growth in trees - the type of vegetation that you were walking through on the night in question? --- That would be consistent with the bush."

[25] Later in his cross-examination he was asked:

"Mr and Mrs Morris senior took some photographs, including of areas that you showed them that you thought were relevant? --- They - they might have.

And you've also been shown some photographs that you took that you thought were relevant --- Yes.

There is no photo that I've been shown with any path in it. Did you look for a path when you went back on the 4th April? --- We would've.

At all? --- We certainly saw areas where a path could be, where - as I was saying before, where the bushes have sort of come down.

Did you remember, when you went back on the 4th April, the path you had taken on the evening of the 5th? --- I had the general vicinity.

Did you look for the path in that route that you had taken? --- Did I look for it?

But you didn't find one, did you? --- We struggled to find one."

[26] The photograph referred to in the excerpts above is a photograph of Mr James taken from behind as he is forcing his way through some quite heavy bush and other vegetation. It could not, on any reasonable use of the term, be described as a path, yet he described it as "consistent with the bush" he was walking through on the night in question.

[27] In the submissions for the plaintiff, Ms Ritchie was criticised and it was submitted that her evidence should not be preferred over that of other witnesses. In particular, reference was made to her demeanour in the stand and what was said to be her refusal to make any concessions. My interpretation of her evidence was to the contrary. She was attempting to be cooperative but many of the questions were unclear and, on the occasions when she sought assistance, she did not receive it. For example, she asked, in cross-examination, to be shown the path the men took but was not given that opportunity. As she was being questioned on the existence of a path said to have been taken by the plaintiff, it was not an unreasonable request. Her evidence was, in any event, unchallenged as to the fact that the Council did no work other than in the two areas closest to Mooloomba Road and that the headland was not a commonly traversed area. I prefer her evidence about the density of the vegetation at the relevant time and that there was no path in that area.

[28] There was no path, man-made or otherwise, through the headland to the cliff.

[29] The plaintiff :

• (a) wandered through an area about which he knew nothing,
• (b) which was mostly covered by thick natural vegetation,
• (c) which became steeper as he approached the top of the cliff,
• (d) on a dark night.

[30] When the plaintiff reached the point from which he eventually fell he said (in evidence in chief) that he "leant [on a tree] to get a better line of view". His explanation, as set out above, for this action was inconsistent with his assertion that he did not know of the existence of the cliff. It is more consistent with leaning out in an effort to see further around the edge of the cliff. After the plaintiff fell, Mr James went to the point at which Mr Morris had been standing. He said he could see that there was a cliff and he could see Mr Morris, on the beach some twenty metres below the cliff edge. It is more likely than not that Mr Morris knew he was at the edge of the cliff and that he leant on the tree so that he could lean out over the cliff edge and look for the steps to the beach.

Did the Council breach its duty to the plaintiff?

[31] The content of any duty alleged to be owed by the Council to Mr Morris is not pleaded in the FASOC. But, the breaches of that undefined duty are set out in paragraph 14 of the FASOC.

[32] The Council pleaded (and Mr Morris admits in his Reply) that any duty it owed was confined to taking reasonable care to avoid foreseeable risk of harm to the plaintiff while he was at Point Lookout.

[33] There are three broad grounds relied upon by the plaintiff:

• (a) The Council should have
  • (i) erected signs warning of the cliff edge
  • (ii) erected signs alerting the public not to walk through the "grass/vegetation"
  • (iii) erected directional signage to pedestrian thoroughfares.
• (b) The Council caused or allowed a grassy path to exist which led to a dangerous vicinity.
• (c) The Council failed to conduct a formal risk assessment of the major risk associated with persons entering the headland via the boardwalk and the "grassy path".

[34] As I have found that the Council did not cause or allow a grassy path to exist, I need only consider the two remaining grounds: warning signs and risk assessment.

[35] There was no evidence that the Council, before the incident:

• (a) was aware that anybody had been injured after entering the headland,
• (b) had ever observed people walking through the area which had been traversed by the plaintiff,
• (c) had encouraged people to enter the headland area traversed by the plaintiff.

[36] The principles to be applied in circumstances such as these have been the subject of close attention. Those principles may be summarised in this way:

• (a) To assess what performance of the duty requires it is necessary to ask:
  • (i) Was the risk of injury suffered by the plaintiff reasonably foreseeable? and
  • (ii) What would a reasonable person have done in response to that risk?[1]
• (b) The inquiry is prospective. It is wrong to focus exclusively upon the particular way in which the accident came about.

" ... a person, such as the Plaintiff, could be guided by tracks and/or, paths and/or open clearing to a point where, through ignorance, inadvertence, inattention or mistake, he could fall over the 20 meter cliff." [6]

[39] Three points need to be noted about the plaintiff's description of the risk:

• (a) It relies upon the plaintiff being "guided" by paths etc which I have found didn't exist.
• (b) It refers to guidance by an "open clearing". This was not pleaded.
• (c) It overlooks that this occurred at night.

[40] There was nothing on the headland that suggested that the steps or any other entry to the beach could be found by walking through the bush. The natural vegetation was thick. There was no path. The topography was undulating. There was no lighting on the headland, other than at the road crossing. A person wishing to get to the beach could have easily found the steps, at night, because the directional sign was illuminated by the street light at the intersection of Mooloomba Road and Midjimberry Road. The risk that someone might fall from the top of the cliff was not reasonably foreseeable.

[41] If, contrary to my finding, there was the requisite foreseeability, then the reasonable response of the Council must be assessed.

[42] The plaintiff submits that the Council should have erected warning signs or signs prohibiting entry to the area. Whether local authorities should erect such signs has been the subject of attention in a number of cases.

[43] In Vairy v Wyong Shire Council Gleeson CJ and Kirby J said:

"[7] Warning signs only serve a purpose if they are likely to inform a person of something that the person does not already know, or to draw attention to something that the person might have overlooked or forgotten. The obviousness of a danger can be important in deciding whether a warning is required. Furthermore**, a conclusion that a public authority, acting reasonably, ought to have given a warning ordinarily requires a fairly clear idea of the content of the warning, considered in the context of all the potential risks facing an entrant upon the land in question.** When a person encounters a particular hazard, suffers injury, and then claims that he or she should have been warned, it may be necessary to ask: why should that particular hazard have been singled out? If a public authority, having the control and management of a large area of land open to the public for recreational purposes, were to set out to warn entrants of all hazards, regardless of how obvious they were, and regardless of any reasonable expectation that people would take reasonable care for their own safety, then signs would be either so general, or so numerous, as to be practically ineffective. If the owner of a ski resort set up warning signs at every place where someone who failed to take reasonable care might suffer harm, the greatest risk associated with downhill skiing would be that of being impaled on a warning sign.

[8] Observation confirms that, in this community, it is accepted that there may be some circumstances in which reasonableness requires public authorities to warn of hazards associated with recreational activities on land controlled by those authorities. Most risky recreational activities, however, are not the subject of warning signs. It is impossible to state comprehensively, or by a single formula, the circumstances in which reasonableness requires a warning. The question is not answered by comparing the cost of a warning sign with the seriousness of possible harm to an injured person. Often, the answer will be influenced by the obviousness of the danger, the expectation that persons will take reasonable care for their own safety, and a consideration of the range of hazards naturally involved in recreational pursuits." (emphasis added)

[44] Similar statements can be found in Romeo v Conservation Commission of the Northern Territory[7] and Neindorf v Junkovic[8].

[45] In oral submissions the plaintiff contended that signs indicating "No Access" and a sign or signs warning of the cliff should have been erected. It was submitted that these signs should have been placed where, following the event, the Council had installed some signs indicating that the headland was being revegetated and that there was no access. These signs were positioned close to the roadway.

[46] The plaintiff called no evidence about what sort of signs might have satisfied the duty the plaintiff said existed. One obvious point to make is that the signs which were said to satisfy the requirement were not illuminated and could not have been seen at night.

[47] The evidence showed that access to the headland could be obtained from the footpath on Mooloomba Road for about 200 metres before the sign showing the steps to the beach. That access to the beach could not be obtained through the heavily vegetated terrain of the headland would have been obvious during the day.

[48] The submissions from the plaintiff about the placement of signs did not provide "a fairly clear idea of the content of the warning, considered in the context of all the potential risks facing an entrant upon the land in question"[9]. These questions, for example, remain unanswered:

• (a) How many signs should there be?
• (b) Should they be illuminated?
• (c) Where should the cliff warning sign or signs be placed to warn all persons?
• (d) Which cliff should be warned of?
• (e) What other warnings should be given?

[49] The plaintiff has not demonstrated how the Council might have complied with the duty it is said to owe. It would have been, at least, impracticable for the Council to have erected signs to warn people entering the headland at night of the many risks which might be faced.

[50] The plaintiff gave evidence that, had he known of the cliff, he would not have gone anywhere near the edge of the cliff. In , Callinan J referred to the very limited utility, indeed practical uselessness, of reliance by a court upon an answer by a plaintiff denying that he or she would have run a particular risk had he or she known about it. I do not accept that, had there been signs, the plaintiff would necessarily have seen them and, given the determination shown by each of the men in forcing their way through the bush, I do not accept that the plaintiff would have stopped looking for the steps.

[51] The assessment which the plaintiff says that the Council negligently failed to conduct was premised on the existence of a grassy path. I have found that there was no such path. No submissions were advanced by the plaintiff under this topic.

The Civil Liability Act 2003

[52] The Council also relied upon the provisions of the Civil Liability Act 2003 (CLA). The plaintiff also referred to provisions of the CLA. As I have found that the Council did not breach any duty it owed to the plaintiff, I will deal only briefly with this issue.

[53] Section 15 of the CLA provides that:

"(1) A person (defendant) does not owe a duty to another person (plaintiff) to warn of an obvious risk to the plaintiff."

[54] For the purposes of that section an "obvious risk" is defined in s 13 in this way:

"... 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."

[55] Section 13(4) provides that 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".

[56] The meaning of "obvious risk" was considered in State of Queensland v Kelly.[11] Consideration which has been given to the term in other contexts was recited as follows:

"[29] The trial judge held that all relevant circumstances must be brought into account and the test was objective. Obviousness of risk was 'merely a descriptive phrase that signifies the degree to which risk of harm may be apparent': Consolidated Broken Hill Ltd v Edwards. The relevance of obviousness of risk was that persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards: Brodie v Singleton Shire Council; Ghantous v Hawksbury City Council. In Wyong Shire Council v Vairy Tobias JA (Mason P agreeing) adopted the definition of 'obvious' in the commentary to [343A] of the Restatement (Second) of Torts (1965) as meaning 'that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence, and judgment ...'; in that definition '"condition" refers to the factual scenario facing the plaintiff ...'. In Jaber v Rockdale City Council Tobias JA referred to Vairy and observed that the focus of the enquiry was not upon the putative tortfeasor but upon a reasonable person in the tortfeasor's position and that whether or not a risk was 'obvious' may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to the reasonable person in the position of the plaintiff ...". (citations omitted)

[57] The risk of injury to the plaintiff would have been obvious to any reasonable person in his position.

[58] Section 47 of the CLA relevantly provides:

"47 Presumption of contributory negligence if person who suffers harm is intoxicated

(1) This section applies if a person who suffered harm was intoxicated at the time of the breach of duty giving rise to a claim for damages and contributory negligence is alleged by the defendant.

(2) Contributory negligence will, subject to this section, be presumed.

(3) The person may only rebut the presumption by establishing on the balance of probabilities -

(a) that the intoxication did not contribute to the breach of duty; or

(4) Unless the person rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.

(5) If, in the case of a motor vehicle accident, the person who suffered harm was the driver of a motor vehicle involved in the accident and the evidence establishes -

(a) that the concentration of alcohol in the driver's blood was 150mg or more of alcohol in 100mL of blood; or

(b) that the driver was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle;

the minimum reduction prescribed by subsection (4) is increased to 50%."

[59] Expert evidence was called with respect to the likely blood alcohol concentration of the plaintiff at the time of the incident and the effect on him as a result of that.

[60] It must first be observed that the only evidence as to the amount of alcohol consumed by the plaintiff was a statement given by him when he was in hospital immediately after he fell from the cliff top. He was, naturally, being medicated and would have been in a state of confusion caused by the fall, the massive pain and the medication. No other witness gave evidence as to how much alcohol or how many beers were consumed by Mr Morris.

[61] The defendant submits that the court should be suspicious of the estimate of the beer consumed because the actions of the plaintiff and his companions are more consistent with a greater consumption of alcohol than the plaintiff was prepared to admit to. I agree that there are grounds for suspicion, but there is no evidence which would allow me to make a finding that he had consumed more than he gave evidence of.

[62] The experts proceeded on the basis of the plaintiff's estimate and arrived at a range of .054 to .065 per cent blood alcohol concentration. Dr Perl said that such a concentration would have impaired Mr Morris' judgment, vision and vigilance. Dr Irvin was not as concerned and said that the effect of the alcohol level could possibly impair more challenging tasks such as night driving but would not "significantly impair" the process of a less challenging task such as "searching for some steps while walking".

[63] Dr Irvin's opinion was more sanguine than the circumstances justified. The plaintiff was faced with a challenging task. He was searching for steps in a place unknown to him. It was dark. The land was uneven, there was no path to follow, and the only illumination for the plaintiff was from a head torch.

[64] This evidence goes to consideration of the onus upon the plaintiff by s 47(3) of the CLA and he has not rebutted that presumption.

[65] As is noted above, the quantum in this case has been agreed. Any reduction which might have been appropriate had I found that the Council was negligent is required by s 47(4) to be at least 25 per cent for contributory negligence. Had I held that the Council was negligent, then I would have held the plaintiff's contributory negligence amounted to 50%.

[66] The claim against the Council is dismissed. I will hear the parties on costs.

[67] The claim against the second defendant is dismissed.

[68] The second defendant seeks costs of the action on an indemnity basis. It provided written submissions to me on that issue and the plaintiff responded in writing.

[69] The argument for the second defendant is that:

• (a) The claim by the plaintiff against it was doomed to fail;
• (b) The plaintiff did not call any evidence and consented to judgment; and
• (c) There was a relevant Calderbank[12] offer.

[70] The claim pleaded by the plaintiff against the second defendant did not concern what any person said on behalf of the second defendant but what was "not said". The apparent duty relied upon by the plaintiff against the second defendant is a duty to be more expansive in the description given by the second defendant as to where the stairs to the beach were. It was also the plaintiff's case that the second defendant ought to have warned the plaintiff of the risks associated with the cliff which was a long way from the rental property and the steps. This was a case which could not succeed on the current law.

[71] The plaintiff denies that it was a hopeless case and points to the fact that the first and second defendants issued contribution notices to each other. That is not an admission by the second defendant of any value in the plaintiff's case but rather the step that a litigant would ordinarily take to protect its position. The second defendant had made its position clear, that is that there was no basis for the claim, from at least October 2011. In December 2013 the second defendant told the plaintiff that it regarded the claim as unsustainable.

[72] On 2 February 2015 a Calderbank offer was made. The offer was for the plaintiff to discontinue his claim against the second defendant, to indemnify the second defendant in respect of the contribution claim brought by the Council against it, and for the parties to bear their own costs. That offer was said to be open until 4pm on 9 February 2015.

[73] On 3 February 2015 the plaintiff's solicitors sought an extension of time for the offer until 12 February 2015. The second defendant agreed to a one day extension of time, namely 10 February 2015. No response was received to that.

"[5] ... In substance such costs may be ordered whenever it appears that an action has been commenced in circumstances where the applicant properly advised should have known it had no chance of success. ... [I]t is not a necessary condition of the power to award such costs that a collateral purpose or some species of fraud be established."

[77] The case mounted by the plaintiff against the second defendant falls into that category. The submission by the plaintiff on costs does not touch upon the issue of hopelessness of its own case.

[78] I order the plaintiff pay the second defendant's costs of the action on the indemnity basis.

[1] Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 at [50].

[2] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [124].

[5] Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [16].

[6] Plaintiff's written submissions, para 24.

[8] [2005] HCA 75; (2005) 222 ALR 631.

[10] [2001] HCA 18; (2001) 205 CLR 434 at 504-505 [221].

[11] [2014] QCA 27.

[12] Calderbank v Calderbank [1975] 3 WLR 586

[13] [1988] FCA 202; (1988) 81 ALR 397.

[14] [1993] FCA 536; (1993) 46 FCR 225.

[15] [2002] QCA 225.

[16] [1993] FCA 42.