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[2003] NSWSC 49
defendant. Verdict and judgment for each defendant on the plaintiff's claim; verdict and judgment for each cross-defendant on the cross-claims; the plaintiff was ordered to pay the costs of each defendant and...
The judge found that the Council, the State and the reserve trust had responsibilities that created duties to take reasonable care for people using the creek area. But a duty to take care did not mean they had to warn about every danger. The plaintiff was an experienced swimmer, knew the creek depth varied and dived into water he could not see through. The injury was caused by a naturally occurring sand formation, and the judge held that the risk was an ordinary, inherent danger of swimming and diving in a tidal creek. The defendants therefore were not required to put up the warning signs proposed, and judgment was entered for them. The judge separately considered causation, defences and damages on the assumption that the liability decision might be wrong; those findings did not change the final orders.
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Mulligan was an Irish tourist visiting Coffs Harbour with his partner, Jennifer Brady. On 24 January 1999, after visiting the Porpoise Pool, they walked towards Park Beach and reached Coffs Creek by a worn path from the southern bank ([1]-[5], [73]-[78]). They first entered a shallow part of the creek near the railway bridge. They later moved east, towards a rock training wall, after seeing other people swimming in deeper water ([4]-[5], [84]-[86]).
At the second location, Mulligan waded until the water reached his thighs and then dived forward. He repeated the dive-and-float sequence several times, using the ebbing current to carry him towards the sea. On a later dive, he felt his head strike something that felt like sand and experienced a painful sensation in his neck. He surfaced unable to move properly and was rescued from the creek ([5]-[12]). He had suffered serious cervical spinal fractures and became a quadriplegic ([12]).
The central allegation was that the defendants should have put up signs warning that the creek had variable depths and that diving could cause injury ([26], [228]-[229]). The parties disputed who controlled the reserves, the creek and the access routes. The first defendant was Coffs Harbour City Council. The State of New South Wales owned the creek bed and had been involved through the Public Works Department in works and studies affecting the creek. The Coffs Harbour Jetty Foreshore Reserve Trust had statutory care, control and management of the southern reserve. The judge found that the Council, State and Trust each owed a general duty of care. The claim against the Marine Park Authority was no longer pressed ([246]-[261]).
The trial involved extensive factual and expert evidence about tidal conditions, sand movement and bedforms. Whealy J found on the balance of probabilities that Mulligan struck a transient sand bedform, rather than a foreign object or the creek bed itself ([115]-[117], [219]-[223]). The court entered judgment for each defendant because it found no breach of duty ([286]-[308], [416]).
The judgment separates three questions: whether a duty existed, what that duty required, and whether the defendants fell short of that requirement. That separation was important. A finding that a public authority owes a general duty to people using a recreational area does not automatically establish that it must warn about every foreseeable risk. The judgment relied on the distinction described in Romeo between the existence of a duty and the content or scope of that duty ([263]-[267]).
On duty, the judge considered ownership and statutory control alongside practical management and the promotion of recreational use. The Council was responsible for managing the northern reserve and had provided facilities associated with swimming. Its involvement in pathways and access also formed part of the factual context for people entering from the southern side ([247]-[255]). The State's Department of Public Works had undertaken substantial work and planning relating to the creek, training wall and adjoining recreational area ([256]-[257]). The Jetty Trust had statutory care, control and management of the southern reserve, which included an established pathway and access to the creek ([258]-[261]).
The judge then considered whether these duties required warnings. The injury risk was foreseeable: a person swimming in the creek could suffer serious injury by striking the bed, a sand formation or an object below the water ([288]). But foreseeability was not the end of the analysis. The court considered that the plaintiff knew the creek had varying depths, could not see through the water at the point from which he dived, and had experience swimming and diving. Although he did not know the precise depth in front of him, his decision to dive involved an assumption about conditions that he could not observe ([293]-[295]).
The court regarded the danger that eventuated as natural and ordinary for a tidal creek. It found no basis for treating the bedform as an unusual or abnormal hazard created by the defendants. Although the training wall affected the creek's hydraulics and bedforms, the judge was not satisfied that it had produced unusually large formations or an exceptional condition at the time of the accident ([210], [213], [294]-[295]). The judgment contrasted such conditions with concealed rocks or an unexpectedly shallow, fixed area, where a specific warning may be more readily meaningful ([291]-[293], [303]).
The absence of evidence of earlier injuries in this popular swimming area also informed the breach analysis. The court considered that the area's use over many years without evidence of prior injury was relevant to assessing the magnitude and probability of the risk ([304]). It also considered that the plaintiff was better placed than the defendants to assess the immediate conditions where and when he chose to dive ([305]).
The court accepted that warning signs would have been relatively cheap and simple to install. It nevertheless concluded that the overall circumstances did not make warnings a reasonable response. It also noted practical questions about how far signs would need to extend along the creek, where natural conditions changed over time ([306]-[308]). The decisive point was not that warnings were impossible or expensive, but that reasonable care did not require them for the particular risk found.
This judgment describes the law it applied through earlier authorities, rather than setting out a comprehensive account of the law before or after 2003. It applies ordinary negligence principles to occupiers and public authorities, citing Australian Safeways Stores Pty Ltd v Zaluzna and Romeo v Conservation Commission (NT) for the general duty of reasonable care where a sufficient relationship exists ([230]-[235]). It also refers to Nagle v Rottnest Island Authority, where public promotion and provision of facilities for swimming were relevant to the authority's duty to visitors ([236]-[239]).
For breach, the judgment applies the familiar approach stated in Wyong Shire Council v Shirt: first assess whether the risk was foreseeable, then evaluate the reasonable response by considering such matters as the risk's magnitude and probability, and the cost, difficulty or inconvenience of precautions ([278]). The court stresses that a foreseeable risk does not automatically mean that a defendant must take the precaution proposed. As the passage from Romeo set out in the judgment explains, the duty is to take reasonable care, not to prevent every foreseeable injury ([264]-[265]).
The decision's particular contribution in this case is its application of those principles to a naturally changing tidal environment. It treated the natural origin and ordinary character of the hazard, the plaintiff's awareness of varying depth, and the limits of warning about transient conditions as relevant to the scope of duty and breach ([290]-[308]). The judgment does not establish that warnings are never required at natural swimming locations. It distinguishes between ordinary risks associated with swimming and diving and more specific, concealed or unusual hazards ([296]-[299], [303]).
The supplied judgment contains no later decisions applying, distinguishing or criticising Mulligan. Accordingly, the later state of its treatment cannot be determined from this source alone.
At [264], the judgment quotes the proposition that a duty is “to take reasonable care, not a duty to prevent any and all reasonable foreseeable injuries.” In plain English, even where injury can be foreseen, liability depends on whether reasonable care called for a precaution in the particular circumstances.
At [265], the judgment says that what is reasonable “is a question of fact to be judged in all the circumstances of the case.” This is a reminder that the answer depends on the actual setting, including the nature of the land, how it is used, the type of danger and the practicability of a response.
At [288], Whealy J found that severe injury from diving in the creek was reasonably foreseeable. That finding did not decide the case for the plaintiff. The judge went on to consider the scope of the duty and breach separately.
At [295]-[299], the court explains why it regarded the risk as obvious and inherent for an experienced swimmer in a tidal creek. The judge did not find that Mulligan knew the precise shape or location of the bedform. Rather, the court considered that he knew the depth varied and that he could not see beneath the water. The court treated the possibility of striking the creek bed or a natural sand formation as part of the ordinary risk of diving in those conditions.
At [308], the court concludes that the defendants' reasonable response did not require the warning claimed. This is the operative liability conclusion. It should be read with the factual findings and qualifications that precede it, rather than as a general rule that warning signs are unnecessary in waterways.
The judgment is most relevant to cases involving recreational use of public land or waterways where responsibility is divided among a council, a State authority and a reserve manager. It shows that the court may examine practical control, management activity and encouragement of public use, as well as formal ownership, when deciding whether a duty exists ([247]-[261]).
It is also relevant where the alleged precaution is a warning about a natural hazard in a changing environment. Here, the hazard was a transient sand bedform in a tidal creek, and the court considered whether the danger was ordinary, obvious and capable of being addressed effectively by signs ([290]-[308]). The reasoning does not resolve cases involving a fixed concealed rock, a specifically identified abnormal hazard, a deliberately created danger, or a known danger at a particular access point. The judgment itself distinguished the facts before it from cases involving concealed rocks or deceptive shallowness ([291]-[293], [303]).
The plaintiff's characteristics and conduct mattered. The judge considered his swimming experience, his knowledge that the creek depth varied, his inability to see below the surface and the fact that he made an assumption about the depth ahead of him ([293]-[295]). A materially different case involving an inexperienced swimmer, a child, a specific hazard known to the authority, or a clearly designated swimming area may require a different factual assessment. The judgment does not decide those hypothetical cases.
The decision also indicates that proof of a general duty is not enough. The claimant must still identify the relevant content of the duty, establish breach, and prove causation. Whealy J dealt with those stages separately, and the finding of a duty did not prevent judgment for the defendants ([247]-[261], [262]-[308]).
The supplied judgment does not refer to any later decision about Mulligan, and the provided material does not identify subsequent judicial treatment. It is therefore not possible to state from this source whether later courts followed, distinguished, questioned or limited its reasoning.
Within the judgment itself, Whealy J considered prior authorities including Zaluzna, Romeo, Nagle, Shirt and Prast. The court applied ordinary negligence principles from those authorities to the facts before it, while distinguishing the present case from diving cases involving concealed or fixed hazards ([230]-[239], [278], [291]-[299]). That analysis shows how the judge positioned Mulligan in relation to the authorities available at the time, but it is not evidence of how later courts treated Mulligan.
Several issues remain dependent on facts not resolved in the judgment. First, the court found that warnings were not required for the ordinary, natural and transient risk in this creek. It did not decide what would be required where a public authority knows of a specific concealed hazard, an unusually dangerous condition or a recurring hazard at a defined location ([294]-[308]).
Second, the judgment accepts that signs were relatively simple to install but discusses the difficulty of determining where they should be placed and how warnings would address changing conditions ([306]-[308]). It does not prescribe a general standard for the design, wording, location or maintenance of warning signs at tidal waterways.
Third, the court's alternative causation finding depended on its acceptance of Mulligan's evidence about how he would have responded to a warning. The judge concluded that he probably would have heeded an appropriately placed sign, despite the evidence that a sign at the railway bridge would have meant nothing to him before he decided to swim in the creek ([315]-[330]). That finding is specific to the evidence and is not a general rule about how swimmers respond to signs.
Finally, the judgment's findings on contributory negligence, apportionment and damages were conditional. They were considered only on the assumption that the liability conclusion was wrong ([309], [343]-[355], [356]-[415]). They were not part of the final orders, which were for the defendants ([416]).
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Reported Decision : (2003) Aust Torts Reports 81-696
CITATION : Mulligan v Coffs Harbour City Council & Ors [2003] NSWSC 49 HEARING DATE(S) : 19/08/02, 21/08/02, 30/08/02, 02/09/02, 03/09/02, 04/09/02, 05/09/02, 06/09/02, 09/09/02, 30/09/02, 01/10/02, 02/10/02, 03/10/02, 08/10/02, 09/10/02, 10/10/02, 11/10/02, 14/10/02, 15/10/02, 16/10/02, 17/10/02, 18/10/02, 21/10/02, 28/10/02, 30/10/02. JUDGMENT DATE : 14 March 2003
JUDGMENT OF : Whealy J at 1 DECISION : I direct the entry of verdict and judgment for each defendant in relation to the plaintiff's claim. I order that the plaintiff pay the costs of each defendant. In relation to each cross-claim, I direct the entry of verdict and judgment for the cross-defendant. I order that the plaintiff pay the costs of the successful cross-defendant in relation to each cross-claim. The Exhibits may be returned.
CATCHWORDS : Negligence - public authority - shallow diving in creek - breach of duty - obviousness of danger - damages Crown Lands Act 1989 (as amended) Public Trusts Act 1897 LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1965 Motor Accidents Act Workers' Compensation Legislation Marine Parks Legislation March v Stramare (1991) 171 CLR 506 Jones v Dunkel (1959) 101 CLR 298 Briginshaw v Briginshaw (1938) 60 CLR 336 Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488 Hackshaw v Shaw (1984) 155 CLR 614 at 662-663 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 Brodie v Singleton Shire Council (2001) 206 CLR 512 at 576 Barclay Oysters v Ryan (2002) HCA 54 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44 South Australia v Wilmott (1993) 62 SASR 562 at 574 Capara Industries v Dickman (1990) 2 AC 605 at 617-618 Woods v Multi Sport Holdings Pty Ltd (2002) 76 ALJR 483 Agar v Hyde (2000) 201 CLR 552 Prast v The Town of Cottesloe (2000) 22 WAR 474 The Mountain Cattleman's Association of Victoria Inc v Barren (1998) 3 VR 302 The Secretary of the Department of Natural Resources & Energy v Harper (2000) 1 VR 133 Waverley Council v Lodge (2001) 116 LGERA 447 at 460 Tame v New South Wales (2002) HCA 35 at para 102 Peere v Apand Pty Ltd (1999) 198 CLR 180 at 249 para 186 Rosenberg v Percival (2001) 205 CLR 434 at 456 para 68 CASES CITED : Inverell Council v Pennington (1993) Aust Torts R 81-149 Manly Municipal Council v Boylan (unreported, NSWCA 26 April 1995) Sourakis v Sutherland Shire Council (1992) Aust Torts R 81-149 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Shellenberg v Tunnell Holdings Pty Ltd (2000) 200 CLR 121 Chappel v Hart (1998) 195 CLR 232 per McHugh J at 247 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 560-561 at 579-582 The Public Trustee v Sutherland Shire Council (1992) Aust Tort R 81-149 61, 139 Insurance Commissioner v Joyce (1948) 77 CLR 39 Roggenkamp v Bennett (1950) 80 CLR 292 at 300 Beck v State of New South Wales (2001) NSWSC 278 at para 61 Sara v GIO of NSW (1969) NSW WN 203 Hadland v Council of teh City of Blacktown (unreported CA 21 May 1997) Podrebersek v Australia Iron & Steel Pty Ltd (1985) 59 ALR 492 per Gibbs CJ, Mason, Wilsn Brennan and Deane JJ at 494 Griffiths v Kerkemeyer (1997) 139 CLR 161 van Gervan v Fenton (1992) 175 CLR 327 Kars v Kars (1996) 187 CLR 354 at 369-370 Grincellis v House (2000) 201 CLR 321 at 327 Barisic v Devenport (1978) 2 NSWLR 111 at 125 Simpson v Diamond & Anor [2001] NSWSC 925 at paras 848-858 Nominal Defendant v Gardikiotis (1996) 186 CLR 49 at 52, 54, 57, 62 and 67 Shirt v Wyong Shire Council (1978) 1 NSWLR 631 at 639G PARTIES : Garry Sean Mulligan v Coffs Harbour City Council & Ors FILE NUMBER(S) : SC 20113/00 Mr B. Murray QC; Mr J. Meadley - Plaintiff COUNSEL : Mr M. McCulloch - 1st Defendant Mr J. Maconachie QC; Mr B. Green - 2nd-5th Defendants Martin Bell & Co - Plaintiff SOLICITORS : Phillips Fox - 1st Defendant I.V. Knight - Crown Solicitor - 2nd-5th Defendants
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION WHEALY J
20113/00 - Garry Sean MULLIGAN v COFFS HARBOUR CITY COUNCIL & Ors
1 HIS HONOUR: In early January 1999 Garry Mulligan (the plaintiff) and his then partner Jennifer Brady arrived in Australia. They were Irish tourists enjoying an extended holiday throughout India, Asia and Australia. They stayed in Melbourne for about ten days and then went on to Sydney. 2 On 23 January 1999 they travelled to Coffs Harbour by coach and booked into a Backpacker Hostel in the main part of Coffs Harbour. Their plans were to enjoy a few days in this part of New South Wales and then to travel up to the Great Barrier Reef. On the next morning after a leisurely breakfast the plaintiff and Miss Brady obtained a brochure which set out some of the more enjoyable tourist activities for people visiting Coffs Harbour. They decided to walk to the Porpoise Pool, a popular tourist spot, located on the southern bank of the Coffs Creek not far from the point where the creek meets Park Beach. After watching the show they headed down to the beach area, traversing a paved footway which led through the reserve adjoining the southern bank of the creek. The map they had with them indicated the location of both the Porpoise Pool and the beach. They took a well-worn man-made track which led from the paved pathway down onto the southern bank of the creek. The plaintiff said that he was attracted to this area because there were quite a lot of people and quite a lot of activity around the creek. They were able to observe people swimming in this area. They first entered the water at a point quite close to the railway bridge which crosses the creek immediately to the east of Orlando Street. This is a road and bridge structure and also crosses the creek. 3 In this location the plaintiff described the water as being "quite shallow and quite clear". It was not very deep at all, perhaps knee height. The plaintiff said that he noticed people picnicking on the grass verge area on the northern or opposite side of the creek. He noticed "a lot of people" over on the northern side of what was described as a rock training wall on the northern side of the creek. 4 The plaintiff said that there seemed to be more people down towards the training wall who were "actually swimming properly" as the water seemed to be "quite deeper" in that area. This group of people he said were approaching the water or were in the water from the southern bank. He also noticed other people sitting on the sand or picnicking on the southern side of the creek. People in the water in this vicinity were "submerged in the water, swimming and generally seemed to be having a good time". His estimate was that there were 15 to 20 people varying in age from quite young to their mid-twenties. 5 Having made these observations, the plaintiff and Miss Brady decided to move further down towards the eastern end of the creek. They took their belongings and walked down towards the area opposite where the training wall was located. They were at this time still on the southern bank of the creek. They put their belongings on the beach opposite the training wall. The plaintiff then proceeded to enter the water at the point near where their belongings had been left. This was approximately "one quarter of the way along the training wall to the east". Straight away, he noticed that the water was a lot deeper in this particular part of the creek than it had been in the area down near the railway bridge. He took about six or seven steps moving towards the centre of the creek and found that it went from "quite shallow down to his thighs fairly quickly". He said that he waded in the water until the water came up to his thighs around the bottom of his swimming shorts and he then proceeded to dive into the water. He encountered no problem in doing this. He said that the water seemed to be flowing quite quickly and from where he dived he could not see the bottom although back at the shore it was clear. He dived in, swam under water for a couple of feet and when he came up out of his dive he tested to see how deep the creek was at that point by letting his feet try to touch the bottom. He realised that he was actually in quite deep water and that he could not touch the bottom so he then proceeded to swim, adopting a breaststroke. He realised the current was quite strong and so allowed himself to be carried by the current down towards the sea. This he described as "a pleasurable experience". He had seen other people in the creek at this point acting in a similar manner and being carried down towards the ocean. As he was carried down with the current he noticed again that it was quite deep in the centre of the creek. He was unable to touch the bottom until he got closer to the sea when he tested the depth again. It was still very deep in the centre and before reaching the end of the training wall he decided to swim towards the beach, that is, the area where the beach and the southern bank of the creek coincide. This helped him to get out of the water and he then proceeded to walk back up on the southern side of the creek towards the area where their belongings had been left. He said that Miss Brady was doing roughly the same thing at the same time. The plaintiff repeated this process over a period of time that he estimated lasted about half an hour. He said that he repeated this process about six or seven times. He described it as follows: -
(Exhibit "R"1 - 72 Q & A 289:) "On each occasion, I approached the water in the same fashion. I waded in until the water was up to my thighs. I dived in, floated down the creek, then I waded back out at the bottom of the creek and made my way back up the beach again". 6 The plaintiff also described Miss Brady and himself sitting on the beach in between the swimming episodes having a cigarette and generally enjoying the pleasant weather conditions. Generally, the weather was very warm and quite bright but towards the end of the afternoon he said it started to cloud over and threatened to rain. 7 The plaintiff described the manner of his dive as follows: -
Exhibit "R"1 - 73 Q & A 298: "Yes, we waded into the water until the water was approximately to my swimming shorts and I launched myself straight forward, my hands in front of me. I got into the water, I'd bring my arms back and I would swim underwater for a couple of feet and come to the surface, just breast stroke and then just let the current take me down the creek again". 8 He said that on the six or seven times that he did this he did not at any time touch the bottom. He did not notice any debris in the form of submerged logs or anything of that nature in the creek. The water he said was deeper than he expected and there was turbulence in the water towards the sea. The current was running quickly but he did not notice any suspended sand in the water. He was not able to see the bottom of the creek when he was towards the centre of the creek. 9 The plaintiff described the critical dive when he was injured in the following terms: -
Exhibit "R"1 - page 75 Q & A 312: "I proceed to wade into the water, again the water was up to around my thighs, around my swimming shorts. I launched myself into a dive, I had my arms out in front of me, I hit the water. As I was in the water I would have brought my arms to my side and then I remember just hitting something on the bottom and it felt like sand because I remember I kind of like grazed and I remember just feeling something snap in my head, it seemed quite painful at the time. When I came to the surface I did not think anything of it straight away but then I realised that I was not able to get my head up above the water and that I could not move. Then I panicked because I could not get my head up out of the water…It was only then I realised that something serious was wrong. I found myself drifting with the current again towards the sea. I do not remember much after that because I presume I passed out." 10 The plaintiff said that when he hit his head it felt like sand because "it did not hurt too much where he hit his forehead". The pain however, seemed to be in his neck. 11 The plaintiff was rescued from the waters of the creek by Miss Brady and two men who were nearby walking along the beach. An ambulance arrived about 5pm and the plaintiff was taken to Coffs Harbour Hospital and later by aeroplane to the Prince of Wales Hospital in Sydney. 12 The tragic incident in the creek resulted in the plaintiff suffering a burst fracture of the C4 cervical vertebrae. There was a posterior displacement of that fracture accompanied by undisplaced fracture of the C5. As a consequence of these injuries the plaintiff is a quadriplegic with no prospect of recovery. The only function he has retained below nipple level is some minor upper limb function with some limited shoulder and elbow movement. 13 The plaintiff remained hospitalised in Australia until late April 1999. During this time Miss Brady was in constant attendance upon him at the Prince of Wales Hospital. A number of members of his family came out from Ireland and gave what care support and encouragement they could. He was repatriated back to Ireland by aeroplane on 22 April 1999. It was necessary for him to be brought back on a stretcher suspended from the roof of the aircraft which occupied the space of four economy seats. He was attended by a nurse and doctor for the whole of the trip as well as by Miss Brady and his family. He was admitted to the Mater Hospital in Dublin while he awaited admission to the National Rehabilitation Hospital at Dun Laorghaire. At the latter establishment the plaintiff underwent an intensive period of rehabilitation and eventually in July 1999 he was allowed out for periods of weekend leave. He was finally discharged on 23 December 1999 and has been living with his family at the family home at Donnycarney up until the present time. Essentially, the family have undertaken his care which has proved very difficult and traumatic for all of them. Finally, after some grave frustrations with the local authorities, a number of modifications were carried out to the family home which have provided the plaintiff with his own bedroom and a bathroom off it. The National Health Scheme in Ireland has largely taken up the cost of hospitalisation and rehabilitation in Ireland. However, there are undoubted deficiencies in the Irish Government Scheme which have been detailed in the evidence. I shall return to these matters at a later point in these reasons for decision. 14 With the help of the Irish Wheelchair Association, the plaintiff has had some assistance in the form of a Personal Assistant. This assistance is limited to 44 hours per week. These carers or personal assistants are provided by the Irish Wheelchair Association and they are, in general terms, itinerant young men on holidays who often have no special skill or training. The plaintiff has had three such assistants, they being respectively, a Polish National, an Australian and in more recent times, a Bosnian. During part of the time he has been in Ireland and out of hospital, the plaintiff has been in attendance on Tuesdays and Thursdays at the Rehabilitation Hospital where he has participated in a "back to work scheme". This is a Government funded Scheme but regrettably, according to the evidence, it was to cease sometime in September 2002. 15 The plaintiff is fundamentally dependant on others for 24 hours a day care. For example, he requires nursing care for the manual evacuation of his bowels. This is undertaken three days a week, normally on Monday, Wednesday and Friday. The entire procedure takes about two to three hours on each day. It is an humiliating and arduous process. In addition, the plaintiff requires assistance to a very marked degree with all of his feeding requirements. His parents watch his evening movements and condition through a baby monitor connected between their bedroom and his. 16 The plaintiff's health, as might be anticipated, has been subject to a number of serious complications. First, there have been urinary tract infections, secondly, the development of pressure sores and thirdly, a condition known as autonomic disreflexia which is a particularly life threatening condition. It occurs as a consequence of urinary blockage. All these conditions require regular nursing attention. The third condition generally requires urgent hospitalisation. His bladder care is managed by a suprapubic catheter. This catheter maybe come blocked by encrustation and sediment forming on or near it and requires changing on a weekly basis. Once again nursing or medical care is required for this procedure. 17 The plaintiff suffers considerably from spasticity or spasm particularly in his lower limbs and shoulders. In May of 2002, after some considerable delays a surgical procedure was carried out which resulted in the insertion of a Baclofen pump. This has relieved the spasms in the lower limbs but has not relieved the spasm in his shoulders. One adverse consequence in this spasm improvement in the lower limbs has been the tendency for pressure sores to develop on the plaintiff's buttocks and particularly on his heels and ankles. Although relieved from spasm in the lower limb area, there is now less movement in that area. 18 The plaintiff's emotional state is understandably less than remarkable. He has come to accept in a way his disability but he is plainly subject to fits of despair and very keenly feels his loss of independence, dignity and privacy. The plaintiff was a young man who had much to look forward to in his life. At the age of 25 he had purchased a house at Arbour Hill and was financially secure enough to finance this acquisition. He had a girlfriend whom he loved and intended to marry. He had a secure job in the Irish Railways and he had every right to look forward to a life involving marriage, a family and happiness. He was physically active, loved music and travel and enjoyed life to the full. 19 The plaintiff's present position is that, although he still owns his property at Arbour Hill, he is not able to occupy it by reason of its present structural unsuitability for his condition and the fact that he requires constant care. His relationship with his former partner, Miss Brady has come to an end. This appears to be a matter of great sorrow to both of them. He is now fully dependent on others and his life expectancy has been substantially reduced as a consequence of his injuries. He is in constant pain and distress and finds little enjoyment in life and none in the prospects that await him. He has been formally retired from the Railways although he is in receipt of superannuation payments on a monthly basis. Understandably, the plaintiff is unhappy and depressed with the situation in which he finds himself. In an answer which was redolent with understatement when asked about his attitude to his disability, he said (Exhibit "R"2 - page 67 Q & A 373): - "Well, I have found it quite depressing. It depends on my health as well. When my health is good I feel like I can learn to live with it. But when my health is bad I just feel like giving up really."
The Issues 20 Before setting out the issues in the litigation, it is necessary to mention an unusual feature of these proceedings. By the time of the hearing, the plaintiff, as I have mentioned, had returned to live with his family in Dublin. His treating doctors and a range of rehabilitation specialists were also resident in and around Dublin. For these and other reasons, orders were made for the taking of evidence on commission in the Republic of Ireland. Evidence was taken in the Four Courts in Dublin between 30 August and 9 September 2002. The evidence was recorded and admitted into the Australian proceedings as Exhibits "R"1 to 6. Preliminary rulings were made in Dublin in relation to the tender of certain material and the admissibility of disputed oral evidence. These preliminary rulings were later revisited in full and, where necessary, separate judgments were given in relation to the admission or rejection of the evidence where objection had been taken. The evidence taken in Ireland included that of the plaintiff, his mother, his father and Miss Brady. Evidence was also taken from a number of medical practitioners and rehabilitation specialists. These included Dr Frank O'Driscoll, Marie Moore, a Consultant Physiotherapist and others. There were to be a number of other witnesses called in Ireland but sensible agreements between the parties in relation to various aspects of the damages issues made this unnecessary. 21 When the hearing resumed in Sydney on 30 September 2002 the issues were these: the plaintiff's claim was that each of the defendants owed him a duty to take reasonable care to avoid foreseeable risk of injury. The focus of the plaintiff's case was the area of the creek where the plaintiff had been injured. The pleadings asserted that the creek was an area of recreation surrounded by recreational facilities contained in and upon public reserves leading, on both sides of the creek, to the waters of the creek itself. Essentially, the duty of care asserted against each defendant arose from statutory or de facto aspects of care, control and management of the reserves and the creek. These were said to create duties analogous to those required of an occupier to entrants lawfully upon land or structures. 22 The case against the first defendant ("the Council") identified the duty of care as arising from a number of matters. First, the Council was the occupier having care, control and management of a Reserve on the northern side of the creek. Secondly, the Council had created a swimming area and recreational facilities in the creek and on the northern bank of the creek. Thirdly, the Council had encouraged the public using the recreational facilities to enter the creek from either the northern or southern side and to swim from either side. Fourthly, the Council had assumed a de facto control of part of the southern bank by its involvement in the creation of walkways adjacent to the southern bank of the creek and the placement of signs and the creation of nearby parking. Fifthly, the Council played an important role in the creation of the rock retaining wall on the northern side of the creek in the vicinity where the plaintiff was injured. The construction and improvement of the rock training wall had in turn increased the tidal flow and tidal prism of the creek with a consequent effect on the formation of sand dunes in the bed of the creek. 23 In relation to the remaining defendants ("the State Interests"), the State of New South Wales was the owner of both the northern and southern banks of the creek. The creek bed itself was unalienated Crown land. The Department of Public Works (later known as the Department of Land and Water Conservation) had a substantial involvement in the preparation of a beach improvement program affecting Park Beach and the relevant area of the creek. It had as well an involvement in the construction or improvement of the training wall and the carrying out of a number of investigations of the Coffs Creek area. It was as well the occupier of the southern bank of the creek from which the plaintiff had entered the creek prior to his injury. The Coffs Jetty Foreshore Reserve Trust held the southern bank of the creek and the adjacent reserve to which it belonged for the purposes of public recreation and environmental protection. The Trust had the statutory care, control and management of this area. It had as well the de facto management of the Reserve. Both the Department of Public Works and the Coffs Jetty Foreshore Reserve Trust had an involvement in the construction and continued use of pathways in the reserve leading to the southern bank of the creek and the continued existence and maintenance of those pathways. The Marine Park Authority, was alleged to have the care, control and management of the creek bed itself pursuant to its statutory powers and duties under the Marine Parks Act 1997. The area of the creek where the plaintiff was injured was part of the Solitary Islands Marine Park constituted by s 30 of the Marine Parks legislation. 24 Each of the defendants denied the existence of a duty of care as pleaded. Essentially, the Council's position was that it did not occupy the southern bank of the creek from which the plaintiff had approached and entered the creek. Since the Council could not be said to have been an occupier in the relevant sense, it had no capacity for care, control and management of the southern bank. Moreover, the southern bank was not an area set aside for swimming and the Council offered no encouragement to the plaintiff to swim in the creek from the southern bank. Further, although the Council had the care, control and management of an area on the northern side of the creek and had established a safe swimming area adjacent to that reserve, these were matters essentially irrelevant to the existence of a duty of care since the plaintiff had not entered the northern recreation area and did not swim in the area set aside by the Council adjacent to the reserve on the northern side of the creek. 25 The State of New South Wales conceded that it was the owner of the creek bed and that care, control and management of the reserve on the southern bank of creek was in the charge of the third defendant. However, the State of New South Wales did no more than hold the land it owned and no steps were taken to encourage or promote public use of the land. Nothing was done by the State to encourage or promote the use by the public of the creek itself in the area where the plaintiff was injured. The State conceded that the Coffs Jetty Foreshore Reserve Trust had the care, control and management of the relevant land. The Trust however, did nothing to promote or encourage the use of the land and provided no improvements upon it. No liability could attach to Mr Hambly, the manager of the Trust (s 121 Crown Lands Act 1989). This issue was at the outset conceded by the plaintiff in favour of Mr Hambly. The New South Wales Marine Park Authority had no obligation under the statute for any matter relevant to the injury of the plaintiff. There was no relevant assumption of responsibility for the safety of people swimming in the creek and hence no duty of care arose. 26 The basis of the plaintiff's allegation that the defendants were in breach of a duty of care owed to him was that each of the defendants had failed to erect warning signs at public access points to the recreational areas adjacent to Coffs Creek. Such signs should have warned persons such as the plaintiff as to the danger of the variable depth of the creek. The plaintiff's case was that there was a foreseeable risk of injury to persons such as the plaintiff swimming and diving in the creek. The foreseeable risk of injury was an injury from diving into a creek of variable depth. In relation to breach of duty, the plaintiff's case was that the reasonable response of each of the defendants to the foreseeable risk was the placement of warning signs as alleged. The failure by each of the defendants to erect and position warning signs of this kind demonstrated a want of reasonable care for the safety of the plaintiff. 27 Each of the defendants denied that the scope of any duty of care required, in the circumstances of the case, the placement of warning signs. The defendants stressed the obviousness of the risk identified by the plaintiff and the entitlement of occupiers of public reserves to assume that persons entering upon public land would exercise reasonable care for their own safety. Secondly, the defendants argued that the particular risk identified by the plaintiff was not reasonably foreseeable and that it was in fact farfetched or fanciful. 28 The defendants argued that, should it be held that the risk of injury to the plaintiff was foreseeable, nevertheless the defendants were not in breach of any duty of care found to exist. A consideration of the magnitude of the risk, the degree of probability of its occurrence, together with the expense, difficulty and inconvenience of taking the suggested action would, as a matter of factual evaluation, lead necessarily to a conclusion that none of the defendants had breached any duty of care in the circumstances. 29 In relation to the breach issue, the defendants again stressed the obviousness of the risk of injury due to variable depth arising from the presence of sand dunes on the creek bed. Secondly, the defendants each argued that the plaintiff had fallen short in discharging the onus of establishing that it was reasonably practicable to avert the risk of injury. In particular, it was argued that the plaintiff had called no evidence as to the practicability of erecting signs in any of the areas on the southern bank or along the shoreline or on the rock wall itself. In this context, it was also argued that the sign relied upon by the plaintiff as an effective sign was not shown to be such. It did not relate to the plaintiff's own method of diving in the water, it was ambiguous and it was not suited to the conditions of Coffs Creek. 30 The next issue raised by the defendants' case was that of causation. The plaintiff submitted that it had established that the placement of signs warning of the dangers of diving in the creek because of its variable depth would have been heeded by him. The plaintiff's case was that he had established on the probabilities that if he had been warned he would not have dived and consequently would not have suffered the injuries he did. 31 The defendants put the causation issue in the balance in two respects. First, the defendants submitted that the plaintiff had not proved that he had suffered his injuries because of striking the creek bed or more particularly a sand dune in the creek bed. The defendants argued that the Court could not be satisfied on the probabilities as to what it was the plaintiff's head struck at the time of his injuries. The matter remained in the realm of conjecture. Secondly, the evidence had not established that the plaintiff would have heeded any warning if it had been placed as suggested. 32 In addition, the defendants raised the issues of contributory negligence and voluntary assumption of risk. Further, cross-claims were issued between the Council and the State interests. Each side maintained that if the plaintiff were to succeed on liability then any apportionment of damages, after assessment of the extent of the plaintiff's contributory negligence, should fall largely on the other. 33 In relation to damages, the parties came to a number of practical and sensible agreements which substantially reduced the scope of the issues to be decided. However, there were a considerable number of matters which remained for resolution. It will be necessary for me to identify these at a later point in this judgment. 34 It will be seen from this brief summary that, in the ultimate, the litigation involved a vigorous dispute in almost every area commonly litigated in cases of this kind. At the outset the proceedings had about them the appearance of a relatively straightforward case. A tourist to this country had been seriously injured in what might be described as a tragic but relatively simple diving mishap. The resolution of the issues, both factual and legal, became in the ultimate quite lengthy and complex. The written submissions comprised nearly 300 pages and the oral submissions were extensive as well. In addition, there emerged the burden of resolving a quite complex body of expert evidence relating to hydrodynamic issues affecting the likely conditions in the creek at the time of the accident. 35 Before attempting to resolve the issues between the parties, it is desirable to examine the factual content of the case. I shall do so by first identifying more precisely the location of the accident scene and by providing a brief description of the creek area and its surrounds.
The Location of the Accident Scene - a Brief Description of the Creek and its Immediate Surrounds 36 The area with which these proceedings has been principally concerned is the area of Coffs Creek east of the Orlando Street Railway Bridge. Coffs Creek is a small tidal estuary with a shallow inlet at Park Beach. This inlet is situated on the northern side of the Harbour itself adjacent to Little Mutton Bird Island. Coffs Creek meanders through the town centre of the city of Coffs Harbour. It narrows considerably as it passes under the Orlando Street overbridge and the railway bridge. Its width at the latter location is about 30 metres. The creek then widens a little as it sweeps in a slightly southwards direction to meet the ocean. It is approximately 250 to 300 metres from the railway bridge to the point where the creek meets the sea. Coffs Harbour city is a major city on the North Coast of New South Wales. It is, and was at the time the plaintiff sustained his injuries a major tourist centre in the State. The Park Beach - Jetty area is a significantly important part of the tourist attraction of Coffs Harbour. Park Beach runs south from Macauley's Headland to the Coffs Harbour Jetty. The beach is interrupted only at the position where Coffs Creek emerges to meet the sea. To the south of this opening are the Coffs Harbour Jetty and the harbour area itself. A man-made walkway joins the northern side of the boat harbour to a nature reserve known as Mutton Bird Island. On the southern side of the harbour man-made structures have added further protection to the harbour itself. This area is described as Corambirra Point. Within the harbour there are a number of facilities which are undoubtedly attractive to and used by tourists. These include shopping facilities, food facilities, a sailing club and a marina. Close by is the Jetty Village Shopping Centre and the Railway Station. 37 On the northern side of the creek facing Park Beach is the Surf Club. The original club was formed a considerable time ago in 1923. The present surf club building was constructed in 1977 and has been extended in recent years. The road system behind the surf club has been upgraded and there is presently a sizeable public car park for about 100 cars in this location. Immediately to the north of the surf club and its associated facilities is the caravan park. Further north again there is a bowling club and the Park Beach Hotel/Motel. These latter facilities have been there in one form or another since about 1964. At the time of the plaintiff's accident, the northern side of the creek had been developed with various tourist facilities including dressing sheds and toilets, grassed picnic areas with tables, showers, and a beach access walking track. Additionally, there was a kiosk, BBQ shelters and a children's playground. There is a man-made rock wall down near the railway bridge on its eastern side and further again to the east there is the rock training wall opposite which the plaintiff and Miss Brady left their belongings on the day in question. This is also a man-made structure. A wall was placed in this position in mid-1970 primarily to stabilise the creek entrance, to prevent the migration of sand into the creek and to allow a permanent opening for tidal flows. This short wall was extended in 1974/1975. It was further upgraded in 1988. The establishment of this training wall and the rock wall down near the bridge achieved a number of results. One result was the further enhancement of a safe swimming area for children and families on the northern side of the creek within the area contained by the rock wall and the training wall near the railway bridge. 38 The Minister for Land and Water Conversation adopted a plan of management known as "Park Beach Reserve Plan of Management" on 30 August 1999. This Plan had been in draft since 1996. It contains the following statements (Exhibit "HH" - 1 page 1) which fairly describe the situation of Park Beach Reserve at the time of the plaintiff's accident: - "The City of Coffs Harbour is located on the mid-North Coast of New South Wales approximately half way between Sydney and Brisbane. Park Beach is the main surfing beach for the city and has a high level of visitation from tourists and visitors alike. It is the most accessible beach for the city and jetty areas, is the base for the Coffs Harbour Surf Club and is patrolled during summer and school holidays. Park Beach Reserve provides an outstanding water oriented recreation setting and the beauty of Park Beach is a prime factor in the tourist and residential growth of Coffs Harbour. Park Beach Reserve is a lineal beach front reserve that extends from the mouth of Coffs Creek in the south to Macauleys Headland in the north, including beach sand dunes and hind dune forest. (Check Exhibit "HH1"). Park Beach Caravan Park occupies the southern and western parts of the reserve comprising two sections to the east and west of Ocean Parade. The Caravan Park caters for a range of tourist accommodation and long terms residents. Coffs Creek foreshores and the caravan park have been popular for recreation and camping activities since gazettal as a camping ground in 1933. Park Beach Reserve is an intricate component of the Coastal Crown Reserve system as well as being extensively used by both tourists and local residents." 39 In November and December 1999, Mr Alexander Nielsen, an expert called by the plaintiff, made inspections of the creek area including the southern side of the creek in the vicinity of where the plaintiff sustained his injuries. He said that on the southern side of the creek in this location, the area was developed with provision for car parking, paved and unpaved walking tracks, fences and dune vegetation. (It has not been suggested that the area had been altered in any substantial way between the date of the plaintiff's accident and the time when Mr Nielsen made his inspections). Photographs appended to Mr Nielsen's report (Exhibit "E" 469 and 470) depict the nature of the fencing and vegetation protection in the vicinity of the unpaved pathway. The photograph at 470 ("A") shows a sign erected alongside the pathway. This sign is headed "Coffs Harbour City Council" and reads: - "This Beach is Unpatrolled". 40 At the request of the parties the Court participated in a view of the creek area at Coffs Harbour on Wednesday 21 August 2002. The Court was invited to make observations regarding many of the matters, which have been described under the present heading. It was noted on the view that the sign photographed by Mr Nielsen on the southern side of the creek was no longer in that location at all. There was in fact a sign of very similar appearance noticed in the vegetation area immediately to the east of the railway bridge. As a matter of inference, but of inexact proof, it may be the position that this sign is that which Mr Nielsen observed towards the end of 1999. There was no evidence before the Court as to how the sign came to be located where it was on the view nor how long it had been in that position. 41 As a matter of completeness it is necessary to mention that there were a number of other facilities and signs noted on the Court's inspection of the creek area. These included the Porpoise Pool and tourist facilities on the western side of Orlando Street. These recreational facilities were located on the southern bank of the creek west of the railway bridge. The court also inspected an area which had been described in opening as a car park on the eastern side of Orlando Street but which gave the appearance of being perhaps more in the nature of a pull over area for motor vehicles rather than an area specially designated for any long or medium term parking. Additionally, the Court inspected the railway bridge and the various signs on it, a number of which are shown in detail in photographs later admitted into evidence. Just west of the railway bridge, between the Railway Bridge and the Orlando Street Bridge there is a sign indicating "Coffs Harbour City Council, Coffs Harbour Walk. Harbour Co-op 1.2 kilometres; Mutton Bird Island 1.8 kilometres". The sign is situated beside the main concrete path which was described in evidence as part of the walkway/cycleway. A short distance from the railway bridge there is a man-made but unpaved path which deviates from the concrete pathway/cycleway. It runs off in the direction of the southern bank of the creek. This is the path the plaintiff and Miss Brady used in obtaining access to the creek area. It is a very short distance from the commencement of this man-made path to the sandy area of the southern bank of the creek. It gave the appearance at the time of the view, of having been well traversed. 42 Finally, it is necessary to say something about the position of the plaintiff in the creek when he was injured. It was advocated initially on his behalf that the location was somewhere between the fourth and seventh dashes on a photograph contained in Exhibit "E". At the hearing however a mark was made on photograph Exhibit "B" to indicate the point where the plaintiff and Miss Brady had left their belongings on the sand in the vicinity of the area of the creek adjacent to the rock training wall. The evidence was that they extended the water at this point. A vertical stroke was placed on Exhibit "B" to indicate this location. It is necessary to say however, that the photograph is a copy enlargement of a photograph appearing in a report of Drummond & Parmenter Pty Ltd. This report and its attachments forms part of Exhibit "E" and the relevant photograph is a blow-up of Plan "B" at page 612. The photograph was taken on 28 June 1996. It appears to be a common ground that damage was done to the training wall as a result of a severe flood in 1996. As a consequence the precise shape and extent of the wall at the time of the plaintiff's accident probably differed from that shown in Exhibit "B" and this may have affected the precise location where the plaintiff and Miss Brady left their belongings on the southern creek prior to swimming in the vicinity of the rock training wall. There is no other evidence however, that enables a more precise plotting of the place of the plaintiff's catastrophic dive. The plaintiff's evidence, it will be recalled, was that he entered the water about one quarter of the way along the training wall to the east.
Title and Ownership - the Position of the Various Defendants 43 These proceedings have been rendered quite complex by the fact that there is a substantial dispute as to the identity of those who have the care, control and management of the various parcels of land either involved in or closely associated with the plaintiff's accident. While the defendants, in general terms, presented a stout alliance against most aspects of the plaintiff's claim, a stern division emerged between them in relation to the issue of care, control and management of the relevant reserves and the creek itself. For that reason it is desirable to establish at the outset the legal position as to ownership and title.
(a) Park Beach Reserve 44 The physical position is best seen on Exhibit "D"13. The land north of Coffs Creek (east of Orlando Street Railway Bridge) is an area which I shall call "the Park Beach Reserve". The part of the reserve closest to the creek was described in the Drummond Parmenter Report (Exhibit "E" page 607) as follows: - "The land is mainly grassed recreation area with facilities including timber picnic tables and benches and bitumen paved car park access from Ocean Parade. The division between the grassed area and the relevant section of Coffs Creek and Coffs Creek beach is divided partly by rock training walls and partly by timber retaining walls with timber steps to the creek beach area".
(The physical layout appears in the survey plain dated 5 July 2001 at page 614 of Exhibit "E"). 45 Park Beach Reserve is Crown Land known as Reserve No 63966. It was notified for Public Recreation by way of Government Gazette 2 June 1933. The Trustee of this Reserve was Coffs Harbour City Council appointed under the Public Trusts Act 1897 by proclamation in Government Gazette dated 17 February 1956. (At that time the Council was known as the Council of the Shire of Dorrigo). 46 By Government Gazette 26 May 1995, the trustee of Reserve 63966 was dissolved. At this date Sawtell and Park Beach Reserves Reserve Trust was appointed trustee of Reserve 63966 "for Public Recreation and Resting Place". Coffs Harbour City Council was appointed to manage the affairs of the Reserve Trust pursuant to the Crown Lands Act 1989 s 95. 47 The consequence of these historical matters is that, on 24 January 1999 when the plaintiff was injured, the land from the mean low water mark north of the relevant section of Coffs Creek to Macauleys Headland in the north, was Crown Land known as Reserve 63966 for Public Recreation and Resting Place, with the trustee being Sawtell and Park Beach Reserves Reserve Trust. Coffs Harbour City Council had been appointed as Corporate Manager to manage the affairs of the Reserve Trust. Exhibit "HH"1 (p 1) confirms that the Trust was "charged with the care, control and management of the Park Beach Reserve and the Council was the Corporate Manager of the Reserve Trust".
(b) Coffs Creek Bed East of Orlando Street Railway Bridge 48 The land between the northern mean low water mark and the southern mean high water mark of the creek is vested in the Crown. It is not included in either of the Reserves to the north and south of Coffs Creek. On the northern side however this is subject only to the exception that there is a small degree of overlapping between the extent of the legal title to the creek bed and the southern boundary of the Park Beach Reserve. In practical terms, this means that some part of the rock training wall near where the plaintiff swam was within the area of the Park Beach Reserve. It is not however; possible to say with any precision to what extent this is so. The position is shown as clearly as it can be by Exhibit "D"13. The reason for this area of imprecision and uncertainty arises in part from the fact that the selection of a mean high water mark boundary has or may have involved gradual imperceptible accretion and erosion resulting over time in a slight movement of the boundary itself. A secondary factor arises from the construction of the rock training walls themselves. The location of the mouth of Coffs Creek has varied substantially over a hundred and ten years since the time of the original survey in 1890. Subsequent surveys had been unable to determine the exact location of the creek bed immediately prior to the rock training wall construction. 49 The authors of the Drummond Parmenter Report asserted that the title to the bed of the creek vested in the Crown, ie., the State of New South Wales; and that it was "managed" by the Marine Park Authority. This latter aspect of the surveyors' assertion was not agreed to by the State interests for the purposes of the litigation. While it was conceded that the Marine Park Act 1997 vested in the Marine Park Authority care, control and management of the waters in Coffs Creek, from high watermark to high watermark, there remained an issue as to the scope of that care, control and management so as to suggest that it was not relevant to the plaintiff's claim in these proceedings. At the conclusion of the proceedings the plaintiff indicated that it no longer pressed the claim against the New South Wales Marine Park Authority. This statement carried with it, as I understood the position, a concession that the Marine Park Authority had management control but that it was limited to marine and ecological matters.
(c) Land South of Coffs Creek East of Orlando Street Railway Bridge 50 The Drummond Parmenter report described this area as follows (page 608 Exhibit "E"): "The area on the southern side of the relevant section of Coffs Creek and east of the railway line is sandy beach. Further to the south the beach becomes vegetated. There is a concrete pathway from Orlando Street passing under the adjoining railway bridge leading into the vegetated area. A sign at the Orlando Street commencement of this path refers to it as "Coffs Creek Walk - Harbour Co-op 1.2 kilometre; Mutton Bird Island 1.8 kilometre". Near the commencement of the "Coffs Creek Walk" pedestrian traffic can pass from the path directly on to the beach area south of Coffs Creek. There is no visual evidence of rock or timber retaining walls on the relevant southern section of Coffs Creek." 51 For shorthand purposes, I will refer to this land as "The Jetty Reserve". In 1916, an area of about 142 acres on the southern side of Coffs Creek east of the rail line was resumed and appropriated under the Public Works Act 1912 for the carrying out of improvements to afford additional shipping facilities at Coffs Harbour. The area was vested in the Minister for Public Works. The land relevantly extended eastwards to the low watermark of the South Pacific Ocean (that is to say it included the area known as South Park Beach to low watermark) and it extended on the northern side to Coffs Harbour Creek. The northern boundary of the reserved land extended to the southern mean high watermark boundary of Coffs Creek. This is shown clearly on Exhibit "D"13. The resumed land did not include the bed of the creek which remained Crown Land. 52 By Government Gazette 28 June 1996 the subject land was declared Crown Land pursuant to s 138 of the Crown's Lands Act 1989. The land was further gazetted as Crown Land Reserve No 140102 for "the public purpose of public recreation and environmental protection". The Trustee was Coffs Harbour Jetty Foreshore Reserve Trust and the Trust Manager was Mr Hambly, the fourth defendant. 53 The consequence of these matters is that on 24 January 1999 when the plaintiff was injured, the land from mean high watermark south of the relevant section of Coffs Creek was Crown Land known as Reserve 140102 for the public purpose of public recreation and environmental protection. As I have said, the Trustee was Coffs Harbour Jetty Foreshore Reserve Trust and the Trust Manager was Walter Scott Hambly (also known as Mr Wal Hambly) c/- the Department of Land and Water Conservation, Grafton.
Care, Control & Management - the Statutory Position of the Defendants
(a) Park Beach Reserve 54 Section 92 of the Crown Lands Act 1989 (as amended) deals with the formation of Reserve Trusts. Section 92(1) confers on the Minister the power to establish and name a Reserve Trust and to appoint it as trustee of any one or more specified reserves or any one or more parts of a reserve. Sub-section 5 of s 92 is in the following terms: - "(5) A Reserve Trust is charged with the care, control and management of any reserve (or any part of a reserve) of which it is appointed trustee." 55 Section 92(6) provides that the affairs of a Reserve Trust shall be managed by a Trust Board or by a corporation appointed under s 95. This section allows the Minister to appoint a Council to manage the affairs of a Reserve Trust. 56 The objects of the Crown Lands Act 1989 are stated in s 10. The section, so far as is relevant, includes the following: - "10. The objects of this Act are to ensure that Crown Land is managed for the benefit of the people of New South Wales and in particular to provide for: (b) the management of Crown Land having regard to the principles of Crown Land management contained in this Act, (c) the proper development and conservation of Crown Land having regard to those principles, (d) the regulation of the conditions under which Crown Land is permitted to be occupied, used, sold, leased, licensed or otherwise dealt with, (e) the reservation or dedication of Crown Land for public purposes and the management and use of the reserved or dedicated land." 57 Section 11(c) states that the principles of Crown Land Management, for the purposes of the Act include: - "(c) That public use and enjoyment of appropriate Crown Land be encouraged."
(b) The Creek Bed 58 Save for the area of overlapping title on the northern side of the creek, the creek bed was and is vested in the Crown, that is the State of New South Wales. It was and is, unalienated Crown land. 59 Section 12 of the Crown Lands Act 1989 (as amended) provides in sub-section 1 that the Minister is responsible for achieving the objects of this Act. The objects of the Act include those set out earlier in relation to s 10 of the Act. They include the management of Crown land having regard to the principles of Crown Land management set out in s 11. In turn, those principles include (s 11C) "that public use and enjoyment of appropriate Crown Land be encouraged". 60 Power is thus conferred on the Minister to undertake care, control and management of the creek bed so as to achieve the objects of the Crown Lands Act in accordance with the stated principles of Crown Land management.
(c) The Jetty Reserve 61 The Jetty Reserve Trust came into existence in June 1996 for the public purpose of "public recreation and environmental protection". Care, control and management of the reserve was charged upon the Reserve Trust itself (s 92(5) Crown Lands Act 1989 (as amended)). A Corporate Manager was not appointed to the Trust. Mr Hambly, the fourth defendant, was at the relevant time the manager of the Trust but it was conceded he had no personal responsibility in relation to the plaintiff's injury.
Care, Control & Management of Park Beach Reserve, the Creek Bed, the Creek Generally and the Jetty Reserve. 62 Notwithstanding that the title and occupancy position seemed relatively simple and straightforward, the parties to the litigation literally flooded the court with a flotilla of often unexplained or uncontexted documents. These comprised part of Exhibit "D", three volumes marked as Exhibits "H"1, 2 and 3, Exhibits "GG" and "HH" and Exhibits "D"8-12 and "D"17. The volume of documents in this category constitute together approximately ten folders. As I understand it, the tender of so much of the material as emanated from the plaintiff's side was designed to show an assumption by the State interests of care, control and management in relation to the creek generally. Conversely it was designed to demonstrate aspects of control and management involving the Council on the Jetty Reserve area on the southern side of the creek. From the perspective of the defendants, a contest emerged between the State interests and the Council as to who in fact and in practice was responsible for care, control and management of the creek area and the respective reserves. Despite continued assertion by the defendants that this was to be treated as a minor issue in the case, it assumed a much larger role in the formulation of the final written submissions. As a consequence of these matters, all parties have subjected the Court to this "barrage" of documentary material, often unexplained and unilluminated by the calling of witnesses to make clear its significance to the issues. In those circumstances, the court must deal with the submissions and the material as best it can. I propose however, to summarise as briefly as possible the sequence of events that appear to be circumnavigated by the extensive folders of material I have identified. I shall leave for further discussion, individual documents and shall address them, but only where necessary, in the context of the final resolution of the issues having regard to the written submissions filed by the parties. · In 1969 a survey held by the Department of Public Works at its Coffs Harbour Regional Office showed that Coffs Harbour Creek was at that time nearly "choked off" with sand. · On 14 July 1970 a joint inspection was made by representatives of the Public Works Department and the Council. The inspection revealed that the main problem was to establish "the type of creek entrance which would prevent migration of sand into the creek and allow a permanent opening for tidal flows". It was noted that in an attempt to stop the spreading of sand towards the creek, the Council had placed a stone wall at the entrance. This presumably had happened sometime in 1970. · In 1974 the Council carried out work in extending the stone wall which had been built in 1970. A concern had arisen that the northern bank of the creek downstream of the bridge was eroding. Mr Gentle was the Shire Engineer between 1972 and 1993. He gave evidence that in 1974 he had discussions with Mr Ron Colley from the Public Works Department about doing some work on the existing training wall structure. His recollection was that the two men decided between them that two rock walls should be built or reconstructed. This was to address the issue of erosion of the northern bank and the fact that the creek mouth closed off regularly. Mr Gentle said he did not have "the expertise" and it was for that reason that he brought in the district engineer from the Public Works Department. A plan was forwarded by Council to the Department of Public Works for its approval (Exhibit "D"5). The extension to the rock wall "nearest to the ocean" was an extension of about 35 metres to the west. Mr Gentle supervised the work which was carried out by Council. · Mr Colley addressed a memo to the Principal Engineer of the Department of Public Works in November 1975. In this document, he commented that "the entrance at the creek had been stable since the rock training walls were constructed by Council 12 months ago". He said that the walls had successfully reversed the trend to erode the northern bank east of the railway. He recommended that consideration be given to dredging the creek in the area immediately west of the railway to provide "a more permanent deeper and stable channel". He suggested that an overall development plan should be produced. · In April 1979, the Public Works Department published a report "Coffs Harbour Creek - Waterways Study Volumes 1 and 2" (Exhibit "D" 292-367). This study was carried out as a consequence of representations made by the Council to the Public Works Department. The Department undertook an hydraulic investigation of the flooding and tidal characteristics of Coffs Harbour Creek. The report recommended that dredging take place in the boat basin area upstream of Orlando Street and that the dredged material "be used as beach nourishment for Park Beach". One purpose of the dredging was to improve the recreational amenity of the creek area immediately to the west of Orlando Street. · The report noted the responsibility of the Department in these terms: - "The Department has responsibilities for the development maintenance and conservation of waterways and provides advice to other authorities on the engineering aspects of waterways and foreshores. As a result, the Department undertook a hydraulic investigation of Coffs Harbour Creek following representations from the Shire Council." [Exhibit "D" 301]. · The report also noted that swimming in the creek was usually limited to the area east of the Orlando Street Bridge. It said: - "This area is very popular with tourists as it is adjacent to one of the district's most popular surfing beaches (Park Beach) and to a caravan park. The still backwater afforded by the two small training walls makes this area attractive also to families with small children." [Exhibit "D" 302]. · Mr Gentle in his evidence (T 691 lines 20-25) agreed this was "a fair statement of the facts at that time in 1979". The report further noted that the Orlando Street road bridge and the railway bridge "drastically reduced the channel width causing an increase in depth". (Exhibit "D" page 307). The report noted that there was a strong demand to develop the lower reaches of the creek for active recreational users. "Heavy recreation use is made of the creek east of Orlando Street with swimming the predominate activity. A local High School uses the area between Orlando Street Bridge and Railway Bridge as a canoe course". [Exhibit "D" p 310]. · The Council concurred in the report's recommendations and requested that the Department provide the necessary funds to allow the works to proceed. In turn, the Department informed the Council that the dredging and beach nourishment would be considered under a programme known as the Beach Improvement Programme. This was a programme promulgated by the State Government and administered through the Public Works Department. · On 5 June 1985 there was held an inaugural meeting of a "committee to examine coastal processes affecting Park Beach". This was a committee formed by the Council which included two Shire Councillors, Council Staff and to which were seconded representatives of the Public Works Department and the Soil Conservation Service. The principal aims and objectives of the committee included the long term aim of Council to arrest the erosion of Park Beach; the continuance of Park Beach as a major recreation and surfing beach for its full length; to ensure the flow of Coffs Creek to the ocean being maintained at all times by the implementation of necessary works, and that the recreational uses associated with Coffs Creek east of the Railway Bridge and adjacent to Park Beach Reserve be continued. The committee resolved that "the Council should pursue an application for a grant to carry out general protection works if possible in the 1985/1986 Beach Improvement Programme on the northern section of Park Beach compatible with the overall aims and objectives of the area". [Exhibit "D"17 page A23]. (It is necessary to say that sometime earlier in October 1983, Mr Colley, the District Engineer for the Public Works Department, had written to the Shire Clerk inviting the Council to submit detailed designs and estimates for beach improvement works at Park Beach. Mr Colley advised that the Department was in a position to give advice concerning the active processes affecting Park Beach, particularly in relation to long term recession. He promised to consider the matter and make a recommendation to the Minister for a grant offer "upon receipt of satisfactory designs and other information"). · On 6 February 1987 the Council formally applied for funding for the improvement works proposed at Park Beach. This application was made pursuant to the Beach Improvement Programme. The work envisaged included the relocation of the existing surf club car park access road; replenishment and reshaping of the dunal system and the beach with imported sand; replanting of the dunal system with native vegetation; provision of pedestrian access ways and additional car parking. As well, there was proposed a new access road to the surf club parking area. The estimated cost of work was said to be $531,000. The Council noted that there had been close liaison with the Department of Lands & Soils Conversation Service and the staff from the Public Works Department during the preparation of the project. A plan of management had been prepared by Council and had been exhibited to the public. The plan had been adopted and forwarded to the Department of Lands for formal adoption. Development consent for the project had been granted by Council. · On 16 February 1987 the District Engineer, Public Works Department gave a detailed report supporting the proposal and the proposed grant of funds. · On 26 February 1988 the Minister, Mr Peter Cox indicated that he was prepared to provide Council with a grant for Park Beach stage 1 area of up to $332,000. His letter noted that: - "The Public Works Department Regional Engineer at Coffs Harbour would authorise commencement of constructions works for the project in due course." · The Minister's letter attached conditions relating to the grant offer. These included the condition that the Department's Regional Manager would have "overriding supervision of the works and that the works were to be constructed in accordance with the plans approved by the Department". Construction works were not to commence until "after Council had received an approval to the construction programme by the Regional Manager of the Public Works Department". Any variation to the works required the approval of the Regional Manager. Upon completion of the works, Council was obliged to maintain the works "to the satisfaction of the Regional Manager". [Exhibit "D"17 page 17I]. · On 30 March 1988 the Council accepted the terms and conditions of the beach improvement programme grant. The Council informed the Public Works Department that it would prepare detailed plans for the Department's approval together with a construction program. · In September 1986 the Council made a preliminary application to the Department of Public Works to enable dredging of Coffs Creek under the Waterways Programme. This was at an estimated cost of $350,000. In August 1987 the Coastal Processes Committee requested that the Public Works Department assist in investigations of Coffs Creek by reviewing available survey information on the creek. · A first draft of a Public Works Department Report "An Assessment of Marine Sediment Infilling" was presented to the committee meeting in December 1987. The committee recommended that Council staff prepare a concept plan for the dredging work and submit it to the Public Works Department to support Council's application for funding under the Waterways Programme. At a later meeting of the Coastal Processes Committee in April 1988 there was a resolution that the concept plan for development of Coffs Creek be adopted and that formal application be made to the Public Works Department for funding of the preliminary design and preparation of an environmental impact study. · In June 1988 the final version of the report "An Assessment of Marine Sediment Infilling" (Exhibit "D" 370-435) was provided to the Public Works Department. The document noted that it had been prepared for Council by the Coast and Rivers Branch of the Public Works Department in consultation with the Department's Coffs Harbour Office. The report dealt with an examination of coastal engineering issues relating to the dredging proposal and was submitted to the committee to assist it in developing a management strategy for the Coffs Creek area. The report concerned itself with a number of engineering issues namely, the stability of the creek and surrounding beach areas and the response of the existing system to the proposed dredging works. The study area encompassed the downstream reach of Coffs Creek from the creek entrance at Park Beach to approximately 400 metres upstream of the Orlando Street road bridge. The report recommended that any dredging of the creek in the lower reaches should be accompanied by a well designed beach nourishment programme. It noted the possibility that sand extraction could alter the tidal hydraulics of Coffs Creek and have an impact on the stability of the creek banks, the rock protection works and the training works in the creek in the lower area of the creek. · Internal documents created in the Public Works Department during May and June 1988 discussed the source or sources from which sand might be obtained for the purpose of the stage 1 work of the beach improvement programme for Park Beach. These discussions proceeded on the basis that the construction of the Coffs Harbour Port had interrupted the south to north littoral sand drift along this part of the coast line. This was seen as a principal factor in the recession of Park Beach immediately north of the harbour. These documents advocated the nourishment of the dune and beach areas on Park Beach with substantial amounts of "imported" sand. One of the principal sites for collection and despatch of this sand was the Boambee Beach area to the south of the harbour. The May report notes that: - "The lower reaches of Coffs Creek are within Park Beach system and relocation of sand from the creek to the beach would not increase sand reserves overall. Such a proposal is inconsistent with the BIP aims for Park Beach." · Stage 1 of the Beach Improvement Programme for Park Beach proceeded apace during 1988. Sand was trucked in to replenish the beach and a new access road was established in place of the previous access. The car park area was expanded and a more substantial dune was provided in that vicinity. The newly deposited sand was in fact placed in an area on the southern and eastern sides of the car park (see Exhibit "E" page 502 and Exhibit "D"6). · Mr Richard Rowe, the Coastal and Flooding Engineer with the Council gave evidence in the proceedings. It transpired that he had worked for the Public Works Department in Coffs Harbour in the period between 1984 and April 1989. Part of his evidence related to the situation that arose in 1988 after the placement of the new dune on Park Beach and the planting of vegetation upon it. Mr Rowe said that it was noticed by Coffs Harbour City Council's staff that the creek was meandering to the north and severely undercutting the new dunal works which had been completed. It was apparent that unless something were done the whole of the strategy for that part of the beach would be undermined. Mr Rowe said he was called to the site by Council staff to examine the problem. He suggested that the problem might be solved by the extension of the training wall, that is the training wall at the eastern end of the creek. He discussed the matter with his superior in Public Works, Mr Fidge, and it appeared to have been agreed between them that the extension of the training wall was the solution. · An employee of the Department of Public Works, a Mr Michael Dale was given the task of designing the extension and strengthening works for the training wall. Plans were prepared and the actual work was carried out by the Public Works Department. Mr Rowe said that the funds left over in the allocation from the Beach Improvement Program were used to cover the cost of the extension to the training wall. In the ultimate, the Department "billed the Council for the cost of the work" (approximately $41,000 - Exhibit "D"17 page 45C). The Council was then to claim this payment back through the Beach Improvement Programme. · On 31 August 1988, Mr Michael Dale of the Public Works Department reported to Mr Medi that the training wall "seems to have done its job as the creek now goes almost straight out to sea and does not bend to the north" (Exhibit "D"17 page 41(i)). A copy of the "work as executed" plan demonstrates that the strengthening and addition to the training wall was constituted by an easterly extension to it. The wall was described as "a rubble mound structure consisting of a core of random shaped and placed rock, protected with an armour layer of selected larger rocks". A letter from the Public Works Department to the Council of 31 August 1988 (Exhibit "D"17 page 40) noted that "due to the nature of rubble mound structures, the effects of scouring and settling will necessitate periodic maintenance, particularly following the first major storm which affects the structure". · In January 1990 the Minister for Public Works offered a grant to the Coffs Harbour City Council totalling $450,000 to carry out improvements to the waterways of Coffs Creek. This offer was accepted by Council in August 1990. Under the offer Council was required to prepare an Environmental Impact Statement together with a Management Plan for Coffs Creek. The initial work was to identify the recreational needs for Coffs Creek including the provision of walkways, picnic facilities, launching ramps, car parking areas and other similar facilities. · Exhibits "D"8 to "T"12 are extensive documents comprising material prepared for Coffs Harbour City Council by Allen & Associates Pty Limited and Bruce Fidge & Associates Pty Limited. These firms had in June 1991 been accepted by the Council as acceptable firms to provide consulting services in regard to the waterways improvement project. The Department of Public Works concurred in this acceptance in late June 1991. In July 1991, the consultants invited a public participation in workshops aimed to provide information and submissions relating to the waterways programme. · In early 1992 there commenced the progressive publications of Exhibits "D"8, 9, 10, 11 and 12. These were respectively a background information report, an overall management plan, a detailed management plan, a statement of environmental effects and a report containing engineering design documents. · Exhibit "D"8 referred to studies carried out by the Council in relation to recreational usage of Coffs Creek generally. Recreational users were identified as "Coffs Harbour residents, workers, sports clubs and tourists". A recreational preference study which had been undertaken showed the preferred recreational activities as including "walking, swimming, fishing, picnicking, bushwalking and the like". The study indicated that Coffs Creek was "an important recreation resource for Coffs Harbour residents" (page 28 Exhibit "D"8). This document identified existing opportunities for development and use of the study area including the downstream recreation area. It identified this area as "a significant recreational resource with potential to be linked to the Park Beach tourist area" (Exhibit "D"8 page 31). · Exhibit "D"9 - the overall management plan - sought to provide an overall long term planning strategy which would guide the future development usage environmental protection and restoration of Coffs Creek from the Pacific Ocean to the Pacific Highway. One of the objectives of the plan was "to maximise public access and enjoyment of the creek environs while preserving and enhancing its environmental integrity" (page 3 Exhibit "D"9). Another aim was to provide for "the present and future recreation needs of the community". The selected method was the division of the study area into eight functional areas along the creek. · The detailed management plan dealt with functional area No 1. This was the area immediately adjacent to the railway bridge and extending in a westerly direction from the bridge to a point about 350 metres upstream. Part of this plan involved the formalisation of pedestrian, vehicular and cycleway traffic plus the creation of car parking areas. It included also the strategic location of facilities including tables, barbecues, walk and cycle ways and other amenities. It involved, consistently with earlier studies, the dredging of a small part of the study area to provide for increased recreational use of the waterway for activities such as canoeing, paddle boating and swimming (Exhibit "D"10 page 2). It also addressed Reserve User Safety. This included the provision of "signage to provide for directional guidance including warnings of deep or fast water, warnings with regard to no diving off structures and no public access to the rock groyne" (page 18 Exhibit "D"10). · In Exhibit "D"11 - Statement of Environmental Effects - an overview of the project was provided. It was said that the creek within the study area formed a large circular shaped bowl which provided a significant recreational resource and adjunct to the Park Beach surfing area. It noted that "Coffs Harbour City Council in association with the Public Works Department and the Department of Conservation and Land Management had determined to actively seek improvements to both the waterway and foreshore areas. To this end, the Minister for Public Works has offered funding to assist Council in carrying out these improvements", (Exhibit "D"11 page 3). · On 8 September 1992 the Council approved the development application for the dredging operations in functional area No 1 west of the Orlando Street Road Bridge. On 11 September 1992 the Town Clerk wrote to the Public Works Department at Coffs Harbour requesting permission to use surplus sand from the dredging in the creek to nourish Park Beach. The Public Works Department indicated its approval on 8 October 1992. It appears the waterways project then proceeded quite vigorously with substantial funding being provided by the State Government. The first stage at a cost of over $800,000 had been completed by April 1993. The total cost of the project was estimated at $2.5 million. Future maintenance responsibility for the improvements provided under the programme lay with the Council. · In April 1991 the Rotary Club of Coffs Harbour resolved to design, organise funding for, and co-ordinate the construction of a new walking track along the ocean foreshore at Coffs Harbour for a distance of about 500 metres north of the Coffs Harbour Yacht Club. The proposed route of the walking track was to commence at the southern end of the Orlando Street traffic bridge over Coffs Creek. The proposed route proceeded then in an easterly direction across the Orlando Street Road Reserve followed by an underpass across railway land on to the southern bank of the creek. The suggested pathway was to proceed in a south easterly direction generally along the alignment of an existing but unformed four-wheel drive track to the Yacht Club at the Jetty. The total distance was about 500 metres. The land affected by the proposed pathway was at that time partly owned by the Minister for Public Works and partly by the State Rail Authority. · Between 1991 and 1992 correspondence passed between the Rotary Club, the Council, State Rail, Lands Department and Public Works Department relating to this venture. In the upshot, a new walking track and cycleway was constructed with the Rotary Club as the originator of the scheme and "Project Manager". The Council's role was multi-faceted. It acted as the employer of the job skill personnel who carried out the work; it was the approving authority; it was the contributor of $15,000 funds through the Park Beach Reserve and the grantee of a substantial grant from the Minister for Public Works in the sum of $28,250. In addition, Council provided miscellaneous tools and equipment for the project along with training and the like for the job skill employees who carried out the physical construction work. · To further facilitate the work and its implementation, the Council entered into a License Agreement with State Rail in relation to the railway land affected by the new footpath. The Council as licensee was to pay a nominal license fee and to maintain the access way at its own costs. On 19 September 1991 the Public Works Department by letter gave its approval for the construction of the proposed pathway on Public Works land. This was subject to conditions including: - "(i) The pathway is constructed to standards agreed to by Public Works (to prevent liability in the event of accident). (ii) The pathway is constructed close to the breakwater/training wall. (iii) A plan indicating the location and alignment of the pathway is provided to this office". (Exhibit "D"17 page 80). · The Public Works Department notified Gutteridge Haskins and Davey Pty Limited in April 1992 that the Department approved of the preliminary design drawings but required that "fencing using post and rail and horse wire be considered in Stage 1 along the beach side of the walking track behind Park Beach" (Exhibit "D"17 page 96). The Engineers were provided with a copy of a standard post and rail protective fence as used by the Department recently at the foreshores. The lower rail was replaced with two strands of "bayco" wire (fencing of this type appears to be depicted in Exhibit "E" p 548 being the type of fencing observed by Mr Nielsen on 9 December 1999 when he made his inspection (see Exhibit "E" p 470)). · In any event the work was completed by the early part of 1993. It appears the Council may have undertaken the task of maintaining the walkway after its completion (Exhibit "HH"1 page 1). · On 20 May 1997 the Aquatic Superintendent for the Council wrote to the Risk Co-ordinator in relation to the upgrading of signage at Park Beach in particular and on all Council beaches in general. The memo noted that signs were currently on order "to limit Council's liability". The memorandum referred to a survey which had been conducted on all major beaches in the area and reinforced the need to place signs on unpatrolled beaches which gave a warning to that effect (Exhibit "D"17 page 166A). (Park Beach South apparently had been considered as long ago as 16 July 1991 as particularly dangerous and had been the scene of a number of fatalities, Exhibit "D" 17 page 45). · The signs referred to in the May 1997 memo appear to be the type of sign observed by Mr Nielsen in November and December 1999 and shown in Exhibit "E" page 470. · A memorandum was written by the Regional Director of the New South Wales Department of Land and Water Conservation (formally Public Works Department) on 24 February 1998. This related to negotiations with Coffs Harbour City Council with a view to the Council taking over the Corporate Management of the Coffs Jetty Foreshore Reserve Trust. In the course of the discussion of this proposal (which to date has not eventuated) the memo states: - "At the present time, care, control and management of the Reserve rests with the Administrator, Wal Hambly, Department of Land & Water Conservation appointed under the provisions of the Crown Lands Act. This is intended to be a temporary arrangement pending appointment of a Trust Board or a Trust Manager to manager the Reserve. The preferred option at the time is for Coffs Harbour City Council to accept Trust Management especially as Council now has responsibility for control and ongoing maintenance of the adjoining recently restored (at a cost of some $3 million) Coffs Jetty facility which is listed as a National Work. One of the main areas of discussion has been funding and income to support outgoings and required works in the Coffs Jetty Foreshore Reserve. The Council has maintained a position that if it accepts this ongoing role, it should not cost Council any additional monies above that currently contributed (for maintenance of the boat ramp and Coffs Foreshore Park - both within Coffs Jetty Foreshore Reserve and currently held under licence by Council from DLWC)." [Exhibit "D"17 page 106 A ix]. · On 15 November 1996 the Council affixed its common seal to a licence document. The licence was granted by the Minister for Land and Water Conservation and related to a portion of the land in the Jetty Foreshores Reserve known as the Foreshore Park. It is in an area of the Reserve well removed from the place where the plaintiff walked and swam on the day of his accident. · On 28 November 1996 the Minister for Land & Water Conservation executed a licence in favour of Coffs Harbour Council for a further area in the Jetty Foreshores Reserve known as the Coffs Harbour Boat Launching Ramp. The ramp is in an area well removed from the area where the plaintiff walked and swam at the time of his accident. (Exhibit "D"21). · In 1994 Resource Design and Management Pty Limited were engaged by New South Wales Public Works to provide recommendations detailing proposals for the control of erosion occurring to the grassed area adjacent to the beach at Park Beach Lower Reserve on Coffs Creek. The consultants described the area as follows: - "The site is located on Coffs Creek east of the Orlando Street Road and Rail Bridges, on the northern side of Coffs Creek. The area is a popular recreational reserve and is located approximately 150 metres upstream of the ocean entrance to Coffs Creek." · The report addressed alternatives for erosion protection and recommended the construction of a timber retaining wall with the provision of steps in the wall to provide safe access to the beach area. The report was sent by Public Works to the Council on 20 December 1994 (Exhibit "H"1 page 163 to 165A). · In August 1995 (Exhibit "H"1 pages 215 and 216) the Council sought financial assistance in relation to a subsidy for the design and construction of the timber wall; and sought the Department's advice in relation to the method of construction. On September 5 1996, further correspondence passed between the Council and the Department of Land and Water Conservation in relation to financial assistance to works on the lower Park Beach Reserve including the timber retaining wall work. The Department paid 50% of the costs. · In 2001 further maintenance work was required in relation to the rock training wall on the northern side of the mouth of the creek. This was necessary to repair the erosion behind the timber wall and stairs on the northern side. The beach area itself was nourished with sand from the creek adjacent to the Pet Porpoise Pool. The relevant works were carried out during December 2001. The work was carried out by the Council after concurrence was given for its implementation by the Department of Land and Water Conversation.
The Plaintiff's General Background: - His Experience with Swimming and Diving 63 The plaintiff was born on 10 February 1969. He is now aged 34. He was 30 years of age at the time of the accident in Coffs Harbour. The plaintiff was educated to Leaving Certificate level and finished his schooling in 1986. 64 His family comprises his mother and father, his two brothers and one sister. His father has worked in the Railways most of his life. He was a train driver for a number of years and is now an Inspector. The plaintiff himself commenced employment with Irish Rail on 8 July 1991. His initial work included platform work but eventually he commenced training for the position of a locomotive driver. This was in about 1994. The course took nearly two years resulting in his accreditation as a locomotive driver. 65 The plaintiff's principal interests were in sport, music, drawing and art and travel. He met Jennifer Brady in 1991 on New Years Eve and developed a close relationship with her. They commenced to live together at her sister's house in 1993 and, after the plaintiff had purchased a house at Arbour Hill in 1994 they lived there. His was a two bedroom, two storey town house and both the plaintiff and Miss Brady put the capital in for a deposit on the house and thereafter shared the mortgage repayments. 66 The plaintiff and Jennifer Brady travelled to America together and to other European locations on a weekend basis. In addition, they has been to Tunisia and the south of France where they enjoyed a holiday at Nice. 67 The plaintiff learned to swim at a young age when he was five or six years old. He learnt swimming in a public swimming pool in Dublin. He was part of a swimming club in Dublin at one stage and was involved in swimming in competition races at the time. He was able to do freestyle, backstroke and breaststroke. He had swum in the ocean in Ireland, mainly at Dingle Beach. He swam in this location on an average of about once per year. He had swum in the Nice area of France on two occasions, in the ocean at Goa in India on one occasion and in the beach at Kohsamui in Thailand on three or four occasions. 68 The plaintiff regarded himself as a person who could dive into water safely. He appreciated the need to dive carefully in a swimming pool so as to avoid injury. 69 On occasions when swimming in the ocean he had dived from a standing position with his hands outstretched into the water. For example, this was the manner of his diving into the ocean when he was in Kohsamui in Thailand. 70 From this brief history it may be concluded that the plaintiff was quite a strong swimmer with reasonable experience in swimming both in pools and in the ocean. He was not unfamiliar with the concept of beach areas being set aside for swimming with flags and the like. He was conscious of the need to take care when diving into water especially in circumstances where the depth was uncertain. He had not prior to the occasion when he was injured swum or dived in a creek.
The Plaintiff's Version of the Accident 71 I have earlier set out a brief summary of the plaintiff's description of the events of the 24 January 1999. It is necessary to say that I found the plaintiff a most credible witness and generally a reliable witness. The first thing to note in that regard is this: although the plaintiff was undoubtedly in severe pain, shock and distress in the hours following the accident, he has had considerable time now to reflect carefully on the events of the fatal afternoon in Coffs Harbour. As he said himself, he has had a lot of time to reflect on what has happened. He thinks about it "constantly". It is "on his mind all the time" (Exhibit "R"2 - T 72). Secondly, my impression of the plaintiff was that he was a reliable, genuine and truthful individual. Thirdly, he displayed a very fair and reasonable attitude to his own involvement in the accident. He was prepared to make concessions where they were required by the cross-examiner and, where appropriate, such concessions were made fairly and candidly. There were some aspects of his version of the events where he was tested quite severely in cross-examination but, in my judgment, he remained quite unshaken by those sequences. More importantly, the end evaluation of his cross-examination was that he remained throughout an entirely truthful and reliable witness. At the end of this section I shall make some brief comments about those areas where his version of the events was tested and the reasons I have for accepting him. 72 For the moment, it is necessary to focus in a little more detail on the events themselves.
The Approach to the Creek 73 When the plaintiff and Miss Brady finished watching the show at the Porpoise Pool they went through the souvenir shop adjacent to it and then had a cigarette in the car park. They had with them the brochure (Exhibit "M"). The map at page 75 of the brochure would have indicated to them that they were close to Park Beach. Prior to attending the Porpoise Pool show they had not really thought with any certainty as to what they might do after the show had concluded. It was in that situation that they consulted the brochure and decided they might walk down to the beach. The plaintiff said it was not particularly his intention to swim in the ocean when the initial decision was made to walk down to the beach. He said that they really had no pre-conceived plans before they got there (Exhibit "R"2 - T 81). He said - "We just decided to go to the beach and just see what happened". Apparently the plaintiff had not paid much attention to, or indeed noticed that the creek ran adjacent to the Porpoise Pool area. 74 They crossed Orlando Parade and started heading in the direction of the surf beach. They found themselves on the concrete path that went to and under the railway bridge. This was the path that continued on to Mutton Bird Island and to the Jetty. The plaintiff said that they noticed signs on the railway. His recollection was that the signs said "No Trespassing" and that they were located on the left hand side. He said that he did not notice any other signs up to that point in time. "We weren't looking out for signs" he said "but we would have noticed any signs that were in our path". (Transcript Exhibit "R"2 - p 86 Q 504). Exhibit "D"14, 15 and 16 show a number of signs that appear on or close to the railway bridge at this point. Photographs of these signs were apparently taken on 16 October 2002. Generally their contents coincide with the situation observed by the Court on the view in Coffs Harbour on 21 August 2002. There is a pictogram and sign in the centre of the bridge facing a person walking west to east on the concrete footpath. The sign shows a pedestrian with a prohibitive slash placed across his body. Underneath is a sign "Trespassers Will Be Prosecuted". There is another sign on a metal pole at some distance before the railway bridge on its western side. This sign is to the left of the footpath adjacent to timber pole fencing. It has the warning "Caution SRA Submarine Cable". There is a diagram on the sign as well. On the railing above the bridge on the south western side there is another sign warning of "Extreme Danger". The sign says "Keep Clear of Track and Bridge". There is what appears to be a security camera behind this sign. There is a similar sign on the north eastern side of the bridge and again there appears to be a security camera in this location. 75 These latter signs are clearly designed to warn people of the danger of attempting to climb up on to the bridge structure and hence be endangered by the presence of trains. 76 A very short distance past the bridge there is what was described as "a well worn path" running in a north easterly direction from the concrete footpath. This path or track goes directly on to the southern bank of the creek. It passes through an area of vegetation. When the plaintiff and Miss Brady took this track on to the sandy bank adjacent to the creek it was, according to the plaintiff, still his intention to go down to the surf beach to see what the waves were like. From the concrete path the plaintiff was able to look down from a slightly elevated position and was able to see the water of the creek. He was able to see the creek laid out in front of him (Exhibit "R"3 - p 125). He could see the water of the creek and he could see people swimming. He said: - "At that point, we had not really thought about swimming in the creek at all. We were just going to walk down to the beach." (Exhibit "R"3 - T 126, Q. 604) 77 There is no doubt at all that the picture presented by the creek and its confluence with the ocean at that point would have presented a very attractive appearance to the plaintiff and Miss Brady. This was because it presented an appealing scene of sea and creek water; a scene of pristine sand and vegetation in which that was mixed a range of recreational facilities on the northern side and people enjoying themselves and swimming from both sides of the creek. It is not unfair to say, as the view taken by the Court demonstrated, that the location where the creek meets the ocean at this point against the background of the Jetty and Mutton Bird Island is one of the more attractive parts of the coast of New South Wales. 78 The plaintiff of course, did not describe the scene in this way, although Miss Brady saw it in this light (see Exhibit "D"4 quoted page 54 in these reasons). His immediate attention was taken up with the situation in the surf beach which he could see clearly from the south bank of the creek. His observations were that the surf was up and that "it was rough water". The waves were "a lot bigger and a lot wilder" than waves in his own country. As a consequence, they decided that it was too dangerous to go into the surf and they then decided to swim in the creek. They put their clothes down on the sand in an area immediately to the east of the railway bridge. 79 The plaintiff was cross-examined by Mr McCulloch about his state of mind when he was in the vicinity of the railway bridge. A question was put to him and an answer given upon which much emphasis was placed in later submissions. This appears at Exhibit "R"2 - page 97, Q & A 565 - "Q. You would agree, would you not, that any signs which related to the creek which were erected at any point adjacent to the railway bridge, or where the worn path was that you took, would have meant nothing to you in those circumstances because it wasn't part of your intention at that stage to swim in the creek? A. That is correct." 80 In his evidence-in-chief the plaintiff (Exhibit "R"1 - page 77, Q & A 330) had been asked: - "Q. Prior to going down on to the sandy area and going in and diving on the number of occasions that you have told us, I think you have already told us that you saw no sign warning you of any activity? A. That is right, yes." 81 At Exhibit "R"1 - page 78, Q 332, Mr Murray QC showed the plaintiff a sign which was set out in a photograph at page 546 in Exhibit "E". This was a sign described as "Beach Safety Sign" at Gunnamatta Bay. It displayed a pictogram showing a slash through the body of a person diving into water. It was accompanied by wording which said: - "Danger Variable Depths No Diving No Jumping" 82 The plaintiff had said that he had not seen any sign to that effect as he approached "this beach". Further, in answer to a question that if such a sign had been displayed as he approached "this beach", he said that he would have obeyed it and he would not have dived into the water as he did (Exhibit "R"1 - page 80, Q & A 335). 83 Later in re-examination Mr Murray QC asked the following question (Exhibit "R"3 page 153, Q & A 738): - "Q. When the decision was made when you were on the beach at the creek not to go into the surf but to go into the water in the creek, if there had been a sign warning you not to dive because of the variable depth of water, what would you have done?" (This question was objected to but was allowed. The question then was reformulated and answered as follows (Exhibit "R"3 - page 156, Q & A 470)). "Q. What would you have done in the circumstances in which I outlined at the point where you made the decision to go into the creek rather than the sea? What would you have done if there had been a sign there warning you against diving and advising you of the variable depth of water? A. Well, I would not have dived into the water." 84 In any event the plaintiff and Miss Brady stayed in the area down near the railway bridge for about half an hour. He said they went into the water and just "generally messed about". He said they sat in the water and generally "cooled off". He agreed that they may have been running around a little bit in this area and that they were "kissing and cuddling" for a while. There were occasions when he would have been chasing Jennifer through the shallow water in this area. They would have been splashing each other and playing around generally. He said that this was an enjoyable experience. But they did, he said, become bored with the area and decided they would look for somewhere else to swim because they "couldn't swim properly there". The plaintiff did not consider diving into the water in this first area because he determined that it was too shallow and wasn't safe to dive. At Exhibit "R"2 - page 102, Q 603 the following exchange occurred during cross-examination: - "Q. You knew, didn't you, that it was dangerous to dive in the water which was at variable depths? A. Yes, but I didn't know it was that variable, I only knew it was shallow at the bank and got deeper as I went into the centre." 85 It seems to have been the general understanding of all that this question and answer related to the second area where the plaintiff swam and not the first. In the first area, it appears to have been the plaintiff's belief that there was no part of that area which was deep enough to swim properly or for that matter to dive safely. The assessment made by the plaintiff in relation to the first area was made by actually going out into the water and testing the depth for himself. He did however agree that the water in this area was to his observation quite clear and he could see the bottom. 86 The plaintiff then made the observations about a number of people swimming properly in the area further to the east down towards the training wall. After making these observations, they then decided to move down towards the eastern end of the creek. They moved their gear down to the second area and again left their clothes on the sand. The plaintiff then entered the water in the manner described at an earlier point in this decision and proceeded to undertake the diving and swimming process which has been earlier described. The plaintiff said that for the first two or three steps he made into this part of the creek he was able to see his feet and the bottom of the creek below them. Then it became "cloudy". At the point each time where he dived into the creek he was not able to see his feet nor the creek bed below them. Generally, the water was at a level about the bottom of his swimming shorts. It was more fast flowing than it had been and it was cloudy. He knew how deep the water was where he was standing and he presumed that the gradient that had led him to the point where the water was at he bottom of his shorts "would continue". The assessment he made was that because the gradient had dipped suddenly it was safe to dive into the water beyond. He conceded however, that he did not know whether the water beyond was "four feet or fourteen feet deep". He was asked this precisely (Exhibit "R"2 - T 116, Q 698): "Q. And you did not know whether it was four feet or fourteen feet deep did you? A. That is true, yes". 87 He described the type of dive he made between pages 116 and 120 of Exhibit "R"2. He said that the dive was not done in the way in which a dive would have been performed as if one were commencing a race at a swimming pool. Rather he used his feet to spring forward with arms in front. When he hit the water he moved his arms back to his sides and used his legs like in a breaststroke to push himself more forward into the water. The launch was accompanied by a bending of the knees but he did not dive up into the air before going into the water. The springing motion, he said was to propel him further forward into the creek and then to enable him to enter the water. His hands were out ahead of him to break the water to enable his body to follow. That is to say to make the entry as streamlined as possible. He agreed that he would not have taken his arms back and commenced his breaststroke kick until at least half of his body was in the water or possibly the whole of his body. The action of his hands going back and his legs propelling himself forward would have occurred at the same time. The plaintiff did not agree that the purpose of moving his arms and legs in the breaststroke was to propel himself deeper into the water, rather it was to enable him to get further out into the water. He said from previous experience he would not have been "that much under the water". He agreed however, that it was possible that as he performed the breaststroke his body was still in a trajectory pointing down towards the creek bed rather than pointing back up towards the surface. He was using the breaststroke with his hands and arms to break the surface so that he could continue swimming after the dive. He was unable to remember whether he took more than one or more than two breaststrokes under the water. Once he was back on the top of the water he dropped his feet to see if he could still stand. When he realised that he could not stand he would "just swim out towards the ocean and allow himself to be taken around by the current". He was then treading water while he was checking the depth with his foot. He did this not only on his first dive but on numerous occasions. He said "every now and again" he tested the water as he was being carried along the creek "to see how deep it was at that point". 88 He did not get out on to the bank of the creek at exactly the same point. He was only able to touch the bottom towards the end of the rock wall but in a position where he had been in any event moving closer to the shore on the southern side. In each case he would then return to the area where their clothes were located. He knew the tide was running out but it did not become necessary to move the clothes from the position where they had been first put down at the second swimming spot. 89 The plaintiff said that he generally executed "much the same type of dive" on each occasion. He said that he had done exactly much the same thing every time. On each occasion he got out of the creek at about where the training wall ends. 90 The plaintiff was tested in cross-examination as to his statements to treating doctors in Australia. He agreed that he had not told any doctor that he had dived into water which he thought was deep but which turned out not to be deep. He explained that he may have told doctors that he "dived into shallow water". He said that what he had been trying to convey by using this expression was the fact that he was diving from a standing position rather than diving off an elevated position. That is the manner in which he would have described the dives he had been making (Exhibit "R"2 page 129 Q & A 783 to 785). He agreed that he would have been conscious as he dived each time that, because he did not know the depth of the water, it was better to dive at a shallow level than at a deep level. He disagreed that he had simply misjudged the depth of the water into which he dived because, he said, he was "going from past experience from previous dives" (Exhibit "R"2 page 129 Q 787). He agreed that he "obviously did not expect to hit his head on the bottom of the creek" but he disagreed that on the occasion of the last dive he had dived more deeply than on the other occasions. He was obliged to agree that although he made an assumption that it was deep enough to dive, he in fact did not know "one way or another whether it was deep enough to dive" (Exhibit "R"2 page 130 Q 792). 91 Despite being pressed on this aspect of the matter, the plaintiff insisted that he thought he had taken enough care to make sure that he did not go near the bottom when he was diving (Exhibit "R"2 page 130 Q 794). 92 In summary, the plaintiff asserted that he had taken care before diving in the creek. He based his assumptions on the observations which he made in the water around him; on the fact that the creek bed sloped downwards ("it was quite steep" he said page 116 Exhibit "R"3 Q 541); and the fact that the final step involved quite a deep step down to the position from which he finally launched himself. In addition, he dived a number of times generally from about the same location without any problem. The plaintiff accepted that he knew that there were dangers associated with diving if he chose to dive. Specifically, he acknowledged that there were dangers at this particular area because he did not in fact know how deep it was. At Exhibit "R"3 page 123, the questions continued from Q 590: "Q. And you knew that the risks were potentially serious? A. From experience, I have done it so many other times before in different places in the sea, that I didn't see a danger in it at the time, no. Q. What do you mean by that is that you have never been injured before and you didn't see why it would occur on this occasion, is that what you were saying? A. Yes. Q. You accepted that if you dived and injured yourself that it was a matter of your own responsibility? A. Well, I never really thought of it that way at the time, no. Q. You do accept though, don't you, that diving in the way you did, you accepted responsibility for what you did? A. Yes, but I have seen other people doing it, everyone does the same kind of thing." 93 The plaintiff insisted that he thought that he had taken enough care "to make sure that I didn't go near the bottom when I was diving", (Exhibit "R"2 page 130 Q 794).
An Area Set Aside for Swimming? 94 The plaintiff agreed that in relation to both areas where he swam on the southern side of the creek, he did not see any "flagged areas". He did not see any structures which indicated that there were lifeguards on the southern bank of the creek. 95 He agreed that he knew that the areas in which he was swimming were not areas which were patrolled; and they were not areas "set aside for swimming" because there were no flags there. 96 (It was not in contest that these concessions by the plaintiff did not amount to statements that he understood that the areas where he swam were areas where people do not swim or are not permitted to swim. There were concessions however that the areas were not patrolled and not flagged and in that sense not set aside for swimming (Exhibit "R"3 Page 167 lines 3-25).
Other Versions 97 The first "version" came from Jennifer Brady's diary. It appears that she had kept a diary during their trip in Asia and Australia. Portion of the diary was admitted as Exhibit "D"4. She had accompanied the plaintiff to Coff's Harbour Hospital and travelled with him to the Prince of Wales Hospital. It is fair to say that she stayed with him at all relevant times and did her best to comfort and console him. She stayed with him the next day as well. Some friends from Melbourne arrived on 25 January and that evening Miss Brady went and had a few drinks with them. At some stage, presumably late in the evening on 25 January, she wrote up a series of entries in her diary which were headed "Sunday 24 January 1999". She introduced the relevant entries with a passage as follows: - "Okay, lets hear it for real. I have had a few beers. I'm in Room A1 which is near the hospital. I am Jenny, Garry's partner. I have to keep speaking in hospital terms for the moment. I am going to write everything down now for Garry for the future and for all I can do to help and keep my mind and things intact". 98 After describing the visit to the Porpoise Pool the entries continue: "Garry said maybe we should head for the beach as it was so near. We did and the river looked beautiful and so tempting. Before I had my bra off Garry had dived in and he always does with his beautiful coloured masculine tattooed body and had tested the waters out. I eventually got my bikini on and he grabbed me and pulled me in seductively (sp?)". 99 Before commenting on the significance of this entry in Miss Brady's diary, it is desirable that I mention that Miss Brady's evidence-in-chief substantially corroborated the version which had been given by the plaintiff during his evidence. She said that the couple had in fact swum in two areas, one nearer the beach and the second area being down near the rock wall. She identified this latter area as the area where the plaintiff injured himself. Her observations of what was happening along the southern bank of the creek and her observations of the conditions in the water were similar to those which had been described by the plaintiff. She thought that they had dived and floated down with the current on seven to ten occasions and that they may have been in the water in the second area for up to an hour. She did not see the plaintiff's final dive into the water although she was able to describe in a general way the manner in which he had dived on earlier occasions. 100 It must be said that the diary entry which I have set out above paints a rather odd picture. It suggests that the moment the couple reached the waters of the creek the plaintiff dived in while Miss Brady was watching him. Yet it seems quite clear that the water was shallow at this point. If it was shallow as both the plaintiff and Miss Brady maintained, a dive such as that described in her diary would have been likely to result in an injury. Secondly, there is no doubt that the plaintiff was not injured in the position of the creek down near the railway bridge. 101 When Miss Brady was questioned about the diary, she said that she thought the diary entry was "quite muddled". She said (Exhibit "R"4 page 47 Q 231): - "I think in the diary I just kind of gave a general account of the events and compressed the whole thing. I did not mention about swimming in the two different areas in the diary." 102 She insisted that the plaintiff did not dive in the shallow area at all. She explained that the diary entry "was quite mixed up" (Exhibit 5 page 53). She said that she had been drinking that night and she was in a fair amount of shock. 103 (This last statement appears to be corroborated by the fact that Miss Brady required grief and trauma counselling while she was at the hospital). 104 I found Miss Brady to be a truthful witness and generally a reliable one. I accept that the entries in her diary, when describing the tragic events of 24 January 1999 were "muddled". I accept that Miss Brady was describing the plaintiff diving in the water at the second location even though she had put her bikini top on at the first. When one reads the whole of the entries for the events of 24 January 1999, one is able to appreciate that here was a young woman in a seriously shocked state endeavouring to cope with a terrible tragedy which had overtaken her. She had been drinking alcohol before composing the diary entries and the entire tone of the entries reflect her feelings of anguish and guilt in relation to the plaintiff's catastrophic condition. 105 The plaintiff had himself had been asked about this version of the events of 24 January 1999. He agreed that Miss Brady had probably changed into her bikini top on the beach but he denied that he had ran down into the water and dived into the water at the first location while she was changing, (Exhibit "R"3 page 121 Q & A 580). I accept the plaintiff's evidence in this regard.
Dr Lianne Hunt - a Version in the Hospital Records 106 Dr Lianne Hunt was a Specialist Medical Practitioner working at the Prince of Wales Hospital on 25 January 1999. She was a specialist in the treatment of paraplegics and quadriplegics. At some time prior to 10.30am on 25 January 1999 she believes that she saw the plaintiff in the hospital. She made an entry in the hospital records in these terms: "29yo Irish Train driver. Fall into shallow water with presumed hyperflexia injury." 107 (There were other details as well; see Exhibit "F" page 691). 108 The point in issue in this "version" is that it was suggested that the plaintiff had told Dr Hunt that he had fallen in shallow water rather than injuring himself as a consequence of a dive into the water. The plaintiff said that he did not remember what he had told Dr Hunt but he insisted that he did not fall but dived into the water when he was injured. He did not remember telling Dr Hunt that he fell. He said that he was on "a lot of drugs and in a lot of pain at the time" (Exhibit "R"2 page 72). 109 Dr Hunt's evidence did not advance the attack on the plaintiff's version in any significant manner. Whilst she identified the entry as one she had made on 25 January 1999 she very fairly stated that she could not recall whether the information in the entry came from the plaintiff himself. She agreed that she asked the plaintiff how it was that he came to be injured but she could not recall the exact nature of his reply. She was permitted to answer a question as to whether she had any reason to doubt that the entry accurately records that which the plaintiff may have told her as to how he came to be injured. She replied that she could not recall clearly the particular entry so she was unable to comment. 110 Dr Hunt told Mr Murray QC that she really did not know from what source she obtained the information recorded in the entry she made (T 247 lines 10-15).
Dr Sridhar - a Further Version 111 Dr Kollipara Sridhar was an Anaesthetics Registrar working at the Mater Hospital in Dublin in May 2002. A that time the plaintiff was at hospital for the purposes of the surgical insertion of a Baclofen pump. 112 Dr Sridhar made an entry in the anaesthetic record of the hospital on 23 May 2002. Apparently he saw the plaintiff prior to surgery. The entry relevantly is as follows: - "Quadriparesis - Jan 9 (After a diving accident in Australia) Running in water 3 feet deep, fell down". 113 The plaintiff denied that he had told anyone at the Mater Hospital that he was running into water that was three feet deep "and fell down". He was quite certain he did not say this (Exhibit "R"2 pages 72 and 74). 114 In my opinion Dr Sridhar was not a reliable witness. I do not intend to undermine his credibility at a personal level but he was simply not a reliable recorder of information. As the transcript shows, he did not find it easy to understand what was being put to him. This may have been a consequence of his unfamiliarity with Australian accents. Secondly, the plaintiff was very softly spoken person with a strong broad working class Dublin accent. Thirdly, Dr Sridhar did not give the impression of being a good listener as the transcript indicates. Fourthly, and most significantly, he agreed with Mr Murray QC that the words "fell down" were his words and not the words of the plaintiff. (Exhibit "R"6 page 16 Q 69).
What did the Plaintiff's head strike when he dived the last time? 115 The arguments advanced by the defendants were in essence that the evidence at its highest raised no more than a number of possibilities as to what it was the plaintiff's head struck when he dived. It was argued that he may have struck his head on an object in the creek (a rock or a log); it may have been that he simply hit the bottom of the creek bed. It may be that it is quite impossible to know what he struck. In particular it was said there is no evidence from which an affirmative conclusion could be drawn to the effect that the plaintiff's head struck a bedform of any kind, of any particular dimension or at all. 116 I do not accept these submission. In my view, there is sufficient evidence to satisfy me that, on the balance of probabilities, the plaintiff's head in fact struck a bedform in the creek. I am satisfied that the plaintiff's final dive was carried out in the same way as his earlier dives but that, on this occasion, as his hands came back towards his sides, his head struck an elevated sand dune, that is a bedform generated by the force of the current in the particular tidal flow conditions in force at the time. 117 My reasons for this conclusion derive from a number of matters. They include the plaintiff's own evidence, objective field evidence regarding the nature of the creek bed from time to time and the expert evidence of both Mr Alexander Nielsen and Mr Bruce Druery. These experts, called respectively by the plaintiff and the second defendant, were in agreement on a number of important matters. They agreed to disagree, however, on a range of significant issues. I shall now deal with the expert evidence and endeavour to resolve the essential areas of difference between them where it is necessary to do so. As will become apparent however, the areas in which the experts were in agreement are, for the most part, more helpful than the areas of contention.
Mr Nielsen's Evidence 118 Mr Nielsen held impressive academic qualifications as an engineer specialising in Coastal and Geotechnical Engineering. His professional career spanned a period of about 30 years. For approximately 14 years he had worked in Coastal Engineering with the New South Wales Public Works Department. He then became a specialist Geomarine Engineer in private practice working extensively in the field of coastal engineering consultancy. In the latter part of his career he joined Unisearch at the University of New South Wales where he was involved in a number of major projects including harbour proposals, beach erosion, management studies and estuary process studies. At the time he gave evidence he was working with the Snowy Mountains Engineering Corporation. In relation to this engagement, his work again embraced specialised coastal engineering and water studies. 119 Mr Nielsen's first report was Exhibit "E". It appears between paginations 436 and 534. This report dealt with three site inspections Mr Nielsen made at Coffs Creek. They were made on 10 November, 2 December and 9 December 1999. The first inspection was made in the context of a general body of material obtained by Mr Nielsen from the local office of the Department of Land & Water Conservation relating to the creek. The December inspections were made on a neap tide and a spring tide respectively. These particular tides were selected by Mr Nielsen "in order to understand better the range of conditions that may occur in the creek". A spring tide is one that occurs at or near the time of a new moon or a full moon. A neap tide is one that occurs in between the new moon and the full moon near the time of quadrature of the moon with the sun. The neap tidal range is generally around twenty per cent less than the mean tidal range and its occurrence is fortnightly. 120 The purpose of "understanding better the range of conditions likely to have occurred in the creek" on a neap tide and a spring tide was related to the known tidal conditions at the time of the plaintiff's accident. Mr. Nielsen had been able to obtain reliable information regarding meteorological conditions on 24 January 1999. He had been able to obtain information about the weather. In addition, he had obtained reliable data regarding the tidal stage and phasing which would have affected the creek at the relevant time. 121 A summary of this information (taken from Exhibit "E" pages 445-446) is as follows: "Between 3:00pm and 6:00pm on 24 January, the air temperature was around 25 degrees C with a relevant humidity of around 70%. There was a light easterly wind blowing with a speed of around 5 knots. The barometric pressure was steady at 1008hPa. Slight rain showers were recorded during the day but not of sufficient degree to have affected water clarity in the creek or to have caused any flooding conditions. At around 5.pm on 24 January 1999, the tidal stage was 1.11m and falling from its highs of 1.7m to a low of 0.4m; that is, a falling stage of 1.3 metres. The tide was a "run out" tide, that is, an ebb tide. The wave conditions in the ocean were around the annual average for the New South Wales coast. The seas were not unusually large or calm." · (Later agreement between the experts gave greater precision to the tidal fall. Exhibit "T" paras 16 and 17 place the effective peak discharge as equivalent to that of a tide with a fall of approximately 1.43m.) 122 When Mr Nielsen made his first inspection on 10 November 1999, the tidal conditions were similar to, although larger than, they had been on 24 January 1999. The seas however, were considerably higher than the average and certainly higher than those recorded on 24 January 1999. 123 Using a face mask and snorkel, Mr Nielsen took the opportunity on this first occasion to inspect the creek during the mid-tide run out period. He took a number of rounds entering the creek from the southern bank opposite the western end of the training wall approximately, as well as in the vicinity where he understood the plaintiff had entered the water. This was a point a little further easterly down the creek from the western end of the training wall. He allowed himself to be taken down stream to the sea by force of the current. 124 Relevantly, he found on this occasion that the water was turbid with high concentrations of suspended sand. He observed that visibility was low. The bed of the creek portrayed relatively large undulations particularly on the southern side. Bed level variations reached values in excess of one metre along a line extending downstream equal distance some five to ten metres (approximately) from the southern bank. At some locations the depth of the water was in the order of two metres whereas at other locations it was as little as 0.5 metres. In other words, in some places the depth of the water was such that the water was over Mr Nielsen's head whereas in other locations it was about knee deep. 125 He observed that the bed of the creek varied in its softness. At some locations the bed was very soft underfoot whereas at other locations the bed was quite firm. The water surface in the channel area (that is, along the training wall), varied as a low relief wave and "boils laden with suspended sand" were visible at intervals along the water surface. 126 As the creek entered the sea, the water depth reduced to less than 0.5m, and the current speed increased significantly. In this area, the large seabed undulations disappeared and the current speed was high enough to make it difficult to walk across the stream. 127 The next inspection was made on 2 December 1999. This inspection was made at about mid-tide when the tide was on the ebb. It was a neap tide and the flow was not very strong. Mr Nielsen's observations were that the creek bed was relatively flat on this occasion. The water depth was fairly constant across the low tide channel at around 0.8 metres. The water was clear and the surface of the bed was covered with small current generated ripples. The current speed was measured consistently at 0.4 metres per second near the bottom of the creek and 0.6 metres per second nearer the surface. These speed measurements were taken at the centre of the creek about mid-way along the length of the training wall. A topographic survey of "the accident environs" was undertaken on the following day. This survey verified the field observations of the previous day in that the bed was relatively flat and of a consistent depth. 128 The third inspection was made on 9 December 1999. This date was selected for the purpose of measuring the flow velocities and bedforms in the creek for a similar tide to the one which had prevailed when the plaintiff had his accident. The tidal stage for the velocity measurements was mid-tide, around 1.0 metre ISLW, with the tide on the ebb (run out) falling some 1.50 metres from a high of 1.60 metres at 9.45am to 0.10 metres at 4.15pm. On the afternoon of 24 January 1999 the tide had fallen from 1.65 metres to 0.39 metres (Exhibit "E" paginated page 445 and 450). The similarity in tidal fall made for a fair comparison even though, in definitional terms, the tide on 9 December 1999 was a neap tide. 129 Mr Nielsen described his physical observations of the relevant geomorphology on 9 December 1999 in the following terms (Exhibit "E" paginated page 450): - "At this time the creek bed expressed a pronounced undulation, with water depths varying in excess of 0.5 metres over short distances along the channel. This is shown in the sequence of photographs taken at the time and presented in figure 2.8. These show Mr Nielsen wading in thigh deep water at one moment to a depth up to his armpits immediately adjacent". 130 (These photographs were later supplemented by the tender of other photographs taken at the time. They became Exhibit "W" - "Z" and Exhibit "AA"). 131 Again, the current speed was measured at the centre of the creek about mid way along the length of the training wall. It was measured "consistently" at 0.7 metres per second to 0.9 metres per second. Approaching the beach at the eastern end of the training wall, the current speed near the surface was measured at 1 metre per second. Mr Nielsen noted that during these measurements, the water was "boiling" bringing up to the surface "dense plumes of sediment" as shown in figure 2.9. This condition was, he said, in great contrast to the conditions he had experienced and measured in the channel on neap tides a week earlier. 132 Again, a topographic survey of the "accident environs in Coffs Creek" was made at low water from around 3pm to 4pm (Exhibit "E" Appendix D pages 518-520). This was done to obtain "objective measurements of the creek topography" further to the observations which were demonstrated in the photographs in figure 2.8. Both the survey done on the 3 December and that done on 9 December were carried out at low water. They are to be found in Exhibit "E" at paginated pages 514-520. Mr Nielsen explained that these surveys taken at low water do not duplicate the conditions which would have existed at mid-tide. The water depths were greater and the velocity in the stream was greater at mid-tide and hence the precise nature of the bedforms would have changed by the time of low water. Nevertheless, as Mr Nielsen explained, the low water survey demonstrates "a relict condition from the previous conditions" an hour to two before the survey was made. He noted, for example, that it may have been possible that the mid-tide bedforms were larger than those examined at low water survey. In this context he explained in general terms the phenomenon of sand dune formations in estuarine conditions, a phenomenon that is well known to marine engineers. He did so in these terms (T 170 lines 45-55):- "One reason for that is that the maximum bedform size is related to the water depth, so the maximum size a bedform can reach will be controlled by the velocity of the water flow, the grain size of the material, as well as the actual water depth and in a given water depth there is a maximum height of bedform that can be achieved. Different researchers have studied this in river flows in unidirectional flows using flumes and measurements from rivers and those sorts of estimates vary from round about 30 per cent to some, even, 50 per cent of the water depth. So, when the depth of water is deeper, which it would be at a mid-tide condition compared with the time of the survey taken at low tide, then it is possible that the maximum height of the bedform that could be developed at that time would be larger than one that may be relict and remaining at a low tide level. It is also possible that a survey of a bedform…that is a bedform at mid-tide could be smaller than one at the very low tide. And while the water depth is greater, which means the potential for a larger bedform to form, it can be the case that the current speed is so strong that it in fact flattens out the bedform so that they can't reach that maximum level". 133 In the first of his written reports, Mr Nielsen (Exhibit "E" paginated page 452 and following) explained in more detail the hydrodynamics of an estuary such as Coffs Creek. The theory was expressed in the following terms: - "Water flowing over an erodible bed of sand interacts with the bed and, as a result of an orderly pattern of scour and deposition, can deform it into a variety of bedform configurations (Henderson (1966); Kennedy (1963). The nature of the configuration depends on the depth and velocity of flow and the properties of the sediment and the fluid, with the principal types of bed features usually distinguished being ripples, dunes, flat bed and anti-dunes. (Kennedy 1963; Simons & Richardson 1961; see figure 3.1). Under low flow regimes, if the speed of the current is great enough to move sand grains the bed is deformed into irregular features. Initially, with flow speeds at the threshold of sediment transport, ripple marks form on a sand bed. …To the casual observer under these very low flow conditions for all intents and purposes the bed would be relatively flat. As the flow becomes stronger, larger bed features called dunes develop…in longitudinal section, dunes are approximately triangular with a relatively gentle upstream slope and a deep downstream slope. The dunes will move downstream relatively slowly (Kennedy, 1963). Most of the sand moves downstream close to the bed, with the dunes advancing downstream with some of the bed load avalanching down the face of the dune. The other part of the bed material load is carried onward; some to the surface in "boil" areas, which have a different colour due to the large concentrations of suspended sediment (Simons & Richardson 1961). Dune size can vary with heights from 0.3 metres and spacing up to 6 metres in small alluvial channels to heights as large as 12 metres with lengths of around 100 metres in large rivers such as the Mississippi (Simons & Richardson 1961). Van Rijn (1989) presents field and laboratory flume data giving dune heights, on average, at about 20 per cent of the water depth with a range reaching up to around 40 per cent of the water depth". 134 Against the background of this theoretical knowledge, Mr Nielsen analysed the data he had collected on 9 December 1999. At paginated page 454 of Exhibit "E", he explained that the data was typical of spring ebb tide conditions in the lower reaches of Coffs Creek. Apparently this was so despite the fact that the relevant tide was, strictly speaking, a neap tide. He noted that the Weir survey taken at low water on 9 December showed dune bedforms with amplitudes of the seabed up to 0.6 metres. 135 The data, he said, was entirely consistent with the theoretical understanding of flow and bedform development in alluvial channels and was indicative of dune bedforms. He plotted the hydrodynamic and sediment data against the bedform predictions schema of Simons & Richardson (1961). The results are to be found in figure 3.3. This appears at paginated page 473 of Exhibit "E". The nature of the different types of bedforms in alluvial channels is best seen in figure 3.1 (paginated page 471 of Exhibit "E"). 136 The assessment made by Mr Nielsen was that his physical observations of the bedforms in the creek at the time of inspection on 9 December 1999 were validated by the scientific methods utilised. The result was expressed very simply in the transcript at page 183 lines 10-20: - "Q. On 9 December? A. Well when I applied the measurements I made in the creek on 9 December, it resulted in an indication on this diagram that I would have expected to have found dunes on the bed of the creek at that time. Q. Is that a method of, as it were, validating what you found in your own experience and measurement? A. It is. In a sense it is indicating that the observations that I made were entirely not unexpected perhaps even predictable". 137 A second objective validating method was an examination of the historical aerial photography of this section of the creek. At page 474 of Exhibit "E" there appears figure 3.4. This is a copy of an aerial photograph portraying large scale dune bedforms in the relevant section of Coffs Creek during the middle of the spring tides that were occurring on the date of the photograph namely, 28 August 1977. The photograph plainly shows large scale dune bedforms spilling out in a southerly direction from the training wall. 138 Against the background of the observations he had made in November and December 1999 and the scientific verification he had made, Mr Nielsen turned his attention to the likely situation at about 5pm daylight saving time on 24 January 1999 at the relevant part of Coffs Creek. It needs to be stressed that Mr Nielsen made no physical observations of the creek on the day the plaintiff had his accident. Nor for that matter did Mr Druery, the scientific expert called on behalf of the second defendant. Apart from the objective physical data relating to the weather conditions, tidal conditions and ocean conditions, the only evidence of physical observation of the creek came from the plaintiff, Miss Brady and a gentleman who assisted the plaintiff from the water, a Mr McDonald. None of these three were scientifically trained to make observations of creek geomorphology. None of these were, in the tragic circumstances, concerned to do so. 139 Mr Nielsen however, was able to draw upon a number of positive matters. First, the tide on 24 January 1999 fell approximately 1.3 metres. This occurred between 2.15pm and 7.45pm. Secondly, this fall occurred over five and three quarter hours duration rather than the usual six and a half hours required for a tidal fall. That meant, as I have earlier indicated, that the effective peak discharge was equivalent to that of a tide with a fall of approximately 1.43m. Thirdly, the tidal fall occurred following a succession of spring tides. Fourthly, at the time of the accident the water level was around mid-tide level. 140 Given these factors, Mr Nielsen expressed his expectations in the following manner (paginated page 456 of Exhibit "E"): "At mid-tide level on a falling 1.3 metre tide, the flow in Coffs Creek would have been strongly ebbing, with average flow velocities of around 1 metre per second. The average water depth across the creek would have been around 1 metre but the bed of the creek would have displayed large variation due to the formation of undulating subaqueous dune formations. With amplititudes of the dunes probably in excess of 0.5 metres and perhaps reaching 1 metre, the water depth was likely to have been varying along lines parallel to the thalweg of the creek from as deep as around 1.5 metres or more to as little as 0.5 metres or less. The wavelength of these undulations would have been around 5 metres. The current speed would have been variable, with the flow accelerating over the shallower undulations in the bed, reaching speeds around 1 metre per second. Sediment laden boils of water would have been seen along the surface of the water, which itself would have been undulating slightly out of phase with the dune bedform undulations (see figure 3.1(c)). The visibility in the water would have been very low, due to the high concentration of suspended sediment, and it is unlikely that the bottom was visible beyond about calf depth. Parts of the creek bed would have been soft, particularly those deeper parts where the sand was avalanching down the faces of the dunes into the deeper water, whereas other parts of the creek bed would have been firm or hard, particularly the shoaling depths on the consolidated upstream faces of the dunes from which the sand was being eroded." 141 Mr Nielsen's oral evidence (both in chief and in cross-examination) was given over a number of days. He adhered to his opinion as to the likely condition of the creek bed at the time of the accident although he was prepared to concede the possibility that the creek may have been flatbed or in transition. It very much depended on the precise conditions occurring on the afternoon in question. 142 Mr Nielsen prepared a second report on 29 January 2001. This also forms part of Exhibit "E" (paginated pages 535-554). A good deal of the report was disallowed. There remained in evidence however, a reference to beach or water safety signs at Wanda Beach and at Gunnamatta Bay. One of the signs at Gunnamatta Bay appears at page 546 of Exhibit "E". This is the sign which was shown to the plaintiff by Mr Murray QC and in respect of which evidence was given relevant to the causation issue (see para 80 page 47 of these reasons). 143 The remainder of the second report dealt with the signs which had been observed by Mr Nielsen on the northern and southern banks of Coffs Creek. There were no signs however warning swimmers of the potential risks of diving or jumping in the creek or warning that the creek was of variable depths in that location. 144 The third report of Mr Nielsen is headed "Historical Development of the Coffs Creek Entrance Channel". It appears in Exhibit "E" between pages 555 and 598. The theme of this report is the opinion expressed by Mr Nielsen that the construction of the rock training wall on the northern side of the channel and its later rebuilding not only stabilised the channel location but may have acted to improve the hydraulic conveyance characteristics of the channel thereby increasing tidal prism and channel velocities. This, as he explained, was likely to have had consequences in relation to the formation of bedforms in the creek 145 Mr Nielsen based his opinion on a number of matters. First, there was the history of the construction and improvement of the training wall itself. Secondly, there were the statements in a number of historical reports commenting on the stability of the entrance of the creek following the training wall construction. Thirdly, Mr Nielsen placed reliance on a number of aerial photographs taken from December 1976 to June 1996. These showed virtually no change in the general location of the inlet channel adjacent to the rock training wall. This was in marked contrast to the situation which had occurred in earlier times. Fourthly, he placed reliance on photogrammetric plotting and subsequent sand volume calculations. The latter demonstrated a lack of any large scale variation in the sand volumes downstream of the bridge since training wall construction. Finally, he placed reliance upon six photographs taken at various stages between 1942 and 1974. These were chosen for detailed examination based on the antecedent tidal conditions in the creek at the time each of the photographs were taken. Some of these photographs were taken at times when the antecedent tidal conditions were unlikely to have given rise to the creation of large bedforms. There were however, several photographs which were taken after suitable tidal conditions. It was Mr Nielsen's view that sand wave bedform features were not apparent on these photographs. 146 The argument was developed in the following terms (page 568 of Exhibit "E"): "The construction of the northern training wall at Coffs Creek entrance and, particularly, its extension in 1988, would have reduced the influx of sand into the channel on the flood tide. This would have permitted the ebb tide scour of a larger equilibrium flow area and hence provided for a larger tidal prism. The tidal prism would have been increased further as a result of reducing the length of the entrance channel (Czerniack (1977); O'Brien & Dean (1972). By stabilising the location of the channel, the training wall construction has obviated the meander in the channel, thereby reducing its length and frictional resistance. That there can be high tidal velocities in the creek now is evidenced by measurements made during spring ebb tide discharges (Nielsen (2000)." 147 Mr Nielsen then brought to bear the descriptions and measurements he had made during November and December 1999 inspections. These had been detailed in his earlier report. He recalled (page 569 of Exhibit "E"): - "Field data obtained in November and December 1999 attested to the flat bottom, clear and quiescent conditions observed in the creek during neap tides, which contrasted to the undulating, turbid and energetic conditions of the flow on the run out spring tide (Nielsen 2000). On spring run out tides, Nielsen (2000) observed the depths in the creek to have varied by up to 1.5 metres over short distances of only a few metres and bedforms as large as 0.6 metres in height were surveyed, subsequently, at slack water." 148 Mr Nielsen concluded his argument by noting that none of the photographic enlargements made of the channel prior to 1976 portrayed any bedform features. It was his view that, on the balance of probabilities, the training wall construction and, in particular the training wall extension in 1988 had a significant impact on the flow conditions in Coffs Creek. He summarises the impacts as follows: - · "Stabilising the location of the entrance channel, thereby ameliorating dune erosion; · Restricting beach sand transport into the channel on flood tides, particularly from the northern side of the inlet, thereby enhancing the net effect of ebb tide scour and hence, increasing the cross sectional area of the channel. · Enhancing the hydraulic conveyance of the entrance thereby increasing tidal prism and velocities and ameliorating flooding in the creek; and · Generating turbidity and causing large undulating and unstable sand waves to form in the creek bed on the run out spring tides." 149 During his evidence at the hearing, Mr Nielsen made a number of qualifications to matters mentioned in this report. There had been, during the hearing, commendable efforts by Mr Nielsen and Mr Bruce Druery to reach agreement on a number of matters in dispute between the experts. It is appropriate to record at this point that Mr Druery was a Director and Principal of Patterson Britton & Partners Pty Limited, a firm of consulting engineers. He had been in practice as a professional engineer for over 30 years particularly in the field of hydrodynamics and sedimentary processes of rivers and estuaries. Co-incidentally, he too had been employed by the Public Works Department for a considerable number of years before entering private practice. He had worked in the estuary management section of the department for 15 years. He had in fact directed the Coffs Harbour Creek Waterway Study in 1978/79. 150 Mr Nielsen and Mr Druery had conducted a joint examination of the aerial photography both pre and post 1975. The joint examination was able to utilise very sophisticated equipment to scrutinise the photography. Both experts agreed that the historical photos were generally of poor quality and, as such, made bedforms difficult to discern. The joint agreement (Exhibit "T") contained on page 1 the following matters: - "Discussion of Features Related to Pre-1975 Photography 3. Sand dunes and larger sand bodies such as active sand shoals, are observable in the lower estuary. 4. The observed sand dunes, generally, appeared to be of lower relief (ie, dune height) compared with those observed in recent photographs in the area of the entrance wall." 151 During his evidence in chief, Mr Nielsen, following the joint examination of photos with Mr Druery, said that he had now been able to discern some bedform features in the pre 1975 photography. In his view however, the bedforms were not as extensive "as they are seen today in the area of the entrance channel adjacent to the rock wall", (T 195 lines 45-50). 152 Exhibit "T" contained other valuable matters of agreement between the experts. For example, in relation to the post 1975 photography, it was observed that there were observations of "large consistent dunes in the entrance channel adjacent to the entrance rock wall". Additionally, the photographs demonstrated that during neap tide conditions, sand dunes were observed in the area of the entrance rock wall "on four out of five occasions". Plumes of suspended sediment in the entrance channel adjacent to the rock wall "…were evident in those photographs taken while the ebb tide was still flowing significantly (for example, the photograph 16 May 2000)" [Exhibit "T" paras 7, 8 and 9]. 153 Exhibit "T" contained a number of areas of agreement in relation to the issue of the impact of the entrance rock wall construction. This appears at section 3.4 of Exhibit "T" where a number of matters bear repetition: - "24. The construction of the entrance rock wall in 1988 has resulted in a flattening of the flood tide gradient compared with 1977 which would tend to increase the tidal prism of Coffs Creek. 25. It is likely that the construction of the entrance rock wall has enhanced the natural scouring action of tidal currents, allowing a deeper channel to develop against the toe of the wall. The increased depths have the potential to increase bedform heights in the channel than otherwise would have been the case in the absence of the rock wall. 26. The entrance rock wall has increased the variability of depths in the entrance channel in the vicinity of the wall. 31. The construction of the training wall has stabilised the location of the inlet by preventing its tendency to meander to the north. While it is possible for present day gross transport of littoral sand, in the form of transient sand slugs driven by major storm activity, to impact on the entrance to Coffs Creek and cause periodic southerly shifts in the orientation of the outer eastern portion of the entrance channel, no major fluctuations in that regard have been observed to date. The enhanced natural scouring action of tidal currents flowing against the entrance rock wall has increased the propensity of the entrance channel to hug the wall." 154 In relation to the joint agreement reflected in paragraph 26 above, Mr Nielsen explained that the variability of depth in the vicinity of the wall would be propagated across other parts of the channel in a southerly direction. (T 212 lines 15-25). 155 Mr Nielsen concluded his third report in these terms (Exhibit "E" page 570): "The changes to the entrance, undoubtedly, have been beneficial in many respects and it appears that they were designed to that effect. … The changes to the creek have been a result of training wall construction, which has increased the tidal prism of the creek and, hence, the run out tidal velocities, has generated turbidity and has caused the formation of large undulating and unstable sand waves on the bed of the entrance channel." 156 There is one final aspect of Mr Nielsen's oral evidence which requires recitation. This related to the matter that he considered provided justification for his views relating to the flattening of the flood tide gradation compared with 1977 and its consequences (Exhibit "T" para 24). 157 Mr Nielsen explained the particular matter in this way. In the Coffs Harbour Creek Waterways study Volume 1 (April 1979) the Department of Public Works reported a number of conclusions it had reached regarding the hydraulic investigation of the flooding and tidal characteristics of Coffs Harbour Creek. Figure Number 6 to the report is set out at page 321 of Exhibit "D". It is a graph of the tidal gradient measured on 1 September 1977. The graph demonstrates that the flood tide gradient fell from an ocean level of 0.56 to a level at the railway bridge of 0.49. This means that between the two locations, the high tide line was falling as demonstrated by the measurements taken in 1977. 158 Mr Druery in his second report (Exhibit 2 D9) dated September 2002, produced a document headed "Measured Tidal Gradients". This appears as figure A.1 in Exhibit 2 D9. The graph shows three measurements. The first is a repetition of the 1977 measured tidal gradient carried out by the Department of Public Works. The second is a measurement carried out by Bruce Fidge and Associates on 5 September 1991. The third is a measurement carried out by Mr Druery's firm on 10 August 2002. The measurements taken in 1991 and 2002 indicate that, between the ocean and the bridge, the high tide line was horizontal at the time of each of these measurements. This meant, Mr Nielsen explained, that the flood tidal gradient had "flattened" in the years since 1977 (T 206-207). This supported Mr Nielsen's view that the entrance rock wall had improved the conveyance characteristics of the creek so as to allow full penetration of the floor tide ie, the total volume of water getting into the creek had increased. In turn, the increase in tidal prism had the potential to increase bedform heights in the channel otherwise than would have been the case in the absence of the rock wall (T 208 line 45).
Mr Druery's Evidence 159 I have earlier set out a brief summary of Mr Druery's qualifications. He is clearly a leading expert in the field of hydrodynamics and the sedimentary processes of rivers and estuaries. His first report became Exhibit 2 D7 and was produced in its final form in March 2002. Mr Druery had made observations and taken measurements at a stipulated location in Coffs Creek downstream of the Orlando Street Bridge. This had been done in the period between 21 and 24 February 2002. 160 The observations on 24 February 2002 were carried out mid-tide during a run-out tide which had an identical range to that of 24 January 1999. They were made at the time of peak ebb tide discharge (about 1pm) on that day. The detailed observations were, as it turned out, of limited value as the location chosen by Mr Druery was not that where the plaintiff was likely to have been when he was injured. The location he observed and measured was slightly further upstream and to the west of the training wall. 161 The report nevertheless, was of considerable value particularly in relation to some of the general matters recorded by Mr Druery in relation to the behaviour of creek beds in New South Wales estuaries. Mr Druery had said that he had made underwater observations of the movement of bed sediment in many of the estuaries of New South Wales under conditions varying from slack water to peak flows during spring and neap tides. At para 31 of Exhibit 2 D7, Mr Druery said: - "From my observations, made over more than 20 years, I can say that the sandy bed of all estuaries in New South Wales always contain bedforms ranging from ripples of height 1 to 2cm to sand dunes ranging from 0.1 to 0.7 metres in height and 2 to 10 metres wave length…in water depths varying from 1 to 10 metres". 162 He described a physical manifestation where, depending on tidal conditions, sand dunes were propagated resulting in net transport of sand associated with bedform dynamics. This was described as the "migration" of sand dunes, a phenomenon occurring especially during spring tides but less so (usually) during neap tides. He referred to his own studies in the Tweed River where a spring to neap dune sequence showed a pronounced dune reversal each half tide. He described the ebb tide reversal as "substantial", with the reverse reactivation face of the dune becoming a dune in its own right. 163 The report, in addition to providing measurements of bedforms taken in the February period, traversed many other areas. The following is a brief summary of the principal matters with which the report dealt.
(a) Mr Druery examined photographs of the Coffs Creek taken between 1942 and 1977. This "stereoscopic" examination led to the controversy and later partial agreement between Mr Druery and Mr Nielsen reflected in Exhibit "T".
(b) Mr Druery expressed views regarding the construction of the training wall and its impact, if any, on the hydrodynamics of the creek. It was his view that the dominating features in the creek were the entrance gravel bar and the indurated sand weir opposite Hood Street, about 700 metres upstream of the railway bridge. Because these were the dominating features in the creek, he thought that the wall had "a negligible impact" on the tidal flows of Coffs Creek. He did not agree with Mr Nielsen that there had been any increase in the runout tidal velocities or an increase in tidal prism.
(c) There are number of areas where he was in disagreement with Mr Nielsen. These included the presence of sand dunes during neap tide conditions; and the reasons for the stability of the entrance of Coffs Creek (the principal reason he thought was the fact that the Coffs Creek had for a number of decades "been starved of any significant long shore sand supply").
(d) Mr Druery noted the use which Mr Nielsen had made of the theoretical considerations of Kennedy (1963) and Simons & Richardson (1961). He was a pains to point out that the tidal flows in creeks violate the theoretical assumptions which underlay, for example, the statements of Kennedy. This was particularly so in that these theories had been developed from unidirectional fluid mechanics and flume experiments in which hydraulic conditions were held consistent until bedforms no longer change dimensions. He pointed out that these unidirectional theories are inapplicable to the dynamics of tidal dunes which are never in equilibrium with the tidal flow at any instant. He relied upon a statement by Fredsoe (1984) who recorded that in the case of tidal dunes, the theory is more complex: "this problem still needs to be solved" (Para 98 Exhibit 2 D7).
(e) Finally, Mr Druery considered that, based on his considerable experience of measuring sand dunes in New South Wales estuaries, a dune height of 1 metre "would be virtually impossible" (Para 101 Exhibit 2 D7). As recounted later in Exhibit "T", field measurements he had been involved with demonstrated that maximum dune heights in New South Wales generally did not reach laboratory maxima. They were generally less than 1/6th of water depth (para 20). 164 At the hearing, a second report by Dr Druery was tendered. It was dated September 2002 and became Exhibit 2 D9. The principal reason for the tendering of this late report arose in circumstances where the solicitors for the plaintiff had written on 23 July 2002 pointing out that Mr Druery's measurements on 22-24 February 2002 had been carried out in an inappropriate location. Mr Druery needed to select tides in August-September which were likely to replicate those which had occurred at the time of the plaintiff's accident. It was also necessary that a tide be selected during daylight hours and therefore enable the measurement of bedforms. The period selected was from 2-11 September 2002. During this period, the tidal periods commenced with neap tides with a minimum ebb tide range of 0.45 metres building up to a peak spring tide ebb range of 1.81 metres then gradually reducing to an ebb tide range of 1.3 metres. Mr Druery thought that the chosen period had reasonable similarity with the antecedent tides of 24 January 1999. These had been preceded by neap tides building up to a peak spring tide ebb range of 1.63 metres then gradually reducing to an ebb tide range of 1.23 metres on the day of the accident. This was in fact akin to an ebb tide range of 1.3 metres because of the shortened duration of the ebb tide discharge on that day. Both experts were, as I have noted, in agreement on this point. 165 The report contains very detailed measurements and observations throughout the whole period investigated. Of a special relevance was the main discharge period of the ebb tide on 9 September 2002. This was observed between 1200 and 1600 hours. The detailed description is contained between pages 11 and 13 of Exhibit 2 D7. 166 Mr Nielsen's methodology was threefold. First, he made detailed observations by swimming, snorkelling and wading in the creek itself during the relevant period. Secondly, he undertook bedform measurements at slack water following the ebb and flood tides. It was, of course, not possible to take measurements during mid-tide because of the stronger current and the resultant fact that measuring staffs would create scour and destroy the very bedforms they were designed to measure. Thirdly, he applied well established principles relating to sediment transport analysis to the conditions he encountered to ascertain whether they corroborated the physical observations and measurements. His general conclusions were that at the mid-tide period the overall level of suspended sediment transport was too high to sustain dunes. There were at particular locations, for example, the eastern end of the wall, some low profile bedforms. These were no more than 10cms in height and Mr Druery was able to locate these with his feet. After 1.30pm, Mr Druery reported that he was able to walk or wade from the southern bank to a point about 2cms from the rock wall. There were no bed irregularities until he reached this position. At that point, the creek bed became too deep to walk in and the current became much stronger. The distance from the southern creek to the point where Mr Druery was unable to stand was about 10 metres. His conclusion was, in consequence of the wading procedure he adopted, that the flow was upper flatbed regime, that is the dunes were relatively flat and washed out. 167 Towards the end of the period of observation at about 1500 hours he noted the presence of three dimensional dunes. They were "erratic dunes, highly irregular in shape". They were however, only about 0.1 to 0.15 metres in height in a depth of 0.3 to 0.04 metres. They were forming "suddenly" and were "very soft". 168 By 1600 hours the energy had gone out of the tide and dunes were again forming. They were approximately 0.2 of a metre. This observation related to the whole area scrutinized but especially the upstream area. 169 Figures D12 to D21 in Exhibit 2 D9 comprise a graph in each case of the bedforms measured on the two lines set up on 9 and 10 September. The measurements were all taken at slack water. A number of the figures superimpose the individual graphs upon one another so as to give a profile of the overall pattern. Mr Druery said they contrasted with the comparison graphs and measurements he had taken during the earlier neap tides. Following those, the graphs had shown the dunes changing direction and moving. Figure D15, however, provided a good comparison with the earlier situation. The variations shown on it were essentially "random and non-directional". 170 Figure 12 provided a good example of Mr Druery's argument. He pointed out that this figure showed the situation at the end of a spring tide runout. The profile exhibited was that of relatively washed out bed conditions. This, he said, indicated that more likely than not, the conditions at mid-tide would have been plane or flat bed. There would not have been time for dunes to form at mid-tide. 171 Figures D17, 18 and 19 showed the emergence during ebb tide of localised scour holes very close to the rock wall. Mr Druery explained that these were not bedforms but stationary scour holes emerging due to turbulence coming off the rock wall itself. They tended to infill during the flood tide. 172 Mr Druery's explanation of the scientific theory underlying sediment transportation was useful not only in connection with the argument he maintained. It was very useful in understanding the evidence of both experts and was substantially relevant in understanding the probabilities as to the events of 24 January 1999. 173 A brief summary of the transportation theory is this: - 174 The way sand moves and behaves is totally dependent upon a factor described as "the shear stress". In simplistic terms, this means an examination of the way in which the stream is impacting on the bed. The sediment reacts to the shear stress impacted upon it. 175 The theoretical variation of the ratio of dune height to water depth involves the impact upon the sediment of the shear stress. At very low prevailing shear stress, there is no sand transport and the bed is flat. As the prevailing shear stress increases (ie., flow velocity increases) sand dunes develop and progressively increase in height until a maximum of approximately 0.3 of the water depth is reached. Leading up to this maximum, the sand movement which is forming the sand dunes is moving in close contact with the bed in what is commonly referred to as "bed load". At the maximum dune height, the shear stress and hence, energy of the flow is sufficient to cause a minor percentage of the moving sand to move into the water column and be conveyed as "suspended load". 176 As the prevailing shear stress increases further (ie., flow velocity increased further) the percentage of suspended load increases and dune height begins progressively to decrease. At very high values of the prevailing shear stress, the energy of the flow is so strong that the majority of sand transport takes place as suspended load and the sand dunes are washed out as upper flat bed flow conditions occur. 177 Mr Druery applied these principles (and the relevant scientific formulae applicable to them) to determine the shear stress prevailing at the peak of the spring and neap ebb tides. This was in order to verify the field observations and measurements he had taken. The results verified his observations in two important respects. First, they showed that during neap tides, 80 per cent of the sand was likely to have been moving as bed load and hence vigorous sand transport in the form of sand dunes could be expected. Secondly, they demonstrated that during spring tides a much lower percentage of the sand was moving as bed load and the shear stress was sufficiently high to wash out the bedforms. He had, for example, noted during his field observations the high proportion of suspended sediment in the water which had been intermittently obscuring visibility. 178 This second aspect of this scientific analysis confirmed his observations for 9 September that sand dunes had begun to form only towards the later stages of the spring ebb tide when the current had abated and the prevailing shear stress had dropped considerably. During the mid-tide however, the position was likely to have been as he observed it namely, plane or flat bed. 179 Based on all he had observed and measured, Mr Druery then expressed opinions in relation to the reconstruction of the likely conditions of the creek bed at the time of the plaintiff's accident. He thought that the conditions of the creek bed on the day of the accident would have been similar to that he observed during the ebb tide of 9 September 2002. He expressed those conclusions in the following manner (page 19 Exhibit 2 D9): "(i) At the time of the accident the flow velocity would have been high, probably of the order of 0.8 metres per second. (ii) Sand transport would have been predominately as suspended load and the bed would have been exhibiting sheet flow with low profile, washed out bedforms; (iii) After the time of the accident, towards the end of the ebb tide run, the irregular bedforms would have begun forming very soft bed conditions as the suspended load was delaying; (iv) Towards the end of the tide, the conditions of the bed would have been very loose which would have made wading very difficult." 180 Mr Druery's report (Exhibit 2 D9) dealt extensively with a number of other topics. These had been, in the main, touched upon or dealt with by him in his earlier report. I do not propose to set out in any detail these matters. Topics addressed by him included previous data (and his own estimations and measurements) justifying his view reflecting the notion that the tidal gradient had not flattened as a result of the construction of the rock wall. It also included his views on peak ebb tide discharge in the creek and the associated topics of inlet stability and recent sand infeed into the creek since 1993. These were, generally speaking, matters which went against views expressed by Mr. Nielsen to the effect that the construction and reconstruction of the rock training wall had an effect on tidal prism and hence led to the presence of larger and more unstable bedforms in the creek.
An Appraisal of the Expert Evidence 181 In my opinion, Mr Nielsen was the more reliable and impressive of the two expert witnesses. This is not an attack on the credibility of Mr Druery nor, for that matter, was there any serious attack on the credibility of Mr Nielsen by the time the evidence had been completed. Both Mr Druery and Mr Nielsen were and are respected men of science and in fact, colleagues with a high degree of respect for each other. The issue is more one of reliability. 182 In my view Mr Nielsen was more objective and dispassionate than his colleague in his consideration of the possibilities of the situation of the creek bed as at 24 January 1999. Although it was his preferred view that it would not be "unexpected" from his perspective that there were bedforms in the creek bed and that there was a large variability in the creek bed at the time the plaintiff was swimming and diving, he was at all times prepared to concede the possibility that the creek bed may have been a flat bed surface at the time. 183 Mr Druery was altogether more dogmatic and held a deeply entrenched position. He was insistent that the creek bed would have been washed out and he was not really prepared to tolerate any other possibility. He was in my view guilty of the faults rather gently attributed to him by Mr Nielsen namely, that he was "overly precise" and "too prescriptive" in his application of scientific theory and formulae to factual conclusions which were generally able to be identified but not known with absolute precision. 184 There were a number of instances where his reliability was perhaps more seriously called in question. For example, it is clear that Mr Druery had a part to play in the scientific tutoring of Mr Maconachie QC in relation to a line of questioning which, at its end, resulted in a suggestion being put to Mr Nielsen that he had acted in a seriously unscientific way in connection with the preparation of one part of his reports. This was a serious allegation and I have no doubt that it was put by Senior Counsel only after the most specific of instructions and information had been passed to him by Mr Druery. 185 The issue arose in connection with the application of a formula mentioned in the scientific text of Simons and Richardson (1961). The particular matter at issue related to the sand diameter of grain particles taken from the creek bed and subsequently analysed. The particular formula was described as a "bedform prediction schema". Mr Nielsen had graded samples of sediment taken from the creek using an acceptable scientific method. A set of standard sieves was used and about 100 grams of the material was put into the sieves. They were shaken and then the weight retained on each sieve was recorded and from that a grading curve was made. Two criticisms were made of Mr Nielsen. The first was that tables 3.1 and 3.2 (Exhibit "E" 454 and 455) utilised a value different from the particle size gradings set out at Exhibit "E" page 507. Mr Nielsen explained, however, that he recorded the results of the tests done on the grading of the sediment but that, for the purpose of the computation he then made, he used "the effective fall diameter" which was computed from the fall velocity. He maintained that the sand diameter grading was not as critical as an accurate estimate of the fall velocity. 186 The second criticism was closely allied to the first. It related to the use of the formulae required for the purpose of making the assessments necessary in figure 3.3. (See Exhibit "E" page 473). This was an important document. It was a document which gave scientific validation, in a general sense, to the observations which Mr Nielsen had made regarding the creek bed following his inspections on the 2 and 9 December 1999. An examination of the document demonstrates that, applying the Simons & Richardson formula, the bedform on 2 December was likely to have been in the "ripples" stage; whereas on 9 December it was in the range for "dunes". The allegation that Mr Nielsen had acted in an unscientific manner related to the data he had used on the abscissa of the graph. It was suggested that instead of incorporating in this aspect of the calculation the median diameter of the bed material, Mr Nielsen included the effective median fall diameter of the bed material. Mr Nielsen agreed that this was what he had done. He explained with some conviction, however, that the Simons & Richardson tests had been tests based on laboratory materials which would have been very different from the poorly sorted materials that are found "in the field". The laboratory materials were materials for which the fall velocities and the effective diameters would be well related. Secondly, he demonstrated effectively that the result of using the sieved diameter value in lieu of the effective fall diameter was such that the resultant interpretation would not differ in any substantial way from the result he achieved when he plotted the diagram on figure 3.3 (page 473 of Exhibit "E"). Thirdly, Mr Nielsen stated that he believed he had applied the formula in an appropriate and scientific manner. He did not agree that the method of computation led to a result that was more favourable than if he had simply used the sand diameter measurements. 187 In re-examination, he produced a document which was admitted in evidence as Exhibit "U". The document clearly explains and justifies the approach which Mr Nielsen had taken. 188 Moreover, Mr Nielsen was permitted to explain briefly the situation in his oral evidence (T 399-401). Mr Nielsen said that he had been confronted with a situation, having made the grading analysis, where the median particle diameter derived from the tests was different as between each sample. It was his view that those parameters were not necessarily the appropriate diameter value to be applied. The matter that concerned him was the prospect that when plotting up the results, the disparity could affect the value of the median diameter even though the particular pieces in the sample may not have been necessarily involved in the sediment transport processes under investigation. For that reason, Mr Nielsen stated that it was his practice in all projects to determine the fall velocities of the sediment. They are, he said, a very important parameter in terms of undertaking sediment transport process computations. Consequently, he took the approach of determining the equivalent diameter of a sand particle that would result in a fall velocity that was identical to the one he had measured. He was able to verify this process by reference to the Simons & Richardson paper (T 399 line 40 to T 400 line 40). He demonstrated effectively that, had he used the most coarse value of the measured sieved grains size parameter, the points he plotted on figure 3.3 would still have been within the "dunes" phase. 189 A certain irony relating to Mr Druery's criticism of Mr Nielsen became apparent later in the proceedings. Mr Druery had prepared a document M.F.I. 15 (later Exhibit "DD"). It contained the material on which Mr Druery had made certain calculations. These were based upon the Englund & Fredsoe (1976) theory of the "variation in dune height - water depth ratio with effective bed shear". Mr Nielsen did not subscribe to the precise applicability of this theory to the conditions in Coffs Creek. Nevertheless, he checked Mr Druery's application of the theory and made two important comments. They are contained in Exhibit "EE" and were further developed in the oral evidence between T 575 and 583. These were, first, that the application of the theory to a range of possible results (rather than to a precise quantification of the various parameters as Mr Druery had done) would have resulted in a range of quite significantly different conclusions. More importantly, for present purposes, he noted that Mr Druery had failed to apply the Englund & Fredsoe method correctly. The method dictated the use of the fall diameter of sediment particle for the particle size "d". Mr Druery did not use this but instead relied upon the median grain size (the value of .23 mm being his assessment of that which was described as d50 for the sediment). 190 Mr Nielsen was able to demonstrate that the use of the parameter required by the Englund & Fredsoe formulae yielded a different result than that which had been achieved by Mr Druery using the median grain size. 191 The irony of the situation in which Mr Druery found himself was not wasted on Mr Maconachie QC (T 584 line 20). Senior Counsel then called Mr Druery to justify the position he had taken. The "short point", as it was described, was that Mr Druery considered that the Englund & Fredsoe formulae were in turn derived from Einstein's work in 1950; and that Einstein preferred the median grain diameter approach. In turn, Mr Druery explained that he preferred to follow Einstein rather than Fredsoe. 192 The point of this rather lengthy analysis is that, in my opinion, some justifiable criticism may be levelled at Mr Druery in relation to the exchange. It was plainly his point of view that had led to the charge of unscientific behaviour on the part of Mr Nielsen whereas the truth of the matter was that Mr Nielsen's departure from the Simons & Richardson formula was one which he could easily justify. More importantly, it was one which made little or no difference to the outcome. On the other hand, Mr Nielsen's purely defensive revelation of the inappropriate use by Mr Druery of the Fredsoe formulae carried with it not merely an ironic comment that Mr Druery now found himself tarred with the same brush he had used on his colleague; there was now the further point that the outcome was to a degree different when the correct formulae was applied. 193 The second and more important matter is that Mr Druery was, to my mind, overly prescriptive in the manner of approach to the theoretical problems posed in the expert evidence. It is very important to repeat in mind that neither expert had the opportunity of observing the creek bed or conditions relating to the flow of the tide and other relevant matters on 24 January 1999. In my view, it was perfectly legitimate for each expert witness to express a view about possible or even likely conditions in the creek bed having regard to known criteria such as weather conditions, tidal range and the like. But neither expert was in a position to be really prescriptive about the conditions of the creek at the time when Mr Mulligan and Miss Brady were swimming there. In this regard, I consider that Mr Nielsen was a very fair witness and that he constantly reminded himself that there were a number of scenarios that were possible on 24 January 1999. True it is that he expressed a preference for a likely position in relation to the variability of the creek bed and the variability of the depth of the creek on that occasion. But he fairly allowed for the possibility that the conditions may have been otherwise than as described in his preferred position. 194 Mr Druery on the other hand was quite categoric. Yet his opinions were based on no more than his observations in September 2002 corroborated by, as he saw it, the application of theoretical formulae to a prescriptive set of parameters rather than to a range of parameters. As I have said, neither expert was in a position to speak categorically of the precise condition of the creek bed on 24 January 1999. The best Mr Druery could do was, so far as he was able, to simulate or recreate the likely or possible scenarios. He remained to the end, quite dogmatic in asserting a situation which he could not, with absolute precision, maintain. This appears not only from Exhibit "DD" (see the justifiable criticism of Mr Nielsen in Exhibit "EE" in that respect) but also from Exhibit 2 D2 and 2 D3. Again, in these documents, Mr Druery was, in my view, overly prescriptive not only in relation to the use of the formulae but also in relation to the selection of the criteria used as individual components in the calculations using the formulae. This too supported my belief that his evidence was of less assistance than that of Mr Nielsen in understanding the likely conditions or, at the least, the possible range of conditions that may have been occurring in the creek at the time of the plaintiff's accident. 195 A third area of criticism related to Mr Druery's continued assertion that the rock training wall and work on it had not played a significant part in relation to the recent stability of the creek entrance and that there had been no increase in tidal prism as a consequence of the stability afforded by the wall. This topic was not altogether a side wind since Mr Nielsen's argument, if accepted, had a role to play in understanding the nature of likely bedforms in the creek since the mid-1970's. But Mr Druery would have none of it. 196 In my view, Mr Druery's views in this regard could not be sustained. This is essentially for the reasons explained by Mr Nielsen in his Addendum 3 (Exhibit "CC") and in his re-examination at T 416 line 55 to T 418 line 20. 197 It is important to recall that in the agreement between the experts (Exhibit "T") the following had been agreed at para 24: - "The construction of the entrance rock wall in 1998 has resulted in a flattening of the flood tide gradient compared with 1977 which would tend to increase the tidal prism of Coffs Creek." 198 Mr Nielsen had placed the increase at 15 per cent. In my view nothing in Mr Druery's subsequent material justifies rejection of the matter which had been agreed. Indeed, following the written agreement, Mr Druery had communicated with Mr Nielsen in terms reflected by the following: - "No agreement could be reached on the amount of increase in tidal prism. If the data in the 1977 tidal gradient between the ocean and Orlando Street is reliable, Mr Nielsen places the increase at 15 per cent and Mr Druery would agree." 199 Mr Druery prepared an addendum of 14 October and this became Exhibit 2 D10. In it, Mr Druery attempts to justify his departure from the matters which had been agreed. I found the argument and details contained in Exhibit 2 D10 to be rather unconvincing. This is especially so in the light of the earlier agreement contained in Exhibit "T". 200 In my view, there has not been sufficient doubt cast upon the relative correctness of the comparison of the tidal gradient between the ocean and Orlando Street between 1977 and 2002. I accept, as did Mr Nielsen that the two readings upstream of the bridge were "anomalous". No doubt however has been cast on the reading between the ocean and the bridge. Moreover, there is a complete consistency between the readings obtained by Bruce Fidge and Associates in 1991 and Mr Druery in 2002 (this appears from Figure A1 in Exhibit 2 D9). Mr Fidge was in court during much of the expert evidence and he was not called by the second defendant. This lends support to the proposition that the 1991 and 2002 readings are properly consistent with one another. Moreover, it was Mr Fidge's views in 1991 that there had been a flattening of the tidal gradient. 201 In relation to the stabilisation of Coffs Creek by the training wall, I agree with the statements by Mr Nielsen (T 416 line 55) that it would be co-incidental in the extreme and in fact, highly unlikely that the stabilisation of Coffs Creek occurred precisely when it did because of the greatly reduced long shore sand transport. This latter process began as a result of harbour construction works which happened many decades ago. It is far more likely and a more acceptable scenario that the stabilisation of Coffs Creek occurred when it did because of the construction of the training wall. At the very least, the construction of the training wall would have been a significant factor in the stability of the creek. In this regard, again, I accept the evidence of Mr Nielsen and I do not accept the evidence of Mr Druery. 202 Moreover, in a discussion paper written in June 2001 (Appendix 3 to Exhibit 2 D7) Mr Druery had said: - "The entrance to Coffs Creek has been stabilised by training works and perhaps more significantly by the greatly reduced long shore sand transport along South Park Beach." 203 Read in context, this sentence plainly imports a significance to the training works in terms of the stabilisation of the entrance to Coffs Creek. At T 564, Mr Druery attempted to justify this by suggesting that he had only intended to refer to the maintenance of the location of the creek and that he had not intended to refer to the propensity of the creek to close. In my view, it is not possible to read the sentence in this way and I think that Mr Druery was guilty of prevaricating in relation to this matter put to him. 204 Secondly, Mr Druery was asked about a document in Exhibit "D" page 178. This contained a statement by Mr Ron Colley (the then District Engineer with the Public Works Department). He was a person well known to and respected by Mr Druery. Mr Colley had said in 1975: - "The entrance in Coffs Creek has been stable since the rock training walls were constructed by Council 12 months ago, and has remained open to the seas. The walls have successfully reversed the trend to erode the south (should read "north") bank east of the railway, and sand is slowly increasing in the bay behind the walls." 205 At T 567, Mr Druery argued that Mr Colley was talking about preventing the creek from meandering to the north and nothing more. However, I do not accept that Colley's remarks can be read in this limited way. Mr Druery's refusal to consider Mr Colley's opinion in its true light portrayed, in my opinion, a rather closed mind on the subject. 206 At a more generalised level, the principal argument advanced by Mr Druery, namely, that at the time of the accident the creek bed would have been exhibiting sheet flow with low profile, washed out bedforms, was not sustainable in terms of logic. It is clear and accepted that those were the conditions Mr Druery observed on 9 September 2002. It did not and could not follow as a matter of logic that the conditions on 24 January 1999 were, in precise terms, similar to or identical to those which had been observed by Mr Druery. It is quite apparent that any change to the range of parameters observed by Mr Druery on 9 September 2002 may have been in force on the day of the accident. These variations were quite capable of altering the creek bed conditions as they existed on 24 January 1999 in a number of respects from the later situation encountered by Mr Druery. Yet Mr Druery maintained that his conclusion stemmed primarily from observations he had made on 9 September (T 554 lines 25 to 55). Mr Druery did not in truth dispute the accuracy of Mr Nielsen's observations as to what he had observed on 9 September 2002. For the same reason, the logic which underlies Mr Nielsen's preferred conclusion was, for the same reason, flawed. But the difference between the two experts was that Mr Nielsen was at all times prepared to concede that the conditions on the day of accident may have been and possibly were different from those that he observed on 9 September. He maintained his preference for his opinion but conceded the possibility that conditions may have been different. Mr Druery would make no such concession and did not yield from the position he had taken in his report. He said that there was "very little prospect other than that it was washed out bedforms" (T 558 lines 10-30). This intransigence meant that his views were of less assistance than those of his colleague.
The Value of the Expert Evidence 207 In my opinion, taken as a whole, the expert evidence of both Mr Druery and Mr Nielsen carried with it quite important consequences for understanding the probabilities as to what occurred on 24 January 1999. It is perhaps convenient to examine this first from the point of view of the matters which were agreed between the experts and then to note the areas in which I found the preferred opinions of Mr Nielsen to be relevant to the issue. Some qualifications of Mr Nielsen's views will need to be made as well. The common matters were these: -
Other Objective Matters Supporting the Probability that the Plaintiff Struck a Bedform 214 There were a number of other matters which tended to support the probability that the plaintiff was injured when his head struck a bedform in the creek. First, there were the surveys. These comprised the Weir surveys taken on 3 and 9 December 1999, the survey earlier carried out by the Department of Public Works following the flood in 1996 and the Drummond Parmenter survey carried out in July 2001. 215 It is necessary to bear in mind that there were no surveys taken at the end of the tide on the day when the plaintiff was injured. Nevertheless, the three surveys I have identified give a good general picture of the creek bed in different tidal conditions. The two Weir surveys were done following a neap and spring tide respectively. The latter which was carried out on 9 December 1999 is to be found at Exhibit "E" at page 520. It shows a variation in the height of bedforms from flatbed up to 0.62 of a metre. This survey did not duplicate the conditions which would have existed at mid-tide on that day but provided a "relict" from the conditions an hour or two before the survey was made. By way of contrast, the earlier Weir survey showed bedforms which were described as "ripples". 216 The Public Works Department survey appears at Exhibit "E" page 574. This essentially demonstrated the effect of the 1966 flood and showed a substantial scouring out near the wall to a depth of minus 4.38 metres. The Drummond Parmenter survey is to be found at Exhibit "E" page 615. It was taken following a lesser tide than that which occurred on 24 January 1999. It shows variations in height up to 0.45 of a metre. 217 In this context, it is not unimportant to note Mr Druery's own measurements following his observations on 9-11 September 2002. He noted that there were variations in the creek bed close to the entrance rock wall. He referred to the fact that rock protuberances can be expected to cause local scouring of the bed at and down current of them. This was illustrated by Figures D17 and D18 in Exhibit 2 D9 which showed a scour hole of minus 1.4 metres AHD at chainage 45 metres. This had been infilled but a hole of similar depth had been created at a different location. Although these were not bedforms as such, they illustrated the variability of the creek bed within one day. Not only were the dunes causing rapid bed change but the rocks in the wall were causing scouring with the scour holes being rapidly infilled after the turn of the tide. 218 Further, objective support for the variability of the creek bed is to be found in the range of photographs Mr Nielsen had taken during his observations on 9 December 1999 (Exhibit "E" page 474; Exhibits 'W", "Z" and "AA"). These demonstrate the variation in water depths randomly occurring in the creek on that particular day. As noted earlier, these conditions would not have been replicated precisely on 29 January 1999 but the plaintiff's evidence generally supports the finding of variability of depth.
The Plaintiff's Evidence 219 The plaintiff's evidence, when assessed against the background of the previous findings I have made in relation to the expert evidence and objective matters relating to the general condition of the creek bed, supports the probabilities that the plaintiff struck a bedform in the creek when he dived. Now, it is true that the plaintiff's evidence is brief on this matter and it is by no means overwhelming evidence. Nevertheless, there is sufficient, in my view, to satisfy me as to the requisite standard that more probably than not it was a bedform which the plaintiff struck This level of "actual persuasion" is reached when the plaintiff's evidence is placed alongside all the other evidence I have to this point examined: (March v Stramare (1991) 171 CLR 506; Jones v Dunkel (1959) 101 CLR 298; Briginshaw v Briginshaw (1938) 60 CLR 336). 220 The relevant aspects of the plaintiff's evidence are these. First, at the point where the water level came to the bottom of the plaintiff's swimming shorts, he had taken a step down. It was he said, because the gradient had dipped suddenly that he presumed that it was safe to dive into the water beyond. This sudden dip in the gradient is consistent with the variability of depth described by Mr Nielsen. The water became cloudy at the point each time where the plaintiff dived into the creek. At this point the water was more fast flowing than it had been, that is to say, the current was stronger. Thirdly, the plaintiff was "shallow diving". I accept the plaintiff's evidence that on the occasion when he made his last dive, he did not dive more deeply than on the previous occasions. I accept also his description of the way in which he launched himself forward into the water rather than diving deeply beneath it. Fourthly, he was able to recall hitting "something on the bottom and it felt like sand". He described pain in his neck but the sensation of his forehead hitting was described, in effect, as a graze. The pain he said was in his neck, but it did not hurt "too much where he hit his forehead". 221 The totality of this evidence, brief though it is, supports the probability that the plaintiff's head struck a sand dune beneath the water, that is, a transient bedform generated by the tidal conditions and flow of the creek. 222 The other possibilities discussed in the evidence remained no more than possibilities. Mr Murray QC, in his written submissions, urged that the plaintiff may have struck the edge of the scour hole at the western end of the wall. The location of this scour is best seen in Exhibit 2 D9, figures A2, D10 and D11. I am not satisfied on the evidence that the plaintiff was diving in the precise location of this scour hole. Moreover, it is fair to say that at no point in his reports did Mr Nielsen suggest the likelihood that the plaintiff had impacted with the edge of the scour hole when he dived. Nor is there anything in the plaintiff's evidence which supports that as anything more than a mere possibility. It must be said as well that this suggestion did not emanate from the plaintiff's camp until after the production of Mr Druery's September report. 223 Similarly, although there were other possibilities they remain, in my view, at that level only. It is highly unlikely the plaintiff hit the bed of the creek given the depth of the water in which he was standing and diving, especially having regard to and method of dive and the state of the tide on that day. It is even less likely that the plaintiff hit some foreign object such as a rock or a log in the creek. He sustained no noticeable injury to his head and his own description of the event which I accept is quite inconsistent with such an eventuality. It is however consistent with his having struck his head on a moderately elevated sand dune.
The Framework of the Plaintiff's Case 224 The plaintiff has sued the first defendant in its capacity as the manager of Reserve Trust No 63966, that is the land generally described as being on the northern side of Coffs Creek east of Orlando Street Railway Bridge. It includes some part of the rock training wall near where the plaintiff swam although the area so included is ill-defined and incapable of precise identification. 225 In addition, the plaintiff claimed that by creating recreational facilities on the northern side with access to the swimming area formed by extensions to the eastern and western rock training walls, the first defendant encouraged members of the public to use the creek itself for recreational purposes. Thirdly, the plaintiff claimed that the Council's areas of control extended to the southern side of the creek because of its role in creating access to the southern side by pathways, car parking and signage. In this way it was suggested, the Council encouraged the public using the pathway in the southern reserve to swim in the creek immediately opposite the northern reserve. 226 The plaintiff sued the State of New South Wales in its representative capacity as owner of the relevant parcels of land, that is the land both north and south of the creek and especially the creek bed itself. It also suggested that the State of New South Wales had an involvement through the Public Works Department in the extension of the rock training wall which in turn had an effect on the creek bed. The southern reserve was vested in the Public Works Department. 227 The case against the Jetty Reserve Trust was that is had the care, control and management of the Reserve on the southern side of the creek east of the railway bridge. The third defendant managed this area which had the benefit of a properly constructed walking/cycling track which, in terms of design and building, had been approved in 1992 by the Coffs Harbour Regional Office of the Public Works Department. This track together with unpaved walking tracks running off it gave access to the creek and beach area on the southern bank. 228 In summary, the plaintiff's case against the relevant owners/occupiers and/or controllers of the creek and the Reserves on the northern and southern sides of the creek was that they each came under a duty to exercise reasonable care to avoid foreseeable risk of injury to persons entering the creek from the reserves and swimming there. The essential allegation of scope of duty pressed at the hearing was that each of the defendants was under a duty to warn the plaintiff "of the danger of swimming or diving into the creek" (para 8 Statement of Claim). 229 The allegation of breach of duty ultimately pressed was that each defendant "failed to warn the plaintiff in the manner aforesaid whereby on 24 January 1999, the plaintiff, a visitor from Ireland and unfamiliar with the area, was swimming in the Coffs Creek in the area provided for visitors when, on diving into the water in the channel, struck his head and suffered serious injury". (Paras 9, 16 and 19 of Statement of Claim).
Existence of a Duty of care 230 The foundation of the plaintiff's claim, at least so far as the northern reserve and jetty reserve are concerned, is based upon the law imposing a general duty of care on occupiers. The High Court of Australia, in Australian Safeways Stores Pty Limited v Zaluzna (1987) 162 CLR 479 at 488 confirmed the simplification of the law relating to an occupiers liability to entrants so as to accord with the following statement of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 662-663: - "It is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A pre-requisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk." 231 The majority decision in Zaluzna held that, in the circumstances of that case, the fact that Mrs Zaluzna was a lawful entrant upon the land of the appellant established a relationship between them which of itself was sufficient to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to her. 232 In Romeo v Conservation Commission (NT) (1998) 192 CLR 431 the validity of the approach taken in Zaluzna was confirmed by all High Court Justices other than Brennan CJ. (Toohey and Gummow JJ at 453; Gaudron J at 457; McHugh J at 460; Kirby J at 478-479 and Hayne J at 487-488). 233 Romeo dealt with the scope of a duty of care imposed on the Conservation Commission of the Northern Territory which by statute had the power to occupy use and control a nature reserve known as the Casuarina Coastal Reserve in Darwin. Hayne J, after referring to the relevant legislation enabling the Conservation Commission to manage the Reserve, said at p 487: - "It has now long been held by this Court that the position of an authority, such as the Commission, which has power to manage and does manage land which the public use as a right is broadly analogous to that of an occupier of private land…it is the management of the land by the authority which provides the necessary relationship of proximity between the authority and members of the public." 234 McHugh J (who dissented from the majority in relation to the ultimate question of breach of duty) said in relation to the issue of the existence of the duty (at page 460): - "It is not disputed that the Commission owed the plaintiff a duty of care. For the reasons given by Kirby J, the content of that duty is to be determined in accordance with the principles laid down by this Court in Nagle v Rottnest Island Authority (1993) 177 CLR 423. To the extent that Aiken v Kingborough Corporation (1939) 62 CLR 179 advocates an approach contrary to that subsequently adopted in Nagle, the authority of Aiken did not survive the reform of occupier's liability which this Court brought about in Australian Safeways Stores Pty Limited v Zaluzna. Because this is so, the judgment of Dixon J in Aiken no longer authoritively states the law regarding a public authority's liability in respect of a person who suffers injury on premises under its control. Since Zaluzna , the duty of a public authority is to take reasonable care in all the circumstances of the case." 235 More recent confirmation of the validity of the Zaluzna approach is to be found in Brodie v Singleton Shire Council (2001) 206 CLR 512 at 576 para 146 in the joint judgment of Gaudron, McHugh and Gummow JJ. Most recently in Barclay Oysters v Ryan (2002) HCA 54, Gummow and Hayne JJ, emphasising the importance of the factor of control in discerning a common law duty of care on the part of a public authority, said (para 151): - "So, too, the fact of control over, and knowledge of, land or premises has been significant in identifying the duty of care owed to users of lands or premises by a statutory authority which controls and manages that land or premises." 236 It is necessary to refer to one further decision before coming to the resolution of the issue as to whether any or all of the defendants owed a duty of care to the plaintiff. This is the decision of the High Court in Nagle v Rottnest Island Authority (1993) 177 CLR 423. It has relevance not only to this issue but to the issues of breach of duty and causation as well. 237 In that case, the Authority ("the Board") occupied and was under a duty to manage and control for the benefit of the public the Reserve known as Rottnest Island. The Reserve adjoined a swimming area known as the basin although the basin was not part of the Reserve. The plaintiff who had never previously visited the Reserve or swum at the basin dived from a partially submerged rock ledge into the water. His head struck a fully submerged rock and he became a quadriplegic. He sued the Authority claiming that it was negligent in that it failed to give any or any adequate warning that the ledge was unsafe for diving. According to the findings of fact made by the trial judge, the Board ran Rottnest Island as a business deriving revenue from visitors. It promoted the basin for swimming and related recreational activities by means of publicity and directional signs. It encouraged members of the public to use the basin as a venue for such activities by installing, maintaining and servicing change rooms and toilets adjacent to the parking area. As well it installed maintained and serviced a paved path from the main settlement on the Island to a parking area above the basin. A wide cross-section of the public visited the basin particularly families and children. (See page 427 of the majority decision). 238 The trial judge then considered the issue of proximity, finding that the activities of the Board in fostering attendance at the basin by promotion and in the provision of facilities constituted an assumption of responsibility by the Board in relation to persons attending the basin. It was the trial judge's view that this prior conduct of the Board in relation to matters in the Reserve supported the conclusion that the appellant was in a relationship of proximity with the Board and that the Board was under a duty to take care with respect to his safety. The majority decision (Mason CJ, Deane J, Dawson J and Gaudron J) at page 429-430 stated: - "Duty of Care: Conclusion The trial judge was plainly right in concluding that the Board was under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the Reserve. As stated earlier, the Board was the occupier of the Reserve and was under a statutory duty to manage and control it for the benefit of the public. Moreover, the Board promoted the basin as a venue for swimming and encouraged the public to use it for that and other purposes by installing, maintaining and servicing various facilities on that part of the Reserve which was immediately adjacent to the basin. In these circumstances it is beyond question that the Board brought itself into a relationship of proximity with those visitors who lawfully visited the Island and resorted to the basin for the purposes of swimming with respect to any foreseeable risks of injury to which they might be exposed. In this case, the basis for holding that the Board came under a duty of care may be simply stated: The Board, by encouraging the public to swim in the basin, brought itself under a duty of care to those members of the public who swam in the basin. As occupier under the statutory duty already mentioned, the Board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged. In reaching this conclusion, we have not mentioned foreseeability otherwise than by reference to the standard or scope of the duty of care. That is because this is a case in which it is possible to ascertain the existence of a generalised duty of care - to take reasonable steps to avoid foreseeable risks of injury - owed to members of the public who resort to the basin to swim, without looking to foreseeability, a concept which in many other situations is the influential, if not decisive, determinate of the existence of a relationship of proximity. Here, as it seems to us, foreseeability is of critical importance in determining not whether there was a duty of care but whether there was a breach of duty." 239 Their Honours then went on to deal with the issue of foreseeability as a separate matter. They came to the view that the trial judge was correct in holding that the risk of injury to those diving from the eastern rock ledge into the waters of the basin was reasonable foreseeable. Having made that determination, the majority then, in the light of that finding, considered the issue of breach of duty. Their Honours found in favour of the appellant on this issue and also on the issue of causation. 240 Against the background of these principles, it is convenient at this stage to state with more particularity the way in which the plaintiff put its argument against each of the defendants. As I have said earlier the source of liability urged against each of the Reserve defendants was said to arise from the fact that they each were the occupiers of those Reserves or, by analogy, had the statutory responsibility for their care, control and management. The negligence asserted was a failure to provide a warning sign or signs in the Reserves themselves and in the creek. 241 The plaintiff, in reliance especially upon Nagle, argued for the existence of a duty of care said to arise so far as each defendant was concerned in the following manner:
The Council 242 The plaintiff argued that not only was the Council fixed with the statutory responsibility for the care, control and management of the Northern Reserve, it had as well a substantial involvement in the planning and management of the creek itself both generally but especially in the area where the plaintiff was injured. Further, it was said that the relevant part of the creek and Park Beach itself were at the core of recreational facilities provided for tourist and residents alike. In addition, the Council promoted the general area of the creek where the plaintiff was injured as a swimming area. An important aspect of this promotion, it was argued, related to the provision of the paved footpath/cycleway on the Jetty Reserve and the placement of signs in that Reserve. The importance lay in the opportunity and thereby encouragement to swim in the creek from the southern bank.
The State of New South Wales 243 In relation to the second defendant, the plaintiff pointed to a number of matters which were claimed to support the existence of a relevant proximity of relationship so as to give to a general duty of care. These included the fact that the State was the proprietor of both the southern and northern banks of the creek and that the creek bed itself was unalienated Crown Land. The southern Reserve had at all relevant times been vested in the Department of Public Works although the Jetty Reserve Trust was imposed upon that ownership in June 1996 for the purpose of public recreation and environmental protection. 244 Secondly, there was the close and continued involvement of the Department of Land and Water Conservation (formerly Department of Public Works), in a number of significant management features relating to the creek and Park Beach as major tourist and recreational facilities: the Department's involvement in the Beach Improvement Program between 1983 and 1988; the presence of departmental representatives on the Coastal Hazard Committee; the Department's involvement in the construction and reconstruction of the training wall; the compilation of extensive studies which, in part, concentrated on and highlighted the recreational nature of the area and the role of the Department as maintaining overriding control over the construction of the paved walkway/cycleway on the Jetty Reserve adjacent to the southern bank of the creek and south Park Beach. Thirdly, there were from time to time approvals sought and obtained from the Department in relation to various operations either in or affecting the creek. These included, for example, approvals for the establishment of a canoe hire business along the creek and approvals for dredging and other matters from time to time affecting the creek bed or the banks of the creek. Finally, there were the many photographs, surveys and studies done which identified the hydrodynamics of the creek and the existence from time to time of sand dunes in the creek. These were said to be especially relevant to the issue of foreseeability so far as that issue impinged upon the existence of a duty of care. These matters were also capable of affecting the issue of foreseeability in relation to the issue of breach of duty, should a duty of care be found to have arisen between the plaintiff and the State of New South Wales.
The Jetty Reserve 245 So far as the Jetty Reserve was concerned, the plaintiff argued that the third defendant had both the statutory and de facto care, control and management of this Reserve. It permitted the continued existence of the pathway and signage in the Reserve, such facilities having been approved by the Department of Public Works on the Jetty Reserve land a few years prior to the creation of the Reserve Trust. 246 At the conclusion of the hearing, the plaintiff indicted that it did not wish to press its claim against the Marine Park Authority either as to the existence of a duty of care or breach.
The Council Owed the Plaintiff a Duty of Care 247 I have come to the conclusion that the Council did owe a duty of care to the plaintiff. In general terms, the duty so found may be expressed as a duty to take reasonable care to avoid foreseeable risks of injury to persons swimming in the creek whether they entered the creek from the northern reserve or the Jetty Reserve. I shall now explain my reasons for this conclusion. First, there can be no doubt that the Council owed a duty to take reasonable care to avoid foreseeable risks of injury to lawful entrants upon the land comprising the northern reserve. That proposition must be correct in accordance with the principles I have set out above. 248 Secondly, the Council's duty of care extended to an obligation to take care, that is to take reasonable steps, to avoid foreseeable risks of injury to persons who, having come upon the northern reserve lawfully then swam in the creek. The extension of the general duty of care in the manner stated to persons swimming in the creek generally arises from the Council's position as the statutory "controller" of the Reserve, that is a position analogous to an occupier of the Reserve; and the encouragement of persons visiting the Reserve to swim in the creek in that general vicinity. This encouragement could not be doubted in the light of the considerable array of facilities provided by the Council on and above the northern bank of the creek in this area. Moreover, I do not consider that there could be any justification for limiting the existence of the duty of care in such a way as to find that the obligation to take care came to an end once a swimmer moved outside of the "safe swimming area for children and families" into the general waters of the creek immediately beyond that position. The "sufficient relationship of proximity" existing between the Council and a swimmer in this category would necessarily give rise to a conclusion, in my view, that a reasonable man in the position of the first defendant would foresee that carelessness of his part might be likely to cause harm to the swimmer (Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44)). 249 The same conclusion is reached, in my opinion, by adopting and using the Nagle approach, that is by examining whether the Council promoted this area of the creek generally as a venue for swimming and whether the Council in fact encouraged the public to use the creek between the Orlando Street bridge and the ocean for swimming and related recreational purposes. The evidence taken as a whole satisfies me it did; and in those circumstances it is possible to ascertain the existence of a generalised duty of care - to take reasonable steps to avoid foreseeable risk of injury - owed to members of the public resorting to the northern reserve and swimming in the creek generally in the area between the bridges and the ocean. This emerges from descriptions such as those contained in the Park Beach Reserve Plan of Management (Exhibit "HH" document 1 page 1) and from comments such as those contained in the Coffs Harbour Creek Waterways Study Volume 1 (Exhibit "D" 301, 302 and 310). It emerges also from the evidence of Mr Gentle who agreed that these latter descriptions were a "fair statement" of the situation in his time. There is no reason to suppose that at the time the plaintiff had his accident the Park Beach Reserve and the waterways of the creek between the bridges and the ocean were any less well used than they had been prior to that time. Indeed, there is every reason to suppose that they were more frequently used for swimming and recreational purposes not only by tourists and visitors to the area but by residents, the local schools and members of the public who enjoyed fishing, walking and swimming in such pleasant surroundings. 250 The major point of contention urged by the Council was that the duty of care did not extend to persons entering the creek from the southern reserve. But in my view such a duty of care did exist in the present case. Mr McCulloch who argued the contrary position on the Council's behalf suggested with considerable force that such a duty could not arise especially because the Council was not the owner/occupier or manager of the southern bank of the creek. How could the Council, he asked, have taken any steps to prevent injury to the plaintiff in circumstances where it neither owned or managed the southern bank? Secondly, Mr McCulloch sought to distinguish the present situation from that in Nagle's case by arguing that, in a relevant sense, the Council had not set aside the southern bank as an area for swimming and therefore could not be said to have encouraged or promoted the use of the creek as a swimming area from the southern bank. 251 However, it seems to me that the placement and location of the footpath/cycleway, the provision of car park facilities on both the northern and southern sides of the creek, the erection of the log/wire fencing and the placement of signs on the Jetty Reserve close to the man-made paths leading to the southern bank and to South Park Beach extended the duty of care to those people who, like the plaintiff, entered the creek after leaving the footpath in the Jetty Reserve, notwithstanding that the Council was not the statutory manager of that Reserve. This is so because of the proximity of relationship between the Council and such people arising from the position of the northern reserve, its facilities, the general promotion of the creek as a swimming area in that location close to Park Beach, and the co-ordination and construction of the footpath which, inter alia, linked the northern reserve to the Jetty Reserve. There can be no doubt that the Council promoted and encouraged the general area of the Jetty, Park Beach and the creek area east of the Orlando Street bridge as a significant recreation area for tourists and locals. It would be naive in the extreme to find that such encouragement did not exist in the present case. It is true that the type of encouragement differed in a number of respects from that found in Nagle. But I am satisfied that this particular location was at the very centre of the recreational facilities that were themselves central to the main tourist attraction of Coffs Harbour. 252 Indeed, it would be anomalous to hold otherwise. The tests of both foreseeability and proximity of relationship are satisfied. Let it be assumed, for example, that during a flood, a car body was washed down the creek system and came to rest beneath the waters of the creek near the rock training wall on the southern side. Let it be assumed as well that the Council became aware of this hazard. There could be little doubt that the Council would be under a general duty of care of the kind I have described in relation to warning people about the presence of this hazard in the particular area of the creek close to the safe swimming area. This would be so not only for those who entered the creek in this position from the northern bank but those who, having used the pathway on the southern Jetty Reserve area, were attracted to swim in the creek entering it from the southern bank. The argument that the Council would have no right or ability to place any warning signs in the Jetty Reserve area or on the southern bank is most tellingly refuted by the fact that the Council has established signage in the Jetty Reserve area to warn people that the beach area was not patrolled. Having regard to the location of this signage, it clearly carried a warning not only for those who wished to swim in the creek near where it enters the ocean, but also for those who would wish to simply swim in the unpatrolled section of South Park Beach itself. The areas are so close that the risk of fatality in the ocean needed to be drawn to all who might approach Park Beach South whether from the ocean bank, the southern bank of the creek or from the waters of the creek itself. It is also refuted by the "hands-on" role played by the Council in the creek and creek-banks generally (see for example, Exhibits "D", 8, 9 and 10). Mr McCulloch argued that this range of activities showed the Council in its planning role. That is true up to a point. But the establishment of recreational facilities to the west of Orlando Street depict the Council in a much wider role than mere planning. The actual provision of facilities is akin to the activities of a developer. At the least, it demonstrates a wide range of control in a very real sense. (I might add that the State interests have also been shown to have had a significant part to play in the same process). 253 Moreover, it needs to be recalled that, in relation to the existence or non-existence of a duty of care, the issue is determined "upon a higher level of abstraction" than is foreseeability at the breach stage (see Glass JA in Shirt v Wyong Shire Council (1978) 1 NSWLR 631 at 639G). 254 Mr McCulloch drew the court's attention to two further matters. First, the fact that, by contrast with the area west of the bridges, there were no management plan activities or recreational facilities planned or implemented on the southern bank or any part of the Jetty Reserve. Second, that the securing of licenses (Exhibits "D" 20 and "D" 21) for the Foreshore Park and the boat ramp demonstrated that, again by way of contrast, when the Council wanted to exercise control over parts of the Jetty Reserve, it did so in a formal manner. The suggested inference was that the absence of any license over the portion of the reserve where the plaintiff and Miss Brady had walked or, for that matter, any other section of the reserve pointed to an absence of control in those areas. In my opinion, these two arguments are not to be accepted. As to the first matter, it is answered by the observation that the Council plainly saw no need to further embellish the Jetty Reserve. A full range of active recreational facilities was already available on the northern reserve. At that point, depending on the tidal conditions, it was no more than 30 to 40 metres from one side to the other. At high tide a good swimmer could with ease swim. At low tide, members of the public could stroll or wade across. The Jetty Reserve was designed to be kept in a more natural state than the northern side. It had however, its carefully planned or constructed walkway/cycleway, a lay-by area for short term car parking and the man-made paths to the creek and South Park Beach. It was possible for pedestrians and joggers to run or walk from south to north by the pathway systems and the bridge. 255 The second argument, based on the licenses, requires for its acceptance, the drawing of inferences more widely than is required or available. There was an obvious advantage to the Council in securing a greater degree of control over the Foreshore Park and boat launching facilities. This did not detract from the Council's general interest in and promotion of the Jetty Reserve as a whole. The relevant level of interest and promotion is to be seen in the facilities I have mentioned. It is to be seen as well in the provision of post and rail fencing at various positions in the Reserve. These were there not only to delineate pathways but to protect and enhance the environmental appearance of the Reserve.
The State of New South Wales 256 Essentially for the reasons advocated on the plaintiff's behalf I have also come to the conclusion that the State of New South Wales was under a general duty of care to take reasonable care to avoid foreseeable risks of injury to persons lawfully swimming in the creek itself in the area where the plaintiff was injured. The State through the Public Works Department clearly undertook a range of significant management measures in this area of the creek. Mr Maconachie QC argued that the creek was "simply there" and that the State did nothing in relation to its management. Such steps as were taken by the Department of Public Works, he argued, were done either as an adviser to the Council or in its position as an adjunct facilitator to financial contributions organised by the State of New South Wales. In my opinion, however, the activities of the Department of Public Works went beyond the stated basis and extended to the assumption of an active management role in relation to the creek. It is true that these management functions were to an extent shared between the Council and the Department of Public Works. It is also true that the allocation of functions recognised the State's overall superior position in relation to the creek and, by contrast, the Council's position as a planing authority and provider of many day to day functions. But the Department maintained an office in Coffs Harbour and its role in the multiplicity of matters which from time to time occupied its attention qua the creek were not insignificant. 257 Mr Maconachie QC sought to allocate the entire management facility of the creek to the Council. In submissions, he described this area of the creek and Park Beach as "the jewel in the Crown" so far as the Council's promotion of the area as a principal part of Coffs Harbour's tourist appeal. While this is by no means an exaggerated description, it applies in the same way to the manner in which the area was likely to have been perceived by the Department of Public Works and the State interests generally. The amount of time devoted to the protection and development of the creek in relation to its own inherent qualities and the surrounding beachscapes and range of recreational facilities demonstrate, together with the significant amount of money contributed by the State Government, that this was so. To take but one example: the evidence clearly shows that in relation to the conditions imposed in retaining to itself the need to approve the engineering drawings for the proposed footpath/cycleway, the Public Works Department was very conscious of public liability issues. This is a clear demonstration that the Department had in mind that people might be injured while in the reserve or using the pathway. In my opinion, all of the matters relied upon by the plaintiff in support of its arguments supported the existence of a relevant proximity of relationship between the State of New South Wales and people lawfully swimming in the creek and enjoying its recreational facilities but especially where those persons entered the creek from the southern bank.
The Jetty Reserve 258 This defendant's statutory power to manage the Reserve was the foundation of the asserted duty of care. In my view, a relevant duty of care has been shown to exist. This Reserve, unlike the land in South Australia v Wilmott (1993) 62 SASR 562 at 574 was not a parcel of unalienated Crown Land, remote and difficult to access, left entirely or virtually entirely in its natural state. Photographs in evidence, the various maps and the view itself demonstrated that the Jetty Reserve was a most attractive area and one likely to be well used by a very significant number of people. To the extent that its vegetation was preserved in a natural state, it was deliberately kept in this way to provide an attractive environment for visitors and residents alike who used the footpaths through it and the sandy beaches surrounding it. In particular, the paved footpath/cycleway provided an attractive recreational facility for walkers, joggers and cyclists. It was plainly much more than merely a pathway leading to Mutton Bird Island and the Jetty. It was a facility in its own right and one which ran throughout the entire Reserve. But insofar as it was part of a pathway system which led from the town centre to the Jetty, it was an important feature in the enhancement of the recreational facilities provided jointly by the creek, the swimming areas in the creek, the reserves, Park Beach, the Jetty, the Harbour and Mutton Bird Island. Again, it would be contrary to commonsense to suggest that the Reserve and the pathway, given the adjacent access paths to the creek, did not offer the most obvious encouragement to swim in the creek in that location. 259 No evidence was called on behalf of the Jetty Trust. Mr Hambly, for example, gave no evidence during the proceedings. I am not prepared to find as a consequence of the absence of evidence from Mr Hambly that the Trust was, as suggested, entirely inactive and did nothing to enhance the valuable area of reserve over which it had statutory control. Even if I be wrong in relation to this, the situation must be, as Mr McCulloch put it in his submissions, that inactivity is not to be acquainted with inability to act. Moreover, the Reserve gave the appearance of being well maintained in all respects. The paved pathway was clear of foreign objects and in good condition. The fencing, both logs and wire, appeared to be fully intact and effective in defining the track to the southern bank of the creek and the beach beyond. 260 Although the sign (or one similar to it) appearing in Exhibit "E" (page 470A) had been removed from the position in which Mr Nielsen had observed it, it had been placed in the bushland near the paved footway close to the bridge in what appeared to be a relatively careful manner. Certainly, it posed no danger to anyone using the Reserve and the footway in particular. Most importantly, the Reserve adjoins that part of the creek which, as I have already described in relation to the Council's duty of care, would have been substantially used on a regular basis by swimmers, walkers, fishermen and the like. Although there were no figures available to substantiate the extent of the recreational use of the creek by people in these various categories, there can be no doubt that the usage would have been not insubstantial and especially so in the warmer months of the year and during the tourist season. There were, of course, a number of people swimming in the creek from the southern bank when the plaintiff was attracted to swim there. I have no doubt that this was a very common and usual situation. 261 In my view, the plaintiff has established the matters necessary to give rise to a general duty of care on the part of the Jetty Reserve.
Scope of the Duty of Care 262 The defendants jointly maintained that if, contrary to their respective submissions, there was found to exist at the relevant level of abstraction a duty of care in favour of the plaintiff having regard to the relevant position of the parties, nevertheless, the content or scope of the duty did not extend to the erection of a sign or signs warning the plaintiff of the danger of diving in the creek relating to its variable depth. The defendants went further and argued that, in any event, none of the defendants had breached the duty of care, if it were found to exist. I shall consider this further submission separately. 263 The scope and content of a duty of care is plainly an important matter in determining the difficult issues that arise in a negligence action such as the present. In Romeo at 487 Hayne J emphasised the importance of this aspect of the enquiry in these terms: - "The real subject for debate was what that duty required of it, for it is only when the content or scope of the duty is identified that questions of breach and causation of damage can be considered. So, too, in Nagle the central question was not whether the Board owed any duty of care to those visitors lawfully visiting the island, it was what that duty of care required it to do." 264 Later at 488, Hayne J said: - "In this case the Commission owed visitors who lawfully entered land which it managed a duty to take reasonable care to avoid foreseeable risks of injury to them. But the bare fact that the risk of the injury which in fact occurred was reasonably foreseeable (in the sense of not far fetched or fanciful) does not conclude the enquiry about the scope of the Commission's duty. The duty is a duty to take reasonable care, not a duty to prevent any and all reasonable foreseeable injuries." 265 His Honour said that what is reasonable must be judged in the light of all the circumstances. At page 488 para 157 he continued: - "Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring and the difficulty and cost of averting the danger will loom large in that consideration. But it is not only those factors that may bear upon the question. In a case of a public authority which manages public lands, it may or may not be able to control entry on the land in the same way that a private owner may; it may have responsibility for an area of wilderness far removed from the nearest town or village or an area of carefully manicured park in the middle of a capital city; it may positively encourage, or at least know of, use of the land only by the fit and adventurous or by those of all ages and conditions. All of these matters may bear upon what the reasonable response of the authority may be to the fact that injury is reasonably foreseeable. Similarly it may be necessary, in a particular case, to consider whether the danger was hidden or obvious, or to consider whether it could be avoided by the exercise of the degree of care ordinarily exercised by a member of the public, or to consider whether the danger is one created by the action of the authority or is naturally occurring. But all of these matters (and I am not to be taken as giving some exhaustive list) are no more than particular factors which may go towards judging what reasonable care on the part of a particular defendant required. In the end, that question, what is reasonable, is a question of fact to be judged in all the circumstances of the case." 266 As will be seen, a number of the matters referred to by Hayne J in relation to the factual evaluation of the reasonable response on the part of a particular defendant go to the issue of breach of duty. But a number of those matters, as his Honour pointed out, are also relevant to an examination of the scope or content of the duty prior to a consideration of the factual question as to whether it has been breached or not. 267 Kirby J in Romeo pointed out that the failure to distinguish between the existence of a duty of care and its measure or scope may lead to confusion (page 478 at 122). His Honour thought that the question of scope of duty should be ascertained before considering whether a breach of that duty had occurred. Kirby J continued: - "The ordinary formulation of the common law is that a body such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the Reserve, including the cliffs, as of common right. However, that expression of the duty must be elaborated if it is to be of any practical guidance. The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertence of the entrant. While account must be taken of the possibility of inadvertence or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety…But where, as here, the statutory duties are stated in general and permissive terms, the scope of the duty of care imposed by the common law will be no more than that of reasonable care. Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just." 268 Kirby J's statement which I have last quoted was the focus of examination in the course of Gleeson CJ's judgment in Woods v Multi Sport Holdings Pty Limited (2002) 76 ALJR 483 at 489. The Chief Justice said at para 45: - "It is right to describe that observation as a comment. It is not a proposition of law. What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all the circumstances, of which the obviousness of a risk may be only one. And as a proposition of fact, it is not of universal validity. Further more, the description of a risk as obvious may require closer analysis in a given case…nevertheless, as a generalisation what Kirby J said is, with respect, fair comment." 269 In Woods, Kirby J took much the same view, as had the Chief Justice, of his own earlier statement (see paras 127 and 128 at page 504). 270 In Romeo McHugh J agreed with Kirby J as to the content of the duty of care owed by the Commission in that case (page 460). Gaudron J, who, like McHugh J would have found for the injured plaintiff in the case, also identified the central issue as the content of the duty of care owed by the Commission to the plaintiff. (page 456 para 61). By way of contrast, Toohey and Gummow JJ in their joint judgment effectively concentrated on the breach of duty involved in the legal issues (page 455). 271 The submissions of Mr McConachie QC on behalf of the State interests may be summarised in these terms: if there were a duty of care owed by the State and the Jetty Trust, the content of the duty of care did not extend to the giving of a warning against diving in the creek related to its variable depth. The submission may perhaps be further refined by reference to the factual finding I have made that the plaintiff's head struck a bedform, that is a sand dune that had formed on the bottom of the creek. The question becomes whether the content of the duty of care I have found to exist extended to warning the plaintiff about the variable depth of the creek because of the possible presence of a sand dune. It is clear that no case was sought to be made by the plaintiff against the State interests or the local council on the basis that the rock training wall itself had been badly designed or constructed. Although originally pleaded as a prohibition case, in the ultimate the plaintiff's case stood or fell on the basis of a failure to warn. This was so in relation to all defendants. 272 At the risk of unfairly simplifying Mr Maconachie QC's submissions, it may be said that the following three propositions were advanced in support of the general argument advanced in relation to scope of duty: -
Breach of Duty of Care 278 The test for determining whether there has been a breach of the duty of care is that stated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48: - "In deciding whether there has been a breach of a duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidentially assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not farfetched or fanciful is real and therefore foreseeable. But as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." 279 The plaintiff placed general reliance on the decision of the High Court in Nagle. It was submitted on the plaintiff's behalf that the case was not only "on all fours" with Nagle but indeed, it was a stronger case. Mr Murray QC argued that not only were the defendants under a duty of care to avoid injury to persons such as the plaintiff but that the discharge of the duty required that such persons be warned of the foreseeable risk of injury. It was suggested that just as the rock the plaintiff struck in Nagle was one possibly masked by the glitter of sun on water, here, in the present case, there was a hidden trap. The water was turbulent, it was cloudy and it was quite unknown to the plaintiff that bedforms existed on the floor of the creek. Accordingly, so it was argued, there was a high level of risk that an injury would happen. This was particularly so because of the importance of this particular part of the creek and its surrounds as an area used very commonly for swimming and recreation. Secondly, it was submitted that the expense, difficulty or inconvenience involved in taking alleviating action could not be considered a factor in this case. All that was required was a sign of the type in Exhibit "E" page 546; and that this be put up at access points on the reserves. If necessary, such a sign could have been placed on the rock wall itself. 280 Mr Murray QC particularly stressed that diving is a normal activity of swimming. The risk here was not obvious to the plaintiff, it was hidden from him. 281 The conclusion of the plaintiff's argument was first, that a reasonable person in the position of each defendant would have foreseen that his conduct involved a general risk of injury to the plaintiff or to a class of persons including the plaintiff. Secondly, an evaluation of the response to be taken by a reasonable man in the position of each defendant would result in a conclusion that the failure on the part of each defendant to provide warning signs at relevant places in the reserves and in the creek itself constituted a breach of duty of care. This conclusion was properly to be reached in the light of the considerations listed in Shirt; and was justified in the light of all the circumstances. 282 Mr Maconachie QC for the State interests stressed that the issue is one of reasonable foreseeability of risk at the breach stage of the negligence enquiry (McHugh J in Tame v New South Wales (2002) HCA 35 at para 102; Peere v Apand Pty Limited (1999) 198 CLR 180 at 249 para 186 per Gummow J, cited by his Honour in Rosenberg v Percival (2001) 205 CLR 434 at 456 para 68. 283 Senior Counsel submitted that the risk of any injury was, in truth, farfetched and fanciful. It was not such as would occur to the mind of a reasonable man prudent and cautious for the safety of others. Alternatively, even if the risk were adjudged to be foreseeable in the Shirt sense, a reasonable man in the position of the defendant would have perceived it to be a remote risk and not one calling for action or intervention on his part. Thirdly, Mr Maconachie QC stressed that there are limits to the reasonable intervention of public authorities and governments in circumstances where individuals such as the plaintiff chose to exercise their own self judgment and self control in occupations such as swimming in natural areas. In particular, there was a repetition of the submissions relating to scope of duty in this regard. It was especially stressed that the plaintiff was in the best possible position whereas the State interests were not to know of the situation relating to the water depth in the creek and the condition of the creek bed on the day when the plaintiff was swimming there. It was the plaintiff who was at all times in control. He was best placed to make decisions for himself as to how and whether he would dive and the manner in which he would dive and swim in the creek. The truth was that his injury resulted from a misjudgment on his part. 284 In addition to these arguments, Mr Maconachie QC also put forceful arguments about what was described as a significant gap in the plaintiff's case. There was no evidence, for example, that the particular sign relied upon by the plaintiff was a standard. There was no evidence to show that the sign at page 346 of Exhibit "E" was a sign that was likely to have compelled obedience or even whether the populace at large would have paid any attention to it whatsoever. There was no evidence moreover as to the practicability of placing signs in particular locations on the reserves and in the creek. This was a submission taken up as well by Mr McCulloch on behalf of the Council. Both counsel were critical of the plaintiff's case in this area. First, it was argued that the particular sign (being a sign taken at Gunnamatta Bay) was not at all appropriate to the situation in which the plaintiff found himself. For example, the sign appeared on its face to be a prohibition against diving from a height rather than shallow diving in the creek. Secondly, how was such a sign to be maintained? It might be knocked down by floods, vandals or its footings might be exposed and eroded by tidal or wind forces. 285 Finally, Mr Maconachie QC turned to the proposition that there was no evidence that there had been any injuries of any kind in the creek in the past and that there was no suggestion that any where else in tidal creeks in New South Wales were there to be found a sign or signs of the kind sought to be relied upon by the plaintiff in the present case. Indeed, a sign such as that in question was ambiguous, was likely to suggest that there were other places in the creek where diving was likely to be safe; and would be essentially irrelevant and ineffective in view of the fact that the tide would continue to rise and fall and the sand continue to move in sympathy with tidal and wind forces according to the law of physics. Where there might be a sand dune at one point of time during the day, later in the same day it would not be there at all. The totality of these considerations militated against a finding of breach.
Scope and Breach of Duty of Care - Resolution 286 Having given careful consideration to the submissions of the parties, I have come to the conclusion that the obligation to warn the plaintiff about the risk of diving in the creek due to its variable depth did not fall within the scope of the duty of care imposed upon each of the defendants. Further, I have come to the conclusion that none of the defendants were in breach of their duty of care to the plaintiff. Before stating my reasons, may I make two preliminary observations. First, I must admit with candour that I have not found this an easy decision to reach in the circumstances of this case. A reading and re-reading of many of the cases in this field whether they relate to injuries to plaintiffs while swimming, or in other circumstances, confirms that even in recent times, minds of the utmost legal distinction have come to differing but justifiable conclusions in comparatively simple situations of risk and injury. Romeo is a good illustration. In that case two of the Justices of the High Court differed from the majority of the Court in relation to the ultimate question of breach of duty of care. In the present case, it seems to me, the resolution falls even closer to the line. The arguments on each side are very evenly balanced. Secondly, it is necessary to say that I have reached the conclusion I have with a degree of regret. The practical consequence is that the plaintiff will not be entitled to damages in this case. My impression of the plaintiff is that he is an exceptional young man who was tragically and catastrophically injured in circumstances where his own contribution to the accident was relatively moderate. He had taken a degree of care in relation to his decision to dive and his method of diving. He was justified to some degree in thinking that he might continue to dive with safety. Certainly he had no intention of injuring himself and he was not acting with reckless disregard for his own safety. Yet it is not unfair to say that his life has been completely ruined by this dreadful accident. One could well understand, to borrow a phrase from the criminal law relevant to sentencing, that he might have a genuine sense of grievance that other quadriplegics injured in diving accidents have been generously compensated whereas he is not to be. 287 I shall now endeavour to state the reasons for my reaching the conclusions I have stated. 288 The first aspect of the enquiry dictated by Shirt is that of reasonable foreseeability. Despite Mr Maconachie QC and Mr McCulloch's strong assertions to the contrary I am satisfied that the danger of a person such as the plaintiff sustaining severe injury as the result of diving in the creek was reasonably foreseeable. It was neither farfetched nor fanciful to consider that a person swimming in this area of the creek might sustain very serious injury by coming into contact with the creek bed, sand dunes on the creek bed or an object or objects on the creek bed. This was especially so in the context that this area of the creek was used by a significant number of people for swimming and recreational purposes. It was, as I have said many times, an area well used by tourists, visitors and residents alike. 289 The existence of a foreseeable risk of injury does not of itself dispose of the question of breach of duty. Before dealing with that aspect however, I will address the arguments relating to the scope of the duty of the relevant defendants. 290 In the passage cited earlier from Romeo, Kirby J described the scope of the duty of care imposed by the common law as no more than that of reasonable care. Secondly, he made the comment that where a risk is obvious to a person exercising reasonable care for his safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just. Although his Honour's comment is not a proposition of law (Woods at para 45), it is convenient to examine the factual issue of scope of duty in this case by a reference to considerations of that kind. 291 On the one hand, the plaintiff argues that there was "a hidden trap". The water was cloudy and the plaintiff did not know that bedforms existed on the creek bed. The case accordingly fell within the confines of Nagle and a number of the other diving cases. The contrary argument was that the plaintiff knew all he needed to know about the variability of the depth of the creek. The consequence was that the risk of injury was, if he made a misjudgment, obvious to him. Indeed, the risk was so obvious that none of the defendants were obliged to give any warning as contended for by the plaintiff. In the diving cases, where plaintiffs have succeeded, this has been because there were found to be on the facts hidden dangers that resulted in serious risks emerging for persons diving in a manner which would otherwise be relatively safe. Nagle was such a case. There are a number of other cases which involve a range of differing factual circumstances than those found in Nagle. It is not necessary for me to analyse all of them. Some illustrations will suffice. In Inverell Council v Pennington (1993) Aust Torts R 81-149 the plaintiff suffered severe injuries when he dived into the water at the shallow end of a municipal swimming pool. There were depth notices on either side of the pool but no signs indicating the depth of the water in the position from which the plaintiff dived. The water was too shallow at this point to accommodate the plaintiff and he was badly injured. It was a classic case of an injury in a local swimming pool where the plaintiff had been unaware that he was diving into the shallow end and where a warning sign would have drawn this to his attention. Clearly it was not a case where it could be said that the variation in depth in the pool was obvious. 292 In Manly Municipal Council v Boylan (unreported, NSWCA 26 April 1995) the plaintiff executed "a shallow dive" from a standing position in a swimming area at Manly Dam. His head collided with a submerged rock. As a matter of interest Gleeson CJ said of the plaintiff's dive that it was "a much less obviously dangerous form of behaviour than that engaged in by the plaintiff in Nagle, who, in a rocky area dived into the water in the full sense of the word". However, the Court of Appeal in that case accepted the factual findings of the trial judge that the position of the rock was concealed. It was not, in that sense, an obvious risk although its presence was a very real risk. (see also Sourakis v Sutherland Shire Council (1992) Aust Torts R 81-149) where the appellant failed on the issue of causation but had been held entitled to succeed on the breach issue. 293 The factual situation in the present case may, I think, be contrasted with these diving cases. Here, it is true that the plaintiff did not know the depth of the water that lay in front of him when he made his last dive. He was not able to see his feet nor the creek bed below them at the point each time when he dived into the creek. He knew how deep the water was where he was standing and made certain assumptions about the depth beyond that point. He did not know whether the water beyond was "four feet or fourteen feet deep". He also knew in a general sense that the creek was of variable depth. For example, he knew (or believed probably erroneously) that the water in the first area where he swam was not safe to dive. He thought that it was too shallow. He knew in the second area that the water was of variable depth. He had in fact taken a sudden step down to a deeper position before he made his first dive. He knew as well that it was dangerous to dive in water which was of variable depth. At least, he knew this in a generalised way. He agreed with this proposition when it was put to him but said that he did know it was "that variable". He "only knew" that it was shallow at the bank and got deeper as he went into the centre. He agreed however, that although he made an assumption that it was deep enough to dive he in fact did not know one way or another whether it was deep enough to dive. 294 The necessary analysis must be made bearing well in mind that the plaintiff was an experienced swimmer, a strong swimmer and experienced at diving. It is true that he had not swum in a creek before and that Australian conditions were not known to him at the time of his accident. But the existence of sand dunes in tidal conditions are not confined to creeks. They occur in the ocean and they occur in creeks and oceans world wide. The plaintiff certainly knew that the creek was sand based and that its depth varied at different positions. In other words, he knew two things: first that the water depth was variable. Second, that the variability in part related to the condition of the creek bed. Another critical feature of analysis relates to the factual findings I have made about the state of the creek bed at the time of the plaintiff's accident and what it was his head actually struck. As to the first, there was nothing unusual in the tidal or weather conditions at the time of the plaintiff's accident. It was a fine pleasant day and although the tide was running out at a reasonable velocity, there was nothing unusual whatsoever in the situation. Quite a number of people were swimming at the same time as the plaintiff as indeed, was Miss Brady. There was nothing unusual or untoward at all in the situation. The second matter is the finding that the plaintiff's head struck a bedform. This was a naturally occurring phenomenon on the bed of the creek and there can be no suggestion on the factual evaluation I have made that there was anything unusual or out of the ordinary in relation to the formation and no doubt later dissipation of the particular sand dune. The probabilities did not allow me to make any firm finding about the size of the bedform but I was not prepared to find that the evidence established that it was a sand dune of any unusual or out of the ordinary proportion. 295 To argue, as the plaintiff did, that the bedform which his head struck was hidden from him is a misleading analysis in two respects. First, in a situation where it is impossible to see into the water because of natural conditions in a creek or for that matter in the ocean, by definition, everything below the surface of the water is hidden. But to an experienced swimmer such as the plaintiff this is an obvious fact and poses in that sense an inherent risk every time an experienced swimmer dives into turbulent or cloudy water. Secondly, what was hidden in this case was a naturally occurring and dissipating sand dune of normal dimension. The tide went in and out daily in this creek, twice daily in fact. Tidal conditions were influenced each month by lunar impact as happens in every creek and tidal estuary. Sand is moved along the creek bed and in the water flow itself in response to these influences. Dunes form, gather in size and are then pushed over by the increasing force of the water. In the particular area where the plaintiff was injured, there was a training wall but there was nothing in the training wall which altered in a substantial way the naturally occurring phenomenon of bedforms. It is true that scour holes were created in the vicinity of the rock wall but it was not into these holes that the plaintiff dived and injured himself. The training wall may well have had an impact on the formation of bedforms in the creek. Indeed, I have found that more probably than not it did. But the resultant influence did not, on my view of the expert evidence, result in the formation of unusually sized bedforms. Certainly, it did not do so on the day of the accident. 296 It seems to me that, in all these circumstances, it may be properly be said that, as a matter of fact, the risk of injury from striking a sandbank or sand dune in the creek bed was an obvious one and one that was in the relevant sense obvious to this plaintiff. At the very least, it should have been obvious to him. Although perhaps a remote risk, it would have been nevertheless obvious to an experienced swimmer that a misjudged dive might bring him into collision with the uneven sand formation on the creek bed. Swimming in a tidal creek, especially close to the ocean, as occurred here, carries with it a risk or danger of injury that is inherent in the nature of the activity. The plaintiff's position in this case appears to me to be more analogous to that analysed by Ipp J in Prast v The Town of Cottesloe (supra). The appellant in that case who was an experienced body surfer, had been dumped by a wave while body surfing at Cottesloe Beach. The prevailing conditions were normal and not out of the ordinary but nevertheless, the appellant was thrown onto his head on the ocean bed and very seriously injured. The appellant had been unaware that the wave he was body surfing was a "dumper". He argued that the respondent should have erected signs on the beach warning persons body surfing that they could be seriously injured by reason of the condition of the surf and the sea bed. The trial judge had found that there was a duty of care on the respondent but held that the risks of being dumped by the surf and being seriously injured were "endemic to and part and parcel of the recreation of body surfing". In the circumstances that the risks of injury were obvious and should have been known to the appellant, the respondent's duty of care did not require it to erect signs to warn the appellant about the ordinary risks of body surfing. 297 Ipp J gave the leading judgment in the Court of Appeal. Wallwork J and Parker J essentially agreed on the principal issue. First, Ipp J found that the trial judge had been correct in identifying the fact that the sport of body surfing carries with it the risk of being hurled onto the seabed by a wave that turns out to be a "dumper". It was correct, he said, for the trial judge to regard this as an obvious risk. His Honour referred to the statement by Gleeson CJ in Agar v Hyde (2000) 74 ALJR 1219: - "People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity. Accepting risk, sometimes to a high degree, is part of many sports," 298 Secondly, Ipp J then turned to the legal question concerning the effect of the obviousness of the risk on the obligation to take reasonable steps to avoid foreseeable risks of injury. In this regard, his Honour referred to the remarks of Kirby J to the remarks Toohey and Gummow JJ, and Hayne J in Romeo. He also referred to the expression of a similar principle by a number of intermediate appellate courts both in New South Wales and Victoria. At page 485 his Honour said: - "Sea conditions often change. Currents, rips and surges unexpectedly materialise. Large and unexpected waves materialise out of the deep. These phenomenon are all capable of causing serious injury or death. The currents and rips can take an unexpected swimmer far out to sea and result in drowning. Surges and unexpected large waves can hurl an unsuspecting swimmer against rocks or onto the seashore, with serious damage to body and limb. And yet to suggest that signs should be placed on all beaches in Australia indicating that swimming in the sea could lead to serious injury or death would, I suggest be absurd. The absurdity lies in the obviousness of the danger that attaches to the common, everyday activity of swimming in the sea. There is no need to warn of the ordinary risks that are so involved, and it would be absurd to require that to be done. In my opinion, the risks attendant upon body surfing fall into the same category. Of course, where there are dangerous currents or rips of surges or rocks, or the possibility of an occasional "king" waves or other dangers that are peculiar to a particular beach or part of a beach, special warnings may be called for, but that is not this case. In my opinion, a local authority charged with maintaining safety at a popular metropolitan beach is not required, in discharge of the duty of care it owes to those who come to swim on the beach, to warn about the risks of body surfing. Negligence at common law is still a fault based system: see Perre v Apand Pty Limited (1999) 198 CLR 180 at 230 per McHugh J. As a matter of law, there is a point at which those who indulge in pleasurable but risky pastimes must take personal responsibility for what they do. That point is reached when the risks are so well known and obvious that it can reasonably be assumed that the individuals concerned will take reasonable care for their safety: see Romeo v Conservation Commission (NT)." 299 Ipp J was of course, dealing with the sport or recreation of body surfing. But as I have said it seems to me a reasonable analogy between the situation described by his Honour and the situation in which the present plaintiff found himself. To an experienced swimmer and diver such as the plaintiff, notwithstanding that he was not familiar with Australian conditions and probably knowing nothing of the physics of creek beds, the risk of striking a transient sand dune occurring naturally on the bed of a tidal creek was, as a matter of factual evaluation, an inherent risk involved in swimming and diving in such an estuary. The plaintiff knew in general terms of the danger of diving in a creek of variable depth. But, as he said, he did not know it was "that variable". This bespeaks an error or misjudgment on his part. But it is my judgment that, though the matter is evenly balanced in the circumstances of this case, the danger which eventuated fell within the ambit of the normal dangers that, for experienced swimmers, attach to the ordinary activity of swimming in the ocean or in tidal creeks. As a consequence, in my opinion, the scope of the duty of care owed by each of the relevant defendants to the plaintiff in this case did not require that the plaintiff be warned of the risk that was plainly inherent in the activity he was undertaking and which manifested itself so tragically to his detriment. Moreover, the situation in which the plaintiff found himself on the day in question did not give rise to the exceptional situation mentioned by Ipp J at (43) where there was an unusual and dangerous situation which may have called for a warning. The plaintiff was swimming and diving at the time he was injured in circumstances which were natural and not out of the ordinary in any manner. 300 I have earlier outlined the test for determination as to whether a breach of a duty of care has occurred. It is the reasonableness of a defendant's actions or inactions when faced with the relevant risk which is critical in determining whether a duty of care has been breached. The question whether a particular defendant has met the requisite standard of the reasonable person is to be assessed on the facts of each case with reference to considerations such as those mentioned by Mason J Shirt. 301 As Hayne J said in Romeo at 488 - "What is reasonable must be judged in the light of all the circumstances". Ultimately, I am driven by the circumstances in this case to the conclusion that there was no breach of duty by any of the defendants. First, the considerations as to the obviousness of the inherent risk in the activity engaged in by the plaintiff are relevant not only in relation to scope of duty but also in relation to breach. As I understand it, this was one of the ways in which Toohey and Gummow JJ approached the issue in Romeo (see paras 53 and 54 at page 455, see also para 56). That was as well the approach taken by Hayne J in the passage quoted at pages 488-489 para 157. The factors Hayne J regarded as permissively relevant in relation to the reasonable response of an authority having a duty of care included whether the danger was "hidden or obvious" and whether the danger was one created by the action of the authority or was one "naturally occurring". Ipp J's analysis in Prast which I have set out above was itself an examination of obviousness in the context of the breach issue. 302 Whether the relevant analysis be conducted within the scope of duty concept or at breach level, the factual evaluation of the obviousness of the risk encountered by the plaintiff in this case, for the reasons I have stated, favours the arguments of the defendants. 303 Secondly, in my view, there is a similar fundamental difference at breach analysis between the diving cases where plaintiffs have succeeded and the circumstances of the present case. The matter requiring a warning, according to the plaintiff's case, related to the presence of variable depth due to the formation of naturally occurring sand dunes in the creek bed. This was a naturally occurring phenomenon in the truest sense of the word. It was part of the natural condition of the creek and indeed of tidal estuaries throughout the world. Ordinary competent swimmers know and can immediately sense that there is a variability in creek beds because of the presence of sand dunes underneath their feet as they enter the creek waters. They will know that variability is not uniform because of the varying nature of the sand dunes. They may not understand the physics but they know there is variability. Once the creek becomes deeper and, as happened here, visibility is lessened or reduced to nil, ordinary competent swimmers will know (or at least should know) of the likely continued existence of those sand dunes in the creek even though they are no longer able to feel them or know the precise depth with their feet. Moreover, sand dunes of this kind come and go in what may seem to the casual swimmer to be a relatively random fashion. Sand dunes appear, disappear and reappear in different parts of the creek and ocean bed. They are sometimes large, other times they are not. They may be hard or soft. It is difficult to see, short of a complete prohibition on swimming and diving in a creek, how a warning in a case such as the present could effectively be displayed. Where however, as in the diving cases I have mentioned, the danger lay in the presence of concealed rocks or a seabed which was deceptively shallow, the position is different. The danger is permanent or regularly recurring. A precise warning may be given. 304 Thirdly, the magnitude of the risk involved in the present case was not at a high level. There was no evidence before the court of any swimmer in this part of the creek having suffered injury of any kind let alone the catastrophic injury sustained by the plaintiff. This was despite the fact that this area of the creek had been very popular for swimming and recreation and really had been so for many years. In response to this argument, the plaintiff pointed out that the safe swimming area had only been created on or adjacent to the northern bank of the creek in relatively recent times. But as I understand the evidence there has been a safe swimming area or at least a wading area for nearly 30 years. The overwhelming inference from the whole of the evidence is that this is an area of the creek which has been popular for swimming for a considerable time. The absence of any injury is plainly a highly relevant matter in assessing the magnitude of the risk and the degree of probability of its occurrence. This issue, as a matter of factual evaluation, favours the arguments advanced by the defendants. 305 Fourthly, there is a further factor arising from the nature of the bedforms in the creek generally and particularly at the time of the plaintiff's injury. This resides in the force of the argument made by the defendants that the plaintiff was best placed (and certainly better placed than any of the defendants) to know about the circumstances and conditions of the stream at the time and place he chose to dive. I consider it relevant to ascertaining the response of a reasonable duty-ower to take cognizance of the fact that it was in truth the plaintiff who was best placed to make decisions for himself as to whether he would dive, where he would dive and the manner in which he would dive. It is a corollary to this proposition that it would be reasonable to assume that the defendants were entitled to expect that the plaintiff would use reasonable care for his own safety in making the decisions he did. There can be no doubt that the plaintiff's injury arose, in effect, from a misjudgment of his part. 306 I accept however, the plaintiff's submissions that it would have been a relatively cheap and simple measure to put up a sign or signs warning of the variable depth of the creek. The real issue however is, as I indicated earlier whether this in turn would have brought about the need to literally festoon the creek both east and west of the bridge with signs of this kind. That consideration in turn goes to the issue of expense, difficulty and inconvenience mentioned by Mason J in Shirt. I accept that there is considerable force in the notion that, at least in relation to areas used for swimming in, the lower reaches of the creek both east and west of the Orlando Street Bridge, there would be no warrant in restricting the placement of signs to the reserves in question in this case. Where would the line be drawn? 307 One area in which I do not accept the submissions of the defendants is the suggestion that there was a serious evidentiary gap in the plaintiff's case because of the failure to call an expert dealing with the likelihood of obedience to the suggested sign; the failure by the plaintiff to call expert evidence in relation to the method of placement of the sign either near the railway bridge or on the southern bank or other areas; and the failure of the sign itself to constitute an adequate warning to people such as the plaintiff of the relevant risk. I consider that the court is entitled to infer that the design and erection of warning signs is not a complex or expensive project. Council has well demonstrated its capacity to erect "Beach Unpatrolled" signs on the approaches to the creek and there are other signs as well mentioned in the evidence and visible at the view. In particular, to suggest as the defendants did, that it was necessary for the plaintiff to call a semiotics expert, and that the failure to do so necessarily meant the failure of the plaintiff's case, is not to be accepted. By analogy, the defendants were correct in identifying the proposition that the plaintiff bears the onus of establishing that it was reasonably practical to avoid the risk of injury (see employment cases such as Vozza v Tooth & Co Limited (1964) 112 CLR 316; Shellenberg v Tunnell Holdings Pty Limited (2000) 200 CLR 121). But it seems to me that the court is able to assess the efficacy of a suggested warning sign without the inevitable guidance of such expert evidence. Generally, there is a distinction that may be made between a warning sign designed to prevent injury to swimmers and an effective, alternative safe system of work in a situation where an employee had been injured. The Gunnamatta Bay sign, which was shown to the plaintiff in this case, was obviously a sign which was designed for a particular purpose in a particular place. In particular the picture in the photograph in which the act of diving was warned against may be said to have related to a dive other than a shallow dive. That much may be accepted Again, however, I do not consider that this is a fatal flaw in the plaintiff's case. While there may be an element of ambiguity in the sign, it seems to me that given the layout of the southern and northern banks of the creek and the creek bed itself, such a suggested ambiguity is not a prohibition on the plaintiff's success in the case, if he were otherwise entitled to succeed. As a matter of factual evaluation in the circumstances of this case, it seems to me that the sign would have been likely to have been construed by the plaintiff and others like him, as a warning against jumping or diving in any fashion while swimming in the creek. 308 Having given all these circumstances due consideration it is my view that the reasonable response required by each of the defendants did not require the giving of a warning as argued. Consequently, none of the defendants were in breach of their respective duties of care.
Causation 309 Although I have found in favour of the defendants on the liability issue, it is desirable and necessary that I express my views on a number of matters which were the subject of contest between the parties. I do this because it may be held that I am wrong on the liability issue. The relevant matters of contest include causation, voluntary assumption of risk, contributory negligence and assessment of damages. I turn now to the issue of causation. 310 For the purposes of this section, I will assume, contrary to the decision I have reached, that the defendants and each of them were in breach of their duty to the plaintiff by failing to warn him of the danger of injury while diving or jumping into the creek as a consequence of its variable depth. The question which then arises is whether the plaintiff has, on that assumption, established that his injuries would have been prevented had the defendants erected signs warning him of the relevant danger. The question of causation is to be determined subjectively: Chappel v Hart (1998) 195 CLR 232 per McHugh J at 247; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 560-561 and 579-582; Rosenberg v Percival (2001) 205 CLR 454; The Public Trustee v Sutherland Shire Council (1992) Aust Tort R 81-149 61, 139. 311 The proper test of causation is that stated in Hart and Honore "Causation in the Law" 2nd Edition at 414 where the learned authors state: - "In English Law, therefore, considerations of policy do not dictate a presumption that a statutory precaution would have averted harm of the type it was designed to avert. A plaintiff must show that in the particular instance on which he relies, the precaution would more probably than not have done so." 312 In practical terms, this means that the obligation fell on the present plaintiff to prove on the balance of probabilities that if the missing sign or signs had been erected, the plaintiff would not have suffered his injuries. To prove this, the plaintiff needed to show that such a sign or signs would probably have been seen by him and taken into account by him with the probable consequence that he would not have dived in the creek as he subsequently did. 313 In assessing these questions, it is clearly appropriate to take into account the plaintiff's evidence on the topic. Equally it is important to keep in mind the observations of McHugh J in Chappel v Hart at 246: "Human nature being what it is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken. In determining the reliability of the plaintiff's evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the plaintiff's evidence. It may be a ground for rejecting the plaintiff's evidence. But given that most plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence can only be determined by reference to objective factors, particularly the attitude and conduct of the plaintiff at about the time when the breach of duty occurred". 314 See also the remarks of Kirby J in Romeo v Conservation Commission (NT) (supra) at 482 para 134: "Necessarily, the question is hypothetical. It calls for a consideration of what might have been if certain things had been done because, by definition, they were not done and that is the plaintiff's complaint…the question is one for objective assessment, not subjective protestations after the event." 315 It will be recalled that the plaintiff's evidence-in-chief was that he had not seen any sign warning him in relation to diving in the creek (Exhibit "R" 1 page 77 Q & A 330). It was his further evidence that if such a sign had been displayed, that is a sign warning him against diving in the creek because of its variable depth, he said that he would have obeyed it and would not have dived in the water as he did (Exhibit "R" 1 page 80 Q & A 335). This last answer had been given in relation to a question that related to his approach to "this beach", meaning as I understand it, the southern bank of the creek. 316 There are two major matters for consideration in relation to this issue. Notwithstanding the plaintiff's "subjective protestation", the question remains whether there were factors which demonstrate the reliability of the plaintiff's evidence, particularly those factors bearing upon his attitude and conduct at about the time when he was swimming and diving in the creek. The second matter is closely related to and bound up with specific evidence the plaintiff gave during his cross-examination. That evidence, it will be recalled, appeared at Exhibit "R" 2 page 97 Q & A 565. The evidence was as follows: - "Q. You would agree, would you not, that any signs which related to the creek which were erected at any point adjacent to the railway bridge, or where the worn path was that you took, would have meant nothing to you in those circumstances because it wasn't part of your intention at that stage to swim in the creek? A. That is correct." 317 It will be further recalled that Mr Murray QC was permitted to ask questions in re-examination in relation to the cross-examination. At Exhibit "R" 3 page 156 Q & A 470 the following appears: - "Q. What would you have done in the circumstances in which I outlined at the point where you made the decision to go into the creek rather than the sea? What would you have done if there had been a sign there warning you against diving and advising you of the variable depth of water? A. Well, I would not have dived into the water." 318 First, it is necessary to say that I accept the evidence given by the plaintiff. It was an honest expression of his belief at the time he gave his evidence that he would not have dived had there been an appropriate sign or signs warning him of the danger of diving in the creek because of the variable depth of the water. 319 Although demeanour may not be the determinative factor in the evaluation of matters relevant to this issue, there is no doubt in my view that the plaintiff was a truthful and a reliable witness. More importantly, he impressed me as being a sensible young man who generally speaking behaved in a responsible and careful manner. His actions on the afternoon of 24 January 1999 confirmed that this was so. He took a measure of care in relation to assessing the depth of the water into which he was about to dive. His method of diving into the water was moderate ("a shallow dive"). It reflected a tacit realisation of the need to take some care in relation to the angle of the dive. 320 At a more general level, the evidence established that the plaintiff was a responsible young man. He had a secure job in Ireland and had a long term relationship with his girlfriend. He possessed a sufficient sense of responsibility to purchase a house and make appropriate arrangements for mortgage payments and the like while he was overseas. His Australasian holiday was well planned and apparently well within the means of Miss Brady and himself. Generally, their conduct throughout their holiday and particularly while they were in Australia was commensurate with the actions of a responsible young couple enjoying their vacation in a well-balanced manner. Moreover, the plaintiff was a train driver who by his training was accustomed to be aware of and obey signs. He was a stranger to Australia and Australian conditions and for that reason I accept that he would be more likely to heed a sign dealing with specific local conditions than would have perhaps a native of this country who might perhaps have dealt with signage in a more laconic manner. 321 The defendants made a number of submissions to the contrary. They referred to the fact that the plaintiff was a person who smoked despite the usual warning on cigarette packaging. Secondly, he had on one occasion bathed in a pool in Turkey while he was not wearing his swimming trunks. Thirdly, there was a reference in the evidence that the plaintiff and Miss Brady, while in Thailand, had been involved in "stealing" a couple of chairs even though they knew they were not legally entitled to do so. 322 It seems to me that the behaviour in Turkey and Thailand which was the subject of criticism by the defendants may properly be regarded as separate and isolated incidents in an otherwise responsible life. They are not matters which provide any real level of assistance in resolving the causation issue that the plaintiff's own conduct provides on the day in question prior to and while he was swimming and diving in the creek. That conduct appears to me to be the more reliable guide to the resolution of the particular issue. The isolated incidents to which I have made reference might generally be seen in the nature of skylarking but are not indicative of the plaintiff's usual conduct and behaviour. 323 The smoking issue is one that is appropriate to take into account but it is not, in my view, of great assistance in the present matter. There are many highly responsible members of the society who smoke. Many of them constantly obey signs that confront them in the daily activities of their life but they continue to smoke despite warnings not to do so. I do not accept however that it is particularly significant in relation to the breach and causation issues in this case. 324 In my view, the plaintiff's general conduct, his general standing and behaviour in the community and his specific conduct on the day in question lead me to believe that he was the sort of person who would have been most likely to have obeyed a sign which warned him of the dangers of diving in the creek. None of the matters relied upon by the defendants to which I have made reference detract from this assessment of the plaintiff and of his likely behaviour on the day in question. 325 The plaintiff's cross-examination however poses a particular problem for him. There can be no doubt that Mr McCulloch, the cross-examiner, scored a valuable concession from the plaintiff in relation to his hypothetical state of mind at the time when he stood adjacent to the railway bridge. I do not accept however, that the plaintiff's answer was fatal to his case. Mr McCulloch submitted that the evidence must lead to a finding of "no causation". 326 The first thing that needs to be said is that at the time when the questions were asked both in-chief and in cross-examination, it seemed to me that there was a degree of ambiguity in relation to the topic. It was for that reason that I allowed Mr Murray QC to re-examine. My reasons are set forth in a separate judgment given when the matter resumed in Australia. The second point is that my opinion as to the ambiguity is reinforced by a re-reading of the evidence. In fact, the question asked by Mr McCulloch involved two considerations. It may well have been the case that the plaintiff was agreeing to both or it may be that he was agreeing to only one of those propositions. No objection was taken to the question but it may well be the situation that the witness was agreeing to the last aspect of the question rather than to the intermediate proposition contained within it. 327 More importantly, the question itself related to a hypothetical situation. The fact is that there was no sign adjacent to the railway bridge nor was there any sign at any point along the well worn path. Nor for that matter were there any relevant signs on the southern bank of the creek. 328 Just as the Court must approach with some degree of caution the "subjective protestations" of a plaintiff that he would not have acted in a certain way if he had been warned, so the Court must view with some caution a statement that a sign which did not exist at a particular point would have meant nothing to the plaintiff if it had been there at the particular time because of his then state of mind. I do not say that it is not an appropriate matter to take into account and to reflect upon in coming to an overall assessment. But there is, as I said at the time, an air of unreality about the hypothetical nature of the reconstruction of a non-existent state of mind at the earlier time. It requires the placement of hypothesis upon hypothesis. 329 In my opinion, giving the relevant evidence such weight as it is worth, the fact remains that, if the plaintiff, within a very short space of time, had come to a conclusion that he wished to swim in the creek rather than the ocean, the probabilities are that he would have recalled a sign near the railway bridge which warned him of the danger of diving in the creek. The decision (or at least the possibility of) a swim in the creek occurred to the plaintiff within a few moments of walking past the bridge. Logically it must be correct to say, as the plaintiff did, that the sign would have meant "nothing" to him at the time he stood at the bridge but it may well have struck a response a few moments later when he contemplated a swim in the creek. This is even more likely to have been the situation had there been a sign on the well worn path itself or on some part of the southern bank of the creek where the plaintiff and Miss Brady stood at the time the relevant decision was made. This was the thrust of the answer given in re-examination. 330 The defendants also pointed to the fact that the plaintiff was unable to recall with precision the signs which appeared on the railway bridge or in that vicinity. The argument appears to be - if the fact is that the plaintiff is now unable to recall what those signs said, why is there any warrant for assuming that he would have noticed, recalled and acted on a sign which warned him of the danger of diving in the creek? The answer to that submission appears to me to be obvious. The plaintiff was able to recall a number of years after the accident a sign which was on or near the railway line. He could not remember its precise wording but he remembered its general tenure. It was in fact a sign that had no relevance to him or his activities on that day. The very fact that the plaintiff, notwithstanding the tragedy that befell him that afternoon, was years later able to recall a sign in the vicinity of the bridge which was not at all relevant to his activities lends considerable credence to the probability that he would in fact have had regard to a sign that directly related to his activities on that day. And this is so, notwithstanding that he may not have made a definite decision to swim in the creek rather than the sea until he came down onto the southern bank of the creek. As I have said, the better view seems to me that the probabilities clearly favour a situation where this particular plaintiff, having regard to his general nature and conduct and his particular actions on that day, would have heeded a sign and not dived in the creek had he been warned of the dangers involved. There was no need for him to dive into the water in order to enjoy swimming in the creek and being carried down by the current towards the ocean. This was the major pleasurable part of the experience. I am satisfied that if there had been a sign or signs warning against the danger of diving in any of the locations nominated by Mr Murray QC the plaintiff would, more probably than not, have heeded those signs and refrained from diving in the manner he did.
The Defence of Voluntary Assumption of Risk 331 The defendants have each submitted that this defence has been established. 332 The pleading of the Common Law defence of volenti non fit injuria places an onus on the defendant to establish the defence (Insurance Commissioner v Joyce (1948) 77 CLR 39; Roggenkamp v Bennett (1950) 80 CLR 292 at 300) 333 These cases concern the consideration of the defence in the context of intoxicated drivers. In Roggenkamp, McTiernan J and Williams J (in their joint judgment) cited a statement of the principle which appears in Halsburys Laws of England 2nd Edition Volume 23 pages 716-718. The essence of this statement was repeated by Studdert J in Beck v State of New South Wales ((2001) NSWSC 278 at para 61). The passage which appears in Halsburys Laws of Australia (1994) Volume 19 at 300-140 is in these terms: - "It is a defence to an action in negligence if the defendant can prove that the plaintiff knew of and voluntarily accepted the risk of suffering injury or damage as a result of the defendant's negligence. However, it is not sufficient for the defendant to prove that the plaintiff ought to have known of the risk, or that the plaintiff merely perceived the existence of danger. The defendant must establish that the plaintiff: (1) Was fully aware of the risk; (2) Fully comprehended its nature and extent; and (3) Voluntarily accepted the whole risk. The plaintiff cannot succeed where the plaintiff was under any form of compulsion to accept the risk. The question whether the plaintiff's acceptance of the risk was voluntary is generally a question of fact and the answer to it may be inferred from his or her conduct in the circumstances. A person cannot be taken to have voluntarily assumed the risk of negligence on the part of another merely by engaging in a sport or pastime, even if the sport or pastime is inherently dangerous, or by accepting or continuing in employment even where such employment is inherently dangerous.…" 334 In Sara v Government Insurance Office of New South Wales (1969) 89 NSW WN 203, the Court of Appeal had before it a motion for a new trial in an action for damages for negligence causing personal injury arising out of a motor accident. The appellant had been the unsuccessful plaintiff in a jury trial in which she had sought damages as a consequence of being injured while a passenger in a car driven by her husband. The new trial motion centred upon complaints about directions given by the trial judge relating to the defence of volenti non fit injuria. Factual matters before the jury were likely to have established that the plaintiff's husband was at the time of driving the vehicle substantially affected by alcohol. 335 Jacobs & Holmes JJA agreed with the decision of Walsh JA. The latter's view was that on the whole of the evidence it was open to the jury to answer favourably to the defendant the questions of fact which the trial judge had submitted to them for their consideration. In the course of his discussion his Honour said at page 207: - "In the present case the learned trial judge gave directions which, in my opinion, were in accord, in relation to this defence of volenti as applied to this sort of situation, with what was said by the High Court in the two cases mentioned concerning that defence in that situation. I do not think it would have been correct for the learned judge to add to them the further directions which were sought and which it is now contended he should have given, nor do I think this court should hold that, in relation to the situation to which I have referred and in relation to the relationship between the plaintiff and the driver which that situation creates, it is essential to establish the added factual matter which the appellant contends should be established. It seems to me to be a highly artificial enquiry as applied to the situation to which I have referred, to ask whether the plaintiff had made with the driver some bargain or contract , however informal it may have been, concerning the waiver of legal rights which the plaintiff might otherwise have had. In truth I think probably the situation is that if the plaintiff, with sufficient knowledge, voluntarily accepts the risk of physical injury, then without proof of any further fact concerning a supposed bargain between the parties, the law as it has been developed declares that in that situation and in that relationship the result is that the plaintiff has consented to being without remedy if injury should occur of the same kind as that which she knew to be likely because of the condition of the driver. Therefore, I would hold that the learned judge was not in error in refusing the directions sought." 336 In a recent Court of Appeal decision a possible difference of opinion became apparent in relation to the scope of the matters a defendant had to prove where a "volenti" defence was raised. In Hadland v Council of the City of Blacktown (unreported Court of Appeal 21 May 1997) the appellant had been injured while playing amateur cricket for St Mary's RSL Cricket Club on a pitch owned by the Council. The pitch was made of artificial grass, a surface normally more reliable and predictable than a natural turf pitch. The appellant however was struck in the face by a ball which hit a dangerous patch on the pitch and he was consequently injured. The plaintiff lost at first instance on the basis of the trial judge's finding that the plaintiff was fully aware that a ball landing on the dangerous patch was likely to rise at a pace and height to cause him injury; that he was aware of complaints made about the pitch on earlier occasions and was aware that it constituted a risk of injury to himself and other players. The Court of Appeal upheld the appeal. Clarke AJA drew attention to the fact that one of the matters which the defendant must prove to sustain the defence was that the plaintiff voluntarily agreed to accept the risk of injury created by the danger - that is to absolve the defendant from any responsibility for injury resulting from the danger which the plaintiff might suffer. With respect to this element, Clarke AJA at page 6 said: - "In my respectful opinion the correct approach requires that the Court focus on the factual issue whether the plaintiff voluntarily agreed to accept the risk of injury and its consequences. In one sense the issue may be seen to pose two different questions. First, whether the acceptance was voluntary and secondly, assuming that the plaintiff's actions were voluntary, and that there was no express acceptance of the risk, whether the inference should be drawn from all the circumstances that the plaintiff accepted the relevant risk, in that he or she agreed to bear the consequences of any injury. No doubt there will be cases where those questions are clearly separate but in other cases it may well be that those factors relevant to the consideration of the voluntariness question bear on both. For instance, as it seems to me, even though the evidence of compulsion, duress or moral pressure may fall short of establishing that the plaintiff's actions were not voluntary, the circumstances may be such that an inference that the plaintiff accepted the risk should not be drawn. In this respect the weight of authority seems to me to support the proposition, except in the limited class of case with which Walsh JA was dealing in Sara (supra), that for the defence to succeed it is not enough to establish that the plaintiff was aware, and appreciated the extent of the danger and decided to run the risk. The weight of authority and observations of text writers seem to me to support the proposition that it is only where the inference is drawn that the plaintiff consented to run the risk at his or her own expense, in the sense that he or she could not sue if injured, that the defence will prevail (Charlesworth & Percy, 3-109; Salmond & Heuston on the Law of Torts 20th Edition page 487; Law of Torts, Fleming, 8th Edition page 296-297). Some writers have contended that it must be possible to infer an agreement between the plaintiff and the defendant whereby the former assumes the relevant risk before the defence will stand but it seems to me the better view is that it is necessary only to establish that the plaintiff accepted the risk in the sense that he or she gave away his or her right to sue if injured as a consequence of the danger. A conclusion on this question will invariably depend upon whether that inference is available from the proven material." 337 His Honour went on to hold that the inference that the appellant had voluntarily agreed to accept the risk of injury and its consequences was not open. Handley JA agreed with the orders proposed by Clark AJA but expressed a reservation in relation to the reasons expressed by Clarke AJA in one respect. His Honour said: - "As at present advised, I do not consider that in a case such as this the defence of voluntary assumption of risk requires proof of a tacit bargain between the parties that the defendant should be absolved from any responsibility for injury to the plaintiff. The position will be otherwise where the parties are in a contractual relationship because the defendant must then exclude an implied term in the contract…Where the relationship between the parties is gratuitous, the existing authority in this Court appears to establish that the defence is made out "if the plaintiff, with sufficient knowledge, voluntarily accepts the risk of physical injury". See Sara v Government Insurance Office (1969) 89 WN Part 1 (NSW) 203 at 207 per Walsh JA, speaking with the concurrence of Jacobs and Holmes JJA." 338 Grove AJA agreed with the orders proposed by Clarke AJA but considered it unnecessary to state an opinion about the reservation expressed by Handley JA. He observed that authority such as Sara's case might, in an appropriate case, need to be analysed in the light of subsequent developments of the law concerning the significance of the category to which an injured entrant upon property belongs. 339 This recent controversy in the New South Wales Court of Appeal, if it may be so described, is not of consequence in the present case. This is because in my opinion, the facts of this matter do not establish that the plaintiff "with sufficient knowledge voluntarily accepted the risk of physical injury". Indeed, in my view, the facts fall well short of establishing this necessary prerequisite. It must follow of course that the test stated by Clarke AJA in different terms has as well not been satisfied. It could not possibly be said that it is to be inferred that the present plaintiff gave away his right to sue if injured. 340 I have earlier in these reasons set out in considerable detail the plaintiff's evidence as to the sequence of events in relation to his accident. A number of points need to be made in relation to that evidence. First, the plaintiff's method of entry into the water on each occasion he dived could by no means be described as inherently dangerous. Secondly, it could not be said that the plaintiff's method of entry into the water was reckless or foolhardy. True it is that he was diving into or launching himself upon water where he could not see below the surface. That is a mater that is appropriate to take into account in the assessment of contributory negligence. But it must also be borne in mind that the plaintiff launched himself in the way he did only after he had proceeded out to a point in the second area where he was satisfied that he could safely dive. Of course, it turned out he was wrong about this when he made his last dive. Thirdly, he in fact entered the water six or seven times without problem and this was an important factor in relation to the ultimate dive when he was injured. Fourthly, the plaintiff had made an actual assessment of the depth of the water (T 115 Q & A 692 - T 116 Q & A 696). It is true that part of this assessment was based on an assumption he made. It is also true that in fact he did not know the depth of the water into which he dived; but nevertheless, as he said, he did not expect to hit his head "off the bottom" (Exhibit "R" 2 page 130 Q & A 789). He thought he had "taken enough care to make sure that I didn't go near the bottom when I was diving" (Exhibit "R" 2 T 130 Q & A 794). Fifthly, the plaintiff did of course accept that inappropriate diving for example, into a swimming pool carried with it a risk of serious injury. A fair reading of the plaintiff's answers at Exhibit 'R" 3 page 122 Q 587 to page 123 Q 593 supports the proposition that while the plaintiff accepted in general terms the risks associated with diving, he did not regard his precise activities in the creek as dangerous. Question 50 and its answer are instructive in this regard: - "Q. And you knew that the risks were potentially serious? A. From experience, I have done it so many other times before and in different places in the sea that I didn't see a danger in it at the time, no. Q. What you mean by that, is it that you have never been injured before and you didn't see why it would occur on this occasion, is that what you are saying? A. Yes." 341 In my view, the major criticism that can be made of the plaintiff and his conduct on that day is that he was diving into the creek when he in fact did not know the depth and did not know what lay beneath the surface. What lay beneath the water into which he dived was concealed by the cloudiness of the water. He did not, however, regard the type of diving and swimming he was doing in the second area of the creek as dangerous and this was so, first, because of the assumptions he had made; and secondly, because of his life experience as a swimmer to that point of time. Moreover, the assumptions he made about the depth of the water were based upon the quite steep slope and the step down to the point where the water was at his thighs. The method of diving he adopted was not reckless or dangerous so far as the angle of dive and the method of executing the dive. He in fact dived and swam on some six or seven occasions from generally the same location and did so perfectly safely. He knew that the water depth was variable in general terms but, as he said, "not that variable". (I took the plaintiff to mean by this expression that he had no real expectation that he would be injured if he dived a further time in much the same location and in much the same way as he had done on the earlier occasions. Of course, in this regard, he was proved to be incorrect). 342 As a consequence of the foregoing, I am quite satisfied that, had the plaintiff established the scope and breach of duty of care claimed against any or all of the defendants, he should not be defeated by the defence of voluntary assumption of risk. Accepting as I have done the truthfulness and reliability of the plaintiff's evidence as to his state of mind and the sequence of events involved in the circumstances leading up to his injury, it is clear that the defendants have not proved that the plaintiff was fully aware of the risk; nor have they proved that the plaintiff had a complete understanding of the nature and extent of the risk. The plaintiff must be taken to have understood that, in general terms there was an inherent risk in swimming and diving in a creek of variable depth, especially a creek where the current was running freely and there was no visibility of what lay beneath the surface. But it is clear he misjudged the situation on his last dive Further, the defendants have simply failed to prove on the facts of this case that the plaintiff voluntarily accepted the risk. I do not consider that the plaintiff, prior to the accident, fully appreciated in the sense relevant for the establishment of this defence the precise danger he faced. The assumption he made (wrongly) was that it was safe to repeat his dive where he did and in the manner he did. Nor did he, with a full appreciation of that risk, voluntarily accept the risk of physical injury.
Contributory Negligence 343 Each defendant submitted in the event that the defence of voluntary assumption of risk was not proved, the evidence established nevertheless, that the plaintiff was guilty of contributory negligence. Mr Maconachie QC argued that, should the plaintiff succeed in his claim against any or all of the defendants, he should as a matter of justice and equity bear 90 per cent of the responsibility for the harm that befell him. 344 The argument of the defendants required the Court to take into account, as it must do, the principles stated in Podrebersek v Australia Iron & Steel Pty Limited (1985) 59 ALR 492 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ at 494: - "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability ie, of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Limited (1953) AC 663 and 682; Smith v McIntyre (1958) Tas SR 36 at 42-49 and Broadhurst v Millman (1976) VR 208 at 219 and the cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any importance." 345 In light of the findings I have made in relation to liability, it will be necessary for the purposes of this part of my decision to assume that my findings on liability are in error. That is to say, I will proceed on the assumption, contrary to the earlier findings, that the defendants were in breach of a duty of care owed to the plaintiff by failing to warn him of the variable depth of the creek bed. I have already determined, making these same assumptions, that such a failure, if it were in breach of duty, was, on the probabilities, causative in the sense that the plaintiff has established that his injuries would have been prevented had the defendants erected signs warning of the dangers of diving in the relevant area of the creek.
Did the Plaintiff fail to exercise reasonable care for his own safety? 346 As with a number of the questions that have arisen for determination in this case, the answer is not easy. In my view, however, the plaintiff did fail to take care for his own safety at least to the extent that he chose to dive in the creek not knowing the depth of the water in the area into which he dived and in circumstances where the cloudiness of the water and the fast moving current prevented him from seeing below the surface. On the other hand, the plaintiff did endeavour to make an assessment of the depth in this case. He made assumptions regarding the likely depth having regard to the gradient of the slope leading to the point from which he launched himself in the water. Additionally, he made assumptions based upon the depth of the last step which brought him into the position from which he launched himself into the water. He said that he saw other people swimming in this area and other people submerged in the water in this area. He dived with what he regarded was reasonable care so as to avoid striking the bottom of the creek. He thought he had taken sufficient care to avoid striking the bottom of the creek. 347 The fact is that the plaintiff was a strong swimmer and he had reasonable experience in diving into the water at beaches in southern France and Asia. As well, he had swum in the ocean at Dingle in Ireland. Nevertheless, he could not see what lay beneath the surface of the water and, although his dive was moderate, it necessarily carried him beneath the surface of the water. He action in drawing his hands back from in front of his head to enable him to adopt a swimming stroke exposed him to the risk of hitting an object concealed from him below the surface. The method of entry into the water carried him forward but it also carried him further below the surface. 348 It is of course easy to be wise with the benefit of hindsight, but it seems to me that the plaintiff was to a moderate degree guilty of failing to exercise reasonable care for his own safety for the reasons I have stated. 349 I would therefore, find contributory negligence to have been proved. If I am incorrect in the findings I have made in relation to the liability of the defendants and the plaintiff is entitled to the damages which I will assess, it is my estimate that it is just and equitable that the damages recoverable by the plaintiff should be reduced by 15 per cent. (Section 9 of the Law Reform (Miscellaneous Provisions) Act 1965).
Apportionment between Defendants 350 It is necessary, having determined the issue of contributory negligence, to identify the relevant apportionment of responsibility between the defendants. Again, this issue arises in the event that my findings on liability are set aside. Each defendant cross-claimed against the other seeking contribution or indemnity pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. The cross-claims in their final form were filed on 6 November and 11 December 2001. 351 The primary argument advanced by the Council against the State interests was that liability should be apportioned significantly against the Public Works Department. This was because of its role in relation to the new retaining wall in 1998; and its position of greater knowledge of the risks given the evidence of Mr Druery who was at the relevant time employed with that Department as a specialist consultant. Moreover the Public Works Department had an equal role in any work done in the area and was the primary source of funds. Its role was not akin to that of banker rather it was substantially involved in providing advice, supervision, giving consents, imposing conditions and the like. The Jetty Trust was required, according to this submission, to bear the bulk of the responsibility for failing to provide a warning if the court came to the view that a warning should have been provided and would have been obeyed. 352 The State interests argued that the Coffs Harbour City Council had, over a long period of time, assumed, as a matter of fact, control of the whole of Coffs Creek and in particular the eastern entrance channel. This was the argument I have described as "the jewel in the crown" argument. By contrast, the State interests argued that the Jetty Reserve Trust's involvement with the southern bank was entirely passive. It provided no facilities and had in no way promoted or encouraged the use of the area. The State, in the form of the Public Works Department and its successor, did no more than provide advice to and facilitate funding arrangements for Coffs Harbour City Council for the care, control and management that it had assumed over the whole of the area. 353 Notwithstanding the very careful and detailed arguments mounted on behalf of the State interests, I have come to the conclusion that the responsibility of the State interests for the damage suffered by the plaintiff is greater than that of the first defendant. I consider it to be just and equitable that contribution between the defendants for the amount of the damages that would have been recoverable by the plaintiff, were he entitled to succeed, ought be borne as to 25 per cent by the first defendant and as to 75 per cent by the State interests. I shall now briefly state my reasons. Many of the factual and historical matters relating to the management of the creek and the reserves have already been stated. There is no need for me to repeat the detail. 354 First, the State of New South Wales was the owner of the creek and both reserves. Secondly, between the 1970's and 1996, the Department of Public Works and its successor had a significant and overall supervisory role in relation to matters of control affecting the creek east of the Orlando Street Bridge to the ocean and the area of the Jetty Reserve. From 1996, the third defendant had the statutory and de facto control of the Jetty Reserve. Thirdly, while it is true that there are a number of important aspects in which the Council exercised elements of management over the creek, in my view the State interests' role in that regard was superior and, where necessary, paramount. Fourthly, in terms of scientific expertise and economic capability, the State interests were in a decidedly superior position in relation to the ability to understand and control matters relating to the hydrodynamics of the creek when compared to the Council's situation. Fifthly, although the Council had a role to play in relation to the Jetty Reserve particularly in relation to the provision of short-term car parking, the pathway and signage, again the paramount supervision and control of the reserve both prior to 1996 and afterwards fell on the State interests. Sixthly, the plaintiff was in fact drawn to the southern bank of the creek when he was traversing the Jetty Reserve and the pathway within it. Seventhly, the primary responsibility for the erection of signage in the southern reserve and on or near the southern bank of the creek especially fell, in my view, on the State interests. This is not to say the Council had no responsibility or opportunities in that regard but the primary responsibility fell upon the Public Works Department and the Jetty Reserve Trust. 355 I shall now turn to the assessment of damages. If the plaintiff had been entitled to a verdict it would have been necessary to reduce the plaintiff's damages by 15 per cent in view of the fact that I have concluded that it is just and equitable that they be so reduced. On the matter of contribution between the defendants, the responsibility of the plaintiff is omitted: see Barisic v Devenport (1978) 2 NSWLR 111 at 129. The resultant verdict would have been for the amount of damages assessed less 15 per cent. The apportionment between the defendant would have been in the proportions I have expressed, calculated in relation to the reduced amount of the verdict.
Assessment of Damages 356 Had the plaintiff succeeded on liability, there is no doubt that he would have been entitled to substantial damages. Sensibly, the parties came to an agreement about many aspects of the damages claim and its assessment. This was not only sensible but to be expected. 357 There can be no doubt that the plaintiff has suffered a dreadful injury. As I explained at the outset, his life and his health have been irreparably damaged. He must suffer the pain, frustration and indignity of remaining a quadriplegic for the rest of his life. His life expectancy has been reduced, he is often in considerable pain and he faces an unending regime of medical and hospital attendances to cope with the repetition of life threatening occurrences related to his disability. As I have said, he is a very genuine young man and no issue arises as to credibility in relation to his description of his discomforts, anxieties and disabilities. In the main, the defendants sensibly accepted this situation but a number of issues remain to be resolved in the assessment of damages. For the purposes of this final section of my reasons, I shall assume that the defendants were, contrary to my findings, in breach of their duty of care to the plaintiff and that the plaintiff is entitled to a verdict.
General Damages 358 There was not a great deal of debate about this issue. It was left to the court to make an appropriate assessment although Mr Murray QC submitted that the figure should be at the top of the range. Certainly, in my view, the figure for general damages needs to be a high figure having regard to the overall situation related to the plaintiff's injury and disabilities. In my view, a figure of $370,000 would be appropriate and I propose to indicate that this is the figure I would have allowed for general damages. There is no contest that there is an entitlement to interest on general damages. This has been agreed at the rate of two per cent. In the circumstances of this case, it is appropriate that interest be payable on one half of the general damages assessed by the court.
Past Economic Loss 359 The parties are agreed on most matters relating to past economic loss including the rate of interest applicable to the claim. There is however one matter in issue. As mentioned at the outset, the plaintiff had, prior to his Australasian holiday and the injury, purchased a house at Arbour Hill in Dublin. He remains the owner of this property but he is unable to live there because of its unsuitability and the range of his injuries. Up to the present time, he has needed 24 hour care and this has also necessitated that he be cared for by his family in his parent's family home. Nevertheless, the Arbour Hill house has been let out and the plaintiff has been in receipt of rent since 1 March 1999 at the rate of E118.00 per week. 360 The defendants maintain that in the calculation of past economic loss the defendants should get the benefit of these rental monies. The argument is this: when a plaintiff is awarded compensation, he should not be better off financially than if he had not been injured. The plaintiff, if he had not been injured, would have continued to earn his salary with the Railways Department. He would have lived in his home at Arbour Hill and paid his mortgage out of his earnings. At present, he does not live in the Arbour Hill property but receives a rent for it. He will be compensated for loss of past earnings but his mortgage repayments will be made out of the rents and not out of the compensation for lost earnings. Accordingly, the plaintiff is better off than he would have been, had he not been injured. 361 First, I query whether the plaintiff could in any sense be said to be better off as a consequence of compensation than if he had not been injured. Secondly, even it were true in the narrow sense contended, the consequence would be to penalise a thrifty and prudent plaintiff at the expense of the unwise and wasteful. Such a consequence would be repugnant to commonsense. 362 The concept of subventions accruing to the benefit of a tortfeasor is well recognised in law. This is the very topic that was analysed by Windeyer J in Espagne's case (1961) 105 CLR at 588-599. The principles spelt out by his Honour make it quite clear that the plaintiff's rent monies could not possibly fall into the category of a subvention that was intended to accrue to the benefit of the defendants. There being no other basis for the argument advanced by the defendants, it must fail.
Future Economic Loss 363 Again, the defendants seek the benefit of the rents for Arbour Hill. In addition, they seek a reduction in the otherwise agreed calculation based on the monies earnt by the plaintiff from a training program in Ireland. This was described in evidence as a "back to work program". Under this arrangement, the plaintiff went to Dun Laoghaire Rehabilitation Centre and was there able to participate in computer classes. The terms of the program included the making of a modest payment to the patient. The amount was E114.00. 364 The plaintiff gave evidence about the training program in Exhibit "R"2 pages 37-41; pages 44-45. (See also the report of Miss Horgan Exhibit "D"2 page 7 and the evidence of Mrs Mulligan Exhibit "R"3 page 43). 365 The program may be briefly summarised. On Tuesdays and Thursdays the plaintiff's carer, if he were able to drive, would take him to Dun Laoghaire. If the carer could not drive, a member of the family or a neighbour would provide transport. The carer would however, remain with the plaintiff throughout the exercise. The plaintiff, with the aid of special typing aids, splints etc, would endeavour to work on a special type of adapted computer. Participants in the program were people who had been spinally injured. The plaintiff was able to spend about an hour at a time without a break working in this way. No doubt to provide encouragement, the plaintiff was paid E114.00 per week for the work. However, the plaintiff made it clear that it was his understanding that the program was to come to an end in October 2002. In Exhibit "D"2, Miss Linda Horgan, an Occupational Therapist, reported on the first defendant's behalf that the plaintiff had been attending this course for 18 months but that the course was expected to finish "soon". She had discussions with the co-ordinator of the program. He had highlighted to her that the program would be finishing in September 2002 "unless new funding could be found". At page 7 she referred to the fact that the weekly payment under the scheme would be ending soon. She mentioned September 2002 as the finish date. 366 The consequence of this evidence is that I accept on the probabilities that the scheme came to an end in or towards the end of 2002. On that basis, I do not consider that there should be any deduction in the future economic loss figure related to this item. For the reasons I have already indicated, the claim by the defendants to have brought to their credit the rents payable from the Arbour Hill property cannot be justified. There can be no doubt that the plaintiff's earning capacity has been entirely destroyed by the accident. The fact that he is the owner of a property which itself has an income producing feature is not in my opinion a matter which legitimately allows for the benefit of the rent to flow to the defendants in the assessment of future economic loss. Neither of the amounts claimed can go for the benefit of the defendants, should they be liable to pay damages.
Past Care 367 The plaintiff is claiming for gratuitous care. The first period relates to the time when Jennifer Brady and members of the Mulligan family provided care for the plaintiff while he was in hospital in Australia. This covers the period from the accident to July 1999. The second period relates to the situation in Ireland between July 1999 and 23 December 1999. Generally, the plaintiff was in Dun Laoghaire Rehabilitation Hospital during this period but, after a time, he was allowed out on weekends. The claim for gratuitous care relates to the care provided to the plaintiff by his family during these weekend periods when he was at the home of his parents. The third period is from 23 December 1999 to the present time. The plaintiff was in his parents' home entirely throughout this period when care was provided to him by family members. It will be necessary to discuss each period separately.
Care Provided in Australia 368 The plaintiff is claiming A$16.00 per hour for the care provided by Jennifer Brady and members of the Mulligan family. The first defendant has conceded that an allowance under this heading should be made but submits that the claim for eight hours per day is excessive. It is suggested that the appropriate assessment of the daily care should be approximately four hours per day. Secondly, it submits that a rate of A$8.00 per hour would be reasonable and adequate. It has been submitted by both defendants that a commercial rate is not applicable to care by family members and that, in any event, the court is bound to use commercial rates as "a starting point", a general rule, "a prima facie reference point" only and that commercial rates are not "the invariable yardstick". 369 The principles in relation to the nature of a claim based on Griffiths v Kerkemeyer (1997) 139 CLR 161 have been stated clearly by the High Court of Australia. They are these: -
Care Provided in Ireland - First Stage 372 The issues in dispute under this heading are these: First, the hours claimed for the provision of care are said to be excessive. The first defendant submitted that as the care was provided while the plaintiff was in the household, and that members were present in any event, a reduced amount of ten hours per day would be more appropriate with no allowance for on-call services at the nightly rate claimed. Secondly, the care rates clamed were said to be excessive because they reflect the commercial cost of outsourcing care. It was submitted this is not "necessary or appropriate" in the plaintiff's case. The first defendant submitted that a rate of E4.00 per hour would be appropriate. 373 The plaintiff's claim was formulated in the report of Noreen Roche dated 5 May 2000. This appears in Exhibit "C". Miss Roche said at page 3 of her report: - "Prior to his discharge he went home on weekend leave Friday 6pm to Sunday 8pm approximately three weekends per month (from July). His family went to fetch him each weekend and they brought him back on Sunday night. When he returned home they both described this period as traumatic because their home was ergonomically unsuitable. They converted the study into a bedroom. They were supplied with a hoist and an outmoded hospital bed. The family set up a day care Rota. He required night attendance and a member of the family had to attend to him in order to re-position him." 374 Miss Roche postulated a claim of 30 hours per weekend for 12 weekends. The amount of the claim (converted to Euros) was E7.62 per hour with night care at E43.17. There were 24 nights relevantly involved in the provision of care during this period. 375 I am against the defendants in relation to their submissions related to this period. There can be no doubt that care was provided to the plaintiff on both a daily and nightly basis while he was at home on the weekends. In addition, there was a need to fetch him from hospital and to return him there again at the end of the weekend. To suggest that members of the family were present in any event during the weekend does not adequately face up to the stark reality of the plaintiff's disabilities and the difficulties there would have been in caring for him on these weekend visits. This was particularly so in view of the fact that the house was entirely unsuitable for him. I do not understand how it can be said that a claim for a nightly allowance based on a commercial rate should not be given. The plaintiff needed 24 hour care. This has been conceded throughout by the defendants. I imagine that he needed 24 hour care even more during the traumatic period when he was first brought home and especially in the circumstances when the house was not suitable to him and where he no doubt did not have the range of equipment he has now been provided with, albeit belatedly, by the Irish Health Service. 376 I simply do not understand the defendant's submissions that the care rates are excessive because they reflect commercial cost. Authority suggests that this is the appropriate basis and no particular matter has been pointed to suggesting why it is not "necessary or appropriate" in the plaintiff's case. 377 The basis of the care costing derives from the rates recommended by the Department of Health & Children effective from 1 April 2000 in Ireland. I accept that this rate is probably below commercial rates in any event. I note that the first defendant's occupational therapist recommended a care costing basis for past care related to the family's role at a rate of E8.00 per hour.
Care Provided in Ireland - Second Stage 378 This covers the period from 23 December 1999 to date. 379 The plaintiff's claim based on the care provided for him by his family during this period is for 12 hours per day, seven days per week with night care seven nights per week. The first defendant argues that an allowance should be made in favour of the defendants for the 44 hours per week assistance provided by the Irish Wheelchair Association during this period. Secondly, there should be a further allowance for the four to six hours when specialist nursing assistance is being provided each week. This is so because realistically no additional care is being provided by the family during the evacuation of the plaintiff's bowels and other matters attended to by the nursing assistance. The defendants suggest that 50 hours should be deducted leaving 34 hours, an amount which should include the night care. Again, the defendants suggest a rate of E4.00 per hour rather than the higher rate claimed by the plaintiff. 380 I think there is substance in the first part of the submission made by the first defendant in relation to this stage of the past care claim. There is no doubt that there have been helpers throughout the period provided on a voluntary basis by the Irish Wheelchair Association. The evidence concentrated in the main on the carer who was working with the plaintiff at the time evidence was taken in Dublin. His name was Dario. A fair bit of detail was given as to the assistance provided by Dario to the plaintiff. In summary, Dario was there providing care for 44 hours each week. It seems, however, that previous carers were not there for quite that length of time, although the evidence is imprecise about the hours involved. Nevertheless, on the assumption that the evidence regarding Dario is relevant to the submissions in this regard, it may be said that the carer, in general terms, relieved the family for about 44 hours per week. Dario in fact spent two nights at the family home and he would take care of the plaintiff on these evenings. Moreover, he would be with the plaintiff while he was at Dun Laoghaire attending the work program. This happened on two days each week. Dario however, could not afford local insurance and was not able for that reason to drive the plaintiff to Dun Laoghaire. The plaintiff's father or a neighbour would attend to the provision of this service to enable the plaintiff and Dario to attend the Rehabilitation Hospital. 381 I consider that it is reasonable, when assessing the cost of past care in this period, that an allowance should be made in favour of the defendants for the care provided by Dario and his predecessors. That is because the family were to a degree relieved of the provision of care during each of those periods. However, there are some qualifications to be made to this allowance. First, there is the need to recognise the fact that family care would not have ceased altogether when Dario was there, although it would have been to a large degree relieved. Second, there was the need to take the plaintiff and Dario to Dun Laoghaire and to collect them after the work program had finished on each of the two days. 382 I have calculated that if one were to attempt to work the matter out with absolute precision, then (making the assumptions that are inherent in some of the matters I have dealt with above) it would be the situation that an allowance of approximately E44,421.30 should be taken from the claimed amount. This would in effect represent 44 hours per week with approximately 20 of those hours being for night care. However, because of the qualifications inherent in the assumptions I have made, I think a fairer way of estimating the allowance would be to round it down somewhat to reflect those qualifications. Accordingly, I propose to reduce this aspect of the plaintiff's claim by E38,000.00. I realise that this is an imprecise way of doing it but its seems to me to be reasonable and fair in all the circumstances. 383 I do not consider that the defendants are entitled to an allowance for the specialist nursing care required each week for the manual evacuation of the plaintiff's bowels. These attendances were specific instances of medical care and did not interrupt the continued provision of care by the family. 384 For the reasons stated in relation to the First Stage of the Irish past care claim, I am satisfied that the quantum of the plaintiff's claim on the suggested hourly basis is reasonable and that it is appropriate to determine it at a rate that may be classified as a commercial rate, although it is in fact somewhat less.
Interest on Past Care 385 The interest rate is agreed between the parties at 5.17 per cent. The defendants however, submit that interest on this aspect of the claim is inappropriate. They have submitted that Grincelis was wrongly decided. I am of course, bound to apply the authority of the High Court and do so.
Future Care 386 The only issue which arises in relation to this aspect of the plaintiff's claim is the suggested need for a deduction of 50 hours per week representing the continued assistance being provided by the Irish Wheelchair Association and the weekly nursing visits at four to six hours per week. Otherwise the commercial hourly rate of E16.00 per hour is agreed. 387 In relation to future care, it is my view that the plaintiff is entitled to engage his own personal carer of choice rather than to be bound by the choice of the Irish Wheelchair Association. The relationship between a quadriplegic and his carer is a very delicate one. There are issues of independence, private dignity and, regrettably in some cases, exploitation and manipulation. For all that may be said as to the benefits of the limited assistance provided by the Irish Wheelchair Association, the fact remains that it is a very limited assistance. It is limited in terms of hours. But it is limited in other important ways as well. These were explained by the first defendant's occupational therapist Miss Horgan at page 14 of Exhibit "D"2. In short, Miss Horgan pointed to the fact that, because of the difficulty of engaging local people, personal assistance came from a varied ethnic background. This posed in some cases difficulties of communication and difficulties such as that presented by the plaintiff's carer as at September 2002. He, for example, was unable to drive a car in Ireland. Moreover, there was no guarantee that such persons have any training at all in relation to the provision of care to seriously disabled persons. Based on all the evidence, the plaintiff's current carer Dario was quite a responsible and decent person. He was providing reasonable assistance to the plaintiff in a number of respects. However, it is quite clear that the plaintiff should have the choice and should not be bound by the choice of the Association. 388 In relation to the nursing care issue, I need only repeat my comments in relation to a similar argument that was addressed to the court in relation to past care. The provision of four to six hours a week by nursing staff is entirely a matter of separate medical attention needed by the plaintiff. It extends not only to the manual evacuation of his bowels and all the unpleasant consequences involved but also the possibility that the nursing staff may be required to change the catheter. These needs are additional to and supplementary of the care which is normally provided by a general carer. The family's care for the plaintiff and his need for that continued care did not cease during these nursing attendances. They were quite specific whereas the family's duties were, and remained more general. The same would apply in the case of a personal carer selected to look after the plaintiff's future needs. 389 In my view, for these reasons, there is no warrant in reducing the plaintiff's claim for future care on either of the bases asserted on behalf of the defendants. 390 I should only add to make it clear that the mathematical calculation of future loss is derived by the use of a multiplier. The multiplier has been selected because of the agreed life expectancy of the plaintiff. The plaintiff turned 34 on 10 February 2003 and it has been agreed that his life expectancy is 27.5 years at the present time. The calculations reflect this agreement.
Future Nursing Care 391 The only issue which arises in connection with this item is the suggestion made by the defendants that only three visits per week will be required by nursing staff. It had been suggested by Dr O'Driscoll and others that a separate visit would be needed for the purposes of changing the plaintiff's catheter. Dr O'Driscoll thought that this procedure should be carried out on a separate occasion (Exhibit "R"5 page 11). In cross-examination, however, Dr O'Driscoll expressed some doubts whether it was appropriate at all for nursing staff to change the catheter. His opinion on this matter appeared to be somewhat equivocal (pages 18 and 19 of Exhibit "R"5. In the ultimate, although reluctantly I suspect, Dr O'Driscoll appeared to agree that the nursing staff, if they were trained to change the catheter could do so first and then deal with the evacuation of bowels subsequently on the same visit. It was this evidence as I understand it which led to the submission that has been made. 392 The issue is one of medical necessity and reasonableness. In my view it is reasonable to allow four visits per week as claimed by the plaintiff. There are issues here of human dignity that transcend the relatively small amount of money involved in this aspect of the dispute. In addition, there is the risk of infection. It may be alleviated by following the course suggested in cross-examination of Dr O'Driscoll but it can not be entirely eliminated as a problem. Dr O'Driscoll certainly saw it as a matter of real medical concern. Thirdly, there is the fact that the nursing staff sent for the purposes of attending to bowel evacuation may not be necessarily trained in the removal and replacement of a catheter. It may well be the situation that a nurse with specialist ability in this regard will be required. In all those circumstances, the plaintiff's claim as outlined is reasonable and is justified on medical grounds.
Future Special Needs 393 There are only two matters here in dispute. The first relates to sexual activity and the second to the provision of a special lounge for the plaintiff. As to the former, I am not satisfied that there is sufficient evidence before me to justify the expenditure on this item. As to the second, I am satisfied that there is appropriate evidence which satisfies me that the plaintiff is entitled to damages which take into account the provision of this specialised seating. Given the plaintiff's condition, it is medically desirable that he be provided, within reason, with all of the facilities which will enable him to relieve pressure sores and to have relief from being confined to his rather uncomfortable wheelchair and his bed. I can see no warrant for denying the plaintiff this item. It is well supported by the evidence of Margo Barnes (Exhibit "C") and the need for seating of this kind was not put in issue by Linda Horgan (Exhibit "D"2). There is further support in the evidence of the physiotherapist Ms Moore (Exhibit "J" 1365, 1368).
Household Assistance 394 The plaintiff's claim includes an amount representing an allowance for assistance with housework. The plaintiff of course would like to be independent and the damages sought relate to housekeeping assistance in the event that he is able to live independently in the future. The defendants submit that the plaintiff's carer can attend to household duties and that this is, as the evidence shows, commonly the case with carers assisting disabled spinal injury patients. In my view, a small allowance for assistance with housework is reasonable. Most household duties can be undertaken by the carer but there will be occasions when some assistance is required. Moreover, allowance has to be made for the fact that particular carers may be resistant to undertaking the full range of household duties. I am prepared to allow E2,000.00 thus requiring a deduction of E6,446.46 from the amount claimed.
Physiotherapy, Hydrotherapy, Pool Hire 395 Somewhat surprisingly, these became quite a contentious issue. I would have thought that the evidence clearly established that physiotherapy on a regular basis is medically necessary, beneficial and desirable in relation to the plaintiff's condition. Quite apart from the evidence of Marie Moore, it seems to me to be a matter of commonsense that quadriplegic patients need a substantial amount of physiotherapy and, it goes without saying, they need such treatment at a reasonably high level provided that the resultant cost is reasonable. It is true that a carer can implement certain basic aspects of a planned physiotherapy program when properly instructed. However, carers are not specially trained in physiotherapy techniques and, in my view, cannot be expected to provide other than the most basic of assistance to a disabled plaintiff. Physiotherapy techniques are very different from household chores. 396 Ms Moore gave illuminating evidence. First, it appears to be the undoubted situation that there are very few therapists available in and around Dublin for the amount of work that is required. The public system of available physiotherapy is quite deficient and substantial delays in obtaining a physiotherapist for patients is common. Secondly, Miss Moore said that physiotherapy treatment is very important for people with the plaintiff's degree of disability. Especially this is so in relation to the need to prevent contractures. The actual physical work can be done by a carer but Miss Moore insisted that it had to be overviewed and overseen by a specialist physiotherapist. Thirdly, the plaintiff would need physiotherapy advice in relation to new types of equipment and treatment specifically in the area of local treatment of neck and shoulder pain. Fourthly, maintenance of chest function is especially important for a person who is confined to a wheelchair as is the plaintiff. Additionally, hydrotherapy was an important technique for maintaining chest and breathing function in addition to physiotherapy exercises and stretching. 397 In relation to hydrotherapy, Ms Moore had suggested that the plaintiff should have 48 treatments a year. This was calculated on the basis of there being one session a week with a break for holiday periods. Because the plaintiff has a superpubic catheter and a Baclofen Pump surgically inserted in his back, he would not be able to use a standard pool. He would have to use a pool that was warmed to a proper temperature. As well the pool would need to have hoist facilities. The benefits of hydrotherapy are that it enables the disabled person to stretch out quite well whereas this is difficult out of the water. Secondly, the exercise in the water challenges the patient in terms of respiration so it is a very good work out for the chest and breathing components of the chest. In addition, it has a positive therapeutic effect because the patient feels a degree of mobility in the water that is not available with land based therapy. Ms Moore stressed that the plaintiff would not be able to swim or exercise safely in water without the handling skills of an appropriately trained physiotherapist (Exhibit "J", 1369). This would be in addition to the physical help provided by a carer. 398 Ms Moore agreed in cross-examination that the carer would be able to provide a basic maintenance program for joint movement but she thought that the need for specialist physiotherapy would be more than three to six times a year. She explained in re-examination that her total prescription for physiotherapy was 60 hours. This did not equate to 60 visits. She explained that although the costs of physiotherapy were based on an hourly rate, it would probably take anywhere between three or four hours for a physiotherapist to visit and give the appropriate treatment to the disabled patient on any one visit. 399 Ms Moore's report is part of Exhibit "J". It contains details of the equipment she believed would be beneficial and necessary for the plaintiff's treatment. She included also an annual costing for physiotherapy treatment of E4,100.40. This was based on fifteen four-hourly sessions per year. Hydrotherapy costs were estimated at E3,600.00 per annum together with pool hire charges. 400 The defendants' submissions were that these items should not be allowed. First, it was said that pool hire has already been allowed for in item 4.04 "leisure pursuits" (see Noreen Roche's report in Exhibit "C"). Secondly, it was argued that hydrotherapy and physiotherapy could be administered by the carer without the continued attendance of a specialist. Thirdly, it was suggested that the physiotherapy could be performed by the visiting GP. 401 I am unable to resolve the first issue. It is true that the parties have come to an agreement about an allowance for "leisure pursuits". It is in the agreed sum of E731.25. But I am unable to determine whether pool hire is included for hydrotherapy purposes in the rather modest amount mentioned in the Barnes Report. Nor is it clear what Miss Barnes had in mind in relation to the particular item. So far as the second and third areas of dispute are concerned, I favour the arguments of the plaintiff. It seems to me incontrovertible, having regard to the evidence, that the plaintiff has a medical need for continued physiotherapy and hydrotherapy treatments. It is true that a carer and, to a very limited degree, a general practitioner might be able to assist in the application of techniques from time to time but I consider that the plaintiff is entitled to claim an allowance for specialist treatment available from physiotherapists in relation to land and water treatment. I therefore, come to the conclusion that these items should be allowed and the charge for them is reasonable.
Capital Items 402 I am not satisfied that the evidence establishes the reasonableness of the need for the plaintiff to purchase an erection pump. The amount of E260.30 is not allowed.
Out-of-Pocket Expenses 403 The plaintiff has claimed a total amount of E142,640.00. There is a contention about one item in the list. This relates to an amount of E38,230.12. The first defendant has argued that the alterations to the parents' house represented by this sum are not recoverable by the plaintiff. The principles which allow for domestic assistance to be provided do not extend to the provision of alterations to a parent's house to accommodate an injured child. The State interests agree with this submission but argue, that if the submission is rejected, nothing beyond the amount of 23,000 Irish Pounds is claimable. This was the cost, agreed with the builder to make modifications to the house of the Mulligan family (Exhibit "R" 3 page 3 Q 381). 404 The plaintiff's argument is that the cost of alteration to the parents' home were expenses reasonably incurred to meet the emergency situation created as a result of the plaintiff's injuries. Prior to the accident, the plaintiff was living independently in his own home and the alterations to his parents' home were carried out reasonably to provide for his accommodation. The provision of an extended bathroom for the plaintiff's use was of no benefit to the family and, if anything, the parent's house has been significantly diminished in value by reason of the alterations. 405 The plaintiff's father was asked why the plaintiff left Dun Laoghaire Rehabilitation Hospital and came to live at his parents home. (Prior to the accident it was agreed that he had been living independently at Arbour Hill). The plaintiff's father gave the following evidence at page 90 (Exhibit "R"3): - "He had indicated and for a while he had been in hospital for so long that the one place he wanted to get was out of the hospital. At that particular time he had been in hospital for nearly a year when he came home to us eventually in December. And you know, we had got indications that the hospital would not be keeping him any much longer than that time anyway." 406 Mr Mulligan Senior explained that there were really no alternatives as to where the plaintiff could live at that point of time. His home at Arbour Hill was quite unsuitable, so the only alternative was to bring him to the family home. Evidence was given regarding the alterations which were made to the house (they were contained in Exhibit "J" at page 1387). All the renovations were done solely to enable the injured plaintiff to have better access inside the home. The resultant situation was not ideal but it was necessary to cope with the exigencies of having a quadriplegic in the home. For example, the rebuilding of the kitchen meant half the living area in house was lost to the family. 407 It seems that the builder selected by the plaintiff's father, one Mr McDermott, disappeared like the fabled Irish builder in the well known tale. He disappeared with the job only partially completed even though he had been paid 18,000 Irish Pounds. Mr Mulligan agreed that the quoted price for the alterations had been 23,000 Irish Pounds but he indicated that in fact it cost a great deal more in order to complete the work once the builder had left. 408 I accept on the evidence that in December 1999 the plaintiff was on the point of being required to leave Dun Laoghaire Rehabilitation Hospital. In addition, he was understandably very anxious to be taken back fulltime into his parents home. He had been there on weekends; he was becoming used to the experience and had been in the Rehabilitation Hospital for many months. Where else was he to stay? His own home was not suitable for the purpose and, in practical terms, there was no one else to look after him beyond his own family. The combination of these circumstances made it eminently reasonable that he should be brought into his parent's home. But that home needed extensive modification to avoid the continuation of the trauma described earlier. Thus it was that the parents set about the very difficult and inconvenient task of converting their relatively own comfortable home into a home that would be suitable for their disabled and crippled son. The reasonable basis for the claim has been established. 409 However, the plaintiff's submission seems to fall uneasily between two stools. It is put forward as an out-of-pocket expense but I am not conscious that the evidence demonstrates that the plaintiff was ever under a legal liability to repay his parents for the alterations. Nor does it appear he has assumed such a responsibility although the claim, being as it is in the nature of an out-of-pocket expense, presumes that this is so. If such a liability can be established then the claim, subject to quantum, is a reasonable one. 410 On the other hand, the claim might have been made as part of the gratuitous care claim. On this analysis, the plaintiff would have demonstrated a need for the alterations in order that he could stay with his parents at their home following his discharge from hospital. A secondary basis for a claim deriving from the principles in van Gervan v Fenton (supra) would be that the plaintiff continued to have a need, based on his disabilities, for a modified home in the event that he wished to visit and stay at his parent's home. This secondary claim would proceed on the assumption that the plaintiff will have obtained his own modified housing and be living independently. That situation of course has not arisen so the claim could really only be made on a gratuitous care basis related to the consideration that it was reasonable for the parents to modify the home to enable the plaintiff to stay there when he came out of hospital in December 1999. A claim on this basis would normally carry interest although this has not been sought. 411 I consider that the nature of the claim has been demonstrated to be reasonable. It should however, be allowed on the basis of the principles derived from the provision of gratuitous care (see Mercantile Mutual Insurance (Australia) Limited v Moulding & Anor (Butterworth's unreported judgments BC9601249 at page 11)). 412 As to quantum, the amount which is recoverable must be the amount actually expended. I do not see that the plaintiff's claim can be confined to the amount originally agreed to between Mr Mulligan and the builder especially as the builder turned out to be broadly incompetent. The actual costs are those claimed in the plaintiff's schedule. It has not been demonstrated that those costs, though relatively substantial, are unreasonable. On the contrary, the evidence suggests that the amount is reasonable. It is also clear that there is no need for any disallowance of the claim or modification of it based on the increase to the value of the parents home. Quite clearly the substantial changes which were made, specialised as they were, tended to detract from the value of the family home rather than add to it. 413 I have attached a Schedule of Damages that is intended to reflect the various findings made in this assessment of damages. So far as the last item is concerned it will remain, for convenience sake, in the list of items claimed as an out-of-pocket expense notwithstanding that I have categorised it differently and allowed it on a different basis than that which was expressed in the plaintiff's written submissions. 414 There are other out-of-pockets claimed where, at least at the date of the written submissions, there had not been full substantiation of the amounts claimed. I have allowed those in the attached schedule. However, should my judgment on liability be set aside as a result of appellate intervention, the precise status of those expenses may be clarified by agreement at that stage.
Fund Management 415 The final matter debated was Fund Management. The plaintiff, though severely disabled, is not handicapped mentally. Rather he is a sensible and capable young man who, no doubt with some assistance and guidance, will have little, if any, difficulty in managing his own financial affairs. In my view, he is not entitled to require the defendants to be responsible for the expenses of fund management (see my remarks in Simpson v Diamond & Anor [2001] NSWSC 925 at paras 848-858; see also Nominal Defendant v Gardikiotis (1996) 186 CLR 49 at 52, 54, 57, 62 and 67).
Orders 416 I direct the entry of verdict and judgment for each defendant in relation to the plaintiff's claim.
I order that the plaintiff pay the costs of each defendant.
In relation to each cross-claim, I direct the entry of verdict and judgment for the cross-defendant.
I order that the plaintiff pay the costs of the successful cross-defendant in relation to each cross-claim.
Last Modified: 03/19/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Mulligan
Coffs Harbour City Council & Ors
(2000) 200 CLR 121
(1964) 112 CLR 316
(1991) 171 CLR 506
(1959) 101 CLR 298
(1938) 60 CLR 336
(1987) 162 CLR 479
(1984) 155 CLR 614
(1998) 192 CLR 431
(2001) 206 CLR 512
(1993) 177 CLR 423
(1980) 146 CLR 40
(1993) 62 SASR 562
(2002) 76 ALJR 483
(2000) 201 CLR 552
(2000) 22 WAR 474
(1998) 3 VR 302
(2000) 1 VR 133
(2001) 116 LGERA 447
(1999) 198 CLR 180
(2001) 205 CLR 434
(1998) 195 CLR 232
(1989) 17 NSWLR 553
(1948) 77 CLR 39
(1950) 80 CLR 292
(1985) 59 ALR 492
(1997) 139 CLR 161
(1992) 175 CLR 327
(1996) 187 CLR 354
(2000) 201 CLR 321
(1978) 2 NSWLR 111
(1996) 186 CLR 49
(1978) 1 NSWLR 631
(1939) 62 CLR 179
(2001) 117 LGERA 447
(2000) 74 ALJR 1219
(2001) 205 CLR 454
(1956) 96 CLR 10
Verdict and judgment for each defendant on the plaintiff's claim; verdict and judgment for each cross-defendant on the cross-claims; the plaintiff was ordered to pay the costs of each defendant and successful cross-defendant ([416]).