Nagle v Rottnest Island Authority

(iii) judgment be entered for the appellant with costs;

(iv) the action be remitted to the Supreme Court of Western Australia to determine the outstanding issues of contributory negligence and damages.

1993, April 21 Mason C.J., Deane, Dawson and Gaudron JJ.

This is an appeal against a decision of the Full Court of the Supreme Court of Western Australia which, by majority [1] , dismissed an appeal against a decision of the trial judge [2] . The learned trial judge had dismissed an action brought by the appellant against the respondent for damages for personal injury suffered by the appellant, allegedly as a result of negligence, when he dived into the water at the Basin, Rottnest Island ("the Island"). The basis of his Honour's decision was his conclusion that the appellant failed on causation in that he had not discharged the onus of establishing that his injuries were caused by the respondent's breach of its duty of care to the appellant.

1. [1991] Aust. Torts Rep. 81-090 (Kennedy and Rowland JJ., Wallace J. dissenting). 2. [1989] Aust. Torts Rep. 80-298 (Nicholson J.).

The respondent is the successor to the liabilities of the Rottnest Island Board ("the Board") [3] which, on 16 October 1977, occupied and was under a duty to manage and control for the benefit of the public [4] the public reserve ("the Reserve") on the coast of the Island [5] . No other person exercised any relevant control over the Reserve in the Board's area of responsibility, which extended as far as the low water level [6] . The Reserve adjoined a swimming area known as the Basin.

1. Rottnest Island Authority Act 1987 WA, s. 50 and Sched. 2, cl. 3. 2. Parks and Reserves Act 1895 WA, s. 4; see also ss. 3(1) and (4), 5(1) and 8(1). 3. The Island lies approximately 18 kms. off the Western Australian coast, almost opposite the port of Fremantle. 4. See Western Australia Government Gazette, 25 May 1917, p. 857; 17 May 1935, p. 983; 23 September 1938, p. 1640; 26 March 1976, p. 857.

On 16 October 1977, the appellant, who was an employee of the Board but who had never previously visited the Reserve or swum at the Basin, dived from a partially submerged rock ledge into the water. Almost immediately, his head struck a fully submerged rock and he became a quadriplegic. He brought this action for damages in respect of the injuries he suffered, claiming that the Board was negligent in that, inter alia, it failed to give any or any adequate warning that the ledge was unsafe for diving when it knew or ought to have known that it formed a natural platform which members of the public would assume to be suitable for diving, and that his injuries resulted from this breach of duty.

The Basin is a small, sand-bottomed, U-shaped bathing area on the northern coast of the Island, surrounded on all sides except the north by a flat rock area known as a wave platform, approximately 25 cms. above low tide level. The trial judge described the Basin and its surrounds as follows:

It comprises a sandy enclosed basin, graduating from shallow to deep as it goes out from the beach. It is surrounded by steep limestone cliffs 7 [to] 9 m. high in the south-west; by a low cliff in the south; and by a sandy beach running from approximately the commencement of the low cliff westwards. Below the cliffs and beyond the beach is a level wave platform which surrounds the enclosed sandy basin on all but the north-east corner at a height of about 0.25 m. above low water mark. That ledge terminates at the sandy basin in a natural rock ledge. Adjacent to the eastern edge of the platform are a number of flat rocks separate from the platform The bed of the basin is below low-water mark as are most of each of the rocks adjacent to the platform. It was one of these rocks which the appellant struck. The trial judge continued: Above the southern end of the Basin there is a carpark from which steps lead to the sandy beach. At the top of those steps is a directional sign to other areas. At the foot of those steps on the beach on 16th October 1977 there was a sign erected by the Board warning that in certain wind conditions there was a danger of an undertow. When the appellant dived into the water of the Basin the tide was approximately 30 cms. above low water level and so the wave platform was submerged in about 5 cms. of water.

According to the findings of the trial judge, the Board effectively ran the Island as a business, deriving revenue from visitors. In the course of running the Island in that way, the Board promoted the Basin for swimming and related recreational activities by means of publicity and directional signs. The Board 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. The trial judge accepted that the rock ledge on the eastern side of the Basin from which the appellant dived was a possible point of entry to the water but not one which would necessarily invite entry due to the presence of the rocks. But the trial judge found that members of the public would assume the ledge, as a natural platform, was suitable for the purpose of diving. The trial judge also accepted that an observer looking at the sea in the direction of the sun might well see a sun glint or glitter pattern as a consequence of the reflection of the rays of the sun. His Honour found that, when the appellant dived into the water of the Basin, the glitter effect would have been visible to him and would have obscured his vision to some extent. However, the rock which his head struck would not have been totally obscured and he could have avoided any glitter pattern by moving his head.

The appellant alleged, inter alia, in his particulars of negligence that the Board was negligent in that it: "(c) failed to give any or any adequate warning that the ledge was unsafe for diving when it knew or ought to have known that the same formed a natural platform which members of the public would assume to be suitable for such a purpose; (d) alternatively failed to provide any or any adequate warning that the ledge was unsafe for diving when the surface of the water was at or below the level of the same."

The trial judge recorded that it was not seriously suggested that the ordinary principles with regard to liability of occupiers of land in negligence did not apply to public authorities [7] or that, in actions in negligence against an occupier of land such as the Board as occupier of the Reserve, the law was other than as stated by Deane J. in Hackshaw v. Shaw [8] . In conformity with the statement, his Honour recognized that, as a prerequisite to the existence of a duty of care, there must be a necessary degree of proximity of relationship and that the touchstone is that, in all the circumstances, there may be a real risk of injury to the visitor or to the class of which the visitor is a member. In relation to the question whether there was a real risk of injury, his Honour concluded:

What must be assessed is whether the risk that the [appellant] would dive as he did was reasonably foreseeable in the circumstances. In my opinion, while it may have reasonably been considered foolhardy or unlikely for him to do so, it was nevertheless a risk foreseeable in accordance with the tests just stated. The circumstances which made it foreseeable were the nature of the ledge as a platform; the use of those premises by persons inexperienced or unfamiliar with them; and the effects of refraction or reflection which could sufficiently affect their observation of the presence of rocks so as to result in them failing to appreciate the dangers of diving from the ledge. Later he said: In my view the relevant circumstances here are not to be viewed as so usual or expected as to require no warning While the dangers of diving into the sea may be usual or expected in general, the position seems to me to be different where the [Board's] antecedent acts are directed towards facilitating the entry of the [appellant] into the sea. Where such entry entails a foreseeable risk of danger if executed in a certain manner, the duty to warn arises in my opinion. No such notice having been given, breach is established. The trial judge went on to consider 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. In his Honour's view, 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. 1. See Sutherland Shire Council v. Heyman (1985), 157 C.L.R. 424, at p. 445, per Gibbs C.J.; Voli v. Inglewood Shire Council (1963), 110 C.L.R. 74. 2. (1984) 155 C.L.R. 614, at pp. 662-663, adopted in Australian Safeway Stores Pty. Ltd. v. Zaluzna (1987), 162 C.L.R. 479, at p. 488, per Mason, Wilson, Deane and Dawson JJ.

In contrast to the approach of the trial judge, in the Full Court Kennedy and Rowland JJ. held that the risk of injury to swimmers at the Basin through diving was not reasonably foreseeable and that therefore the Board owed no duty to the appellant. Their Honours considered that the rocks were large and usually, in any sunny weather, clearly visible to those who approached the swimming area. Both Kennedy and Rowland JJ. referred to the fact that no similar accident was known to have occurred previously at the Basin. Kennedy J. considered that persons intending to swim would not dive into the water without satisfying themselves that it was safe to do so and that the Board was entitled to assume that any person venturing into the water would look with some care for the rocks. Rowland J. considered that there was a risk of injury but it "was very small". He went on to say, "[i]t is a common enough experience that one can be momentarily unsighted, or even misled, by a glitter effect; but that does not mean that one can foresee that a person is likely to dive into a known rocky area." In this respect his Honour erred by substituting "likelihood" for "possibility" as the relevant test.

On the other hand, Wallace J., by a course of reasoning similar to that of the trial judge, held that the Board owed a duty of care to the appellant.

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 purpose 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 generalized duty of care - to take reasonable steps to avoid foreseeable risk 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, determinant 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. However, it is convenient to deal with foreseeability as a separate issue.

In view of the division of opinion between the judges who have dealt with the case in the courts below, it is clear that the question of foreseeability is one of the critical issues in the case. Ultimately, having read and reviewed the relevant evidence given at trial and the reasons for decision of the trial judge and of the members of the Full Court, we are left in no doubt that the trial judge was correct in concluding that the risk of injury to those diving from the rock ledge was reasonably foreseeable. As he said, "it may have reasonably been considered foolhardy or unlikely" for a person to dive as the appellant did. But, as he recognized, that was not the relevant question: a risk may constitute a foreseeable risk even though it is unlikely to occur [9] . It is enough that the risk is not far-fetched or fanciful [9] .

1. Wyong Shire Council v. Shirt (1980), 146 C.L.R. 40, at p. 48, per Mason J. 2. Wyong Shire Council v. Shirt (1980), 146 C.L.R. 40, at p. 48, per Mason J.

In the Full Court, Kennedy J. did not take into account the distinct possibility that a person might dive into the water at the Basin in circumstances where it was not safe to do so. Children and people with impaired sight might well do so. Moreover and more importantly, there was the possibility that persons intending to swim in the Basin might dive into the water without ascertaining whether it was safe to do so. It is now well established that a person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety [10] .

1. See, e.g., McLean v. Tedman (1984), 155 C.L.R. 306, at pp. 311-312; March v. Stramare (E. & M.H.) Pty. Ltd. (1991), 171 C.L.R. 506, at pp. 519, 520, 536-537.

Rowland J., as we have already pointed out, applied an incorrect test by posing the question whether "one [could] foresee that a person [was] likely to dive into a known rocky area" (emphasis added). What is more, his Honour did acknowledge that there was a foreseeable risk of injury though he regarded that risk as "very small". Whether small or not, the risk was certainly not far-fetched or fanciful.

In the result, we consider 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 reasonably foreseeable.

Having concluded that the relevant risk of injury was foreseeable, we turn to consider whether the Board was in breach of its duty of care. The respondent contended that the appellant failed to specify the action which the Board failed to take which constituted the relevant breach of duty. The appellant responded by pointing to par. (c) in his particulars of negligence. That paragraph refers to failure to give a warning that the ledge was unsafe for diving. In our view, the giving of a warning that the ledge was unsafe for diving was the action that a reasonable person in the respondent's situation would have taken to guard against the foreseeable risk of injury which existed. True it is that the particulars might have been more specific by stating the form of notice, for example, "Diving from anywhere in this area is prohibited", with or without a reference to the presence of dangerous rocks and by identifying the place or places where the notice might be located. But the particulars sufficiently drew to the respondent's attention the relevant omission which constituted the alleged negligence, that is, the failure to warn of the danger of diving at the place where the accident occurred. A notice prohibiting diving is but one form of notice - perhaps the most effective form of notice - warning of the danger of diving.

The appellant put in evidence a publication entitled Design and Application of Water Safety Signs [11] . That publication set out the Australian standard ("the Standard") for the design and application of flags and safety signs incorporating graphic symbols, intended for use wherever water sports might be undertaken, and was intended to provide a uniform basis for identification of hazardous conditions and areas where certain water sports were prohibited or permitted with the aim of reducing the risk of drownings and serious accidents. Among the signs included in the Standard was one intended to signify that diving was prohibited. It was recognized as carrying that signification by ninety-seven per cent of those to whom it was shown.

1. Standards Association of Australia, Australian Standard 2416-1985, 2nd ed. (1985).

It follows that the trial judge was right in finding that the failure to warn of the danger of diving from the eastern rock ledge into the Basin due to the presence of rocks was a breach of the respondent's general duty of care. In this respect, it is significant that the appellant's failure to identify the precise content of what would have been an adequate warning sign appears not to have been the subject of contention before the trial judge. His lengthy and meticulous judgment discloses no argument on this score.

It is also significant that counsel for the respondent conceded that the Board had power to erect signs at the probable point from which the appellant dived. Diving from the wave platform was an activity which commenced within the Reserve though it ended beyond the boundaries of the Reserve. There was no reason why the Board could not erect signs on the wave platform warning of the danger which existed immediately beyond the boundaries of the Reserve, that being a danger to which swimmers encouraged by the Board would be exposed.

The respondent argued that the conclusion of the trial judge on causation should be upheld. That conclusion was based on a finding that the appellant was aware of the presence of the rocks and that a warning would not have added to his state of knowledge. The consequence, according to the trial judge, was that a warning would not have averted the harm which ensued.

However, the members of the Full Court were unanimous in overruling the finding made by the trial judge on this issue. Wallace J. answered the trial judge's reasoning by saying, in response to the argument that installation of an appropriate warning sign would not have added to the appellant's state of knowledge:

Whilst the appellant was aware of the existence of rocks in the area, he was at pains to dive where he thought the water was clear. Had there been an appropriate sign forbidding diving from the wave platform because of the existence of rocks not readily detectable, knowledge of the existence thereof would have given way to knowledge of the danger of diving because of that fact. Clearly the existence of the rock which the appellant struck was not apparent. (Emphasis added.) His Honour was therefore satisfied that the appellant had demonstrated that the Board's failure to install a sign forbidding diving caused the appellant's injury, despite his view that the failure to install the sign was not in itself negligent. Kennedy J. said that "[i]t would be difficult to conclude, on the evidence, that the appellant would have ignored" a sign warning of "the dangers of diving at any point along the relevant part of the wave platform" and Rowland J. said that he was "unable to agree with the learned trial judge's finding that an appropriate warning sign which was capable of being placed on the reef in the vicinity of the eastern edge would not have been sufficient to restrain the appellant from diving." (Emphasis added.)

There was additional evidence from an officer of the Surf Life Saving Association of Australia and an administrator of a number of swimming pools in Perth to the effect that warning signs in relation to swimming and diving are obeyed by a large percentage of adults.

Notwithstanding the deference which ought to be paid to the findings of the trial judge, we do not agree with his conclusion that the Board's failure to erect a sign giving an appropriate warning would not have prevented injury to the appellant. The appellant's uncontradicted evidence, accepted by the trial judge, revealed him to have taken a cautious approach to diving. He entered the water in the way he did because he believed he had passed all submerged rocks. In our view, the likelihood is that he would have been deterred from diving by an appropriate warning sign.

The respondent filed a notice of contention seeking to uphold the decision of the Full Court of the Supreme Court on three grounds. It is unnecessary to mention them specifically because they are all covered by what has been said earlier in the course of these reasons.

In the result, the appeal should be allowed with costs. We would set aside the orders of the Full Court of the Supreme Court made on 11 March 1991 and in lieu thereof order that: (i) the appeal to that Court be allowed with costs; (ii) the orders of Nicholson J. made on 21 November 1989 be set aside; (iii) judgment be entered for the appellant with costs; (iv) the action be remitted to the Supreme Court of Western Australia to determine the outstanding issues of contributory negligence and damages.

At all material times, Rottnest Island was declared to be a public recreation reserve under the Permanent Reserves Act 1899 WA and under the Land Act 1933 WA. The reserve did not extend below the low water mark. The Rottnest Island Board was appointed pursuant to s. 3 of the Parks and Reserves Act 1895 WA to control and manage Rottnest. Its duty was set out in s. 4:

The duty of a Board shall be to control and manage all the parks and reserves so committed to them, and to employ in such control and management any funds provided for those purposes by Parliament, and any funds arising from profits, fees, pecuniary penalties, or otherwise coming to the hands of the Board in the course of such control or management. On 16 October 1977, a hot sunny day, the plaintiff (appellant) decided to go for a swim. He was twenty-nine years of age and an employee of the Board. He went to the Basin, a popular swimming area on the northern coast of Rottnest. He dived into the Basin from a natural rock ledge or wave platform on its eastern perimeter, his head struck a submerged rock and he became quadriplegic. The plaintiff sued for damages for personal injuries in the Supreme Court of Western Australia alleging negligence on the part of the Board. The defendant (respondent) is a corporation constituted under the Rottnest Island Authority Act 1987 WA. That Act cast upon the defendant the liabilities of the Board that existed immediately before the commencement of the Act [12] . 1. s. 50 and Sched. 2, cl. 3(1)(b).

The accident was not caused by any act done by the Board; it was caused by the plaintiff's dive. The plaintiff alleged that the Board was negligent in that it "failed to give any or any adequate warning that the ledge was unsafe for diving when it knew or ought to have known that the same formed a natural platform which members of the public would assume to be suitable for such purpose". Unfortunately, the action was conducted without any particulars as to the type and location of the warning which the Board, on the plaintiff's allegation, ought to have provided.

The simple facts of the case raise two questions for determination: was the Board under a duty to provide a warning? and would a warning have prevented the plaintiff from diving?

Was the Board under a duty to erect a warning sign?

The relevant duty (if any) is one owed by the Board, a public authority, to the plaintiff as a member of the public coming upon the foreshore of the Basin as of right. If this case were to be decided on the simple footing that the Board was the occupier of Rottnest and the plaintiff's damage was caused by the condition of the area occupied, it would be necessary to adopt the approach taken by Deane J. in Hackshaw v. Shaw [13] and adopted by the majority of this Court in Australian Safeway Stores Pty. Ltd. v. Zaluzna [14] :

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 prerequisite 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. This approach is more easily applied in a case where a duty of care is said to arise from some act done by a defendant than in a case where the duty is said to arise simply from occupation of premises. In the latter case, foreseeability of a risk of injury attributes to the occupier some knowledge by the occupier of the danger from which the risk arises. What if the risk arises from some danger unknown to the occupier? In the case of a public authority having the control and management of a large area of land, what is the duty of care owed to a person who enters thereon as of right when the risk arises from a danger unknown to the public authority? or from a danger which, though unknown to the public authority, ought to have been known? The present weight of authority favours the imposition of liability on a public authority for a failure to take reasonable care to avoid the risk of injury to the public from dangers which, though unknown to the public authority, ought to have been known: see Barr v. Manly Municipal Council [15] and Schiller v. Mulgrave Shire Council [16] . Whether there is any more extensive liability is a question which was left open in those cases. It can be left open in this case, for the Board must be taken to have had full knowledge of the topography of the Basin and of the circumstances which might affect the safety of the public who were accustomed to using it. 1. (1984) 155 C.L.R. 614, at pp. 662-663. 2. (1987) 162 C.L.R. 479, at p. 488. 3. (1968) 70 S.R. (N.S.W.) 119. 4. (1972) 129 C.L.R. 116.

Yet there is a threshold question whether the Board's duty, if any, is to be ascertained simply on the footing that it was in occupation of the reserve of Rottnest Island. It was not in the same position as a private owner who, in exercise of proprietary or possessory rights, can give or refuse permission for entry. Though the Board required, under its by-laws, that a person landing on the island, not being a person in an exempt category, pay an admission fee [17] , those entering the island and paying a fee can scarcely be regarded as being in the same position as persons entering private premises under a contract [18] . In any event, the plaintiff, being an employee of the Board, was exempt from the requirement. The Board encouraged the use of the Basin for recreational swimming and provided some facilities for the public using the Basin but the plaintiff, in common with other members of the public, used the Basin as of right, not by permission of the Board.

1. By-law 23. 2. See Calin v. Greater Union Organization Pty. Ltd. (1991), 173 C.L.R. 33.

In Schiller , where the defendant Council was held liable for damage caused by the falling of a dead tree on a walker following a path through a tropical scenic reserve under the control and management of the Council, Barwick C.J. rested liability not only on the Council's occupation of the reserve but on its statutory powers of control and management. His Honour said [19] :

For my part, the capacity to care for and control the reserve was in this case the source of duty. Whilst it is convenient perhaps to refer to the respondent as the occupier of land, I would prefer to describe it as the trustee having the care, control and management of the reserve. The capacity for care, control and management derived from that trusteeship clearly extended in this case to the whole of the area. Consequently, in my opinion, the source of liability in this case is the statutory power and duty of care, control and management and not merely the occupation of land. Walsh J. said this [20] : When land to be used for public purposes is placed under the control of a statutory body then, whether the measure of its duty to persons using the land is or is not identical with that of an occupier of private land, the fact that it has control and that it alone has the means of securing the users of the land against injury provides a basis for holding that a duty of care is cast upon it: see Aiken v. Kingborough Corporation [21] . Likewise, Gibbs J. [22] did not rest the duty only on occupation. He identified the relevant circumstances which gave rise to the duty of care as being that the Council "was the occupier and had the control and management [of a recreation reserve], that the reserve was open to the public [and that the plaintiff] was using the land as of right". 1. (1972) 129 C.L.R., at p. 120. 2. (1972) 129 C.L.R., at p. 124. 3. (1939) 62 C.L.R. 179, at pp. 203-206. 4. (1972) 129 C.L.R., at p. 134.

The analogy is imperfect between the position of a public authority statutorily charged with the duty of controlling and managing premises to which the public has a right of access and the position of a person owning or occupying private premises to which no person has a right of access except by permission. A duty owed to a person who enters on private premises is affected by the arrangements, if any, made for his entry by the person on whom the duty is imposed. The terms of entry by the public on premises under the control or management of a public authority are determined, in the ordinary case, by statute. The source and nature of the public authority's duty cannot be ascertained by assimilating its position to that of an owner or occupier of private premises and without reference to the statute.

However, as Dixon J. pointed out in Aiken v. Kingborough Corporation [23] , when a statute vests control and management in a public authority, the duty of care imposed on the authority can seldom be ascertained by construing the statute; it must be ascertained by reference to some "general principle of liability". Although a statutory power of control and management "spells occupation", his Honour noted that the powers of control and management had to be exercised "in the public interest, and the [public authority] has none of the general rights or privileges of ownership" [24] . Dixon J. then identified the factors which give rise to a duty of care [25] :

The nature of the body as well as of the place must be considered, but, speaking generally, unless some other intention can be collected from the statute, a duty of care for the safety of those using the place must, I think, be cast upon the corporation or trustees by the very situation in which the statute has put them. They are in charge of a structure provided for the use of people who must, in using it, rely upon its freedom from dangers which the exercise of ordinary care on their own part would not avoid. Unless measures are taken to prevent it falling into disrepair or dilapidation or becoming defective, or if it does so, to warn or otherwise safeguard the users from the consequent dangers, it will become a source of injury. The body to which the statute has confided the care and management of the place alone has the means of securing the users against such injury, the risk of which arises from continuing to maintain the premises as a place of public resort and from the reliance which is ordinarily placed upon an absence of unusual or hidden dangers by persons making use of structures or other premises provided for public use. His Honour stated the duty of care in that case in these terms [26] : What then is the reasonable measure of precaution for the safety of the users of premises, such as a wharf, who come there as of common right? I think the public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care. 1. (1939) 62 C.L.R., at p. 204. 2. (1939) 62 C.L.R., at pp. 203, 205. 3. ibid., at pp. 205-206. 4. (1939) 62 C.L.R., at p. 210.

It does not necessarily follow that the duty of care owed by a public authority which his Honour formulated in respect of a wharf is the duty of care owed by a public authority having the control and management of the natural facilities of a large reserve. For example, a reserve which is a wilderness area might contain hidden dangers which could be avoided only by taking extreme care, yet it can hardly be the duty of the public authority to find all the hidden dangers and either eliminate them or warn of their existence. But when the factors from which the duty arises are of the kind which Dixon J. mentioned in Aiken v. Kingborough Corporation, the duty he formulated in that case may be applied.

In the ordinary case of a person entering as of right on an area under a public authority's control and management, the duty of care owed by the authority must be formulated as a duty of care owed to the public rather than to the individual plaintiff. The duty owed to a plaintiff is, in the ordinary case, owed to him as a member of the public. As Dixon J. pointed out in Aiken v. Kingborough Corporation [27] :

The member of the public, entering as of common right is entitled to expect care for his safety measured according to the nature of the premises and of the right of access vested, not in one individual, but in the public at large. 1. (1939) 62 C.L.R., at p. 209.

A comparison between the approach taken in Zaluzna and the test of public authority liability advanced by Dixon J. in Aiken v. Kingborough Corporation reveals a possibility of differing conclusions depending on the starting point of judicial reasoning. If, taking the Zaluzna approach, the starting point is the existence of "a foreseeable risk of injury to the visitor", an assessment of foreseeability will be made in the light of what Mason J. said in Wyong Shire Council v. Shirt [28] :

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 far-fetched or fanciful is real and therefore foreseeable. In a case where a plaintiff suffers an injury as the result of an obvious danger in an area under the control and management of a public authority, it may have been foreseeable that a member of the public, entering as of right, would be careless of his own safety and would suffer injury. If serious injury were foreseeable, the conclusion that the public authority was under a duty to fence off or to warn against the obvious danger could be easily reached. Of course, that would not be a necessary conclusion. Immediately following the passage cited above from Wyong Shire Council v. Shirt, Mason J. said [28] : 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. The flexibility available in determining the response of the "reasonable man" to the foreseeable risk under the Zaluzna approach means that the measure of duty resting on the public authority need not be different from that ascertained by reference to the test advanced by Dixon J. in Aiken v. Kingborough Corporation. But, in practice and with the wisdom of hindsight, a concentration on the gravity of a particular plaintiff's injury, the foreseeability of such an injury occurring (albeit contributed to by the plaintiff's own carelessness) and the modesty of the cost of fencing off or warning against the danger causing the injury would tend to impose on the public authority a liability which might not have been imposed if attention had been focused on the duty owed by the public authority to the public at large. The test expressed by Dixon J. in Aiken v. Kingborough Corporation focuses attention on the nature of the danger itself assessed prior to the event according to the obviousness of the danger and the care ordinarily exercised by the public. In determining in a particular case the measure of the duty of a public authority having control and management of a large area of land used for public enjoyment, the better assessment is likely to be made by reference to the test expressed by Dixon J. 1. (1980) 146 C.L.R. 40, at p. 48. 2. (1980) 146 C.L.R. 40, at p. 48.

Therefore I would hold that the question whether the Board was under a duty to the plaintiff to erect a warning sign depends on whether such a duty was owed to the public at large and the answer to that question depends on whether the danger of diving off the wave platform on the eastern perimeter of the Basin was apparent and not to be avoided by the exercise of ordinary care.

An alternative and more onerous duty can be assumed by a public authority if it gives the public an assurance that there are no dangers on its premises or that the only risk of injury is from dangers obvious even to those who do not exercise reasonable care. It is conceivable that the public could be induced to incur a risk of danger in reliance upon such an assurance so that, if the assurance were not fulfilled, an injured plaintiff could recover. As Mason J. pointed out in Sutherland Shire Council v. Heyman [29] :

there are situations in which a public authority, not otherwise under a relevant duty, may place itself in such a position that others rely on it to take care for their safety so that the authority comes under a duty of care calling for positive action. But that was not the plaintiff's case. No special assurance or reliance was pleaded. The appeal must be decided on the case as it was fought. That requires a determination of the duty owed by the Board not by reason of any assurance it gave but by reason of its having the control and management of the Rottnest reserve. 1. (1985) 157 C.L.R. 424, at p. 461; see also pp. 463, 485-486, 500, 502.

In the Supreme Court of Western Australia, Nicholson J. found that "the risk that the plaintiff would dive as he did was reasonably foreseeable in the circumstances. In my opinion, while it may have reasonably been considered foolhardy or unlikely for him to do so, it was nevertheless a risk foreseeable in accordance with the tests just stated." The tests to which his Honour refers are those stated by Mason J. in Wyong Shire Council v. Shirt. There is a difficulty with the approach taken by Nicholson J. Once foreseeability was established, a duty was found to warn the plaintiff of a danger which, but for his foolhardiness, would have been obvious to him. It is one thing to impose an obligation on an employer to safeguard an employee from the risk of casual failure to take care for his own safety in the course of his employment [30] ; it is another thing to impose a similarly onerous duty on a public authority merely because it is vested with power to control and manage a reserve. Nicholson J. was, in my respectful opinion, in error in holding that the Board owed a duty to the plaintiff to warn him that diving from the wave platform on the eastern perimeter of the Basin was dangerous. However, his Honour also held that the plaintiff was already alert to the danger and that the failure to warn was not a cause of the accident. He dismissed the plaintiff's action.

1. Ferraloro v. Preston Timber Pty. Ltd. (1982), 56 A.L.J.R. 872, at p. 873; 42 A.L.R. 627, at p. 629.

On appeal, Kennedy J. held that, on the facts of the case, the Board "was entitled to expect that persons resorting to the Basin would be aware of the obvious danger of diving into rocks which were quite close to the surface and close to the wave platform, and that such persons would not attempt to dive into the water until they were satisfied that no rocks lay in their way". He dismissed the appeal because the risk of injury was not reasonably foreseeable. Rowland J. dismissed the appeal on the same basis. Wallace J. accepted the findings of Nicholson J. on this issue but, as he decided the issue of causation in favour of the plaintiff, he would have allowed the appeal. I am in respectful agreement with Kennedy and Rowland JJ. that the appeal to the Full Court should have been dismissed but not because the possibility of carelessness in diving and its tragic consequences were not foreseeable. I would hold that the appeal should have been dismissed because the duty of care imposed on the Board did not require that the possibility of carelessness in diving be forestalled by a warning sign.

The danger of diving into one of the rocks adjacent to the wave platform on the eastern perimeter was not the only foreseeable danger of diving into the Basin. In other parts of the Basin, a diver might hit other rocks - there are several standing on the floor of the Basin - or might dive into shallow water and hit the sandy floor. Or a diver who does not look before diving might dive on top of another swimmer. All of these possibilities are foreseeable and are fraught with the risk of serious consequences but it is not suggested that the Board should have erected a sign forbidding all diving. To have erected a sign forbidding diving from the wave platform on the eastern perimeter or warning of the danger of diving from there might have conveyed the false impression that diving from or into other parts of the Basin was safe. Diving is safe only if the diver takes reasonable care.

The factors which led Kennedy J. to hold that there was no duty on the Board to erect a warning sign were stated by his Honour:

First, although by no means conclusively, there was absent in this case any indication that, since 1903, when the aboriginal prison on the island was closed, and the decision was made to develop Rottnest as a holiday resort, any similar accident has occurred at the Basin, notwithstanding the unquestionably very substantial number of persons who have swum there. Nor was there any evidence called to establish that the presence of the rocks from where the appellant dived constituted a hidden danger to swimmers or that for any reason they were not readily visible, situated as they were only slightly below the level of, and close to, the wave platform on which a swimmer would be standing. Importantly, it is obvious to all resorting to it that the Basin is a natural pool, surrounded by a wave platform and containing on its eastern side a series of rocks which now lie a relatively small distance below the level of the platform and close to it. The water in the Basin is clear. Although it was possible that the plaintiff's view below the surface of the water could have been impaired by the glitter of sun reflection, the plaintiff could see other rocks in the line of rocks adjacent to the wave platform on the eastern perimeter. There were six rocks in this line. The plaintiff saw rocks 1 and 2 but did not see rock 3, which was the rock onto which he dived. Kennedy J. commented: Any glitter effect, which in this case was largely a matter of speculation, could readily be avoided by changing slightly the angle of view. Such a change would have revealed, in this case, the continued presence of rocks. Rowland J. was of the same opinion: One might say that the chance of someone diving into the ocean at any place along the western seaboard of this State, in the afternoon, where there are known to be large rocks in the vicinity, is also very small, with or without a glitter effect. People usually do not, and are not expected to, act in this way. It is a common enough experience that one can be momentarily unsighted, or even misled, by a glitter effect; but that does not mean that one can foresee that a person is likely to dive into a known rocky area.

The danger of the line of rocks was obvious. So far as the evidence and the history known to the Board's manager (who had been in that office for nineteen years) revealed, nobody had ever before had a diving accident of the kind suffered by the plaintiff. And, if the plaintiff had exercised reasonable care, he would not have dived where he did. In the circumstances which I have recited, I am unable to hold that the Board was under a duty to the public to erect a sign prohibiting, or warning against, diving into the rocks adjacent to the eastern wave platform.

It is therefore unnecessary to consider the next question but as the trial judge dismissed the plaintiff's claim by reason of the plaintiff's failure to establish causation, I would make a brief comment.

Would a warning have prevented the plaintiff from diving?

To answer this question, one must hypothesize about the type and location of the warning for which the plaintiff contended. Clearly a warning that did no more than inform the plaintiff of what he already knew would have been ineffective. A warning which read "Caution - submerged rocks" would have been quite ineffective, for the plaintiff already knew that caution was required by reason of the existence of submerged rocks lying close to the wave ledge from which he dived. But obviously he was unaware at the moment when he dived of the position of the particular rock which he struck. That rock, described as rock No. 3 in the line of six rocks, lay in the plaintiff's dive trajectory at a distance between 1 and 2.5 m. from the edge of the wave platform and about 22 cms. below the surface of the water. If he were to be deterred from diving, the warning would have had to alert him either to the position of rock No. 3 or to the risk of diving when submerged rocks might not be observed by an intending diver from the wave platform. What was suggested is that some sign should have been erected on or near the wave platform warning of the risk of diving from any part of the wave platform on the eastern perimeter of the Basin into the water.

Some years after the accident, the Standards Association of Australia adopted a number of symbol signs ("pictograms") for water safety including one indicating that diving is prohibited. There was no evidence to show that such a pictogram was available before 1985. However, it would have been practicable to erect on or near the wave platform on the eastern perimeter of the Basin a sign stating "diving from eastern side prohibited" or "diving from eastern side dangerous" or words to similar effect.

It is problematic whether such a sign would have deterred the plaintiff. However, the Full Court did not agree with Nicholson J. that such a sign would not have been effective to deter the plaintiff from diving. That may be so, for such a notice might have transformed the plaintiff's knowledge of the existence of the rocks into a more lively appreciation of the danger of diving, as Wallace J. pointed out.

But the question is immaterial. In a case where the existence of a duty of care arises because some act done by the defendant has created or increased a risk of danger for an individual plaintiff, the probability that a warning would avert the foreseeable risk of serious injury would ordinarily be critical to the question whether a duty to warn exists. But in a case where the duty of care, if any, arises from a danger in premises under the control and management of a public authority on which the plaintiff as a member of the public enters as of right, the probability that a warning would have averted the risk of injury is of less critical significance. In the latter case, the probability that a warning would have deterred the plaintiff from acting in a foolhardy way does not create a duty to give the warning.