Nagle v Rottnest Island Authority

Nagle v Rottnest Island Authority - [1993] HCA 76 - HCA 1991 case summary — Zoe

[18]

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.

[47]

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.

[59]

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.

[68]

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.

At a glance

Court

Decision date

Before

Source

Judgment (75 paragraphs)

Parties