The relevant authorities
55The relevant authorities on what constitutes an obvious risk and what is a dangerous recreational activity are helpfully referred to and extracted in the judgment of Tobias JA in the NSW Court of Appeal in Jaber v Rockdale City Council [2008] NSWCA 98. (Campbell JA and Handley AJA agreeing). At [38] and following his Honour said:
38. The appellant accepted that he knew in a general sense that diving into shallow water or water of uncertain depth might result in injury and so was aware of what the primary judge referred to as "the potential for danger". It was that "potential for danger" that constituted the relevant risk. It was, on the appellant's own evidence, one that was apparent to him. If so, it was also readily apparent to a reasonable person in his position. It matters not that it had a low probability of occurring: s 5F(3).
39. The fact that the appellant believed that the water was deep enough, because he had purported to check its depth by treading water, does not militate against a finding on the objective facts that there was an "obvious risk" that would be readily apparent to a reasonable person in the appellant's position. A reasonable person in the position of the appellant, wishing to dive head first from the top of a bollard, two to three metres above the surface level of the water, would not regard that method, if it be such, as a reasonable substitute for testing the depth by the more reliable means of "duck diving" or by jumping feet first.
40. Accordingly, in my view the primary judge was correct to find that the relevant risk of harm to which the appellant was exposed was one which was an "obvious risk" within the meaning of s 5F(1) of the CL Act. By virtue of s 5H(1) it follows that the Council did not owe a duty of care to the appellant to warn him of that risk. For this reason alone the appeal must fail.
41. The appellant also challenged the primary judge's finding that the recreational activity undertaken by the appellant was a "dangerous recreational activity" within the meaning of s 5K of the CL Act, in that it involved a significant risk of physical harm. That it involved a risk of such harm is clear. As Hayne J observed in Vairy in a passage to which I have already referred, "because the water could be too shallow, there was a risk of injury". The question was whether that risk was significant. The primary judge held that it was and I agree with that conclusion.
42. The appellant nevertheless submitted that the risk of physical injury, although present, was not "significant" as the appellant dived only from a height of two to three metres into water which he believed, on the basis of observation and by treading water in the vicinity of the dive, to be of sufficient depth to safely accommodate his dive. The fact that he was wrong did not transform the risk into one which was "significant". Reliance was placed upon the following passage from the judgment of Mason P, with whom McColl JA and Hunt AJA agreed, in Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31]:
"The defendant bears the burden of establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in a particular context in which the plaintiff places himself or herself."
43. In Vairy, Gleeson CJ and Kirby J said at 426 [5]:
"Swimming is a popular recreational activity along the Australian coast. It involves certain risks and sometimes results in injury, or even death. The level of risk varies according to the locality, the conditions at any given time, and the capabilities of the swimmers. Short of prohibiting swimming altogether, public authorities cannot eliminate risk. A general prohibition in a given locality may be a gross and inappropriate interference with the public's right to enjoy healthy recreation. Swimmers often enter the water by diving, or plunging head-first. This, also, is risky. Diving into water that is too shallow, or diving too deeply into water in which only a shallow dive is safe, can have catastrophic results."
44. At 428 [10] their Honours also observed:
"In addressing the central question of fact in this particular case, we do not find it helpful to characterise the danger confronting the appellant at the level of diving into water of unknown depth. Such a practice, described in that general fashion, is always risky. There are, however, degrees of risk, and some risk of that kind exists every time a swimmer enters water headfirst without knowing exactly how deep it is. Even if the swimmer knows the depth of water exactly, there are few people who could calculate with any accuracy the risk involved in diving or plunging into it. Most people who plunge headfirst into the surf are taking some degree of risk and, if the risk materialises, the consequences may be devastating."
45. The foregoing passages contain observations made in the context of whether the Council in that case was in breach of its duty of care in failing to warn Mr Vairy of the risk of diving off the rocks. The question with which I am currently concerned in the present case is different. But the passages to which I have referred make clear that anyone who dives headfirst into waters of unknown depth is taking some degree of risk that they will sustain physical harm. Furthermore, the consequences of the risk materialising may be devastating.
46. Thus in Falvo v Australian Oztag Sports Association (2006) Aust Torts Reports 81-831; [2006] NSWCA 17 Ipp JA, with the agreement of Hunt AJA and Adams J, set out the principles as to how an activity is to be characterised to determine if it is a "dangerous recreational activity" in the following terms:
"28. In my view, the definition of 'dangerous recreational activity' in s 5K has to be read as a whole. This requires due weight to be given to the word 'dangerous'. It also requires 'significant' to be construed as bearing not only on 'risk' but on the phrase 'physical harm' as well. The expression 'significant risk of physical harm' is coloured by the word 'dangerous' and the phrase 'significant risk' cannot properly be understood without regard being had to the nature and degree of harm that might be suffered, as well as to the likelihood of the risk materialising.
29. The view that a risk is 'significant' when it is dependant on the materiality of the consequences to the person harmed is consistent with the views expressed by the High Court in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 490.
30. Thus, in my opinion, the expression should not be construed, for example, as capable of applying to an activity involving a significant risk of sustaining insignificant physical harm (such as, say, a sprained ankle or a minor scratch to the leg). It is difficult to see how a recreational activity could fairly be regarded as dangerous where there is no more than a significant risk of an insignificant injury.
31. In substance, it seems to me, that the expression constitutes one concept with the risk and the harm mutually informing each other. On this basis the 'risk of physical harm' may be 'significant' if the risk is low but the potential harm is catastrophic. The 'risk of physical harm' may also be 'significant' if the likelihood of both the occurrence and the harm is more than trivial. On the other hand, the 'risk of physical harm' may not be 'significant' if, despite the potentially catastrophic nature of the harm the risk is very slight. It will be a matter of judgment in each individual case whether a particular recreational activity is 'dangerous'."
47. In Fallas Ipp JA, with my concurrence, in a judgment delivered two weeks after his judgment in Falvo, further explained the concept of a "significant risk of physical harm" as follows (at 422):
"13. I agree with Basten JA that an objective test is required in determining whether in terms of s 5K a recreational activity is 'dangerous'.
14. But what does 'significant' mean in s 5K? I think it is plain that it means more than trivial and does not import an 'undemanding' test of foreseeability as laid down in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.
15. The epithet 'real' was suggested during the course of argument. But 'real' can mean a risk that is not far-fetched or fanciful (Wyong Shire Council v Shirt at (48)) and 'significant' means more than that.
16. On the other hand, it seems to me, a 'significant risk' does not mean a risk that is likely to occur; that would assign to it too high a degree of probability. Had it been the legislature's intention to lay down an element for the application of s 5L involving the probability of harm occurring, different words would have been used.
17. In the present context, the word 'significant' - coloured or informed as it is by the elements of both risk (which it expressly qualifies) and physical harm (which is indivisibly part of the expression under consideration) - is not susceptible to more precise definition.
18. Thus, I do not think it practicable or desirable to attempt to impose further definition on 'significant', other than saying that the term lays down a standard lying somewhere between a trivial risk and a risk likely to materialise. Where the particular standard lies between these two extremes cannot be prescribed by any rule of thumb. Each individual case will have to depend on its particular circumstances and by having regard to the ordinary meaning of the term."
48. His Honour further emphasised (at 426 [113]) that in order to avoid potential situations of unfairness and injustice, it was appropriate, for the purpose of s 5K, to determine the scope of the recreational activity:
"... by reference to the particular activities actually engaged in by the plaintiff at the relevant time. This would enable a decision to be made by reference to the actual circumstances giving rise to the harm, and not to a notional and artificial construct that bears little relationship to the reality of the case and to what actually occurred."
49. In Fallas Basten JA observed (at 443 [144]) that there were three ways of considering whether the risk of harm was significant of which the first and third are presently relevant. The first was to assume that any risk would be significant because the results of it eventuating were likely to be catastrophic. The third was to look at the particular circumstances of the case. His Honour rejected the first approach (at 443 [145]) as it could result in the phrase "significant risk of physical harm" not being satisfied where the risk was miniscule albeit the harm very serious.
50. Like Ipp and Basten JJA, I also preferred the third approach. I said (at 432):
"90. ... If, as I believe to be the case, the word "significant" in the context of the subject definition means a risk which is not merely trivial but, generally speaking, one which has a real chance of materialising, then the subject activity was clearly capable of involving a significant risk of physical harm. This is consistent with the third approach referred to by Basten JA in [144] of his judgment and which I would respectfully adopt as the correct approach to a case of the present kind. ...
91. I am conscious of the observations of Ipp JA in [18] of his judgment that 'significant' means a standard somewhere between a trivial risk and a risk likely to materialise. A real chance of the risk materialising lies somewhere between these two standards although probably closer to the second than the first. I accept that there is merit in not seeking to define the term with precision, as its application requires a normative judgment in light of the particular facts and circumstances of each case. However, I see no danger in adopting as no more than a general guide that the risk should have a real chance of materialising for it to qualify as significant. But I emphasise that such a standard, which as I have said lies between the extremes articulated by Ipp JA, is to be regarded as what it is - no more than a general guide.
92. It will thus be appreciated that I prefer the approach of Ipp JA that, for the purposes of the definition of "dangerous recreational activity" in s5K, the scope of the relevant activity must be determined by reference to the particular activities engaged in by the respondent at the relevant time being the period immediately prior to the respondent suffering the relevant harm as a consequence of the appellant's negligence. In other words, as his Honour notes at [43], [46] and [47] of his judgment, in determining whether the relevant recreational activity involves a significant risk of physical harm, one must identify that activity at a relatively detailed level of abstraction by including not only the particular conduct actually engaged in by the respondent but also the circumstances which provide the context in which that conduct occurs."
51. The statement of Mason P in Lormine referred to in [42] above is derived from the foregoing paragraphs from the judgments of Ipp JA in Falvo and Fallas.
52. The relevant standard lies somewhere between a trivial risk and one that is likely to occur. Importantly, 'significance' is to be informed by the elements of both risk and physical harm. The context in which the appellant found himself was that he was diving into water from the top of a bollard that was two to three metres above the surface of the water. True it is that he had observed other persons diving from the wharf but there was no evidence that he had observed them diving from the particular bollard from which he himself dived or in the direction that he dived.
53. In the present case, it could not be said that the risk of physical harm was in the circumstances trivial; nor was it one which would inevitably eventuate although in my view there was a real chance of the risk materialising if, as was the case, the appellant was to misjudge the depth of the water. Furthermore, the nature of the physical harm that could be sustained if the risk materialised was acknowledged by the appellant to be extremely serious: in fact, catastrophic.
54. The factors to which I have referred in [28] above and relied upon by the appellant do not lead to any different conclusion, leaving aside those factors which are, by their nature subjective, all of them point to the risk of the appellant sustaining physical harm by diving from an enhanced height into water of unknown depth as being significant. The chance of the risk of physical harm materialising was real.
56Informed by these reasons for judgment of Tobias JA in Jaber, and by reference to other authorities to which I shall refer, I now deal with each of the discrete issues which I have identified.