Paul Jonathon Keith WILKINS v COUNCIL Of The City of BROKEN HILL - [2004] NSWSC 503 - NSWSC 2004 case summary — Zoe

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Paul Jonathon Keith WILKINS v COUNCIL Of The City of BROKEN HILL

[2004] NSWSC 503

Supreme Court of NSW|2004-06-22|Before: Bell J

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Court

Supreme Court of NSW

Decision date

2004-06-22

Before

Bell J

Source

Original judgment source is linked above.

Judgment (107 paragraphs)

[1]

CITATION : Paul Jonathon Keith WILKINS v COUNCIL Of The City of BROKEN HILL [2004] NSWSC 503 HEARING DATE(S) : 12/5/03, 13/5/03, 14/5/03, 15/5/03, 17/11/03, 18/11/03, 19/11/03 JUDGMENT DATE : 22 June 2004

[2]

JUDGMENT OF : Bell J at 1 DECISION : 1. Verdict and judgment for the defendant; 2. The plaintiff is to pay the defendant's costs.

[3]

LEGISLATION CITED : Local Government Act 1993 Supreme Court Rules 1970 Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Bennett v Minister of Community Welfare (1992) 176 CLR 408 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 Commonwealth v McLean (1996) 41 NSWLR 389 Council of the Municipality of Waverly v Bloom (1999) Aust Torts Reports 81-517 Francis v Lewis [2003] NSWCA 152 Hornberg v Horrobin [1998] QCA 283 Inverell Municipal Council v Pennington (1993) Aust Torts Reports 81-234 Joslyn v Berryman [2003] HCA 34; 77 ALJR 1233 McCabe v Westlock Roman Catholic Separate School District No 110 [2002] 1 WWR 610 McGhee v National Coal Board [1973] 1 WLR 1 March v E & M H Stramare (1990-1991) 17 CLR 506 CASES CITED : Moore v Woodforth [2003] NSWCA 9 Nagle v Rottnest Island Authority (1992-1993) 177 CLR 423 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Prast v Town of Cottesloe (2000) 22 WAR 474 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 Ryan v Electricity Trust (SA) [No 1] (1987) 47 SASR 220 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Tame v New South Wales [2002] HCA 35; 211 CLR 317 Tomlinson v Congleton Borough Council [2003] UKHL 47; [2004] 1 AC 46 Usabeaga v Town of Cottesloe [2004] WASCA 57 Watson v George (1953) 89 CLR 409 Waverley Municipal Council v Swain (2003) A Tort Rep 81-694 Western Suburbs Hospital v Currie (1987) 9 NSWLR 511 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 PARTIES : Paul Jonathon Keith WILKINS by his next friend Eileen Beverley WILKINS (Plaintiff) COUNCIL Of The City of BROKEN HILL (Defendant) FILE NUMBER(S) : SC 20222/98 COUNSEL : B. Gross QC / D. Williams / R. Wilkins (Plaintiff) J. Maconachie QC / C. Adamson SC (Defendant) SOLICITORS : Doyle Kingston & Swift (Plaintiff) Tress Cocks & Maddox (Defendants)

[19]

29 No expert evidence was led concerning the mechanics of the plaintiff's dive. 30 The plaintiff was cross-examined about a style of dive known as a "pin dive". This is a dive executed head first with the arms kept to the diver's side. The plaintiff said that he had tried doing pin dives once or twice at the deep end of the South Pool. He was asked if he had been attempting a pin dive on the day of his accident. He replied "not that I remember, no" (T94). 31 Leigh Hoskins said that the plaintiff executed a "normal" dive (T144). His arms had been above his head, but not brought together so as to form a point. Leigh Hoskins observed that as the plaintiff entered the water his body was "tilted a little bit" (T145). He explained this saying, "one shoulder was to one side a little bit, but nothing unregular" (T145). 32 Leigh Hoskins made a statement on 23 March 1996. It is a six page narrative account of the events of the day, made shortly after the incident, when he was 14 years of age. In that statement he said: "From where we were standing on the grass Paul ran towards the pool. He ran across the grass, then across the concrete strip, past the big light pole, to the edge of the pool and dived into the shallow end. It started as a normal dive, with his body arched and his hands stretched out in front of him. When he was in the air I saw his left shoulder sort of twist down and his body partially turn on the side, not all the way, just a bit of a turn. I do not know if he meant to do it or not. I have never seen this happen at other times when he dived." 33 Leigh Hoskins was watching the plaintiff from behind. He saw him leave the ground at the commencement of the dive. He saw that his foot was on the side of the pool. He was firm in his recall that the plaintiff's arms were stretched out at the commencement of the dive. He was unable to say where they were at the point at which he entered the water (T152). In cross-examination Leigh Hoskins agreed that he had seen the plaintiff's left shoulder sort of twist down and his body partially turn on the side. He had not previously seen this happen on occasions when he had seen the plaintiff executing a dive. 34 On Leigh Hoskins' account of the plaintiff's dive, the extent to which it departed from a "normal dive" was in the movement of his body after he left the tiled edge of the pool and before he entered the water. This was when he observed the downward twist of the shoulder and the partial turn to the side. Leigh Hoskins' evidence, that the plaintiff commenced the dive with his hands stretched out ahead of him, was not shaken. The suggestion that the plaintiff executed a pin dive, as earlier described, is inconsistent with acceptance of Leigh Hoskins' account.

[20]

35 Terry Delbridge walked out of the mens' change room immediately before the plaintiff dived into the pool. He saw the plaintiff execute the dive. In evidence-in-chief he said: "As I walked out I saw him diving into the pool. It wasn't like a real flat dive. It was a little bit steeper than usual" (T163). 36 In cross-examination Terry Delbridge said that he had not taken much notice of the plaintiff's dive. He was looking at him from a position side on and slightly behind him. He did not recall seeing the plaintiff's arms. He had not taken any notice. When further tested on this he said: "Like I said, I don't recall seeing his arms. They could have been in front of him or they might not of" (T171). 37 Terry Delbridge was cross-examined concerning earlier accounts given by him of the plaintiff's accident. Prior to giving evidence he had read a statement that he made on 23 March 1996 concerning the events of this day. He was cross-examined about the contents of a statement made on another occasion when he spoke with a Mr Morris. He was shown a document, Exhibit 5, a handwritten document, with a roughly drawn plan. He agreed the document bore his signature, but did not recall who Mr Morris was or when he had spoken with him. 38 The defendant relied on the statement Exhibit 5 as a prior inconsistent statement made by Terry Delbridge. The document bears the signature of a person apparently named Morris as well as that of Terry Delbridge. It has the appearance of being notes in point form of things said by Terry Delbridge to the author. The first page is a pro forma statement form, provision is made for a claim and a policy number and the details of the maker of the statement. It is undated and records the following: "6. I was at the pool the day of Paul's accident. Details were as follows: (a) It was his birthday. (b) I went to the pool with him. (c) I think we arrived at the pool around 3:30 pm or so. (d) We were sitting down near the pool. Leigh Hoskins was with us. He lives at 4 South Street, Broken Hill 80885021. (e) Leigh & I went into the change rooms to get changed. Paul had his swimmers on. (f) As we came out of the change room saw Paul dive into the pool. He did a high dive headfirst. (g) He was at the shallow end. (h) He was on his own at the time." 39 Tendered in the plaintiff's case was the statement made by Terry Delbridge on 23 March 1996. This is a five page narrative account of the events signed by Terry Delbridge and witnessed by a person named John Whelan. In this account, made less than 3 weeks after the event, Terry Delbridge recorded: "When I came out the door of the change room a few minutes later, I saw Paul run to the edge of the pool, at the shallow end, and dive in. His back was arched but he seemed to come down steeper than usual, not a flat dive into the pool, but steeper than that. I cannot remember seeing his arms out in front of him but I was looking at him from the back and side and I might have missed seeing his arms. I did not think anything was wrong and just walked over to the side of the pool where Leigh was standing. I pushed Leigh in and then jumped in myself. We were standing in the water at the end of the pool when Leigh said 'Paul hasn't' come up from under the water yet'. I said 'bullshit' and Leigh said 'no it's not'." 40 The statement made by Terry Delbridge on 23 March 1996 was consistent with his evidence.

[31]

58 There was an issue as to the extent to which the pool attendants took steps to prevent pool users from diving into the shallow end of the pool. 59 The plaintiff called a number of witnesses who were users of the North Pool as at January 1966. Melanie Thompson 60 Melanie Thompson was aged 13 at the date of the plaintiff's accident. She had started going to the North Pool when she was a toddler aged around 2 years. In the years that followed she spent several hours a day, approximately 4 days per week at the complex during the summer months. By the time she was aged 10 years she was allowed to go to the pool accompanied by her sister, Bianca. She was not a strong swimmer. Bianca was giving her lessons, including lessons in diving. These lessons took place over a period of a few days when Melanie was aged around 12 years. She could not recall whether the diving lessons took place in the 1994-95 swimming season or the 1995-96 season. I am satisfied that they took place in the 1995-1996 season. Bianca was 2 years older than Melanie. She demonstrated how to dive by herself diving in at the shallow end of the pool. Melanie would watch and then attempt to dive. The diving instruction was on each occasion was of short duration, lasting not more than 10 minutes. 61 Melanie Thompson had noticed other people diving into the shallow end of the pool. In January 1996 she did not know that people were not supposed to dive into the shallow end of the pool. She had not noticed the no diving pictographs. She had never been reprimanded by pool attendants for diving into the pool. She was not aware of any person being spoken to by pool staff in this respect. Some time after the plaintiff's accident she noticed the no diving pictographs at the North Pool. 62 Melanie Thompson remembered seeing the pool attendants walking around the pool and, at times, sitting on the semi-circular bench between the pool and the babies' pool. She recalled that commonly one of the attendants was to be found in the office. She had not had occasion to take particular note of the pool attendants because she and her friends were focussed on enjoying themselves, chatting, reading and the like. 63 There was a loudspeaker system in use at the North Pool. Melanie Thompson heard announcements being made over it from time to time. She had not heard announcements over the loud speaker system warning pool users not to dive into the pool. She recollected the system being used in connection with the use of the waterslide. A number of witnesses recalled announcements being made over the loud speaker system about proper conduct on the waterslide. 64 Melanie Thompson had seen pool attendants speaking to swimmers over incidents of "bombing" in the pool. If a person persisted in "bombing" other swimmers after a reprimand, he or she would be asked to leave the complex. Bianca Thomas 65 Melanie Thompson's sister, Bianca Thomas, recalled spending a great deal of time at the North Pool during the summer months of 1994 and 1995. Mainly she went to the pool with Melanie and her friend, Tristan Symonds. The North Pool was usually crowded. It was common for her to dive into the pool. She did so at both the shallow and the deep end. A lot of people dived into the pool at both the shallow and the deep end.

[47]

Diane Remnert 101 Ms Remnert commenced her training with the defendant as a pool attendant in January 1995. The training was conducted at the South Pool over a period of several weeks. She undertook the Bronze Medallion and she received instruction in resuscitation techniques. Generally, she said that she had been taught "duty of care, occupational health and safety, yeah, all the issues of sort of managing a swimming pool" (T255). In explaining the content of her training with respect to the duty of care Ms Remnert described it as embracing pool maintenance, water quality, water testing, being able to talk to the public and control crowds and behaviour at the pool. After completing her training Ms Remnert took up duties as a call-in casual pool attendant at the North Pool. She was also employed by the Council as a cleaner at the South Pool. 102 Ms Remnert was called in as a casual pool attendant at the North Pool every couple of days during the remainder of the summer of 1995. On occasions she worked an entire 9 hour shift at the North Pool, on other occasions she was called in for shorter periods. Whenever Ms Remnert worked at the North Pool there was always a second pool attendant rostered on duty with her. 103 In the late summer of 1995 Ms Remnert was working at the North Pool on average four times a week. She had seen the plaintiff during the early months of 1995 with a group of young boys a couple of times a week. She did not know him by name, but recognised him as being one of a group of five to six boys. The composition of the group changed from time to time. 104 Ms Remnert recalled an occasion in the first few months of 1995 when she spoke to a group of young boys, of whom the plaintiff was one, over an incident involving wrestling on the lawn. The group were, "carrying on, they were swearing and just pushing and shoving. I could see somebody was going to get hurt. I then walked over" (T258). Ms Remnert said to the group, "we have other public here and somebody's going to get hurt" (T258-9). As she walked away from the group she heard some smart remarks. She went back to her position on the semi-circular bench between the pool and the babies' pool. She noticed that the group continued to be very boisterous. She saw a fellow pool attendant approach the group and speak to them. She observed a change in the group's behaviour for a time following this second intervention. 105 There was another occasion in the early months of 1995 when Ms Remnert spoke to a group of young boys that included the plaintiff. On this occasion the group was mucking around by the northern side of the pool, towards the shallow end. They were pushing one another into the pool. She told them not to do that. One of the boys said, "we didn't know we weren't allowed to do it". She replied with words to the effect, "you know the rules. Do it again and you're out" (T266-7). In Ms Remnert's opinion the boys were being "just smart-mouthed and rowdy" (T267). 106 Apart from these two occasions when she spoke to the group that included the plaintiff in 1995, Ms Remnert recalled a fellow pool attendant approaching the group on more than one occasion. She remembered that they had been "wrestling, mucking around and being out of order" (T268). She had not heard anything passing between the attendant and the group on these occasions. 107 As noted above, prior to the plaintiff's accident Ms Remnert attended the North Pool during the summer of 1995-96 as a call-in pool attendant at least 5 days a week for some hours. She had seen the plaintiff over this period around twice a week. She attended the North Pool in the course of her employment as a cleaner and call-in pool attendant and also in a private capacity. She was a keen swimmer who visited the pool to socialise with the pool attendants who worked on different shifts and because she was a member of the swimming club.

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109 The plaintiff did not recall a female pool attendant named Diane. He did not recall being spoken to as one of a group by a female pool attendant on any occasion. He had not been at the North Pool on the day before his accident. The plaintiff acknowledged that he had from time to time been spoken to by pool attendants. There was no reason for him to recall Ms Remnert in particular. I accept that Ms Remnert did speak to the group of which he was a member on occasions, including shortly before his accident. She did so in her capacity as a pool attendant and I am satisfied that on these occasions she drew the attention of the group to the need to conform with the rules for behaviour at the North Pool. 110 The plaintiff did not stand out from the group of young lads as particularly memorable. He had merely been one of them. As many as 400 children might pass through the North Pool during the course of a day in summer. It was suggested to Ms Remnert that prior to the plaintiff's accident she had no reason to remember him or his friends. She did not accept that to be the case. The plaintiff's group stood out and had to be monitored with extra caution. I did not understand Ms Remnert to be saying that the plaintiff's group was the only group that fell into this category. I accept that the plaintiff's group was one of a number of groups of youngsters of whom Ms Remnert had occasion to take particular note because of the group's generally boisterous and disobedient behaviour. 111 Ms Remnert said that there were always two pool attendants on duty at the North Pool. They had access to additional call-in staff if that were needed. Staff would be called in if there was concern about behaviour at the pool or if there were large numbers of children and relatively few adults in attendance. On the occasions when she had requested additional staff her requests had been met. 112 When Ms Remnert was on duty it was usual for one pool attendant to be stationed near the waterslide. This attendant had a view of the whole pool. The second attendant would be stationed in the vicinity of the semi-circular bench between the pool and the babies' pool. Pool attendants would rotate, by which she meant each attendant would walk around the pool from time to time, keeping an eye on pool users and, if appropriate, instructing people not to run or not to jump or the like. It was necessary to speak to the younger patrons about swearing and rough play both in and out of the water. Children would be instructed "no diving", "no bombing", and to "stay out of the lap lane because that's the only lane for swimmers" (T275). 113 Ms Remnert was concerned about "bombing". She had noted that once a child left the ground they would sometimes flick themselves backwards. She was concerned that a child might hit his or her head on the pool wall on entering the water. When she saw behaviour of this type she approached the child immediately, saying, "don't do it again". Ms Remnert had on occasions directed people to leave the pool because of misconduct. 114 If Ms Remnert saw a person diving into the pool she would run over, saying words to the effect, "You know the rules". She would point to the no diving pictographs saying, "Do it again you're out" (T276). Ms Remnert was accustomed to directing attention to the no diving pictographs, the "walk don't run" sign on the concrete and to the sign near the waterslide instructing users not to block the slide. 115 Ms Remnert was a member of the swimming club that was based at the South Pool. She agreed that there were diving blocks located both at the deep and the shallow end of the South Pool. She had seen swimmers in relay races dive off the diving blocks at both ends of the South Pool. This occurred in the context of events organised by the swimming club. Ms Remnert did not agree that members of the public dived into the shallow end of the South Pool from the starting blocks. She maintained that this only occurred in connection with the swimming club's events and not on occasions when the pool was open to the public. I am satisfied that it was not common for members of the public to dive off the blocks at the shallow end of the South Pool, but that on occasions people did so. I accept that the plaintiff had seen people dive from the diving blocks at the shallow end of the South Pool on occasions. 116 Ms Remnert agreed that she had seen people diving in at the shallow end of the pool during training with the swimming club. It was her recall that generally the deeper end of the pool was used by people training with the swimming club to dive into the pool. 117 It was put to Ms Remnert that swimmers wanting to practise at the pool would swim up and down in the lap lanes and that they would dive in from both ends of the pool to do so. She said this: "No, I wouldn't say that's correct. I have actually seen the odd occasion but also on the same token we asked specifically for those people not to do so. The normal way to get into the pool is just to slide themselves in and then go" (T300-1). 118 Ms Remnert agreed that members of the public could see swimmers training with the swimming club diving into the pool from the shallow end. She observed, "they had been taught to dive properly" (T301). 119 On the plaintiff's behalf it was put to Ms Remnert that if she saw people diving into the pool in circumstances in which it did not appear that they were a danger to themselves or others that she would not approach them. She rejected this proposition saying, "It is not acceptable". While Ms Remnert was on duty she would instruct any person whom she saw diving into the pool that diving was not allowed. She acknowledged that people did dive into the pool while she was on duty; she had lost count of the number of occasions when that had happened. 120 Ms Remnert stopped working with the defendant in March 2002. She had a workers' compensation claim pending against the Council at the date of giving evidence. She denied that this circumstance had caused her any concern in the context of giving evidence. I accepted that to be the case. 121 Ms Remnert was shown photographs, including photograph 5 in Exhibit H. This depicts the new warning signs attached to the light pole at the pool. These signs had not been installed at the time when she ceased her employment at the North Pool.

[56]

134 The plaintiff knew a pool attendant named Steve. Steve had instructed him not to do things that were not permitted. When asked if he obeyed Steve the plaintiff frankly responded, "a little bit". It was put to him: "Q. You then did it again? A. Did it again." (T66) 135 On two occasions the plaintiff had been asked to leave the North Pool because of his behaviour. On one occasion this came about as the result of blocking the waterslide and on another occasion because he climbed on a friend's back. 136 The plaintiff was cross-examined at some length concerning his behaviour at school. He agreed that he had regularly misbehaved at school. He had been counselled about misbehaviour and his mother had been asked to come to the school to discuss his misconduct. Despite this record he continued to misbehave. He was suspended from school on two occasions in 1995. These resulted in one case from talking, joking and mucking around in class and on another occasion for smoking. 137 In the course of cross-examination on the topic of his pre-accident behaviour at school the plaintiff acknowledged that he had been a young boy who was going to do what he wanted regardless of the instructions and orders that were given to him. He had been disrespectful on occasions at school. It was put to him, again in the context of his school experience, that: "You were not going to be told what to do if you didn't want to do it, that was your attitude, wasn't it? A. Not always, but, yes." (T83) 138 The plaintiff's school reports were tendered in the defendant's case. Generally they were consistent with the view that the plaintiff in the early years of high school was a talkative, disruptive boy in class who consistently failed to perform at a level that his teachers considered to be within his ability. Notwithstanding his acknowledged poor behaviour, the plaintiff succeeded in obtaining creditable results in a number of subjects. 139 The plaintiff was also cross-examined about his conduct following his injury while he was a patient at the Royal Adelaide Hospital. He agreed that he threatened to tip his wheelchair over if he was left in it for more than 1½ hours. He had been advised to drink a lot of fluids but he had refused to do so. He agreed that throughout the period he was at the Royal Adelaide Hospital he was determined to do what he wanted to do rather than what he was asked to do. In re-examination when asked how he had been feeling about himself at the time of his refusal to cooperate with the staff of the hospital he responded, "sad, upset" (T103). I do not find the plaintiff's conduct after his accident to be of assistance in determining his probable response to warning signs or instructions at the date of the accident. The Council's duty to the plaintiff 140 The Council admits that it was the occupier of the North Pool and that it had the control and management of the pool and its surroundings.

[59]

143 Mr Maconachie submitted that Watson v George cannot stand with the development of the law of occupiers' liability principally as stated by the High Court in Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479. In written submissions he contended: "The proper approach is to recognise a general duty of care owed by an occupier to an entrant who enters premises on payment of a sum, and particularly a nominal sum, of money - that circumstance, together with all of the other circumstances of the case, including the expectation of the occupier that the entrant will take reasonable care for his own safety, inform the duty which is to take reasonable care in all of the circumstances of the case. It is accepted that this Court is bound by Watson v George and Astley v Austrust Limited (1999) 197 CLR 1; the submission is put formally only." 144 In Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 38 Mason CJ, Deane, Toohey and McHugh JJ observed: "The appellant submits that the trial judge should have directed the jury on the footing that, if an occupier of premises agrees for reward to allow a person to enter the premises for some purpose, the occupier impliedly warrants that the premises are as safe for the purpose as the exercise of reasonable skill and care can make them. There is substantial authority in support of this proposition. More recently, in Australian Safeway Stores Pty Ltd v Zaluzna , this Court held, by majority (Mason, Wilson, Deane and Dawson JJ, Brennan J dissenting), that, in an action for negligence against an occupier, it is necessary to determine only whether, in all the relevant circumstances, including the fact of the defendant's occupation of the premises and the manner of the plaintiff's entry upon them, the defendant owes a duty of care under the general principles of negligence. In other words, it is not necessary to consider whether a special duty is owed to a particular class of entrant. However, the Court had no occasion to examine, and did not examine, the principles of the common law governing the liability of an occupier of premises who agrees for reward to allow a person to enter the premises for some purpose. In this situation, it would not be right to treat Zaluzna and the decisions which preceded it as authorities which overruled the principle established in Watson v George ." (Footnotes omitted). 145 I approach the matter upon the basis that the plaintiff was present at the North Pool as a contractual entrant and that the Council was under a duty to ensure that the premises were as safe as the exercise of reasonable care and skill could make them. In the way the plaintiff's case was particularised and argued there was no focus on any distinction between the content of the duty owed to him in negligence and as a contractual entrant. 146 I am satisfied that the risk of sustaining spinal injury as the result of diving into the shallow end of the pool was a foreseeable one that was neither far-fetched nor fanciful.

[62]

149 The plaintiff was present at the North Pool on this occasion for a very short interval before his accident. He did not see Sign 1 as he ran from the lawn across the concrete surround and dived into the pool but he had seen it on other occasions. In written submissions, at para 90, Mr Gross conceded that the Council could not be said to have been negligent if the focus of the inquiry were to be limited to the period between his arrival at the pool and his dive. It was accepted that the Council's pool attendants had no opportunity in this short interval to have prevented him from diving. 150 It is the plaintiff's case that the failure of the Council, in the months and years prior to his accident, to enforce the prohibition against diving at the shallow end of the pool that was conveyed by Sign 1, fell below the standard of care reasonably required of it. Sign 1, in the absence of reinforcement of the prohibition conveyed by it, was said to be an inadequate means of bringing to the plaintiff's attention that diving was dangerous. 151 In the second amended statement of claim, particulars of the breach of the duty owed to the plaintiff by the Council in tort and in contract were identified in the four respects set out in paragraph 5(a) to (e): "(a) Failure to provide appropriate warning around the pool having regard to the dangers of diving. (b) Failure by its employees known as pool attendants to prohibit diving at the shallow end or to enforce the prohibition thereof. (c) Failure to place warning signs in prominent positions so that they could be plainly seen by people who were at the shallow end of the pool. (d) deleted (e) Allowing a practice to grow up amongst young people of diving into the shallow end of the pool in spite of the signs prohibiting this when no attempt was made by pool attendants to stop this from happening." 152 It is convenient to deal with particulars (a) and (c), which both deal with the adequacy of warning signs together. 153 In the plaintiff's submission the capacity of the no diving pictograph located at the shallow end of the pool to convey that diving was prohibited, or to warn of the danger of diving, was reduced by three circumstances. Firstly, the message conveyed by the pictograph lacked the reinforcement of the words "no diving". Secondly, it was displayed immediately above the "SHALLOW WATER" sign at the shallow end of the pool. A "SHALLOW WATER" sign was attached to the light pole at the deeper end of the pool but there was no pictograph prohibiting diving at that end of the pool. There was thus no reason for a pool user who observed the signs to associate the fact of shallow water with any risk associated with diving. Thirdly, in January 1996 the no diving pictograph faced the pool. It was not visible to persons approaching the pool from the lawn.

[81]

175 Did the discharge of the Council's duty of care require that diving into the pool at the shallow end be prohibited and that the prohibition be enforced? In Mr Maconachie's submission the fact that the Council displayed a pictograph proscribing diving and that it sought to enforce that prohibition did not carry with it that it was under a legal duty either to prohibit diving or to enforce such a prohibition. I accept that is so. The question of whether the defendant has fallen below the standard of care required of it is a matter for the Court to determine: Francis v Lewis [2003] NSWCA 152 per Mason P at [42]-[43]; Tomlinson v Congleton Borough Council [2003] UKHL 47; [2004] 1 AC 46 per Hoffman LJ at [43]. 176 There was no evidence to suggest that any person had suffered serious injury as the result of diving into the pool at the shallow end prior to the date of the plaintiff's accident. It was common for members of the swimming club to dive into the pool at the shallow end in the course of supervised training sessions. Jason Channing did so. He was 6 ft tall. It is likely that other members of the club who dived into the pool were 6 ft tall or taller. The depth of water at the shallow end of the South Pool was the same as the depth of water at the shallow end of the pool. Members of the swimming club competed in races at the South Pool in which they dived from starting blocks into the shallow end of that pool. There is no reason to conclude that persons including those 6 ft tall or taller may not execute a shallow dive into water of 1.15m safely. This is not to say that there does not exist a risk of serious injury in the case of a person of 6 ft in height diving into water 1.15m deep. 177 Mr Maconachie pointed to the depth markers that drew the attention of pool users to the depth of water at the shallow end of the pool. It had a tiled floor and clear blue water. In his submission the Council's duty did not extend to warning of the risks of diving into the shallow end of the pool much less prohibiting diving. There was no hidden or unusual danger which gave rise to a duty to warn. The risks of diving into clear, shallow water were obvious. 178 In Romeo v Conservation Commission (NT) (1998) 192 CLR 431 Kirby J at 478 [123] observed: "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 the risk is neither reasonable nor just". Romeo concerned the duty owed by a public authority to persons visiting a public reserve the subject of its control and management. However it is not in issue that the obviousness of risk is a relevant matter to take into account in determining whether a duty has been breached and whether there existed a causal relationship between any breach and injury (plaintiff's written submissions para 95). 179 I accept that the dangers of diving into shallow water in a swimming pool may be characterised as obvious to an adult possessed of ordinary powers of perception and reasoning. However, I am also satisfied that many children used the pool. Kenneth Kemp estimated that two thirds of the patrons of the North Pool were aged less than 18 years. As noted, Ms Remnert estimated that up to 400 children would visit the North Pool on a summer's day. I am satisfied that it was common for children and youths of the plaintiff's age to attend the North Pool unaccompanied by a parent or other responsible adult. 180 The Council submitted that in the absence of any evidence as to a standard I would not find either that it was incumbent on it to prohibit diving or to enforce any prohibition on diving to any greater degree than it did. 181 It is a question of determining the reasonable response of the Council to the foreseeable risk that a person such as the plaintiff might suffer injury as the result of diving into the shallow end of the pool. The touchstone is the reasonableness of the Council's response. This is to be judged in the light of current community standards: Tame v New South Wales [2002] HCA 35; 211 CLR 317 per Gleeson CJ at 332 [14]. 182 In a recent decision Steytler J in Usabeaga v Town of Cottesloe [2004] WASCA 57 commented on the greater emphasis in recent times in the law of negligence on the acceptance by individuals of personal responsibility for their conduct. His Honour referred both to the observations of Spigelman CJ in Waverley Municipal Council v Swain (2003) A Tort Rep 81-694 at 63,778 and to the judgment of the House of Lords in Tomlinson v Congleton Borough Council in this respect. These cases involved claims for damages arising out of spinal injuries sustained as the result diving into the ocean or a lake, the subject the control and management of a public authority. Somewhat different considerations may be thought to govern the reasonable response of a public authority to the foreseeable risk of injury to children using a public swimming pool operated by the authority.

[85]

189 The lack of enforcement that is the subject of complaint is the failure of the pool attendants to reprimand pool users for having dived (the occasions on which a pool attendant might be on hand to prevent a pool user from executing a dive may not have been many). Notwithstanding the evidence of Ms Remnert and Mr De Bono concerning their efforts to enforce the prohibition on diving I find that it is probable that some pool attendants did not reprimand people whom they had seen diving into the pool without incident. 190 In the years and months prior to 6 January 1996 it was common for children to dive into the shallow end of the pool when the complex was open to the public generally. Any enforcement of the prohibition on diving conveyed by Sign 1 was not consistent. This was in contrast with the apparent enforcement by the pool attendants of the prohibition on other forms of potentially dangerous behaviour such as running, "bombing" and blocking the waterslide. In this respect the effectiveness of the prohibition conveyed by Sign 1 was significantly weakened. The Council could not reasonably be expected to prevent every pool user from executing a dive into the shallow end of the pool but more consistent enforcement would have served to bring to the attention of persons such as the plaintiff that this was conduct that if detected would not be tolerated. 191 The failure to take steps to ensure more consistent enforcement of the prohibition on diving conveyed by Sign 1 with respect to young pool users seems to me to have fallen below the standard of care that the Council owed to the plaintiff in tort and as a contractual entrant to the North Pool. Causation 192 It is necessary to consider whether the Council's breach of the duty that it owed to the plaintiff was the cause of his injury. The plaintiff bears the onus of proving that his injuries were caused or materially contributed to by the Council's breach of duty. The question of whether the Council's negligence was causative of the plaintiff's damage is a factual one to be determined by common sense considerations: March v E & M H Stramare (1990-1991) 17 CLR 506 per Mason CJ at 514-15 and Deane J at 523. 193 The plaintiff was aware of Sign 1. As I have noted, when asked in chief about his understanding of the no diving pictograph he responded that it meant, "no diving" and in answer to a further question he qualified that answer saying that he understood the sign to mean "no deep diving". I accepted the plaintiff as an essentially honest witness. However his evidence on this topic seemed to me to need to be assessed with some circumspection. He was aware that a pictograph depicting an activity within a red circle transected by a red bar conveys that the activity is prohibited. He acknowledged his understanding of a "no smoking" pictograph in this respect.

[88]

198 The plaintiff was a high-spirited young teenager who conceded in the course of his evidence that he was not compliant with instructions given to him by pool attendants. He acknowledged that he had been instructed by pool attendants not to climb onto other people's backs in the pool. He had continued to engage in that activity after he had been told not to do it on a couple of occasions. It was put to him: "Q. Notwithstanding that, you were told not to do it? A. Yes. Q. You did it anyway? A. Yes. Q. And were you told why you should not do it? A. I think so, yes. Q. You were told that it was dangerous for you? A. Yes, it was dangerous. Q. But notwithstanding that you were told that it was dangerous and you knew you shouldn't do it, you did it anyway? A. Yes." 199 The plaintiff gave frank evidence concerning his awareness of Sign 1: "Q. But you had seen the sign at the western shallower end of the pool? A. Yes. Q. And you tell us that it had underneath it the words, 'shallow water'? A. Yes. Q. And you knew without seeing a sign of any kind that it would be dangerous to dive into shallow water. You knew that, didn't you? A. Yes. Q. Because you knew that if you dived into shallow water, you might hurt yourself, you knew that? A. Yes. Q. And you knew, didn't you, at fourteen, that you might hurt yourself very seriously if you dived in a shallow water and struck the bottom, you knew that? A. I didn't really think about it, no. Q. But it was pretty obvious, wasn't it? A. Pretty obvious. Q. You knew from one prior experience that you had hurt your nose diving into the pool, had you not? A. Yes. Q. When was that? A. A year or two before, maybe. Q. Yes, and you scraped your nose, I think you told us that? A. Yes. Q. And that was after executing a dive? A. Yes. Q. What kind of a dive? A. Normal dive. Q. With your arms in front of you? A. Yes. Q. And that dive brought you into contact with the bottom of the pool? A. Yes. … Q. But it was plainly obvious to you, as a result of that experience, was it not, that if in diving you came into contact with the bottom of a pool, you could do very serious injury to yourself; that was obvious, wasn't it? A. Yes. Q. And, accordingly, you knew then that if you dived into shallow water, that carried with it a risk that you might come into contact with the bottom of the pool; you knew that, didn't you? A. Yes. Q. And you, therefore, knew, didn't you, that diving into a pool where the water was shallow was dangerous. A. Yes. Q. Notwithstanding that, you tell us you continued to dive into water that you knew to be shallow? A. Yes. Q. Knowing that there was a risk that you could seriously hurt yourself? A. Never thought I'd break my neck. Q. You may not have thought you would break your neck, but you knew it would carry a serious risk of injury, didn't you? A. Yes. … Q. So that you knew from that time, a year or two before your accident, that if you dived into shallow water, you ran the risk that you might seriously hurt your head; you knew that, didn't you? A. Yes. Q. And you continued to do it? A. Yes." (T62-4) 200 I have referred to the evidence of the plaintiff's school performance. The Council tendered a number of his school reports in its case. Mr Gross submitted that in considering the question of causation the focus should not be upon the plaintiff's school reports. The criticisms made of him by teachers in these reports related to his consistency of effort and concentration in his schoolwork. It was apparent that prior to his accident he was a gregarious, talkative youth who was not achieving optimum performance in schoolwork. This, it was submitted, provided little assistance in determining the likelihood of him diving into the shallow end of the pool had the Council taken reasonable care for his safety consistent enforcement of the prohibition on diving at the shallow end of the pool. 201 The plaintiff's evidence concerning his school performance and the contents of the school reports is evidence of his behaviour around the time of his accident. It is not without significance in deciding whether to accept his evidence that had he seen a no diving pictograph accompanied by the words "no diving" at the shallow end of the pool he would not have dived into it.

[101]

His Honour went on to express his view that Lord Wilberforce's exposition in McGhee v National Coal Board [1973] 1 WLR 1 at 6 was compelling. 213 McHugh J who was in dissent in Chappel observed at 247-8, [34]: "[T]he onus of proving that the failure to warn was causally connected with the plaintiff's harm lies on the plaintiff. However, once the plaintiff proves that the defendant breached a duty to warn of a risk and that the risk eventuated and caused harm to the plaintiff, the plaintiff has made out a prima facie case of causal connection. An evidentiary onus then rests on the defendant to point to other evidence suggesting that no causal connection exists. Examples of such evidence are: evidence which indicates that the plaintiff would not have acted on the warning because of lack of choice or personal inclination … Once the defendant points to such evidence, the onus lies on the plaintiff to prove that in all the circumstances a causal connection existed between the failure to warn and the injury suffered by the plaintiff." 214 This case does not give rise to difficulties in proof of causation of the sort with which the Courts were concerned in Betts, McGhee or in Bendix. The plaintiff's accident is not an unexplained event. He dived into the pool knowing the depth of water at the shallow end and being aware of Sign 1. However, I have found that the Council was in breach of the duty that it owed to the plaintiff by its failure to enforce the prohibition on diving at the shallow end of the pool with greater consistency. Gaudron J in Bennett observed that a case based on a failure to act may fall for analysis in a different way to a case based upon a positive act where questions of causation are answered by what, in fact, happened (at 420). Her Honour went on to refer to Mason J's judgment in Heyman to which I have referred. 215 Upon an acceptance for present purposes that the observations of McHugh J in Chappel that I have set out at [213] above (upon which Mr Gross relied in his supplementary submissions), expressed in the context of a medical negligence failure to warn case, are apt to proof of causation in the present case, it seems to me that the evidence of the plaintiff's disinclination to comply with rules makes it difficult for him to prove the causal link between the failure to enforce the diving prohibition with greater consistency and his injury on this day.

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217 On occasions the plaintiff engaged in other activities that he knew to be prohibited including blocking the water slide and climbing onto the back of other swimmers. He understood that this was behaviour for which one could be asked to leave the pool complex. 218 I do not accept that had the plaintiff seen a sign such as those subsequently installed at the North Pool bearing the words "no diving" he would have heeded the prohibition. Had the prohibition on diving been enforced with the same consistency as the prohibition on "bombing", climbing on the backs of swimmers and on running was enforced by the pool attendants, I am not persuaded that it is likely that that the plaintiff would not have dived into the shallow end of the pool on this day. The dive was a running dive. I am satisfied both that running across the concrete pool surround was prohibited by notice and that the prohibition was actively enforced by the pool attendants. 219 I am unpersuaded that the evidence supports the inference that the repeated failure to enforce the prohibition on diving can be said to have led the plaintiff to believe that it was safe for him to dive. While some of those who gave evidence were not aware of the no diving pictograph at the shallow end of the pool, the plaintiff was not one of them. I am satisfied that at the age of 14 he understood the sign to mean that diving was prohibited. 220 I have concluded that the Council's breach of duty in failing to enforce with greater consistency the prohibition on diving into the pool at the shallow end did not materially contribute to his injury. This conclusion disposes of the plaintiff's claim in negligence. It was not submitted that a finding adverse to the plaintiff on the question of causation did not also dispose of his claim based upon the breach of the duty owed to him as a contractual entrant to the North Pool. 221 In case I am in error in concluding that the plaintiff has failed to prove that the Council's breach of duty caused his damage it is appropriate for me to deal with two defences upon which the Council relied. Volenti 222 The Council pleads that it is not liable to the plaintiff in any event because he voluntarily accepted the risk of injury by diving into the shallow end of the pool when he knew the depth of the water and that it was unsafe to dive into water of that depth. 223 In Moore v Woodforth [2003] NSWCA 9 Mason P (in a judgment with which Meagher and Heydon JJA agreed) approved the following statement of the principles applicable to the defence of Volenti made by the primary judge: "The defendant has to establish that the plaintiff knew of the risk or danger or that he fully comprehended the nature and extent of the risk and accepted the whole risk. ( Roggenkamp v Bennett (1950) 80 CLR 292). There are three elements that must be established by the defendant: (a) That the plaintiff knew of the danger; (b) that he fully appreciated the risk of injury created by the danger; and (c) he voluntarily agreed to accept the risk and its consequences. This last element is an objective test to be inferred from the plaintiff's words or in this case his conduct ( Insurance Commissioner v Joyce (1948) 77 CLR 39). What the third element means is that the plaintiff fully accepted the risks ( McPherson v Whitfield (1996) 1 Qd R 474 at 480). His Honour Mr Justice Lee said in that case at 481, that where acceptance of the risk is to be implied 'from the mere fact that the plaintiff has undertaken the activity which is said to give rise to the risk, it will, in my opinion, often be difficult if not impossible to infer that the plaintiff has taken the legal risk of injury upon himself.' 224 Moore v Woodford was a case in which the appellant, a spear fisherman, suffered injury when struck by the propeller of a motorboat. Mason P observed at [32]: "This was not a case where it was proved that the plaintiff fully comprehended the extent of the risk and chose to accept or ignore it (cf Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9 at [125]) or otherwise conducted himself so as to attract the very demanding standards of this ill-defined defence." 225 In this case the Council submits that the plaintiff knew everything he needed to know as to the dangers of diving in the shallow end of the pool, having regard to his familiarity with the pool and the circumstance that on a previous occasion he had scraped his nose when diving into it. 226 The Council submits that it has established the second element of the defence by the plaintiff's admission in cross-examination of his awareness that serious injury might attend a dive. In the Council's submission with this knowledge the plaintiff freely, and voluntarily executed a dive that was steeper than usual into the shallow end of the pool. 227 The evidence upon which the defendant relied in the cross-examination of the plaintiff is extracted at [199] above.

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Contributory negligence 230 The Council pleads that the plaintiff contributed to his own injuries. 231 In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 the Court observed 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 Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and 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." 232 In considering contributory negligence it is again important to have regard to the plaintiff's age. In Joslyn v Berryman [2003] HCA 34; 77 ALJR 1233 McHugh J said at 1240 [32]: "The test of contributory negligence is an objective one. Contributory negligence, like negligence, "eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question" ( Glasgow Corporation v Muir [1943] AC 448 at 457). One exception to that rule is that, in considering whether a child is guilty of contributory negligence, the standard of care is tailored to the age of the child ( McHale v Watson (1966) 115 CLR 199). 233 In the defendant's submission the plaintiff's failure to take care for his own safety and the causative influence of that failure vastly outweighs any breach that might be found against the Council. It is contended that having regard to the immediacy of the plaintiff's action, the steepness of his dive and the impracticability of the Council being able to influence what he did means that the apportionment should favour the plaintiff bearing not less than 80% of the responsibility for his injuries. The plaintiff submits that if he is to be found to have failed to take care for his own safety by, for example, not executing a shallow dive or running to make the dive, the extent of his contribution should not exceed 20%. In his written submissions Mr Gross placed emphasis on the plaintiff's youth and that his failure to carry out a shallow dive was not the result of any intention on his part. 234 Taking into account the plaintiff's youth and immaturity, I nonetheless consider that his failure to take care for his own safety by executing a running dive into the shallow end of the pool to have been a significant cause of his injury and if he were entitled to a verdict that it would be necessary for it to be reduced by a contribution of 50%. ORDERS