Phillip James Dederer v Roads and Traffic Authority and Anor

Supreme Court of NSW|2004-10-29|Before: Dunford J

Reported Decision : (2005) Aust Torts Reports 81-792

CITATION : Phillip James Dederer v Roads and Traffic Authority and Anor [2005] NSWSC 185

DECISION : Judgment for the plaintiff for 75 percent of the agreed damages plus costs, judgment on Cross-claims

Civil Liability Act 2002 LEGISLATION CITED : Main Roads Act 1924 Roads Act 1993

Ballerini v Berrigan Shire Council and anor [2004] VSC 321 Inverell Municipal Council v Pennington (1993) 82 LGERA 268 Public Trustee v Sutherland Shire Council (1992) A Torts R #81-149 CASES CITED : Romeo v Conservation Commission (N.T.) (1998) 192 CLR 431 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247

Phillip James Dederer v Roads and Traffic Authority - First Defendant PARTIES : Great Lakes Shire Council - Second Defendant

D T Kennedy SC/G Graham - Plaintiff COUNSEL : M J Cranitch SC/A Casteldon - First Defendant M T McCulloch SC/S P W Glascott - Second Defendant

Emery Partners - Plaintiff SOLICITORS : Henry Davis York - First Defendant Phillips Fox - Second Defendant

28 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20122/02 PHILLIP JAMES DEDERER v ROADS AND TRAFFIC AUTHORITY & ANOR

JUDGMENT 1 HIS HONOUR: In these proceedings, the plaintiff sues the defendants in negligence to recover damages as a result of him being rendered partially paraplegic when he dived off the Forster/Tuncurry Bridge on 31 December 1998 when he was aged 14 years and 6 months. The quantum of the plaintiff's damages, if he is successful, has been agreed and the remaining issues are the liability of either or both defendants and liability under the Cross-claims. 2 The proceedings were commenced against the Roads and Traffic Authority (the RTA) on 3 April 2002, but the Great Lakes Council (the Council) was not joined as a defendant until the filing of the Amended Statement of Claim on 22 September 2003. It follows that Parts 1A (ss 5-5T) and 5 (ss 40-46) apply to the plaintiff's claim against the Council, but not to his claim against the RTA. Each defendant has brought a Cross-claim against the other.

3 The bridge, which was built about 1959 by the predecessor of the first defendant, links the twin towns of Forster and Tuncurry and, although the Lakes Way from Bulahdelah to Taree passing through Forster and Tuncurry runs generally north-south, this particular bridge in fact runs east-west with Forster on its eastern bank and Tuncurry on its western bank. It spans the estuary at the mouth of the Wallamba River. 4 The bridge is made of steel and concrete and is 632m long. It carries a 2-lane bitumen roadway and a footpath on its northern side. A large part of the estuary over which the bridge is constructed consists of a large sandbar but there are navigable channels near both the Tuncurry and Forster shores, and the level of the bridge rises over each of these channels in the form of humps, whilst the bridge is lower and level over the sandbar. 5 There are 47 piers numbered 1 to 47 from the Tuncurry side, and the main channel for navigation on the Forster side is between piers 43 and 44 which piers are now (but were not in 1998) marked with port and starboard signs, although boats also use the passage between piers 44 and 45. The footpath is bounded by a wooden post and rail fence attached to the side of the bridge consisting of a flat wooden railing on top and two flat wooden cross members below, with wire strands between them. The southern tip of the main central sandbar is about level with pier 41. 6 There is, and was at the relevant time, a pictogram indicating "no diving" on the telegraph pole closest to the Forster end of the bridge located between pier no 47 and the shore, which is depicted in Exs L and G 1 and a word sign prohibiting fishing from, and climbing on, the bridge at the entrance to the bridge. Similar signs were displayed at the Tuncurry end of the bridge, see Ex G 2. There was also a water pipe attached to the bridge on its side opposite to the footpath. General views of the bridge and the estuary can be seen in Exs B, D, E, G, L and M. I had a view of the bridge myself in company with counsel, solicitors and the plaintiff on 8 October 2004 when various features were pointed out to me (T 264-268).

7 The plaintiff and his family were in the habit of going to the area for as long as he can remember for weekends, school holidays, etc. They stayed at the Shalimar Caravan Park, a short distance north of Tuncurry township and regularly spent time swimming, water skiing, fishing, etc. The plaintiff said that there was a sandbar running upstream from the bridge (indicated in Exs B, C and D) on to which they frequently ran their boat and they could jump off the back of their boat and swim in the channel as the river bed dropped away suddenly, the water in the channel was "fairly deep" and his feet did not touch the bottom. Prior to his accident, he had last been swimming in this area about 2 years previously.

8 Over the years when in the area, he had frequently seen people (children and adults) jumping and diving off the bridge either from the ledge at the base of the bridge or the top of the pedestrian handrail on the downstream side, or from the water pipe on the upstream side. He had seen boats passing beneath the bridge through the channels but had not seen any of them run aground, which he said, indicated to him that the water in the channels was deep.

9 On 30 December 1998, the day before his accident, he went with a friend, Grant Cunial, who was about 4 years older than him, and a few of the latter's friends to Forster. After spending time swimming at Forster beach, visiting lookouts and sitting in an open park area at the Forster end of the bridge, they walked onto the bridge. As they approached the bridge, the plaintiff saw what he described as the "big sign" at the side of the bridge reading "Fishing and Climbing Prohibited" (Ex H). He had seen that sign and the identical sign at the Tuncurry end of the bridge previously.

10 After advancing some distance along the bridge, he jumped into the river twice, once from the ledge at the base of the bridge and the second time from the top of the handrail. Both times his body was totally submerged but his feet did not touch the bottom. He saw other people jumping and diving from the bridge that day. The others in his group also jumped from the bridge and he "believes" one of them, an adult, dived. Nothing untoward happened to any of them. This was the first time he had jumped or dived from the bridge.

11 The following day, 31 December, the plaintiff and Grant Cunial went swimming and then again went to the park area near the Forster approach to the bridge where they watched about 10-15 people jumping off the bridge and then they went onto the bridge intending to have one more jump. As they walked on to the bridge, he saw the pictogram sign depicting the person diving with the diagonal line through it attached to one of the lamp posts (Ex L); he described the sign as "fairly rough but you could make the picture out".

12 Asked whether the sign sent him any message, he replied, "At that time, I was a cocky 14 year old. I was not going to dive but jump, but when I got up there I changed my mind". He was asked, "What if any thing was conveyed by the sign?" and replied, "It just told me I shouldn't dive - it did not put any danger into it."

13 He said he climbed up on to the rail, which he did without difficulty. He was intending to jump, but then decided to dive and after listening to see if any boats were approaching under the bridge, he did so. His dive was "almost straight, but at an angle", similar to the angle at which he had seen other people dive. He marked on Ex M the approximate position from which he dived just to the Forster side of the light post. This was not the light post with the pictogram on it, but the next one. At the view, the plaintiff pointed out the same spot, which was between piers 44 and 45, not over the marked navigation channel, but adjoining it, a passage also used by boats.

14 He does not remember striking the water or hitting the bottom but became aware that he had no feeling in the lower part of his body. His friend, Grant Cunial, jumped in and supported him in the water until assistance arrived. As a result of his dive, the plaintiff suffered fractures of T4, T5 and T7 including damage to the spinal cord rendering him a partial paraplegic and substantially confined to a wheelchair.

15 The plaintiff said that before diving, he looked at the water and could not make out the bottom. The water was a green murky colour which indicated to him that it was deep. He estimated the distance from the railing to the water surface was 8-9 metres. He had never seen police or rangers talking to people who were jumping off the bridge.

16 Evidence was led from the plaintiff (and others) concerning the growth of foliage on the trees near the Forster end of the bridge (Exs H, J, K, L) to suggest that the signs displayed were or may have been partially obscured at the time of the plaintiff's accident, but the fact is that the plaintiff, on his own evidence, saw both signs i.e. the "No fishing or climbing on bridge" sign (which he had seen many times) and the pictogram on the light post (on the day that he dived). In those circumstances, I regard any questions of foliage growth on the trees as irrelevant. 17 It is worth noting that photographs taken on behalf of the plaintiff in 2004 (Exs E, N and V) show persons jumping and getting set to jump or dive from virtually the same spot as that from where the plaintiff dived. At the view, I was informed persons had been jumping from the bridge shortly prior to my arrival, but I did not see it myself on that day, so have disregarded it.

18 In cross-examination, the plaintiff conceded he was aware that sand on the sandbar moved with the current and that in the channels the depths were hard to judge and some parts of them were shallower than others. He said when he dived the water was murky green which indicated to him that it was deeper water but he only realised it was low tide after the accident. He agreed that he saw the "no diving" pictogram and chose to ignore it. The plaintiff impressed me as a frank and honest witness who was endeavouring to tell the truth as best he could nearly 6 years after the event. This honestly was best illustrated by his evidence that he had seen the relevant signs before he dived. 19 My own observations at the view on 8 October 2004 were that from the place where the plaintiff indicated he dived what appeared to be the bottom could be seen, there were certainly different hues of green and there appeared to be some yellow patches some distance below the surface. The water in the navigation channel appeared to be a much deeper green and therefore much deeper (T 527-8). But, of course, I saw it nearly 8 years after the plaintiff's accident at a different tide and when the sands had undoubtedly moved in the meantime. 20 Grant Cunial was the young man (about 4 years older than the plaintiff) who was with him on both 30 and 31 December 1998. He had been going to the area for holidays since he was 12 years old i.e. about 1992, and had seen persons (ranging from about 10 to 30 years old) jumping off the bridge at the channel near the Forster shore including diving, doing back flips, somersaults, "peg-legs" and bombs (T 183). He said that on 31 December, he and the plaintiff were intending to walk across the bridge from Forster to Tuncurry and back, intending to jump off the bridge on the way back, but the plaintiff said he wanted to jump on the way to Tuncurry. He saw him climb the rail and then in mid-air in the course of his dive. He said he was not worried of being spoken to by police or council rangers for jumping off the bridge although it was prohibited. He said that at the time the tide was rushing out really fast.

21 The plaintiff's father, Leslie Dederer, gave evidence that his knowledge of people jumping off the bridge went back to 1982 and at times he also saw people diving. He said that although the general position of the sandbar remained constant, its length and width changed, even from week to week.

22 Robert Fogg, an engineer and safety consultant, prepared three reports and gave evidence. When he wrote his reports, Mr Fogg believed that the "no diving" pictogram had only been recently installed since the plaintiff's accident and that the "fishing and climbing prohibited" sign was partly obscured by foliage from a nearby tree. Both these assumptions were incorrect and the plaintiff testified that on the day of the accident he observed both signs. 23 Mr Fogg expressed the view in his first report (p 9) that as a means of visual communication, symbols and symbolic signs are often regarded as superior to words, and the "no diving" pictogram being a circular sign showing a person diving and with a diagonal line across the image (sign no 213) is a sign approved by the Australian Standards Association - AS 2416 of 1995 (Ex Y) and means "diving prohibited". He considered this sign, or sign no 228 depicting a person striking his or her head on the bottom below the water surface meaning "beware of shallow water when diving" should have been considered for installation by the appropriate authority. In fact, the former had been installed and seen by the plaintiff.

24 When it became apparent that sign no 213 (diving prohibited) had been displayed, he suggested that sign no 228 (beware of shallow water when diving) should also have been displayed, but agreed in cross-examination that contradictory or inconsistent signs such as prohibitions and warnings together, were undesirable. Although he expressed a preference for no 228, he conceded no 213 was still an appropriate sign. He also agreed that the standard (Ex Y) expressly provides for hybrid signs consisting of both a symbol and words explaining the reason for the prohibition (see para 3.4.2 at p 9). 25 When his attention was drawn to pictogram no 228 (beware of shallow water when diving), the plaintiff said he understood it to indicate shallow water, and that if you dive you will hit the bottom. He said that if that sign had been there, he would not have dived but in cross-examination agreed that his views in this respect were coloured by the tragic injury which had happened to him (T 117).

26 Mr Fogg also expressed the view that the relevant authority should have carried out a risk management assessment and in particular suggested that Australian Standard 4360 could be applied to the management of this bridge, and described what issues might be addressed including an assessment of what the dangers were to persons jumping or diving off the bridge, and an assessment of whether steps already taken had been successful and an ongoing review of the measures taken. He agreed that a number of issues to be addressed would include the dangers to pedestrians from motor traffic and in respect of persons jumping or diving from the bridge, whether there had been any previous injuries reported.

27 The other evidence he gave concerning the prevention of persons jumping or diving off the bridge related to the design of the bridge. In this regard he suggested a number of alternatives including the replacement of the existing post and rail fence with fencing containing vertical members in accordance with '92 Austroads Bridge Design Code (Ex X) clause 1.6, which would eliminate the horizontal railings of the existing bridge thus making it impossible to obtain a foothold on the fencing and more difficult to climb onto the top railing or alternatively a low-level cantilever fence connected with metal mesh along the length of the bridge as depicted in figure 5 of his first report, extending outwards 2 metres from the railing. In particular, he suggested that the current post and rail fence should be replaced by a railing with vertical members similar to that over the Williams River at Raymond Terrace which was built in 1965.

28 He conceded that even with vertical members, a railing 1.22 metres high is not going to deter a young eager young adult, although it would pose another level of difficulty - but young persons could give each other a leg up and he conceded that the cantilever structure he proposed would not totally prevent persons climbing out onto it and jumping or diving in from there and it also raised a question of aesthetics. 29 He also expressed the view that there should be a regular and ongoing review of facilities to ensure that items put in place to meet initial objectives or requirements are effective for that purpose (T 202).

30 In addition, Mr Kennedy SC on behalf of the plaintiff tendered photographs of a large number of photographs of different bridges with different types of railings, all built after the Forster/Tuncurry Bridge and all of them with vertical members and/or higher railings. The defendants submitted not only were these irrelevant to the art of bridge building in 1959 but they were designed to guard against different perceived dangers e.g. suicides (Anzac Bridge) vehicles leaving the roadway (Mooney Mooney) and most, if not all, of them are built over much deeper ravines. 31 Michael Keegan, who was called in the RTA's case, has since January 1995 been Asset Manager of the Council's roads, bridges and stormwater systems, and prior to that was Works Engineer in charge of construction and maintenance activities. He has worked for the Council since 1975.

32 The bridge was opened in July 1959 and is part of Main Road no 111. Since the early 1990's the RTA has made funding available to Councils (including Great Lakes) for the latter to provide maintenance on main roads by way of Block Grant Agreements. 33 He said that the replacement of the earlier "no diving" signs with the current signs was carried out by the Council in 1995 with funding provided by the RTA through the Block Grant Agreement. He was also aware of a "No Skateboarding" sign on the bridge erected by the Council. The Council is responsible for routine work on the bridge such as sweeping the kerbs and gutters, and cleaning the drainage holes, but maintenance and traffic control is the responsibility of the RTA. When the wire on the bridge needed to be replaced in the early 1900's, the work was done by the Council as subcontractor, and paid for by the RTA.

34 He has been aware for years that young persons have been in the habit of jumping and diving off the bridge and asserted it was common knowledge in the community (it was also admitted by the Council on the pleadings) and he had actually remonstrated with his own children for jumping from the bridge. He said he had no knowledge of any injury to anyone from jumping or diving off the bridge although, if there had been such a record, it would have come past him as manager of road networks.

35 He was referred to pyramid type railing on the approach to bridge (Ex H) and said it would be possible from an engineering point of view to affix a triangular "cap" to the existing railing which would make it uncomfortable to climb on, and more difficult to stand on. Such a railing would not be expensive, but he had no budget for such work and his understanding was that no request for such had been made. He regarded the bridge structure as the responsibility of the RTA. He was also aware from his personal observation of shifting sands under the bridge and was aware that the height of the sand underneath the water could rise and fall as a result of such movement.

36 Mr Alexander is the Planning and Analysis Officer for the RTA Hunter Region and has been employed by the RTA since 1998. He described the funding arrangements within RTA for bridges under the Block Grant Agreements and otherwise, and said that for some time the RTA had been concerned about pedestrian safety on the bridge, but this had been in relation to separating cyclists from pedestrians and the interface between pedestrians and vehicular traffic. In 1995, GDH Consultancy had prepared a report which considered the possibility of installing a widened cycleway/walkway on the bridge. The report examined five options and proposed one, the cost of which was estimated at $1m, which was the total budget for cycleways in the Hunter Region for that period, compared with the total budget for pedestrian facilities in the Region of $200,000 to $300,000. Each of the proposals included replacing the existing handrail in accordance with "92 Austroads Bridge Design Code" (Feb 1995). The estimated cost of the new handrail was $108,072.

37 Nothing was done, but when he took over his present role early in 1998 he became aware of community concerns about the interaction of pedestrian, vehicular and cycle traffic on the bridge, so he sent two of his staff to look at activity on the bridge and report back. This was about April 1998 and they used photographic and videographic instruments to make a record of what they saw, but such materials cannot presently be found. Following this, in consultation with the Council, the RTA came up with 5 options for separating the traffic on the one hand from the pedestrians and cyclists, all of them involving a barrier of some sort. These were then put on public display and comments invited.

38 The public's comments indicated that people generally wanted the pedestrian way widened, but his office was constrained by lack of funds, so he eventually submitted a proposal to head office based on splitting the cost of the work over 2 years. The strategic estimate of the cost of the work was $1.6m, which was approved, although the estimate has now risen to $3.5m. This is a special grant which makes it harder to get additional funding for other projects, other than very small projects.

39 He was aware of the concerns expressed about persons jumping off the bridge in 1993 and the erection of the signs about that time, but was not aware of any further concerns about that issue in subsequent years and all the later representations related to separating pedestrians from the vehicular traffic and there was also concern about skateboarders, but when his officers inspected the bridge in April 1998, they reported that people were still jumping off and fishing from the bridge notwithstanding the signs, although there was no report of anyone diving (Ex W p 112). It was general knowledge in his office that young people had been jumping off the bridge for some time (T 418-420), but the RTA has no policy or programme for dealing with this type of issue, and there is no funding allocated for such an issue (T 402-407).

40 An internal memo of the RTA dated 4 March 2004 in relation to the latest proposal states in part: "It is our intention to remove the handrail and to construct with a new handrail. The new handrail will have a top and bottom RHS 100x50x5. The balustrades will be made from flat bar and will be centred at least 154mm. The reason RTA have adopted a new design is to help prevent people jumping off the bridge. The existing handrail can easily be climbed over due to the middle rail. The proposed fence is more like a pool fence and is harder to climb over. RTA have taken this course of action as the authority is being sued by a man who jumped off the bridge and broke his neck when his head hit a sand bar" (Ex W p114).

41 John Previtt who is now the Council's Senior Regulatory Control Officer (ranger) has been employed by it since November 1988. Over the years, he has seen many people jumping off the bridge, some of them doing somersaults, but he said he had never seen anyone dive, and prior to the plaintiff, he has never heard of anyone getting hurt.

42 On three separate occasions in about 1990, when wearing his official Council uniform, he spoke to persons climbing on to, and about to jump from, the bridge drew their attention to the sign and told them not to jump, but they ignored him and jumped all the same. He had no way of identifying them except that on one occasion, he went around to the nearby park and called on them to come ashore, but they swam to a sand bank 20 metres off shore, waved to him and refused to come ashore.

43 He then spoke to the local police Superintendent and asked the police to enforce compliance with the signs, and he subsequently saw police speaking to persons on the bridge, but they just continued to jump. On about 3 occasions, he saw a police boat patrolling under the bridge trying to round up people who had jumped from the bridge, but even this approach was unsuccessful. Since then, he has continued to observe people jumping from the bridge and the Council has continued to receive complaints about the practice. He has not taken any further action to enforce compliance with the signs since 1990 and claimed it is impossible for him to enforce the prohibition, which he agreed was, strictly speaking, a prohibition against diving, not against jumping. 44 The RTA conceded in its Answers to Interrogatories (Ex HH) that it was aware from 1 December 1993 that the riverbed levels under the bridge were continually altering and thereafter soundings were carried out from the bridge at approximately 3 monthly intervals. The Council admitted in its Defence to the Further Amended Statement of Claim that it was "aware of the fact persons had jumped and or dived from the bridge". 45 As long ago as 11 February 1993, the Council sent a facsimile to the RTA expressing the concern of the Council concerning "young persons jumping from the…bridge", adding the words "danger to boating", and "needs at least signs" (Ex U p 205). It was after this (in 1995) that the Council erected the "no diving" pictograms near each end of the bridge (Ex G3 p 127). It was about the same time that the wire in the railing was replaced as the earlier wiring was rusting thereby constituting a danger to young children. 46 I am satisfied on the evidence that the signs were not effective in the sense that large numbers of young people continued to jump, dive, do somersaults, etc from the bridge into the water. As already noted, when concerns were expressed by local residents and by the Council concerning pedestrian safety, officers of RTA visited the bridge in April 1998 when they observed persons jumping off the bridge, which they reported to the Regional Office. Subsequently plans have been prepared and funds approved for widening of the walkway and replacement of the post and rail fence with a fence containing vertical members in accordance with the '92 Austroads Standard. 47 An issue was raised by the defendants as to whether the plaintiff's spinal injury was in fact due to him striking his head on the bed of the estuary, but having regard to the manner in which he dived as described by him and confirmed by Mr Cunial, the fact that whilst in hospital he became aware of a lump on the back of his head, the report of Dr Matheson and that there is no evidence of any possible cause, I am satisfied that his spinal injury was most likely sustained when his head struck the estuary bed in the course of his dive. 48 The bridge forms part of Main Road III and was built with State funds by the Department of Main Roads, and by Minute of 16 September 1959 pursuant to s 25 of the Main Roads Act 1924 and with the concurrence of the Shires of Manning and Stroud (predecessors to the Great Lakes Council), the Commissioner for Main Roads (predecessor of the RTA) was authorised and directed to carry out the work of maintenance of the bridge. It was also agreed with Manning Shire Council that the latter would undertake the "caretaking" of the bridge at the Department's expense. 49 The ownership and classification of roads is now governed by the Roads Act 1993. Section 7(4) provides that the local council is the roads authority for all public roads within its area except freeways, Crown land and public roads for which some other public authority is declared by the regulations to be the roads authority. There is no evidence of any relevant regulation made in respect of this road and accordingly, I am satisfied that the Council is the "roads authority" in respect of this road subject to the Executive Council minute by virtue of which the RTA remains responsible for the maintenance of the bridge. Moreover, s 64 authorises the RTA to exercise the functions of a roads authority with respect to any classified road (which includes a public road) whether or not it is the roads authority for that road. 50 The relationship between the RTA and the Council in respect of the road including the bridge is further governed by the annual Block Grant Agreements whereby the RTA provides funding to the Council for the latter to carry out construction, maintenance and improvements on what are described in the agreements as "regional roads" and "traffic facilities" i.e. to improve the flow of traffic and road safety. Main Road III is specified as a "regional road" in the second schedule to the various Block Grant Agreements. 51 The RTA designed and built the bridge and pursuant to the Executive Council direction is responsible for its maintenance, and has financed works carried out by Council such as replacement of the wires on the bridge, the placement in about 1995 of the "no diving" pictograms, and has itself erected signs at each approach to the bridge prohibiting fishing and climbing on the bridge. It is presently about to engage in major reconstruction of the bridge's walkway. 52 The Council on the other hand is the roads authority and exercises day to day management of traffic over the bridge including pedestrian traffic. It erected the "no diving" pictograms in 1995 after making representations to the RTA and having their erection financed by the latter. It also made representations to the RTA in respect of the wiring on the bridge and subsequently carried out that work as subcontractor for the RTA. In addition, it has erected some signs such as the "no skateboarding" sign on its own initiative and at its own expense, and authorised local citizens to erect signs notifying local events. Its ranger, Mr Previtt also attempted to speak to persons jumping off the bridge some time ago. 53 For these reasons, I am satisfied the RTA is responsible for any matters related to the design or construction of the bridge including the erection of signs when the need or desirability for such signs arises from the design or construction of the bridge. On the other hand the Council is responsible for day to day management of the bridge, including the erection and enforcement of signs. In so far as it is relevant, I regard them as joint occupiers of the bridge. 54 I am satisfied that almost from the time of its construction and certainly for many years prior to the plaintiff's accident young, and not so young, persons were regularly using the railing and ledge of the bridge as launching pads for jumping and diving into the water below, particularly, but not limited to, during the summer holidays. The reason why jumping and diving off the bridge was so popular was in part due to the flat topped railing along the outside boundary of the bridge, and the ease of access to that railing by reason of the wooden cross members which provided steps up to the top railing. 55 Even if it was not anticipated prior to the construction of the bridge that it would be used in this way, it soon became apparent after its completion and foreseeable that the culture was likely to continue. Although the jumpers and divers entered the water in or near the main navigation channel, both the RTA and the Council were aware of the moving sands and variable depths underneath the water, and it was therefore reasonably foreseeable, and not far fetched or fanciful, that if the practice continued someone engaging in the activity was liable to suffer serious injury. 56 I say this notwithstanding the fact that no one had in fact been injured in nearly 50 years, because the risks should have been so apparent to the officers of both defendants with knowledge of the estuary bed that it was in effect "an accident waiting to happen". Subject to the provisions of the Civil Liability Act 2002 in respect of the Council, the defendants therefore owed a duty to those persons jumping or diving etc to take reasonable care to prevent injury to them. Their response was firstly, for Mr Previtt to speak to those jumpers but to no avail, and then to erect the "no diving" pictograms in 1995, but these seem to had virtually no effect as the practice continued apparently unabated. 57 The Council admits it knew the practice was continuing, the RTA does not; but I am satisfied that the practice was so widespread that, although the RTA did not have an office or depot in Forster/Tuncurry, it had maintenance and other crews working in the area and taking soundings of the water under the bridge, it must have known of the continuing practice as Mr Alexander virtually conceded at T 415. It certainly had direct knowledge after its representatives reported it in April 1998. 58 In my opinion, it was not sufficient to ignore the fact that the signs were being disregarded and it is necessary to consider what, if any, further steps should reasonably have been taken by way of further warning signs, modification of the bridge or otherwise, to prevent injury to persons such as the plaintiff; or to put it another way, the content of the duty of care. 59 I was referred to the Court of Appeal judgment in the 2 cases heard together of Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council [2004] NSWCA 247, (hereinafter referred to as Vairy and Mulligan). The issue is those cases was isolated by Tobias JA at [20] as "whether a public authority having the care, control and management of a natural aquatic area such as an ocean beach or tidal creek, will be in breach of its duty of care to an adult member of the public who voluntarily dives into water of unknown but variable depth where the authority has failed to erect a sign or signs warning of the danger of diving in those circumstances." 60 Here the plaintiff was not an adult and although no warning sign was in place, a prohibition sign was. Moreover in those cases, the plaintiff dived from natural features whereas here the plaintiff dived from an artificial structure erected by the RTA. Cases where the plaintiff dived from artificial structures erected by the defendant include Public Trustee v Sutherland Shire Council (1992) A Torts R #81-149 where breach of duty was established but the plaintiff failed on the issue of causation, and Inverell Municipal Council v Pennington (1993) 82 LGERA 268 where the plaintiff succeeded. 61 The fact that a risk is said to be "obvious" does not of it absolve a defendant from taking reasonable care but is only one of the circumstances which along with other circumstances needs to be taken into account: Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at [45] per Gleeson CJ. Another relevant factor is the age and maturity of those likely to be at risk: Romeo v Conservation Commission (N.T.) (1998) 192 CLR 431 at [123], Vairy and Mulligan at [93]. 62 In Vairy and Mulligan at [161] Tobias JA defined "obvious danger" for common law purposes as follows: "Obvious" means that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the (plaintiff), exercising ordinary perception, intelligence and judgment."

63 Finally in Ballerini v Berrigan Shire Council and anor [2004] VSC 321, which concerned a youth injured when he dived from a log into a lagoon which had for many years been used as a local swimming hole and struck his head on the bed of the lagoon, Smith J took into account a number of factors including the Council's awareness of the danger, that the danger was not obvious to the plaintiff, the use of the log by young people as a diving platform for many years without any prior injury, the age of the plaintiff, that the lagoon adjoined a park maintained by the Council and the reputation of the log and swimming hole in the community as a safe facility.

64 In the present case, the plaintiff was a 14 year old youth, he said the water appeared real dark green murky colour, and he could not make out the bottom which indicated to him that it was deep at that point, and in addition he knew that boats used the water between those piers where he dived which also indicated to him that the water was deep. He had never seen anyone spoken to by persons in authority for jumping or diving at that point and he was not aware of anyone previously being injured. I should say that I find it rather contradictory for the defendants to claim that in considering the foreseeability issue, they can rely on the fact that the practice of jumping and diving from the bridge had been so widespread for many years but no one had been injured as a result, and at the same time assert that the risk was so "obvious" that they owed no duty to the plaintiff. 65 The bridge, being a launching pad for jumping or diving into generally clear water at a holiday resort, particularly in summer was, I believe, a very strong allurement to youths of the plaintiff's age group, particularly as in a colloquial, though not accurate, sense, "everybody else" was doing it. 66 The plaintiff's allegations of negligence against the first defendant were ultimately fourfold:

(1) Failure to conduct an adequate risk assessment in relation to the bridge (2) Failure to provide appropriate warning signs as opposed to prohibition signs (3) Failure to modify the railing on the bridge to provide vertical members in lieu of the horizontal railings or otherwise so as to prevent it being used as a launching pad (4) Failure to provide a net or cantilever outside the railing so as to hinder or prevent persons jumping or diving off the railing 67 I am satisfied that no proper risk assessment was carried out, either at the time the bridge was built or after the erection of the "no diving" pictograms, and that if such a risk assessment had been carried out, even after the pictograms were erected, the continuing risk would have been apparent. But the carrying out of a proper risk assessment of itself would have made no significant difference unless further work was done as a result of such risk assessment. Accordingly, I am not satisfied that the failure to carry out a proper risk assessment was of itself causative of the plaintiff's injuries. 68 It was submitted on behalf of the plaintiff that the "no diving" prohibited pictograms (no 213) were the wrong signs and that "shallow water" pictograms showing a person diving and striking his head on the bottom (no 228) were more likely to be effective. Mr Fogg, the plaintiff's expert agreed that either was appropriate, but in the present case it has been shown that the "diving prohibited" sign was not effective. Whether the display of no 228 would have been any more effective is, I believe, highly problematic. Because of the large number of young persons jumping and diving without incident, it would have been obvious that the water was not generally shallow, and in those circumstances, I consider it probable that that sign would also have been ignored, just as the "diving prohibited" sign was ignored. 69 The "no diving" pictogram was a prohibition, it did not convey a warning of danger. On reflection it is easy to reason, as the plaintiff subsequently did, that the prohibition on diving was probably put in place because diving from the railing was dangerous, but that was not immediately apparent. Many prohibitory signs are disobeyed and not all of them are put in place because what they prohibit is dangerous to the persons to whom the signs are directed. For example, the sign prohibiting fishing on the bridge was also ignored but the prohibition was presumably in place because of the danger to boats passing underneath or pedestrians using the footway, not because fishing constituted a danger to the persons doing the fishing. The reasonable response to the risk of injury was a notice warning of the danger, not a mere prohibition for reasons unspecified. 70 The danger here was not that the water was generally shallow, but that the sands were constantly shifting and accordingly, along with the tides, the depth of the water was variable. These facts were known to the defendants but not to the youths doing the jumping and diving. In my opinion, a warning sign containing words similar to "Danger, shifting sands, variable depth" should have been displayed either on the telegraph post or the bridge railing near where the plaintiff dived. Such a sign would have alerted the plaintiff to the real danger and probably have inhibited him from diving, particularly if it inhibited large numbers of others from doing likewise and so tended to break the culture or practice which had developed. 71 At the time the bridge was built in 1959, it was apparently built in accordance with the standards of the time including the flat top railing and the horizontal members, but by the time the RTA's attention was drawn to persons jumping off the bridge in 1993, standards had changed and vertical, not horizontal, members had become the norm and were specified in the '92 Austroads Bridge Design Code, yet when the wires rusted in 1993, they were replaced without any modification to the horizontal members. 72 It is true that the Design Code strictly only applied to new bridges, but the RTA was here confronted with a risk problem which required some remedial action. Moreover in 1995, GHD Consultancy put forward a number of proposals for a new cycleway/walkway each of which involved a new handrail with vertical members, and although the cost of the preferred option as a whole was approximately $1m, the cost of the new handrail was only $108,072. 73 However nothing was done either generally or in relation to the handrail, although the current proposals include replacement of the handrail with vertical members and a "pool" type fence making it harder to climb over. This move has apparently been prompted by the present proceedings: see the internal memo of RTA dated 4 March 2004 quoted above. Pool fences have been around for many years and there is no reason why such a structure could not have been installed earlier. It is no answer for the RTA to say, as Mr Alexander said, that it did not have a policy to deal with such situations. It created the danger and it was accordingly incumbent on it to have, or devise, a policy to deal with it. 74 Another comparatively simple modification that could have been employed, and in respect of which Mr Keegan could see no difficulty, was to modify the flat top surface of the railing by attaching to it a triangular strip thus making it difficult and uncomfortable to stand on, and almost impossible to balance on before jumping or diving. A similar effect would be achieved by replacing the top flat member of the railing with an angled member such as already exists on the approach to the bridge at both the Forster and Tuncurry ends as shown in Exs J and G 1. I am satisfied that the failure to make either or both of these modifications to the railing constituted a lack of reasonable care on the part of the RTA and that if they had been in place, the plaintiff would probably not have dived and suffered his injuries.

75 Finally, it was submitted on behalf of the plaintiff that the RTA should have installed a cantilever type almost horizontal barrier outside the railing as depicted on fig 5 of Mr Fogg's report of 25 September 2002. I am not satisfied that this would be effective and it may only have encouraged jumpers to jump over and beyond it, which could result in serious injuries if they failed to clear it. 76 For these reasons, I am satisfied that in failing to provide appropriate warning signs, and in the construction and subsequent failure to modify the railing, the first defendant failed to take reasonable care for the safety of the plaintiff, and the plaintiff is entitled to judgment against it. 77 The particulars of negligence alleged against the Council fall into 6 main categories: (1) Failure to provide appropriate warning signs: particulars (b) and (d)

(2) Failure to exercise its powers to cause practice of jumping and diving from the bridge to cease: (c)

(3) Failure to ensure that signs erected were maintained in good order and not obscured by foliage: (c)

(4) Failure to notify and warn RTA of the practice of persons jumping and diving from the bridge and the risks of injury such practice entailed: (e)

(5) Failure in 1993 to repair the bridge in a manner which would prevent persons jumping and diving from the bridge: (f), (g), (h), (j)

(6) Failure to provide a water measure gauge on the side of the bridge which would be visible to the parkland adjacent to the end of the bridge: (i) 78 Item (3) fails on the evidence as the signs were clearly visible, not obscured by foliage, and were seen by the plaintiff. There was no evidence in relation to item (6) as to how it could be done bearing in mind that the problem was only in part the varying levels of the surface of the water on account of tides and river flows, but also the varying levels of the estuary bed on account of shifting sand bars. In any event, it is difficult to see what effect it would have and whether it would be seen by persons on the top of the railing about to jump or dive. Item (5) relates to the design, construction and maintenance of the bridge and for the reasons given above, I am satisfied that these aspects were exclusively the responsibility of the RTA. 79 That leaves only items (1), (2), and (4). As to (1), the failure to provide appropriate warning signs, it was submitted on behalf of the Council that the "no diving" pictograms prominently displayed and seen by the plaintiff constituted warning signs, either standing alone or read in conjunction with the "fishing and climbing on bridge prohibited" signs erected by the RTA, and also seen by the plaintiff. For the reasons detailed above in relation to the RTA, I am of opinion that the signs did not convey a warning but merely constituted a prohibition. As the plaintiff said, he understood the "no diving" pictogram to convey that he should not dive, but he "did not put any danger to it" (T 43.3). 80 Reliance was placed by the Council on 3 pieces of the plaintiff's evidence in cross-examination, set out in the Council's Written Submissions as follows: 7.15 He knew the sign was placed there by an authority as it probably saw it as a dangerous act T 98.5

7.16 He agreed the sign meant it was too shallow to dive T 98.2

7.21 He was diving and jumping from the bridge for the thrill and part of the thrill was the danger T 102.10 81 This however was not quite what the plaintiff said. What he said was that he knew the sign was placed there by an authority as it may have seen it as a dangerous act: T 98.5, the sign might mean that it was too shallow to dive: T 98.18 and part of the thrill was the risk he was taking jumping: T 103.10 (my emphasis). It should be unnecessary to state that references to the transcript in Written Submissions should be one hundred percent accurate, and not merely the advocate's paraphrase of what he or she would like them to be. Moreover these answers, as I understood them, related to how he reflected on the signs at the time of the hearing when he was being cross-examined, not how he regarded them on the day of his accident. 82 The Council was involved in the erection of the "no diving" signs in conjunction with the RTA following the concern expressed by the Council through its Manex Committee in 1992, it was the "caretaker" of the bridge for the RTA and it was the Council through its officers, particularly rangers such as Mr Previtt, who had the detailed "on the spot" knowledge of the extent of the use of the bridge for jumping and diving, as well as knowledge of the variable depths of the estuary bed due to sand movements. It also had control of traffic, particularly pedestrian traffic across the bridge. 83 In these circumstances, I am satisfied it owed a duty of care to persons jumping and diving off the bridge to warn them of the danger, and when the "no diving" pictograms proved to be ineffective in this regard and the practice continued, it was not sufficient to do nothing, but it required the provision of warning, as opposed to prohibition, signs. I am therefore satisfied that on this issue, like the RTA and on common law principles, the Council was in breach of its duty to take reasonable care. 84 The Council however seeks to rely on the provisions of Part 1A of the Civil Liability Act 2002 (the Act) on the ground that the plaintiff's action in diving off the bridge was a "dangerous recreational activity", as defined by s 5K, that the risk of harm was an "obvious" risk as defined by s 5F, that the plaintiff is therefore presumed to have been aware of the risk of harm: s 5G, and that accordingly, there was no proactive duty to warn of the risk: s 5H. 85 I can accept for present purposes that the plaintiff was engaged in a "recreational activity" which was objectively a "dangerous recreational activity"; but I am not satisfied that it was an "obvious risk". 86 "Obvious risk" is defined in s 5F(1) as "a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person". Section 5G speaks of the "risk of harm" and the "type or kind of risk even if the person is not aware of the precise nature, extent or manner or occurrence of the risk". This provision makes it apparent to me that the "risk" in "obvious risk" is a reference to the risk of harm, i.e. the injury resulting from the danger and not a reference to the danger itself, although s 5G(2) makes it clear that the precise injury, in this case paraplegia, does not need to be obvious. However, the obviousness of the risk must be judged by reference to "a reasonable person in the position of (the plaintiff)".

87 Here the plaintiff was a 14 year old who had seen a large number of persons jumping and diving off the bridge over many years, without any apparent attempt by police or Council rangers to stop them and no known cases of injury. He may have been aware that sandbars shifted (if he thought of it) and know of the variable depth of the water, but from what he had observed and having regard to his age and lack of maturity, the fact that he knew vessels passed through the channel, he looked and saw the water was dark murky green and he could not see the bottom, all of which indicated to him that the water was deep, the risk of serious permanent physical injury would not have been obvious to him, even if it would have been obvious to a mature adult. Accordingly s 5H does not apply in the circumstances of this case, and neither does s 5L which also depends on an "obvious risk" as defined in s 5F. The Council also relies on s 5M which provides that there is no duty of care in respect of a recreational activity if the risk was the subject of a risk warning to the plaintiff, but for reasons already given, I do not consider that the signs which were displayed constituted a warning. 88 The next allegation against the Council is that it failed to exercise its powers to cause the practice of jumping and diving from the bridge to cease, and this allegation is directed to the failure of the Council officers such as Mr Previtt to enforce the "no diving" and "climbing and fishing on bridge prohibited" signs, by charging offenders and/or issuing infringement notices; but s 43 of the Act provides that a failure to exercise a "special statutory power" which would include the power to enforce the prohibitory signs, does not give rise to civil liability unless such failure was in the circumstances so unreasonable that no authority having that special statutory power could properly consider the failure to exercise the power to be reasonable. 89 In view of their experiences, the difficulties encountered and the lack of success, both by council rangers and subsequently the police (who also had the use of a boat on three occasions) when attempts had been made in the past, the vast numbers of persons engaging in the activity and that any concerted attempt to enforce the prohibition would have probably required the employment of at least 2 more full time rangers (and then with only moderate prospects of success), I do not regard the failure of the Council to exercise its enforcement powers in this regard as unreasonable. See also s 44. The allegation of negligence in failing to enforce the prohibition signs accordingly fails. 90 The final allegation of negligence against the Council relate to its failure after the erection of the 1995 signs to notify and warn the RTA of the continuing practice of persons jumping and diving from the bridge and the risks of injury such practice entailed. I am satisfied the RTA had the relevant information from its own sources but, as Mr Alexander said, it "had no programme" to deal with such issues. Therefore, I am satisfied that even if the Council had notified and warned the RTA of the continuing practice, it would have made no difference to the lack of activity on the part of the RTA. 91 For these reasons, I am satisfied that the plaintiff has established a breach of the Council's duty of care to him in the failure to provide adequate warning signs notifying of the danger of diving from where he did, but not otherwise. 92 As to contributory negligence, although the plaintiff did not at the time regard the "no diving" pictogram as denoting danger, he knew it meant that he should not dive, but he deliberately disregarded it. He also knew that the depth of the water was variable, that jumping from heights could result in injury and he said that part of the thrill of diving and jumping from the bridge was the risk. He was however only a 14 year old, and the standard of care for his own safety required of him was that of a 14 year old person. It was also submitted that his companion on 31 December, Cunial had warned him not to jump when he climbed onto the railing but that was in the context where they had decided they were going to walk to the other (Tuncurry) end of the bridge and jump on the return journey to Forster. What Mr Cunial said was "not yet" (T 179.12) to which the plaintiff replied, "pretty much no, that we'll jump now" (T 173.36). 93 In all the circumstances, I am satisfied that the plaintiff was guilty of contributory negligence and I apportion his share of responsibility for his own injury at 25 per cent. Both defendants have also pleaded the defence of voluntary assumption of risk (volenti non fit injuria). What must be established for that defence is that the plaintiff not only knew of the risk or danger, but he fully comprehended the nature and extent of the risk and accepted such risk. For the reasons given above in relation to obviousness of the risk, I am satisfied that the plaintiff did not fully comprehend the nature and extent of the risk involved, and accordingly this defence fails. 94 There are Cross-claims by each defendant against the other. The RTA designed and built the bridge with the railings as constructed and thereby created the danger. It was also the authority charged with the maintenance and general control of the bridge whilst both defendants were involved in the erection of the signs and both should have done more when the signs proved ineffective to remedy the situation. However the RTA had the overall control of the bridge, the greater access to funds for matters connected with the bridge, it had created the danger in the first place and failed to modify the structure when the "no diving" pictograms proved ineffective. In these circumstances, I assess their respective responsibilities for the plaintiff's damage as 80 per cent to the RTA and 20 per cent to the Council.

95 By its Cross-claim, the RTA also claims indemnity for the damages it is liable to pay pursuant to cl 8.1 of the relevant Block Grant Agreement. That clause is as follows: 8.1 Council shall indemnify and save harmless and keep indemnified the RTA from and against all damages, costs, charges and expenses of any nature whatsoever paid, suffered or incurred by Council in respect of any action, claims, suit or proceedings taken by or incurred by Council in respect of any works carried out involving expenditure of the grant except where the RTA may itself be liable in respect of any works upon which it has sub-contracted for reward. 96 The indemnity clause has no application to the facts of this case. The design and construction of the bridge was entirely the work of the RTA and although the "no diving" pictograms were erected by Council as subcontractor for the RTA, it was not the erection of the signs that constituted a breach of the duty of care but the failure to erect other signs warning of the danger; and in any event, I have held the RTA to be itself liable in respect of such a failure. 97 There will accordingly be judgment for the plaintiff against both defendants for 75 per cent of the damages agreed between the parties and an order that the defendants pay the plaintiff's costs of the proceedings. On the first cross-claim there will be judgment for the RTA against the Council for 20 per cent of the plaintiff's judgment plus 20 per cent of the plaintiff's costs of the proceedings. Of the second cross-claim, there will be judgment for the Council against the RTA for 80 per cent of the plaintiff's verdict plus 80 per cent of the plaintiff's costs of the proceedings. As to the costs of the cross-claims, each cross-claimant should bear its own costs.

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Judgment (56 paragraphs)

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Cases Cited (5)