District Court of WA|1999-11-12

Prast v Town of Cottesloe [1999] WADC 116 (12 November 1999)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

CITATION : PRAST -v- TOWN OF COTTESLOE [1999] WADC 116

Negligence - Occupiers' liability - Whether it was a breach of defendant's duty of care to fail to warn the plaintiff that body-surfers run the risk of serious spinal injury - Risk of occurrence of such injury remote - Inherent danger of waves is obvious - Not reasonable for defendant to erect warning signs - Whether a warning sign would have prevented the plaintiff's injury - Volenti non fit injuria - Contributory negligence - Liability not established.

Anderson v Commissioner of Railways [1961] HCA 38; (1990) 105 CLR 42

Anderson v Mount Isa Basketball Association (1997) A Tort Rep 81-451

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

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Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431

State Government Insurance Commision v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997

Subramanian v Public Prosecutor (1956) 1 WLR 965 at 969

Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24

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Woods v Multi-Sport Holdings Pty Ltd, unreported; DCt of WA; Library No 990045; 24 February 1999

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Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139

1 YEATS DCJ: The plaintiff claims damages for injuries suffered on 25 February 1995 when he was dumped by a wave while body-surfing on Cottesloe Beach. As a consequence of his injuries the plaintiff has been rendered a complete tetraplegic. This trial concerns only the issue of liability on the part of the defendant Town of Cottesloe.

2 The plaintiff brings his case based on three causes of action.

1. Occupier's liability under the Occupier's Liability Act 1985.

3. Breach of statutory duty arising from the provisions of by-law 10 of the defendant's By-laws Relating to Beaches, Reserves and Other Matters made on 7 August 1963: Government Gazette No 2292.

3 The defendant denied negligence and pleads voluntary assumption of risk (volenti non fit injuria) and contributory negligence on the part of the plaintiff.

4 The defendant is a municipality constituted pursuant to the provisions of the Local Government Act 1960. Cottesloe Beach comprises Reserve No 13718 created pursuant to s29 of the Land Act 1933 and vested in the defendant municipality. Cottesloe Beach is depicted on the site survey plan Exhibit 18. The reserve extends from Mudarup Rocks (on which the groyne was built in the early 1960's) at the southern end of the beach to Napier Street at the North. Marine Parade on the east and the low water mark on the west comprise the east/west boundaries of the beach. What is referred to as a pylon or "bell" is a landmark feature of Cottesloe Beach located in the water close enough to shore to be useable by swimmers as a marker. On the Site Survey Map of Cottesloe Beach, Exhibit 18, this feature is referred to as "the bell" and I will adopt that nomenclature.

5 Exhibit 18 shows the position of the Indiana Tea Rooms and I note that in February 1995 those tea rooms had not yet been constructed, although there was a building on that site.

6 The defendant municipality enjoys four kilometres of beach frontage on the Indian Ocean on which three popular beaches - Cottesloe, North Cottesloe and Swanbourne - are located. Of those, Cottesloe Beach is a particularly popular beach used by beachgoers during all seasons of the year. In its 1978 document "Cottesloe Beach Report: A policy document on guidelines for the maintenance, usage and restoration of Cottesloe Beaches" (Exhibit 2) ("the policy report"), the chief attraction of the defendant's beaches was noted as being "civilised ... having amenity, safe bathing and easy access".

7 In 1978 the defendant adopted the policy of developing and maintaining the two major bathing areas of Cottesloe Beach and North Cottesloe Beach "as areas of the beach reserves capable of withstanding heavy pedestrian use and requiring a high level of amenity, permanent access, adequate parking facilities and accessibility to public transport". (Exhibit 2, p32) The policy report recognised the metropolitan significance of the beaches and included a study conducted of beach users during three days in January 1976 when it was found 80 per cent of beach users were aged under 29 years and 73 per cent of beach users came from outside the local area. (p55)

8 The policy report considered Cottesloe Beach and North Cottesloe Beach together and said:

"This area contains the Cottesloe beaches that are known throughout Australia. The major recreational uses are body-surfing and fishing.

At the south there are the protected waters of Cottesloe Beach groyne and the surfing areas which extend about 300 metres north of the groyne.

A reef extends from John to Napier Streets and another popular but not as safe surfing area, follows (Peter's Pool). The next bathing area is North Cottesloe beach, some 300 metres north. The intervening area consists of reef and is used for skin diving and, in the winter, for surf fishing. North Cottesloe beach swimming area is a gap in the reef, something less than 50 metres wide. It is considered one of the better body-surfing beaches." (p65)

9 The 1978 policy report did not address the issue of safety procedures on the beach reserves. It was primarily concerned with conservation, preservation and development of the beaches. It was primarily concerned to avoid degradation of the beaches, not the safety of beach users.

10 In June 1995 the defendant adopted a further beach policy based on a review of the 1978 policy report; its aims and objectives were restated and updated. Although June 1995 is some three months after the plaintiff's accident, the 1995 policy report (Exhibit 38), is in my opinion relevant because of its relationship with the 1978 policy and its relative contemporaneity with the accident.

11 In 1995 the beach policy referred to Cottesloe's beaches as collectively comprising "Perth's premier beach front". One of the principles adopted in the 1995 beach policy was:

"The Council has care and control of the reserve in order to facilitate a wide range of recreational opportunities for the West Australian community. This usage is not limited to Cottesloe residents, but includes all West Australians, as well as interstate and international visitors. As such, Council has a responsibility to ensure that the reserve is varied in its focus, meets safety requirements and makes appropriate provision for conservation where required. Further, the beach front should be accessible to as wide a range of people as is possible and the beach users have the right to enjoy the environment free from nuisance. Such usage should within the limits of the capacity of the reserve, including the capacity of the Town of Cottesloe to resource and maintain the Reserve." (Exhibit 38, p2)

12 The 1995 beach policy recognised the use of the beach area "for extended hours from early morning till late evening" and recognised the increased level of usage since 1978. So far as Cottesloe and North Cottesloe Beaches are concerned the defendant's 1995 policy was:

"The Cottesloe and North Cottesloe Beaches are designated as the main swimming beaches within Cottesloe. Council will provide a beach inspection service primarily at these two beaches. Council recognises that many people use other swimming areas along the coast and will endeavour to ensure that appropriate signage relating to safety and regulations is in place. In accordance with this, Council will provide public amenities including toilets and change rooms at these two beaches." (Exhibit 38, p7)

13 In the Civic Centre News, a publication of the defendant, the Mayor wrote in November 1991 of the uses demanded of the defendant's beaches. Among those uses he included "Swimming and Surfing involving Dippers and Paddlers, serious swimmers ... body-surfers and surf board riders of various classes". (Exhibit 40, p3) The Mayor mentioned the defendant's efforts to ensure the varied uses of the beach are adequately controlled and its use of beach rangers and surf clubs for safety patrols.

14 Since 1978 the defendant has accounted for work done on beach reserves and associated parking areas separately from all other council income and expenditure. This practice arose because of its insistence that State government grants and funding supplement the resources available from local ratepayers for what are recreational facilities for a much wider population.

15 While the defendant expends considerable funds on direct and indirect beach maintenance costs it also earns considerable income from commercial activities on the beachfront. The defendant stated in the December 1995 edition of Civic Centre News that its income-generating activities fund approximately 74 per cent of the annual beach maintenance costs. (Exhibit 40)

16 A budget summary (Exhibit 9) summarising the defendant's 94/95 budget and 95/96 budget was tendered by consent. The budgets for those years were tendered as Exhibit 11 and Exhibit 12 respectively. These documents show a total council income of $4,005,047 and total council expenditure of $4,156,118 in 94/95. Beach patrols and inspection were budgeted as expenditure of $34,500. During 94/95 the defendant received 4.67 per cent of its income from the beaches while beach costs accounted for 7.16 per cent of its expenditure.

17 The defendant's expenditure on beaches increased markedly in the 95/96 budget. The defendant's total income was budgeted at $4,569,855 while total expenditure increased to $6,224,367. Costs of beach patrols and inspection increased to $39,584. During 95/96 the defendant received 4.76 per cent of its income from its beaches but beach expenditure accounted for 10.98 per cent of the defendant's expenditures.

18 There was no evidence that the defendant has ever formulated or developed any policy on beach safety. Nonetheless there was a considerable amount of evidence of activities undertaken by employees of the defendant for the purpose of beach safety.

19 Sections 180 to 193 of the Local Government Act confer power on a municipality to manage beaches and reserves within the boundaries of the municipality and to make by-laws for the safety, decency, convenience and comfort of persons in respect of bathing. Pursuant to that power in 1963 the defendant made By-laws relating to Beaches, Reserves and Other Matters (7 August 1963 Government Gazette 2292). (Exhibit 1) The By-laws apply to all of the reserves or beaches in the municipality and to the adjacent waters of the sea for a distance of 200 yards (now metres) seaward from low water mark at ordinary spring tides. By-law 10 is headed "bathing" and is in these terms:

(i) Within the portions of the defined area in which life saving services are provided the authorised person who first commences duty each morning during the patrol season approved by the Western Australian State Centre of the Surf Life Saving Association of Australia and during any additional period for which the Council may maintain its paid Beach Inspector on duty shall, immediately upon commencing duty, select what in his opinion is the safest and most suitable part of the patrolled area to be set aside as a bathing area and shall thereupon define the limits of such bathing area by erecting at each extremity thereof a red and yellow patrol flag at least thirty inches square ... .

(ii) The erection of such patrol flags ... or their re-erection as hereinafter provided, shall set aside and define the bathing area for the time being and denote that an officer of the Council appointed as a permanent beach patrol or as the case may be, a surf life saving club, is providing life saving services in that area.

(iii) If at any time, having regard to prevailing conditions, an authorised person is of the opinion that the limits of the bathing area should be altered, he may remove such red and yellow diagonal patrol flags ... and re-erect them in another position within the patrolled area.

(iv) If at any time having regard to prevailing conditions an authorised person is of the opinion that conditions within the bathing area are so dangerous as to warrant that action, he may close the beach by removing such patrol flags ... and erecting in a central position within the bathing area a notice that the beach is closed to bathing. ...

(v) During any time life saving services are not provided in the bathing area, an authorised person shall remove the patrol flags ... hereinbefore specified."

20 By-law 14 enables the defendant to appoint any of its members or employees to be beach inspectors under the By-laws. Evidence was received from two beach rangers who, as part of their duties, enforce the by-laws. While they are involved in beach safety enforcing the 1963 by-laws they are acting as beach inspectors under the by-laws. Duty statements of a beach ranger were received as Exhibit 5. The defendant's beach rangers were required to be strong swimmers with sound knowledge of life saving techniques and must hold a bronze medallion in surf life saving. Among the beach rangers key responsibilities were these: "Effects the sighting (sic) and enforcement of safe bathing areas" and "Liaises with surf clubs."

21 Mr David Roper had served as a beach ranger at Cottesloe from 1991 until October 1996. He had a background in surf life saving; he obtained his bronze medallion in Sydney in 1960 and had been associated with surf life saving clubs ever since, joining the Cottesloe Surf Life Saving Club in about 1988 or 1989. Mr Roper understood his duties as a beach ranger encompassed beach safety as well as a number of duties under the Dog Act, the Litter Act, off-road vehicles and parking.

22 Mr Roper's duties effecting the siting and enforcement of safe bathing areas only arose while he performed duties as a beach inspector. These duties involved signage placed in areas of the beach considered unsafe for swimming. Part of the duties of the beach rangers was to observe surf conditions and beach conditions and to warn beach users of unusual dangers as they developed. If there was an area of exposed reef the beach ranger had a sign "Danger, Rocks" which could be posted to warn swimmers. Likewise there were signs "Danger, Swimming Prohibited" for use if there were areas of the beach considered unsafe for swimming. Most often a portion of the beach was closed for swimming when a rip formed in the area of Cottesloe Beach known as Peter's Pool, some 200 metres north of the bell. A rip might be there for an hour or so and Mr Roper would exercise his powers under the By-law to close that area to swimmers because an inexperienced swimmer might be swept out to sea in the rip. Mr Roper admitted that if the beach ranger saw a need for other signs to be made there were processes in place to make arrangements with the defendant's corporate services manager for the manufacture of such signs.

23 Evidence was also received from Mr Ronald Marriott who is currently the beach ranger at Cottesloe Beach. Mr Marriott had been a member of the Cottesloe Surf Life Saving Club for 40 years. He said the prime function of the club was for water safety on Cottesloe Beach. For that purpose in the morning club members set red and yellow flags delineating the safe swimming area which was patrolled by club members dressed in a T-shirt identifying them as life savers. Mr Marriott said the safe swimming area was chosen after looking for any exposed reef or rocks and after considering surf conditions and any rips that might form. Mr Marriott gave the example that when a north westerly wind blew a rip would often form against the groyne and that area would then be avoided for swimming. He also confirmed that the danger of a rip was that swimmers might be swept out to sea.

24 Mr Marriott said the beach rangers normally work from 6.00 to 2.00 pm daily and conceded that many swimmers attended later in the afternoon and into the evening. Cottesloe Surf Life Saving Club members patrolled the beach on weekends and holidays during the beach season and usually remained until about 5.00 or 5.30 in the afternoon.

25 Mr Marriott identified a photograph of signs placed on Cottesloe Beach in an area south of the bell and south of the Indiana Tea Rooms (Exhibit 26A-B) and confirmed that the group of six warning signs had been on the Cottesloe Beach for a number of years and remain there today. The position of the signs is marked on Exhibit 18. Those signs prohibit animals, surf boards and spear guns on the beach and prohibit diving from the bell as well as warning swimmers of danger when diving from the groyne and to be aware of breaking waves on the groyne. There was evidence those signs were not in position in February 1995. At that time there were signs in position prohibiting dogs and surfboards. In 1985 by resolution the defendant adopted a policy governing surfboard control on its beaches (Exhibit 3). During the beach season from 1 October to Easter hardboards were completely banned from the Cottesloe groyne north to the boundary of the municipality at North Street. "Foamies" were allowed, subject to the discretion of authorised persons to ban the use of foamies if it were considered such appliances will be a danger or unreasonable inconvenience to the swimming public. Double sided signs "Surfboards Prohibited" were to be utilised seasonally to give effect to the defendant's policy on surfboards.

26 Mr Marriott also identified signs placed by the defendant on other areas of its coastline warning of dangerous rips and reefs and warning of an unstable cliff face. He indicated the latter sign had been placed there a few years earlier following the tragedy at Cowaramup when a cliff face collapsed on surfers. Mr Marriott said many signs are vandalised or lost in storms and so may not always be in place.

27 Mr Marriott gave evidence that in his experience Cottesloe Beach was the safest of the defendant's beaches. He said North Cottesloe Beach had quite a nasty shore break while Swanbourne is "a fairly dreadful beach for elderly and young kids because of the severity of the shore break and dumping waves". Mr Marriott considered other popular metropolitan beaches at City Beach, Scarborough and Trigg but believed those beaches were not as safe as Cottesloe Beach.

28 The plaintiff is a 34 year old man who is presently unemployed. At the time of the accident he was 29 years old and working as a sales executive selling computers. He was born in Melbourne but moved with his family to Perth when he was 4 years old. The family lived in Nedlands for a time but moved to Melville where the plaintiff grew up and remained living with his family until aged 21 when he was married.

29 The plaintiff learned to swim over the Christmas holidays when he had lessons at a Fremantle pool. He gained his Junior and Intermediate Swimming Certificates. His experience of the ocean was gained mainly at Port Beach but occasionally at Cottesloe Beach on swimming outings with is family. His father taught him not to swim within two hours of eating and not to swim at midday because of the risk of sunburn. As a child the plaintiff was not allowed to venture out beyond waist deep water. The family also enjoyed summer holidays at Prevelly Park in Margaret River where the plaintiff swam in the mornings in the ocean and followed the same rules his father had taught him.

30 During his high school years the plaintiff received further swimming instruction in the school pool but no instruction on ocean swimming. He visited Rottnest with the YMCA during Christmas holidays. On that occasion there were a number of rules: - to swim between the flags, not to swim out of your depth, not to swim in rough conditions and not to swim alone. On no occasion did the plaintiff receive any instruction on assessing waves.

31 The plaintiff met Gina Sammut in 1980 at age 15. They generally swam together at a pool at her home. They were married in 1986. They visited the beach only occasionally. Under cross-examination the plaintiff admitted that prior to his accident he had swum at Cottesloe Beach about six times in the 12 months prior to the accident. Over the past 10 years he admitted he had swum at South Cottesloe about six times, at North Cottesloe once, once or twice in Puerto Rico, six times at Manly Beach in New South Wales, once at Bondi Beach in New South Wales, three or four times at Palm Beach in New South Wales, six times at Margaret River, two or three times at Yallingup, three or four times at Port Beach, once at Wollongong Beach, New South Wales, once at Nowra Beach, New South Wales, once at Port Stevens Beach, New South Wales, three or four times at the Gold Coast in Queensland and three or four times at Noosa in Queensland.

32 Of those beaches the plaintiff admitted he had body-surfed at Cottesloe Beach, in Puerto Rico, at Manly, Bondi, Palm Beach, Wollongong, Nowra and Port Stevens Beaches in New South Wales, at Noosa and on the Gold Coast in Queensland as well as at Margaret River, Yallingup and Port Beaches in Western Australia. The plaintiff admitted that if he went to the beach and the conditions were right then he would body-surf. He assessed whether or not it was too rough. If it was too rough he did not body-surf. The plaintiff said he knew if he body-surfed in rough conditions he could be injured if he were dumped.

33 The plaintiff and his wife spent two or three years in Sydney in the late 80's and returned to Western Australia in 1991. He described himself as a workaholic during those years. He and his wife separated in 1994 and he moved to Cottesloe, first living in Marine Parade and, later in John Street, where he was living at the time of the accident. While living in Cottesloe the plaintiff took up jogging along the beach on the promenade; he swam at South Cottesloe and at Cottesloe Beach and body-surfed a few times.

34 25 February 1995 was a warm Saturday in Perth. The plaintiff had spent the previous evening at his girlfriend Michelle Lindley's home in Subiaco. On Saturday Michelle joined him in Cottesloe for shopping and a late lunch before the two set off on a lengthy bicycle ride to the North Mole and back to John Street. They decided to go for a swim at about 5.30 or so in the afternoon. They had had no alcohol or drugs of any kind during the day.

35 Conditions at Cottesloe Beach at the time of the accident were calm and mild. Weather Bureau information (Exhibit 7) showed that the temperature at 6.00 pm that day was 24.9 degrees Celcius with an east-south easterly wind blowing at 17 knots per hour. Three photographs taken a short time after the accident (Exhibit 16) by Brett Christian, the editor of The Post Newspaper, show the mild conditions on the beach at the time. Mr Christian had been swimming at Cottesloe Beach a short time earlier that day and he described conditions as warm and humid with no sea breeze and a very slight swell. Michelle Lindley said the sea was very calm with no wind and very small waves, 30 to 60cm or smaller. The ambulance officer who attended at 6.42 pm after the accident described it as a nice, calm day at the beach; she was surprised that the waves did not appear to be large.

36 These calm and mild conditions were confirmed by information from the deep channel wave rider buoy positioned some 30 kilometres off Cottesloe Beach. The wave rider buoy automatically records the sea and the swell. The charts (Exhibit 6) depict that information for the period 17 February to 28 February 1995 and show the total wave height in metres. At 6.00 pm on 25 February 1995 the chart shows a total wave height of less than one metre. The charts in Exhibit 6 appear somewhat misleading in the apparently significant surge in wave height on 24 February 1995 but when one looks at Exhibit 13 and Exhibit 14 which contain sea and swell readings from the deep channel wave rider buoy for a full year, that surge to over one metre appears to be a normal, regularly occurring event at that time of year.

37 Mr Ian Eliot, a coastal geomorphologist, gave his expert opinion based on the weather conditions and information from the wave rider buoy that "the general wave conditions on the day and at the time ... were mild".

38 The plaintiff and Ms Lindley gained access to the beach by walking down John Street, crossing Marine Parade at a cross-walk and then proceeding down a bitumen path past the showers and on to the sand. The bundle of photos, Exhibit 19 depicts the course of their walk and shows the features observed as they gained access to the beach. The photos were taken on 16 March 1998 after the Indiana Tea Rooms were built. I note that the Tea Rooms had not yet been built at the time of the accident.

39 The only signs the plaintiff and Ms Lindley encountered were the signs "Surfboards Prohibited" and "Dogs Prohibited". On the day the plaintiff had his room-mate's boogie board with him. He noticed swimmers with boogie boards swimming 30 or 40 metres along the beach to the north but decided not to use the boogie board because he preferred to swim with Michelle. He also noted that there were no flags in place marking a safe swimming area and that no surf life savers were on duty.

40 The plaintiff said the ocean was beautiful that day when they walked down to the water. The waves were small, just one or two feet. The plaintiff and Michelle entered the water and swam out around the bell before swimming back toward shore and body-surfing a few waves near the shore line directly in front of the bell.

41 The plaintiff described body-surfing as "catching a wave and swimming with the wave until the wave sort of takes you along in its momentum towards the shore". He said he did this in waist deep water and some 20 people were in the immediate area doing the same thing.

42 After about half an hour they decided to go and that is when the accident occurred. The plaintiff caught a wave towards shore, a wave he said was no different in appearance from any other wave he'd caught that afternoon but, in a split second, he went down in the water and hit his head on the bottom. The plaintiff said that when the wave cast him downward there was no evasive action he could take. Before he knew he was in trouble he had broken his neck. He said it happened in a split second, within seconds of him commencing to ride the wave. He never felt he was in the grip of the power of the wave. He could see nothing he could have done to escape.

43 The plaintiff found himself face downward in two or three feet of water, fully conscious but paralysed - unable to move. Fortunately Ms Lindley was nearby. Instead of surfing on the wave that dumped the plaintiff she chose to dive through it and then to make her way to shore. She promptly saw that the plaintiff was in difficulty and was able to turn him over and bring him to shallow water. The beach was too steep to bring him up onto the sand. They had to wait for the ambulance's arrival some time later at 6.42pm. Photographs of the scene (Exhibit 16) were taken by Brett Christian while the ambulance was at the scene. Ambulance officers were able to place the plaintiff on a stretcher and to carry him to the ambulance. The plaintiff was taken to Sir Charles Gairdner Hospital. The medical report Exhibit 10 shows his injuries involved a fracture dislocation of the fifth cervical vertebrae resulting in complete tetraplegia.

44 The plaintiff marked Exhibit 17 to show the approximate location where the accident happened. He said the sandy portion of the beach was quite narrow that day. The accident happened on a line between the bell and the showers about one third of the way from the showers. The location was also marked on Exhibit 18, the site survey plan of Cottesloe Beach.

45 The plaintiff gave evidence that he was not aware that he was at risk of serious spinal injury while body-surfing. He was aware of spinal injuries because his wife Gina had been a trainee nurse and had worked at the spinal unit at Shenton Park. But the plaintiff said he believed spinal injuries happened to people who rode motor bikes or played rugby union. The plaintiff said he had never heard of anyone suffering a spinal injury or even any lesser injury like bruising or abrasions on Cottesloe Beach. The plaintiff said he is a very safety conscious person and is very responsible for his own health and safety. He drives a Saab because it is considered to be a very safe car; he wears a helmet when bicycling and always bicycles on a cycle path. When he flies he always flies Qantas because it is considered to be a safer airline. He reads the safety card and notes the exits when flying. He never engages in contact sports because of the risks associated with them.

46 The plaintiff gave evidence that if he had known that you could seriously injure yourself body-surfing he would not have body-surfed. He would have gone swimming that day but would not have engaged in body-surfing. Under cross-examination the plaintiff described body-surfing as fun. He agreed that body-surfing involves swimming towards shore as a wave approaches, trying to get up to the speed of the wave and hoping the energy of the wave will carry you into shore. The plaintiff admitted that being dumped involves losing control so that the wave takes control completely of his movements and involuntarily forces him into the seabed. The plaintiff admitted he had been dumped as many as 12 times on previous occasions while body-surfing. On those occasions his arms and back struck the ocean floor. He said the last times he hit the ocean floor he was a child aged 8, 9 and 10 and that the dumpings occurred at Port Beach and at Margaret River.

47 The plaintiff accepted that he knew that if he body-surfed he could be dumped or grazed. He accepted that risk. But he did not know he ran the risk of serious spinal injury while body-surfing. If he had known that he would not have body-surfed.

48 Under cross-examination the plaintiff agreed that if there had been a sign on the beach which read "Persons body-surfing run the risk of serious spinal injury by reason of the condition of the surf and the seabed", in the mild, calm, conditions prevailing on Cottesloe Beach, he would have been prepared to swim but he would not have body-surfed. The plaintiff said he had no desire to do anything that might cause him any injury and if he had been aware that what he was doing could have caused him a serious spinal injury he would not have done it.

49 Expert evidence was received from Mr Ian Eliot, a coastal geomorphologist who is interested in and has studied the shape of beaches and the manner in which they change. He said in evidence:

"The engineering fraternity, for some time now, have recognised four types of breaking wave. The first one is probably one that occurs most commonly under very high energy conditions or on very flat beaches where the sediment is very fine and that is a spilling breaker. In a spilling breaker, the wave peaks and then breaks by crumbling down the face of the incoming wave. It forms a distinct surf bore and its the sort of wave that is most commonly ridden by body-surfers. The second type of breaker is one that I said earlier was referred to as a tube wave or a plunging breaker or as a dumper. It is one where the incoming wave crest seems to go a little faster than the base of the wave - that's one of the arguments for the way in which it breaks - so the wave turns over on itself and plunges. In the first one you can say the energy is being dissipated through the motion of the bore. In the second case, with the plunging breaker, the energy is dissipated fairly explosively by the downward drop of water.

The third and fourth types of breakers are those that occur on very low energy conditions, like the conditions shown in the photographs (Exhibit 16), where a wave retains its form until its very close to the beach or actually at the shoreline and then it shoots up the beach. That form of wave, shooting up the beach, is referred to as a surging wave. That sort of wave will have a high degree of wave reflection because energy is conserved until you're at the beach face itself. So it runs up the beach with an explosive shunt and then most of it is reflected back off the beach and moves off seaward. The other one, between the surging and the plunging, I suppose is one that's referred to as a collapsing wave and that is where the wave steepens as if its going to - it comes in and the energy is retained until close to shore. The wave forms as if its going to turn into a surging breaker and then just sort of collapses at the bottom of the beach and it collapses largely due to interference from a previous wave coming back off the beach. So its a case of interference. I think you can lump the third and fourth categories together. In fact a lot of engineers and a lot of coastal geomorphologists tend to. So the extreme conditions are really represented by spilling breakers at one end and by surging waves at the other end, the ones on the beach face - and the spilling ones being some distance away from the beach face."

"The principal qualities of the dumper are simply that the wave crest is curling over and dropping downwards into the water. So it has a lot of air entrapment, a lot of noise, a lot of turbulent diffusion of the energy set that's coming down."

51 Mr Eliot considered two matters and discounted each of them as having any effect on conditions at Cotteloe Beach at the time of the accident. The first was Cyclone Bobby; it had crossed the Pilbara coast north east of Onslow at 6.00 pm on 24 February 1995. Mr Eliot noted that its only effect on coastal conditions at Perth was to reinforce the off-shore wind flow of the anticyclone.

52 The other matter was the groyne. It had been constructed on and abutting the Mudarup rock platform in the early 1960's. In its 1978 beach report the defendant had noted:

"The groynes at Cottesloe beach and Beach Street were built to increase the sand areas on the beach and to inhibit the affect (sic) of wave action in removing sand from Cottesloe's beaches.

It would appear that their overall affect (sic) may not have been beneficial, as considerable recession of the coastline is evident to the south of both groynes.

A professional opinion on the past, present and future affects (sic) of these groynes is required." (Exhibit 2, p97)

53 Mr Eliot gave evidence that major adjustment to installation of the groyne would have taken place in the first few years following its construction. In his opinion the existence of the groyne would not have been a factor contributing to the plaintiff's accident. Mr Eliot said that the effect of the groyne in late summer was to create relatively calm conditions on its northern side, sheltering the beach from the prevailing south west winds. He went on to say that a relatively steep beach face (the slope from the dry beach to the water) and low surging waves in the lee of the groyne gave way to a flatter beach with surging and plunging breakers on the more exposed beach seaward of the Indiana Tea Rooms.

54 Mr Eliot pointed out that in the area where the plaintiff was injured the wave pattern is modified by a reef close to shore. He considered information from the weather bureau, readings from the deep channel rider buoy and the particular contours of the location where the plaintiff was injured and said:

"Under the prevailing offshore winds only the swell recorded at the wave rider buoy station affects the shoreline, since most of the wind waves are moving away from the coast. The swell waves would attenuate as they travelled from the position where they were recorded to the shore at Cottesloe Beach. Thus wave heights would be lower, with significant heights less than 1.0 metres, at the time of the accident. They would break close to shore, in less than 1.5 metres of water (waist to chest depth), and expend their energy by plunging (dumping) and/or surging up the beach. In the latter instance the waves would be reflected from the beachface to interfere with incoming swell." (Exhibit 20, para 13.)

55 Mr Eliot said that this was consistent with conditions observable in the photographs Exhibit 16. Furthermore, Mr Eliot said that conditions prevailing at the time of the accident occur frequently through the summer months.

"There would have been plunging and surging breakers, as commonly occur throughout summer on Perth metropolitan beaches, including Cottesloe. From my research experience I can say that waves breaking by dumping at the shore are often associated with the summer weather conditions that attract large numbers of people to metropolitan beaches in WA." (Exhibit 20, para 16.)

56 Under cross-examination Mr Eliot confirmed that the waves coming in at Cottesloe Beach that day would change from minute to minute. He also confirmed that wave rider buoy information is now instantly available by e-mail but, in 1995, that information was only available when the Department of Transport downloaded the buoy, possibly monthly.

57 Besides the plaintiff's evidence of his experiences being dumped by waves there was a good deal of evidence from other witnesses. Mr Eliot described the experience for a body-surfer caught in a large dumper wave as like being in a washing machine. Mr Marriott was also knowledgeable about waves. He described three different types of waves: - surging waves, plunging waves and spilling waves. Mr Marriott said the spilling wave was best for surfing and the plunging wave is really a dumper. He said that if caught by a dumper when body-surfing you can be thrown forcibly downward, and Mr Marriott said he had himself been dumped by waves on occasions. Ms Wallace, the ambulance officer, had also experienced being dumped by a wave when swimming. She agreed with Mr Eliot's description as feeling like you were in a washing machine. She said she had been dumped at beaches and had attended persons who had been dumped at beaches.

58 Mr Christian had been a regular swimmer at Cottesloe for 20 years. He had visited the beach between 5.30 and 6.00 pm on the day of the accident for a swim. When he tried to catch a couple of waves he realised the waves looked okay but were actually dumpers. By a dumper he meant a wave with no water under it. He said a dumper curls and breaks sharply and there is simply sand under it. Mr Christian noticed when he was body-surfing that the man beside him got pretty badly dumped.

59 Mr Christian described how he body-surfed that day. As the swell came in it reached the shallow bottom and began to break. At that point, to catch the wave, you leap ahead of it and swim with it. But these particular waves were then curling at the top and breaking very sharply. He said there was quite a nasty break.

60 Mr Christian had the advantage of being taught to body-surf by his father and having had instruction at school about the shape of various waves including how dumpers formed and what they did. Mr Christian remembered being dumped a number of times in his lifetime but said it had not happened in the past 10 years as he could recall it. He had been dumped since he was grown so that he had lost control but on those occasions no portion of his body had ever struck the sea floor.

61 Over the objections of defence counsel the plaintiff tendered in evidence a number of beach rangers daily logs and monthly reports. These documents were objected to as hearsay. The beach rangers admitted that occasionally they recorded events they had not witnessed and events they were told about. In a number of cases the beach rangers no longer had any recollection of the incidents they had recorded in their reports. Some of the reports were tendered without the maker of the report being called as a witness. Despite objections I received the documents into evidence not as proof of the truth of their contents but as evidence of the fact that the reports were made and as evidence of the knowledge or understanding of the defendant's employees who made the reports at the time they were made (Subramanian v Public Prosecutor (1956) 1 WLR 965 at 969).

62 A number of the incidents were of no evidentiary value because the log gave no indication of how the incident occurred. No witness was called who had observed the incident. For example a neck injury (Exhibit 29), a spinal injury on 12 January 1992 involving Pierre Cardin (Exhibit 36), and a spinal injury on 6 December 1992 (Exhibit 36) gave no indication of whether the injured person had been swimming or body-surfing or even in the water when injured.

63 Some need for caution is called for in those cases where "spinal" injuries associated with body-surfing are recorded in the daily log or monthly report. Mr Roper said that the rangers were advised through training in the Surf Club that if anyone complains of a neck injury and is unable to move freely they were to be treated with kid gloves. That approach is understandable but it leads to the result that I have no evidence as to whether any of the suspected spinal injuries to body-surfers turned out to be serious or permanent. There was some evidence to the contrary. The beach ranger's report for 15 February 1984 (Exhibit 39) noted:

"One of our First Aid cases was a young boy with a spinal injury after going head-first into the sand. He was later transferred to Fremantle Hospital where everything is reported to be alright."

64 It appears from this report that what was thought to be a spinal injury may not have been one.

65 Following are the incidents where it could be inferred that body-surfers were injured in the course of body-surfing and those incidents were recorded in the daily log or monthly report:

(1) On 28 February 1992 the beach ranger's daily log showed a few first aid cases needed treating in the evening mainly resulting from body-surfing accidents with the increased swell. On that same day the log showed that a man was treated for a fractured skull sustained in a body-surfing accident and taken to hospital by ambulance (Exhibit 36).

(2) On 23 April 1993 Mr Roper noted in his daily log that a male had a suspected spinal injury after being dumped on the beach by a wave at 2.30 pm and was taken by ambulance to Fremantle Hospital. Although the report does not say whether the man was body-surfing or not, the inference fairly rises that he was. Although Mr Roper did not witness that accident he remembered the man was a large man and was lying up on dry sand and experiencing very cold conditions so a blanket was brought for him. Mr Roper said that that accident happened in front of the bell (Exhibit 22).

(3) On 13 November 1993 Mr Marriott recorded that a female was dumped by a wave and required hospital treatment for concussion and shock (Exhibit 27). Again the reports do not say whether the woman was body-surfing or not but the inference fairly rises that she was. The incident was recorded in both the daily log and the beach ranger's monthly report.

(4) On 25 December 1993 the beach ranger's daily log stated that a man suffered a dislocated shoulder after being dumped and that he was sent to Sir Charles Gairdner Hospital. Again, the report does not say whether the man was body-surfing or not, but the inference fairly rises that he was. That daily log showed an estimated 5000 persons were at Cottesloe Beach at 12.15 pm on Christmas Day 1993. (Exhibit 36.)

66 There were two bundles of beach ranger's daily logs (Exhibit 35 and Exhibit 37) concerning events which occurred after 25 February 1995. I do not consider those documents to be relevant to the issue of the defendant's knowledge at the date of the injury, but the reports provide some interesting information. The format of the reports changed considerably after the accident. Mr Marriott explained that they had a change of senior rangers and the new ranger from Cambridge brought this form with him and began using it. The detail on the form includes such things as weather conditions, beach conditions including "wave type". The reports show that on 3 February 1998 a girl was treated for abrasions to the upper legs and hands and some shock but there is no indication as to whether she had been body-surfing or even swimming at the time. On 29 October 1998 a Year 9 girl from MLC was rescued after being caught in a rip; she was treated for slight abrasions and shock and exhaustion. There is no indication she was body-surfing. On 21 November 1998 the daily log indicates that a Nedlands man dislocated his shoulder and was released to ambulance officers. Again nothing in that report indicates whether he had been swimming or body-surfing at the time. The daily log for 7 April 1999 showed that a man was dumped on a shore break and dislocated his shoulder and sent to hospital. One assumes "dumped" means dumped by a wave but it is unknown if he was body-surfing. On 5 June 1999 a surfer required stitches for his cut head and also a dislocated knee. Those were listed as surfing accidents and at that time of year, in June, the accidents could well have happened while persons were using hardboards for surfing. There is no indication there was any body-surfing involved.

67 Exhibit 37 was another bundle of daily logs covering events after the date of the accident. On 26 December 1997 the report noted someone experienced a shoulder problem after being dumped. Again one assumes that means dumped by a wave but it is unknown whether the person was body-surfing. On the other hand on 31 October 1998 the daily report noted a male body-surfer with suspected spinal injuries released to the ambulance. That clarifies that the injury resulted from body-surfing but its not known whether that was a serious or permanent injury or merely a suspected one. On 1 May 1999 the daily log recorded that a man was hit by a wave coming out of the water and broke his ankle in the surf. There is no indication whether that man had been surfing or body-surfing or swimming.

68 The plaintiff's case is based upon breach of the defendant's duty as the occupier of premises under the Occupiers' Liability Act or, alternatively, as an action in negligence. Some uncertainty arose as to which cause of action should determine the rights of the parties in this case because of uncertainty as to the precise location of the accident. Reserve No 13718 comprising Cottesloe Beach extends westward to low water mark. I accept that at common law low water mark is constituted by the mean low water mark as determined by the tides (Yamirr & Ors v Northern Territory of Australia & Ors (1998) 156 ALR 370 at 384). The plaintiff marked the location of the accident on both Exhibits 17 and 18, the Cottesloe Beach Site Survey Plan. In both the site is landward of the line marked as "low water line". Yet the evidence established that the accident took place in the water, not on the sand. Thus the uncertainty arises.

69 At the end of the day it seems to me that nothing turns on this uncertainty. Wherever the accident occurred, the plaintiff came to the site from the reserve occupied by the defendant. The defendant under its regulations exercised care and control not only of the land but of the waters for 200 metres seaward of the reserve. Swimmers seaward of low water mark were constrained by rules imposed by the defendant prohibiting diving from the bell, and excluding hardboard surfers during the swimming season. The exact location of the low water mark was of no significance to the care and control exercised by the defendant.

70 A similar factual situation emerged in Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423 but nothing came of it in that case. In Nagle's case the plaintiff dived into the Basin from a position within the reserve occupied by the defendant and hit a rock located outside the reserve. That was considered to be of no consequence so far as the defendant's duty to the plaintiff was concerned.

71 For these reasons, whatever the precise location of the accident vis-a-vis the low water mark, the plaintiff entered the water from the reserve occupied by the defendant and, in my opinion, the provisions of the Occupiers' Liability Act apply.

72 In its terms the Occupiers' Liability Act replaces the rules of the common law (s4) and prescribes the duty of care of the defendant. In Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1994, the Full Court held that the common law no longer imposes the duty of care; it is now imposed by the statute. Thus when the Occupiers Liability Act applies the plaintiff's claim in negligence falls away. It is the defendant's duty of care imposed by the Act which determines liability.

73 Sections 4 and 5 of the Occupiers' Liability Act are in these terms:

"4. (1) Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers ¾

(b) to any property brought on to the premises by, and remaining on the premises in the possession and control of, that person, whether it is owned by that person or by any other person,

which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible.

(2) Nothing in sections 5 to 7 shall be taken to alter the rules of the common law which determine the person on whom, in relation to any premises, a duty to show the care referred to in subsection (1) towards a person entering those premises is incumbent.

5. (1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.

(2) The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.

(3) A person who is on premises with the intention of committing, or in the commission of, an offence punishable by imprisonment is owed only the duty of care referred to in subsection (2).

(4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to ¾

(a) the gravity and likelihood of the probable injury;

(b) the circumstances of the entry onto the premises;

(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;

(f) the ability of the person entering the premises to appreciate the danger; and

(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."

74 In Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488 the High Court adopted the approach of Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 663:

"All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of whom the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk."

75 Thus in cases of occupiers liability the existence of a duty of care, the standard of care and breach are determined by applying the ordinary principles of negligence. Those principles I believe apply to actions under the Occupiers' Liability Act. While the duty of care is imposed by statute its content is properly determined by applying the normal principles of negligence. So much is apparent from the provisions of the Act.

76 For this reason the distinction in this case between the plaintiff's cause of action in negligence and his cause of action under the Occupiers' Liability Act is, in reality, a distinction without a difference.

77 There was ample evidence to support the following findings of fact:

1. The defendant was the occupier of the reserve comprising Cottesloe Beach, one of the safest and most popular beaches in the metropolitan area.

2. The defendant encouraged the use of the beach by the placement of a parking lot, footpaths and stairways leading to it, and by providing amenities for beach users, including toilets and showers.

3. While the defendant has never developed a safety policy, it has taken steps since at least 1963 when it made its By-laws for the general control and management of its reserves to ensure that beachgoers are safe. Those By-laws provided for the designation of safe bathing areas by means of flags and empowered authorised persons to close areas of the beach when conditions were so dangerous as to warrant it.

4. The defendant used signs extensively in the control and management of the beach. Signs were used to warn of dangers such as reefs, rips and unstable cliff faces. Signs were also used to enhance the general amenity of the beach by prohibiting dogs and motor vehicles, and to protect swimmers by excluding hardboard surfers from areas used by swimmers and body-surfers.

5. The defendant employed a beach ranger to undertake a number of duties including responsibilities for beach safety under the regulations, and other responsibilities under the Dog Act, the Litter Act, and off-road vehicles and parking.

6. At the time of the accident the defendant was expending 7 to 11 per cent of its budget on the care and management of its beaches and was receiving 4.67 per cent of its income from its beaches.

7. The defendant promoted Cottesloe Beach as a safe family beach and encouraged its use by swimmers and body-surfers. It was well aware that body-surfing was a popular pastime at the beach.

78 It is surprising that among the Judges of the High Court there is not an agreed conceptual framework for determining the existence of a duty of care. Kirby J in Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 and in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 adopted a three stage test which followed the House of Lords in Caparo v Dickman [1990] UKHL 2; (1990) 2 AC 605.

"1. Was it reasonably foreseeable to the alleged wrong-doer that particular conduct or an omission on its part would be likely to cause harm to the person who has suffered damage or a person in the same position?

2. Does there exist between the alleged wrong-doer and such person a relationship characterised by the law as one of 'proximity' or 'neighbourhood'?

3. If so, is it fair, just and reasonable that the law should impose a duty of a given scope upon the alleged wrong-doer for the benefit of such person?" (Pyrenees Shire Council p419-20.)

79 Kirby J's test was warmly welcomed by some who suggested the fog was finally lifting on the prolonged differences of view in the High Court over the need for "proximity" as a determinant of a duty of care (Katter "Duty of Care in Australia: Is the Fog Lifting?" (1998) 72 ALJR 871) but Kirby J's three stage test was not adopted by other members of the High Court in Romeo's case. It was roundly criticised in the very recent decision of the High Court in Perre & Ors v Apand Pty Ltd [1999] HCA 36; (1999) 164 ALR 606 paras 77-82. In Perre v Apand McHugh J traced the demise of proximity as a unifying theme and said at para 70:

"Where a defendant knows or ought reasonably to know that its conduct is likely to cause harm to the person or tangible property of the plaintiff unless it takes reasonable care to avoid that harm, the law will prima facie impose a duty on the defendant to take reasonable care to avoid the harm."

80 Thus , under the approach adopted by McHugh J, the duty of care is to be determined primarily on the basis of foreseeability but with issues of policy arising as well.

81 In Romeo's case the majority of the High Court applied Nagle's case in determining whether the defendant owed a duty of care to the plaintiff. In Nagle's case the court said at p430:

"In this case, the basis for holding that the Board came under a duty of care may be simply stated: the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who swam in the Basin. As occupier under the statutory duty already mentioned, the Board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged."

82 In this case the defendant does not seriously suggest that it owed no duty of care to members of the public who might come to its beaches to swim and body-surf. The real subject for debate in this case is what that duty required. Based on my findings of fact I am satisfied that as the occupier of Cottesloe Beach and by promoting the beach and providing the care, management and amenity that it did the defendant was under a duty to take reasonable care to avoid foreseeable risks of injury to members of the public including the plaintiff, who use the beach for swimming and body-surfing.

83 In terms of s5(1) of the Occupiers' Liability Act the standard of care is:

"The care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall ... be such care as in all the circumstances of the case as reasonable to see that that person will not suffer injury or damage by reason of any such danger."

84 That statutory standard I find to be no different from that required by the common law. The effect of the standard is the requirement for the defendant to exercise reasonable care to avoid foreseeable risks of injury to the plaintiff. In Romeo's case Hayne J at para 155:

"In this case the Commission owed visitors who lawfully entered land which it managed, a duty to take reasonable care to avoid foreseeable risks of injury to them. But the bare fact that the risk of the injury which in fact occurred was reasonably foreseeable (in the sense of not far-fetched or fanciful) does not conclude the inquiry about the scope of the Commission's duty. The duty is a duty to take reasonable care, not a duty to prevent any and all reasonably foreseeable injuries."

85 In Romeo's case Kirby J said at para 123:

"The ordinary formulation of the common law is that a body such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the reserve, including the cliffs, as of common right. However that expression of the duty must be elaborated if it is to be of any practical guidance. The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of care required will take into account the different ages, capacities, sobriety and advertence of the entrants. While account must be taken of the possibility of inadvertence or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety.

...

In judging the measure of the duty which is owed regard will certainly be had to any particular statutory obligations or powers enjoyed by a public authority. But where as here the statutory duties are stated in general and permissive terms, the scope of the duty of care imposed by the common law will be no more than that of reasonable care."

86 The standard of care then depends upon my assessment of what a reasonable person's response to the risk in this case would be. To address that issue its necessary to make a number of findings about the particular risk in this case.

87 In this case the foreseeable risk of injury relied upon by the plaintiff is the risk of being dumped and suffering a serious spinal injury when body-surfing. Based on the evidence of the plaintiff and that of Mr Christian I find that body-surfing involves catching a wave and swimming with it until the power of the wave carries the swimmer with it into shore. When a wave begins to break as it reaches the shallower areas of the beach the swimmer "catches" the wave by leaping ahead of it and swimming with it. The fun or thrill of the activity depends on the power of the wave and on its capacity to carry the swimmer along.

88 I accept Mr Eliot's evidence that there are three main categories of waves: - spilling waves, plunging or dumping waves and surging waves. The spilling wave is the wave most commonly ridden by body-surfers and gives the best ride. The plunging or dumping wave dissipates its energy by a downward drop of water. It curls over on itself and dissipates its energy by plunging downward into the ocean floor. A surging wave retains its form until close to shore and then shoots up the beach and is reflected back seaward. When the surging wave is reflected back seaward it can interfere with another surging wave causing it to steepen and then just collapse at the bottom of the beach.

89 The evidence showed that the action of different waves can be depicted in a diagram and can be the subject of instruction such as Mr Christian received when he was a teenager, but there was no evidence that even the most experienced and well instructed body-surfer would be able to distinguish wave types without entering the water. Mr Christian received instruction about wave types as a teenager and he regularly body-surfed at Cottesloe Beach and had done so for at least the 20 years that he lived at Cottesloe. He was a very experienced body-surfer. Mr Christian swam at Cottesloe Beach not long before the plaintiff swam on the day of the accident yet Mr Christian only realised that the waves that looked okay were actually dumpers after he had entered the water and attempted to body-surf. It can be inferred from his evidence that he commenced body-surfing and only realised the waves were dumpers once he was in the water. Despite his knowledge and instruction about waves he was unable to discern a plunging or dumping wave simply by observing it.

90 The evidence established conditions and the shape and variety of waves breaking on the beach varied along the beach and depended on a number of different factors such as the height of the swell, the direction and speed of the wind, the distance from Mudarup Rocks and variations in the sand floor of the ocean as well as any reefs immediately off-shore. It would not have been possible to determine the type of waves breaking at one location at Cottesloe Beach based on the waves at another location. At each location along the shore the types of waves and how they were breaking would vary to some extent but, be governed of course by the generally mild conditions prevailing that day.

91 It is important to realise that every witness who gave evidence in the trial and had ever body-surfed gave evidence that she or he had experienced being dumped while body-surfing. The plaintiff himself said he had been dumped about 12 times as a child. Being dumped by a wave involves being caught by the energy of the wave and thrown forcibly downward. Being dumped involves a loss of control on the part of the swimmer; the wave takes control and the swimmer experiences a feeling as if in a washing machine.

92 It is apparent from all of this evidence that the very thing that makes body-surfing fun, that is, the power of the breaking wave carrying the swimmer to shore, is the same thing that makes body-surfing dangerous and creates a risk of injury for the body-surfer. Without the power of the wave there would be no thrill experienced of riding a wave; yet that same power of the wave can on occasion when the wave is a plunging wave throw the body-surfer forcibly to the floor of the ocean. The type of injury (if any) will depend upon prevailing conditions and what part of the body-surfer's body first contacts the ocean floor.

93 In his pleadings the plaintiff particularised the alleged breach of the duty of care as:

"(a) failed to give any or any adequate warning to the Plaintiff by sign of the danger of being dumped when it knew or ought to have known of the same;

(b) failed to give any or any adequate warning to the Plaintiff by sign of the danger in surfing generally and in particular as to the danger of being dumped by breaking waves;

(c) failed to give or any adequate warning to the Plaintiff by sign of the danger of the surf being dumped in a manner which might result in a severe spinal injury;

(d) failed to give any or any adequate warning to the Plaintiff by sign of all or any conditions of the beach affecting the safety in using the beach of the creating of any danger to the plaintiff using the beach;

(e) failed to take any or any reasonable care to ensure that the Plaintiff would be reasonably safe in using the beach for swimming and/or associated activities;

(f) failed to take any or any reasonable care to prevent injury or danger to the Plaintiff from the unusual dangers at the beach of which it knew or ought to have known;

(g) failed to take any or all proper measures to ascertain that the conditions of the beach were safe for the use thereof of the Plaintiff;

(h) failed to take any or any reasonable care to ensure that the Plaintiff was not injured generally and in particular was not injured by being dumped in a manner which might result in a severe spinal injury;

(i) failed to delineate the area which was safe for surfing;

(j) failed to provide supervision to ensure that safe surfing practices were adopted by the users of the beach;

(k) created and failed to remedy the hazard caused by construction of the groyne, that is to say:

(i) irregular patterns of breaking waves close to shore;

(ii) movements of the sand comprising the beach face beneath the surface into deeper waters so that waves break on or in shallow water close to the exposed sands comprising the beach itself;

(l) failed to give any or any adequate warning to the Plaintiff by sign of the hazard referred to in the previous sub-paragraph hereof;

(m) failed to perform the duties specified in paragraph 3(e) hereof as required by clause 10 of the said by-law."

94 The plaintiff provided further particulars of the warning that should have been given to him:

"The warning should have been at least in writing by way of a sign or signs sufficiently large to enable the Plaintiff to have seen it, for example 600 mm by 300 mm with a warning with words to the effect 'persons body-surfing run the risk of serious spinal injury by reason of the condition of the surf and the seabed'. The sign should have been located at least at the foot of the steps leading from the surf club building and at the foot of the steps leading from the No 1 car park and at all other paths leading down to the beach between the Cottesloe groyne in the northern council boundary, and at appropriate places on the beach itself."

95 It was conceded by the plaintiff that there was no evidence to support particulars (k) and (l). On the contrary, the only expert witness Mr Eliot, gave evidence that the construction of the groyne had no effect on the conditions at the site of the accident.

96 In further particulars the plaintiff referred to the defendant's failure to monitor beach conditions but in his submissions, when pressed by senior counsel for the defendant, senior counsel for the plaintiff put his case squarely on the failure to warn the plaintiff by signs appropriately placed of the danger of being dumped by the waves. There was no basis in the evidence for any finding of a failure on the part of the defendant to monitor beach conditions. On the day in question the beach conditions were mild with waves of less than one metre and light off-shore wind. There was no evidence of anything the defendant or anyone could have gained by monitoring such mild conditions.

97 The issue to be determined is whether in all the circumstances it was a breach of the defendant's duty of care owed to the plaintiff to fail to warn the plaintiff of the danger of being dumped while body-surfing and thereby risking serious spinal injury.

98 The defendant owed the plaintiff a duty to take reasonable care to avoid foreseeable risks of injury to the plaintiff:

"A risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable." (Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 48.)

99 I am satisfied on the evidence in this case that the defendant was aware prior to the accident through the daily logs and the reports of its beach rangers that swimmers had been injured from time to time while body-surfing. The injuries associated with body-surfing included a fractured skull, a suspected spinal injury, concussion and shock and in another case a dislocated shoulder. There was no direct evidence about the suspected spinal injury which occurred on 23 April 1993. It appears to have occurred in the same area of Cottesloe Beach near the bell where the plaintiff was injured. But the large man involved in this incident apparently made his own way from the water to the dry sand where he was observed by Mr Roper. From that it would be reasonable to infer that the man was not as badly injured as the plaintiff. Whether or not there was any permanent spinal injury is unknown. If there had previously been a case of serious permanent spinal injury suffered while body-surfing on Cottesloe Beach it was surprising that the plaintiff was unable to positively prove it in evidence. The only evidence of a serious permanent spinal injury was the evidence of his own injury. The evidence does establish that body-surfers were injured from time to time while body-surfing on Cottesloe Beach but there was no evidence other than this case of a confirmed serious permanent spinal injury to a Cottesloe Beach body-surfer.

100 Based on this evidence, although I am satisfied that the risk of serious permanent spinal injury to a body-surfer if dumped at Cottesloe Beach was remote, I accept that it was not far-fetched or fanciful. It was however an unusual occurrence. Conditions on the day of the plaintiff's accident were mild yet the plaintiff did suffer serious spinal injury. I am satisfied it was a real and therefore a foreseeable risk of injury but fortunately not one likely to occur.

101 That leads me to consider the fundamental question in this case - what a reasonable Council in the position of the defendant was required to do by way of response to the foreseeable risk of injury to body-surfers on Cottesloe Beach.

What is reasonable must be judged in the light of all the circumstances. Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring and the difficulty and cost of averting the danger will loom large in that consideration. But it is not only those factors that may bear upon the question. ... It may be necessary in a particular case to consider whether the danger was hidden or obvious, or to consider whether it could be avoided by the exercise of the degree of care ordinarily exercised by a member of the public, or to consider whether the danger is one created by the action of the authority or is naturally occurring. But all of these matters (and I am not to be taken as giving some exhaustive list) are no more than particular factors which may go towards judging what reasonable care on the part of a particular defendant required. In the end, that question, what is reasonable, is a question of fact to be judged in all the circumstances of the case." (Romeo's case per Hayne J at para 157.)

"If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." (Wyong's case (1980) 146 CLR at 47-48.)

102 Section 5(4) of the Occupiers' Liability Act lists various matters to be considered in determining whether an occupier of premises has discharged his duty of care. Those matters reflect the common law and are not intended to confine the court's consideration.

103 Senior counsel on behalf of the plaintiff contended that for a body-surfer waves are a hidden danger analogous to the submerged rocks on which the plaintiff came to grief in Nagle's case. In each of the diving cases its to be noted that some sort of physical obstruction or shallowness in the depth of the water was found to pose a danger to divers which they would not be aware of so that the occupier's duty of care required that there be warnings given. In Nagle's case the Rottnest Island Board was found to be negligent due to its failure to warn of the presence of submerged rocks for swimmers entering the Basin from the eastern rock ledge. In Curley v Fremantle Port Authority (1999) 21 SR (WA) 148 the plaintiff dived from the Palm Beach Jetty into shallow water and was seriously injured. In that case the plaintiff's point of entry to the water was some distance from the shore. The occupier of the jetty was found negligent for failing to prohibit diving from the jetty when the distance from shore was such as could lead a swimmer to believe that the water was of sufficient depth for diving.

104 In Inverell Municipal Council v Pennington (1993) A Tort Rep 810-234 the plaintiff was severely injured when he dived into a pool he was familiar with but misjudged the depth of the water. There were small signs on each side of the pool just above the water marking the depth of the water. The defendant was held liable as occupier for failing to erect signs near where the plaintiff dived warning of the need for "caution when diving" so as to bring to the plaintiff's immediate attention the necessity to ensure that the water was sufficiently deep at that point.

105 I do not find that the diving cases provide an analogy useful for this case. In the first place there was no submerged rock or misleading shallowness in this case. The plaintiff struck the floor of the ocean. It was the force of a plunging wave that propelled him into the ocean floor. I do not consider the force of a wave to be a hidden danger. Any person who body-surfs would necessarily feel the power of a wave if she or he caught a wave and was carried to shore by it. Every witness who had body-surfed including the plaintiff had been dumped by a wave and experienced the force of a plunging wave. The mere fact that, as I have found, even an experienced swimmer cannot distinguish a plunging wave from a spilling wave or a surging wave before catching the wave does not mean a plunging wave poses a hidden danger. The force of the wave is, in my opinion, both obvious and inherent in body-surfing. The force of a plunging wave cannot be equated with submerged rocks or shallow water posing hidden dangers to divers.

106 There is another feature of the diving cases that distinguishes them from this case. In each of the diving cases judicial comment was made noting the very serious consequences for divers when accidents occur. Submerged rocks and shallow water invariably lead to serious permanent spinal injury for persons who dive into such water. That is not the case with body-surfing. The evidence showed that body-surfing is a popular pastime on Cottesloe Beach. On the day of the accident the plaintiff was among a group of 20 or so swimmers body-surfing in his vicinity at Cottesloe Beach at the time of the accident. None of the others came to grief on any plunging wave that day. Yet the evidence showed that the waves that day were plunging waves and surging waves. Nor was there any evidence of anyone ever before suffering such serious and permanent injury at Cottesloe Beach as the plaintiff unfortunately suffered in this case. While the plaintiff has suffered an injury as serious as those injuries suffered in the diving cases, the risk of injury associated with body-surfing because of the force of plunging waves is not in any way analogous to the risk of injury associated with diving into areas where submerged rocks and shallow water pose hidden dangers. The latter invariably results in serious permanent spinal injury to the diver; the former does not.

107 On the other hand I do not consider the danger posed by a plunging wave to be analogous to the sort of obvious danger presented by the cliffs in Romeo's case. The risk of serious injury from falling off a cliff as the plaintiff did in Romeo's case is apparent. The cliff was part of the physical features of the premises of which the defendant Conservation Council of the Northern Territory was the occupier. The danger posed by a plunging wave on the other hand, arises only when a person engages in body-surfing. The evidence showed that a swimmer could choose to dive through a wave as Michelle Lindley did when the plaintiff met his accident. The danger posed by a plunging wave is a danger to the body-surfer who happens to catch that wave.

108 The danger posed by a plunging wave is somewhat more analogous to the danger which resulted in harm to the plaintiff in Woods v Multi-Sport Holdings Pty Ltd, unreported; DCt of WA; Library No 990045; 24 February 1999. In that case the plaintiff suffered a serious eye injury while playing indoor cricket. The trial Judge found that being hit by a ball was an obvious risk in indoor cricket. There were also findings by the trial Judge that supplying and encouraging players to wear helmets as standard equipment would be organising the playing of games contrary to the AICF rules of play. In Wood's case the plaintiff failed to recover; so far as the need to warn by sign was concerned, the trial Judge found that:

"It is however difficult to see how there can be any obligation to provide a warning of risks which are inherent and are therefore by their nature obvious to persons participating in the sport. If the risks are inherent and therefore obvious nothing is achieved by the provision of a warning." (p31)

109 In Anderson v Mount Isa Basketball Association (1997) A Tort Rep 81-451 the plaintiff was injured while refereeing a basketball game in a competition organised by the defendant at its premises. The plaintiff was an experienced competitive basketball player; she was one of a number of players who volunteered to referee basketball games when the defendant was short of referees. The plaintiff was injured when she fell while running backwards in the course of her duties as a referee. The defendant was found to be liable in negligence for its failure to instruct the inexperienced plaintiff to run sideways rather than backwards while refereeing because of the known dangers involved in running backwards. The analogy between Anderson's case and this case is that the danger in each case rose in the course of participating in an activity. But there the analogy ends. In Anderson's case the risk was able to be avoided by instructing the plaintiff of the danger so that she ran sideways and not backwards. That would have eliminated the risk in Anderson's case. But in this case there is no evidence of any safe way to body-surf that could eliminate the danger posed by a plunging wave. The danger was inherent in body-surfing and could not be eliminated without giving up body-surfing altogether.

Findings on breach of the defendant's duty of care

110 Body-surfing is a very popular pastime at Cottesloe Beach yet injuries occur relatively infrequently. The risk of serious permanent spinal injury of the nature of that tragically suffered by the plaintiff in this case was, in my opinion, remote. There was no evidence of any case other than this one where such serious permanent injury occurred on Cottesloe Beach. The danger of being dumped by a plunging wave was an obvious risk, inherent in body-surfing. The power of a wave which gives a body-surfer the thrill of being carried to shore can, when the wave is a plunging wave, dump the swimmer on the ocean floor. The experience of being dumped is common among body-surfers and does not usually result in any injury, serious or otherwise.

111 It is necessary to consider the difficulty and costs associated with signs warning of the risk of spinal injury to body-surfers at Cottesloe Beach. To be effective such signs would have to be placed prominently at every point of access to the beach including every path and stairway. I do not accept the defendant's submission that such signs would have to be placed at 10 metre intervals along the beach. Warning signs at every point of public access to the beach should be sufficient. On a beach the size of Cottesloe Beach six or eight signs may well be sufficient.

112 The defendant is of course responsible for two other popular beaches besides Cottesloe Beach. Its duty to warn body-surfers of the risk of serious spinal injuries would extend to those beaches as well, at least to the portions of those beaches used for body-surfing.

113 In his submissions Senior Counsel for the plaintiff accepted that similar warning signs would also be required to warn hard-board surfers of the risks associated with that activity. There was no evidence of the foreseeable risks of injury to hard-board surfers but Senior Counsel accepted that the defendant's duty of care to those users of its beaches would have to extend to warning them of foreseeable risks of injury while hard-board surfing.

114 Such signs would have to be erected and maintained. From the evidence of the beach rangers I accept that regular maintenance would be necessary as a result not only of storm damage but also of vandalism. The manufacture, placement and maintenance of such signs by the defendant would have been costly but manageable within its budget. The defendant regularly used warning signs for a variety of purposes on its beaches and these signs could have been put in place without undue difficulty. I do not believe any policy or operational factors would have limited the defendant's capacity to meet such an obligation within its budget.

115 In this case I take into account the gravity of the serious spinal injury the plaintiff tragically suffered. I also take into account that the likelihood of a body-surfer suffering such an injury on Cottesloe Beach was remote. I also take into account that the danger of being dumped by a plunging wave was not a hidden danger; the force of the waves was inherent in body-surfing and obvious to body-surfers. Being dumped was a common experience among body-surfers. I also note that the danger of being dumped was not a danger created by the defendant, it was naturally occurring. I also take into account that the difficulty and costs associated with providing signs warning body-surfers of the risk of serious spinal injury would be costly but manageable within the defendant's budget. When all of these factors are taken into account in my judgment the Council's failure to erect signs warning of the risk of serious spinal injury to body-surfers did not breach its duty of care to the plaintiff. Such a serious injury was so unlikely to occur on Cottesloe Beach that it would not be reasonable to warn of it. There was no hidden danger requiring a warning as in Nagle and the other diving cases. Where the danger of being dumped was obvious and inherent in body-surfing it would be "neither reasonable nor just" to require the defendant to warn the plaintiff of the risk of injury. (Romeo's case per Kirby J, para 123.)

116 For these reasons I am satisfied that the defendant did not breach the duty of care owed to the plaintiff.

117 In Romeo's case Kirby J said at para 134:

"Where a breach of a relevant duty of care is shown, it is still necessary for a plaintiff to prove, on the balance of probabilities, that such breach caused or materially contributed to the damage. This means that the plaintiff must show that, if the defendant had fulfilled its duty, as defined, doing so would have resulted in the avoidance of the plaintiff's damage and loss. Necessarily, the question is hypothetical. It calls for a consideration of what might have been if certain things had been done because by definition, they were not done and that is the plaintiff's complaint. Sometimes a plaintiff has been asked directly what he or she would have done if the acts constituting fulfilment of the suggested duty had occurred. Normally, however, there is no direct evidence on the point and in any case the question is one for objective assessment, not subjective protestations after the event."

118 I accept the plaintiff as an honest and truthful witness. His evidence was compelling. He was not a man who took risks when it came to his physical safety. I accept his evidence that he complies with all safety requirements when bicycling by wearing a helmet and cycling on a pathway reserved for cyclists. I accept his evidence that he chooses his motor vehicle and his airline taking account of safety factors. I also accept his evidence that he takes heed of warning signs. When confronted by a warning sign the plaintiff said he would take account of any warning and would want to know what the conditions were before proceeding. For example, if there had been signs warning of injury while jogging the plaintiff said that would have influenced whether he jogged or not; he "would want to know why and how." The plaintiff would not leave it to the sign. The sign would indicate something was not right and then he would assess conditions.

119 The plaintiff gave evidence that if he had been warned by a sign to the effect that body-surfers run the risk of serious spinal injury he would have gone for a swim on the day of the accident but would not have body-surfed and thereby would have avoided the accident.

120 I do accept the plaintiff's evidence but when the circumstances are assessed objectively the matter takes on a different complexion. The plaintiff has body-surfed over a number of years at a variety of beaches whenever conditions are favourable, that is, when conditions are mild as they were on the day of the accident. The plaintiff had been body-surfing without any dumping incident having occurred since his childhood days. A calm day with the mild conditions enjoyed at Cottesloe Beach on the day of the accident was just the kind of conditions the plaintiff found favourable for body-surfing. Looked at objectively, the presence of a warning sign may have done no more than to alert the plaintiff to the need to assess conditions. On the day of the accident there was nothing the plaintiff could have seen in the conditions that would have alerted him to any danger of serious permanent spinal injury when body-surfing. A permanent warning sign could well have done no more than confirm the plaintiff's usual caution not to body-surf in rough conditions or when there was a big surf because in those rough conditions you might well suffer serious permanent spinal injury. It is not easy to say with any assurance that such a warning sign would have stopped the plaintiff body-surfing on the day of the accident. That is particularly so when there were some 20 other persons body-surfing without apparent mishap in his immediate vicinity.

121 It is often easy, after a mishap, to conceive of precautions that might have been taken. But the wisdom of hindsight does not provide an appropriate criteria. I must approach the hypothetical question objectively - if this warning sign had been in place on the day, would it have avoided the plaintiff's injury and loss? Approaching the matter objectively and taking account of this particular plaintiff, his body-surfing experience, and conditions on the day of the accident, I am not satisfied on the balance of probabilities that a permanent warning sign would have prevented the injury to the plaintiff. In all the circumstances I am not satisfied that a careful swimmer in the position of the plaintiff would have done more than assess conditions and proceed to body-surf after considering the warning on a calm, mild February day such as 25 February 1995.

122 For these reasons the plaintiff has failed to prove on the balance of probabilities that the fulfilment of the defendant's alleged duty of care would have resulted in avoidance of the plaintiff's damage and loss. Therefore the plaintiff has failed to prove that breach of the defendant's duty of care caused or materially contributed to his injury.

123 In addition to occupier's liability and negligence the plaintiff's claim also alleges breach of statutory duty based on the 1963 By-laws. The plaintiff submits that the by-laws either expressly or by necessary implication impose a duty to exercise powers and confers a private right of action for a breach of the duty.

124 I have set out the relevant terms of the 1963 By-laws earlier in these reasons. The plaintiff particularly relies upon the provisions of by-law 10(i) and submits that the words "during any additional period for which the Council may maintain its paid beach inspector" place the Council under a statutory duty to provide warning signs and take other safety measures as specified in the by-law whenever a beach inspector is on duty. There was no evidence of any flags designating a safe bathing area nor or any surf lifesavers on patrol on the beach at the time of the accident. There was some evidence that on the Saturday of the accident the defendant's beach ranger remained on duty until 8.00 pm.

125 The plaintiff's submissions about by-law 10(i) are misconceived. The plaintiff seems to have misread the by-law. The "additional period" referred to does not refer to a period of time when the beach inspector may be on duty but refers to a period additional to the "patrol season". I take the "patrol season" to refer to weekends and holidays from 1 October to Easter each year when surf lifesaving services are available on Cottesloe Beach. The "additional period" would seem to enable the patrol season to be extended. So understood, this by-law prescribes no duty on any beach ranger while on duty to put up flags delineating a safe bathing area or to patrol that area. On the contrary by-law 10(v) specifically requires the patrol flags be removed at any time lifesaving services are not provided in the bathing area.

126 The By-law requirements so far as the placement of warning signs is concerned are very specific as to the signs to be used and the circumstances in which they are to be erected but are not mandatory in their terms. The beach rangers would certainly be under a duty when performing duties as beach inspectors to assess prevailing conditions and to consider whether conditions are so dangerous as to warrant closure of the beach. But none of the powers conferred by the By-laws relate in any way to the mild conditions experienced on Cottesloe Beach at the time of the accident.

127 In his submissions senior counsel for the plaintiff put his case so far as breach of statutory duty is concerned on the same basis as his case based on occupier's liability and negligence - that the defendant was in breach of its duty because of its failure to warn the plaintiff of the risk of serious permanent spinal injury to body-surfers. Any duty in that regard arising under the By-laws would be only in the most general and permissive terms on the same basis that the defendant was able to create a sign warning of the dangers of overhanging cliffs after the Cowaramup tragedy.

128 In such circumstances where the defendant's statutory duties are in general and permissive terms the scope of the duty of care imposed by the common law will be no more than that of reasonable care (Romeo's case, per Kirby J, at para 123). No doubt that explains why the High Court in its two most recent authorities concerning the liability of public authorities, namely Pyrenees Shire Council v Day (supra) and in Romeo's case did not deal with breach of statutory duty on appeal.

129 In this case that has the effect that whether the plaintiff's claim is framed in negligence, occupier's liability or breach of statutory duty the test to be applied is the same test. Therefore my rulings on duty of care, standard of care, breach of duty and causation apply.

"The legal principles applicable to a defence of volenti non fit injuria are well established. For the defence to succeed it must be established that the plaintiff fully appreciated the risk and, by voluntary choice, elected, agreed or consented to accept the risk: Insurance Commission v Joyce [1948] HCA 17; (1948) 77 CLR 39, Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292; Jeffries v Fisher (1985) WAR 250; Howard v Hamilton, unreported, FCt SCt of WA; Library No 960328; 18 July 1996; Suncorp Insurance and Finance Blakeney (1993) 18 MVR 361.

As Burt CJ said in Jeffries v Fisher at 253:

'Of course in many cases that appreciation and acceptance (of the risk) can readily be inferred from knowledge, but the point to be made is that knowledge alone is insufficient ...' " (State Government Insurance Commision v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997)

130 Section 5(2) of the Occupier's Liability Act provides that the duty of care owed by an occupier does not apply in respect of "risks willingly assumed by the person entering on the premises". I have been referred to no authorities where any meaning has been given to s5(2) distinguishing the statutory provision from the provisions of the common law. Therefore I will determine this issue based upon the common law principles as set out in Hitchcock's case.

131 In his evidence the plaintiff admitted under cross-examination that he knew from experience that when he body-surfed he could be injured in some minor way, that he might be grazed if he were dumped by a wave. He admitted that he was prepared to accept that risk. But he said he did not know that he risked serious permanent spinal injury while body-surfing.

132 The defendant submits that the plaintiff's acceptance of the risk of some injury is enough to make out this defence. I can find no authority to support that proposition. On the contrary the law in this area has developed in a very different way. Many of the cases concern passengers who voluntarily accept transport in a vehicle driven by an intoxicated driver. Even where the passenger knows the driver is intoxicated, the passenger's belief that the driver was quite capable of driving safely will negative this defence (O'Shea v The Permanent Trustee Company of New South Wales Limited (1971) Qd R 1). Where the passenger is aware of the intoxication but does not fully comprehend its extent the defence of volenti fails. (Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292 at 300). The plaintiff must be shown to have accepted the risk with a full appreciation of the danger involved. (Anderson v Commissioner of Railways [1961] HCA 38; (1990) 105 CLR 42).

133 In this case I am satisfied the plaintiff has not fully appreciated the danger involved in body-surfing. Without that appreciation I am not satisfied that he has willingly assumed the risk. (Section 5(2) Occupier's Liability Act).

134 For these reasons the defence of volenti non fit injuria fails.

"... Contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk. None the less it has been repeatedly asserted that the standard of care in contributory negligence, like the standard of care in negligence, depends on foreseeability and is that of the reasonable and prudent man, so that a defendant is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury." (Commissioner of Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563 at 570; Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37).

135 The defendant was given leave to amend its defence on the morning the trial commenced in order to allege contributory negligence on the part of the plaintiff. This defence never had any momentum and came to nothing at the end of the trial. The defendant submits that the plaintiff failed to exercise reasonable care for his own safety because he knew of the risk of being dumped and elected to surf to the shore from only six metres out to sea so that if he were dumped it was probable that his body would strike the seabed or beach and result in injury. There was no evidentiary basis whereby the plaintiff could have reasonably foreseen that by body-surfing from six metres seaward he would expose himself to a risk of injury. On the contrary it can be inferred from the evidence concerning body-surfing that the distance from shore is determined by where the waves are breaking. The plaintiff was catching waves along with some 20 other body-surfers when the accident occurred. There was no evidence that the plaintiff did anything to expose himself to a risk of injury.

136 For these reasons the defence of contributory negligence fails.

137 For these the reasons the defendant is not liable in damages for the tragic injury suffered by the plaintiff on Cottesloe Beach.

Prast v Town of Cottesloe [1999] WADC 116

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Judgment (147 paragraphs)

Prast v Town of Cottesloe [1999] WADC 116 (12 November 1999)

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Cases Cited (22)