Negligence - Occupier's liability - Causation - Causation is determined by a subjective test - Due weight to be given to objective factors

Occupiers Liability Act 1985

Respondent (Defendant) : Mr C J L Pullin QC & Mr C C Rimmer

Barrow & Heys v CSR & Midalco, unreported; SCt of WA; Library No 7231; 4 August 1988

Black v City of South Melbourne (1964) 38 ALJR 309

Bomford v Commissioner of Main Roads [2000] WASCA 187

Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152

Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (2000) 74 ALJR 1

Curley v Fremantle Port Authority (1999) 21 SR (WA) 148

Davies v Adelaide Chemical and Fertilizer Co Ltd [1946] HCA 47; (1946) 74 CLR 541

Downs v Williams [1971] HCA 45; (1971) 126 CLR 61

Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430

Grant v National Coal Board [1956] AC 649

Groves v Wimborne [1898] 2 QB 402

Heil v Suncoast Fitness [2000] 2 Qd R 23

Hutchinson v London and North Eastern Railway Co [1942] 1 KB 481

Jeffries v Fisher [1985] WAR 250

Morgan v Sherton Pty Ltd [1999] NSWCA 60; (1999) 46 NSWLR 141

Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383

Nagle v Rottnest Island Authority, unreported; SCt of WA; Library No 940724; 22 December 1994

O'Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464

Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10

Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330

Railways, Commissioner for (NSW) v Anderson [1961] HCA 38; (1961) 105 CLR 42

Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292

Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383

SGIC v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997

Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424

Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1994

Wade v Australian Railway Historical Society (SA) [2000] SASC 233

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

Woods v Multi Sport Holdings Pty Ltd [2000] WASCA 45

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

1 On 25 February 1995 the appellant was dumped by a wave while body-surfing at Cottesloe Beach. He was thrown on to his head on the ocean bed very near the shore line and in consequence sustained severe injuries which rendered him tetraplegic.

2 The appellant commenced proceedings in the District Court claiming damages for the personal injuries he suffered. According to the appellant, the respondent owed him a duty of care under the Occupiers Liability Act 1985 and at common law, the respondent breached that duty of care in a number of respects, and those breaches caused the respondent to be injured. The appellant contended in the alternative that the respondent had breached its statutory duty arising from its own by-laws relating to beaches and, in consequence, the appellant had sustained the injuries in question.

3 By agreement between the parties the matter came before the learned trial Judge only as regards the liability of the respondent. The appellant's case focused initially on hazards said to have been caused by the construction of a groyne at Cottesloe Beach. It was said that the construction of the groyne brought about dangerous surf conditions and the respondent failed to take appropriate steps to protect the public from them. At some point after the trial commenced, however, it became apparent that the groyne did not have the effect contended for by the appellant. The appellant's case thereupon concentrated on the proposition that the respondent "failed to give any or any adequate warning to the [appellant] by sign of the danger or [sic - of] being dumped in a manner which might result in a severe spinal injury". The appellant contended that the respondent should have erected signs in appropriate places on Cottesloe Beach reading, "Persons body-surfing run the risk of serious spinal injury by reason of the condition of the surf and the seabed".

4 The respondent admitted that the risk of serious injury to persons body-surfing in the ocean off Cottesloe Beach was reasonably foreseeable by it. The facts that the appellant otherwise relied upon to establish the generalised duty of care were not substantially in dispute. Accordingly, the two principal issues at the trial were whether the respondent had breached that duty and whether that breach had caused the appellant to sustain the injuries that he did.

5 Her Honour considered that the duties imposed on the respondent by the Occupiers Liability Act and the relevant by-laws were no different from the duties owed by the respondent at common law and there was no need to deal with each cause of action separately. All causes of action need be resolved by determining whether the respondent was tortiously negligent at common law. I did not understand counsel for the appellant on appeal to contend that her Honour was wrong in this regard.

6 The learned Judge decided that the respondent owed a generalised duty of care to the respondent to take reasonable care to avoid foreseeable risks of injury to members of the public, including the appellant, who used Cottesloe Beach for body-surfing. However, she held that the respondent had not breached that duty of care. Further, the learned Judge was not persuaded that, had the respondent set up warning signs in the terms suggested, the appellant would have refrained from body-surfing on the day in question. The appellant therefore failed to establish that any breach of duty was causative of his loss. The appellant's case, accordingly, was dismissed.

7 In substance, the appellant raised the same two issues on appeal, namely was there a breach of the respondent's duty of care and, if so, was that causative of the appellant's injuries.

8 Cottesloe Beach falls within a reserve created pursuant to s 29 of the Land Act 1933 and is vested in the respondent. The Local Government Act 1960 confers power on a municipality to manage beaches and reserves within its boundaries. Since at least 1963 the respondent has, pursuant to this power, managed Cottesloe Beach. For the year ended 30 June 1996 the respondent budgeted for expenditure of over $6,000,000 for the maintenance of the beaches under its control and for income of over $4,500,000 from those beaches.

9 For many years the respondent has been concerned with the conservation, preservation and development of Cottesloe Beach. Its object, as expressed in its 1995 Beach Policy is:

"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 ... ."

10 To this end the respondent developed Cottesloe Beach, together with 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". The respondent has been successful in achieving the objects set out in the 1995 Beach Policy and in encouraging visitors to come to Cottesloe Beach. It has always been a very popular beach in the Perth metropolitan area and is frequented throughout the year by large numbers of local inhabitants and visitors.

11 The 1995 Beach Policy recorded that the respondent would "provide a beach inspection service primarily at [Cottesloe and North Cottesloe Beaches]". The respondent appointed beach rangers to Cottesloe Beach and their task was to enforce beach safety by observing beach and surf conditions and warning beach users of unusual dangers. The Beach Policy also recorded that the respondent "will endeavour to ensure that appropriate signage relating to safety ... is in place". The beach rangers from time to time placed signs in areas of the beach considered unsafe for swimming or unsafe generally. They put up signs reading "Danger, Rocks" when areas of reef became exposed and "Danger, Swimming Prohibited" when rips formed off the beach. Other, permanent, signs were also erected on the beach. These signs warned swimmers of danger when diving from the groyne, prohibited animals, surf boards and spear guns on the beach, and warned against diving into the ocean from a pylon known as the "Bell".

12 In the circumstances, the respondent was in a position akin to the respondent statutory authority in Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423. If I may paraphrase the majority in that case (at 430), the respondent promoted Cottesloe Beach as a venue for swimming and encouraged the public to use it for that and other purposes by installing, maintaining and servicing various facilities. That being so, the remarks of the majority (also at 430) are apposite:

"In these circumstances, it is beyond question that the Board brought itself into a relationship of proximity with those visitors who lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to any foreseeable risks of injury to which they might be exposed. 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."

It is to be noted, in this context, that their Honours observed:

"In reaching this conclusion we have not mentioned foreseeability otherwise than by reference to the standard or scope of the duty of care. That is because this is a case in which it is possible to ascertain the existence of a generalised duty of care - to take reasonable steps to avoid foreseeable risk of injury - owed to members of the public who resort to the Basin to swim, without looking to foreseeability, a concept which in many other situations is the influential, if not decisive, determinant of the existence of a relationship of proximity. Here, as it seems to us, foreseeability is of critical importance in determining not whether there was a duty of care but whether there was a breach of duty."

13 In the circumstances, the learned Judge rightly held that the respondent owed the appellant, as a member of the public who went swimming at Cottesloe Beach, a duty to take reasonable steps to avoid foreseeable risk of injury to him.

The factual circumstances giving rise to the surfing injury

14 At the time of the accident the appellant was 29 years old and employed as a sales executive selling computers. He had learnt to swim as a child and had obtained junior and intermediate swimming certificates. He described himself as an average swimmer. He had swum in the ocean, including at Cottesloe Beach, many times in his life. He had also body-surfed at many beaches, including Cottesloe, Margaret River, Yallingup and Port Beach in Western Australia, Manly, Bondi, Palm Beach, Wollongong, Nowra and Port Stevens Beach in New South Wales, Noosa and on the Gold Coast in Queensland and also in Puerto Rico. In the 12 months prior to the accident he had swum at Cottesloe Beach about six times.

15 The appellant described himself as a careful person who was particularly concerned about his own safety. For that reason, if conditions were too rough he would not body-surf. He knew that if he body-surfed in rough conditions and was dumped, he could be injured. He said he would body-surf if conditions "were right".

16 Shortly after 5.00 pm on Saturday 25 February 1995, the appellant went to Cottesloe Beach with his girlfriend Ms Lindley. The temperature was just under 25 degrees Celsius. There was little or no sea breeze and a very slight swell. Conditions were calm and mild. The appellant said that the sea "looked beautiful, it looked great". The waves were small, between one to two feet in height.

17 The appellant and Ms Lindley "just swam around and enjoyed the conditions". They body-surfed a few waves towards the shore, going back to the beach and then out to sea again. There were about 20 people in the immediate area. There was nothing untoward about the sea or the waves they surfed.

18 The appellant decided to leave the water and proceeded towards the beach. When he was about six metres from the water's edge he "caught a wave towards shore" and commenced body-surfing. The wave was relatively low, between one and two feet high, like all the other waves he and Ms Lindley had surfed. Nevertheless, unbeknown to the appellant, the wave was a dumper. As it came towards the shore it collapsed and threw the appellant downward on to the sea bottom. The appellant, although by no means a small man (he weighed about 100 kilograms), was unable to control his body and his limbs. With the irresistible downward motion, his head hit the sand. He thereupon sustained the injury to his neck which rendered him tetraplegic. It all occurred "in a split second".

19 Mr Eliot, a coastal geomorphologist, testified that in general terms four types of breaking of waves are recognised. The first type he termed a "spilling breaker". He said: "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 it's the sort of wave that is most commonly ridden by body-surfers". The second type he termed a "plunging breaker" or a "dumper". This is a wave "where the incoming wave crest seems to go a little faster than the base of the wave ... so the wave turns over on itself and plunges". The danger with the plunging breaker is that "the energy is dissipated fairly explosively by the downward drop of water". The third type of wave he termed a "surging wave". This is a wave which "retains its form until it's in very close to the beach or actually at the shoreline and then it shoots up the beach". With this kind of wave, energy is conserved until the wave is at the beach face itself. The wave "runs up the beach with an explosive shunt and then most of it is reflected back off the beach and it moves off seaward". The fourth kind of wave he termed "a collapsing wave". This wave "forms as if it's 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".

20 Mr Eliot described the principal qualities of the dumper as being "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". He described being in a large dumper as "like going into a washing machine". The appellant accepted that "being dumped is losing control so that the wave takes control completely of your movement". Other witnesses agreed with this description.

21 It is extremely difficult, even for an experienced surfer, to differentiate between waves that are dumpers and waves that are not. It seems that this is particularly so when the waves are small. On the afternoon in question approximately 20 other people in the water in the vicinity did not seem to have noticed anything untoward. Ms Lindley and the appellant, himself, body-surfed several waves which were not dumpers. The several waves that Ms Lindley body-surfed appeared to her to be exactly the same as the wave which dumped the appellant. The appellant was not aware that the wave he caught was a dumper.

22 Cottesloe Beach is generally regarded as one of the safest ocean beaches in the metropolitan Perth area. It is not known for heavy surf. It has a reputation as a calm, mild beach, so much so that for that reason it is more popular with elderly persons than many other beaches in the Perth area which are regarded as having more powerful breakers and more dangerous sea conditions, generally.

23 There was no admissible evidence of any injuries having previously occurred at Cottesloe Beach. Evidence of reports of injuries were received into evidence but, as her Honour rightly put it, "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 [appellant's] employees who made the reports at the time they were made".

24 Despite so holding, the learned Judge appears at times to have treated that evidence as if it was indeed proof of the truth of its contents. Thus her Honour said, "I have no evidence as to whether any of the suspected spinal injuries to body-surfers turned out to be serious or permanent". In fact, there was no admissible evidence that there were any suspected spinal injuries at all. The admissible evidence was that a report of one spinal injury had been received. The learned Judge set out "incidents where it could be inferred that body-surfers were injured in the course of body-surfing". These were incidents that were recorded in the daily log or monthly report of beach rangers which were admitted "not as proof of the truth of their contents". In the circumstances, no inference could be drawn that body-surfers were injured in the course of body-surfing. The most that could be gleaned, legitimately, from the evidence was that the respondent was aware that reports had been made to it that swimmers had been injured from time to time while body-surfing at Cottesloe Beach, and one of those reports was of a spinal injury.

25 Even if the evidence in question were to be regarded as proving the truth of its contents, the number of injuries recorded over the period February 1992 to June 1999 as being possibly attributable to body-surfing at Cottesloe Beach were relatively few (having regard to the vast numbers that must have swum there, particularly over the summer seasons). Those included a fractured skull, a suspected spinal injury (but apparently not leading to paralysis), concussion and shock and a dislocated shoulder. Nothing in the reports indicated whether any of the injuries recorded were caused by body-surfing waves that were low in height or by body-surfing in low energy conditions. As her Honour noted, there was no evidence "of anyone ever before suffering such serious and permanent injury at Cottesloe Beach as the [appellant] unfortunately suffered in this case".

26 On the afternoon of the accident, conditions at Cottesloe Beach were typical for that time of the year. "Pleasant", "calm" and "mild" were epithets used by witnesses to describe the sea and the weather. Mr Eliot testified that "conditions prevailing at the time of the accident occur frequently throughout the summer months". Nevertheless, some of the waves fell into the plunging or surging, that is, dumping categories. Indeed, according to Mr Eliot, data from an offshore wave rider buoy station indicated that at the time of the accident the wave heights "would be lower, with significant heights less than 1.0 metres" and the waves "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".

27 Only one of the witnesses (Mr Christian) appreciated that day that there were dumpers amongst the waves. After attempting to surf the waves he realised "that the waves that looked okay were actually dumpers". He said "these particular waves were then curling at the top and breaking very sharply. There was quite a nasty break". In consequence he stopped surfing and left the water.

28 None of the other witnesses involved realised that the small waves to be seen on the day were dumpers that could cause serious injury. The peaceful nature of the sea evoked no sense of danger in them. The appellant said, "The conditions were calm. I had no reason to think that I might be injured. I didn't feel like I would find myself in the situation I found myself in". Ms Lindley said that there was nothing about the waves that caused any alarm. Ms Wallace, the deputy superintendent employed with the West Australian Ambulance Service, who attended at the scene and who had personal experience of surfing and being dumped, said that when she learnt how the accident occurred she looked at the waves to see what force had been generated. She said, "I was very surprised that the waves did not appear to be particularly large". And went on to remark, "It looked like it was a nice calm day that would have been fine, no problem". She saw nothing in the conditions which would have deterred her from body-surfing. The evidence, generally supported the observation of Mr Eliot, the expert, who said in regard to small dumpers, "I guess people play with them, under very low energy conditions". These were, apparently, low energy conditions, and the swimmers in the sea at the time were "playing" in the small waves.

29 As mentioned, the appellant's contention was that, in order to comply with its duty of care, the respondent should have erected warning signs in the terms I have set out. The respondent, on the other hand, contended that the risk of injury from body-surfing was so obvious that it was not obliged to give any warning as contended for by the appellant. This issue raises questions of fact and law. The factual question is to what extent, if any, is the risk of serious injury from body-surfing obvious. The legal question concerns the effect of the obviousness of the risk on the obligation to take reasonable steps to avoid foreseeable risk of injury.

30 The learned trial Judge answered the factual question by holding that there was no hidden danger, and the danger of being dumped was obvious and inherent in body-surfing. The learned trial Judge distinguished this case from the "diving" cases such as Nagle v Rottnest Island Authority and Inverell Municipal Council v Pennington [1993] A Tort Rep 62,397 (see also City of Rockingham v Curley [2000] WASCA 202) on the basis that the plaintiffs in the diving cases were injured, in effect, by the materialisation of a risk of which they were not aware, whereas the appellant's injury was brought about by an obvious risk inherent in body-surfing.

31 Before dealing further with the appellant's challenge to her Honour's reasoning in this regard, I should mention that, during argument in the course of the appeal, members of the Court raised with counsel for both parties whether it was open to the appellant to advance a case based on the proposition that body-surfing at Cottesloe Beach was unusually dangerous as the small waves often found there had an unusual capacity of inflicting serious injuries. Counsel for the appellant disavowed reliance on such an argument, however, and senior counsel for the respondent pointed out that a case along these lines was neither pleaded nor presented at trial. It was not suggested at trial, on behalf of the appellant, that there was any aspect of Cottesloe Beach, in regard to its configuration, or the quality of the surf or sea or anything else that resulted in small waves being more dangerous to body-surfers there than anywhere else. Nor was it suggested that the respondent knew or should have known that at Cottesloe Beach there was a particular potential for small waves to cause serious injuries. It follows that the facts necessary to support a case based on any unusual danger arising from body-surfing small waves at Cottesloe Beach was not investigated. The case was presented at trial and on appeal merely on the basis that the risk of suffering serious spinal injuries from body-surfing, generally, was foreseeable, albeit not obvious. I therefore return to the reasoning of the learned Judge in regard to whether the risk of serious spinal injuries from body-surfing, generally, was obvious.

32 In my opinion, the learned Judge was entirely correct in distinguishing between the circumstances of the diving cases and the circumstances of this case. In the diving cases there were hidden dangers that caused there to be serious risks in performing an act which would otherwise be relatively safe. The risks of striking one's head on submerged rock obscured by the glare of the sun, or on a misleadingly shallow bottom, are not an inherent part of diving. Those were hidden dangers that brought about the need to warn. They are to be contrasted with the risk facing all body-surfers, that is, the risk of being hurled on to the seabed, out of control, by a wave that turns out to be dumper. The risk of so being dumped is inherent in body-surfing itself, cannot be avoided and is well-known. As the learned Judge said:

"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 force of the wave is in my opinion both obvious and 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."

I agree, with respect, with these remarks. Before the appellant sustained his injuries he had, in the course of body-surfing over the years, been dumped as many as a dozen times. In those instances the waves had taken complete control over his movements and, in consequence, parts of his body, particularly his arm and his back, had been forced down on to the ocean floor. As he put it, "It's an involuntary thing". It is also not unusual.

33 Body-surfing is a traditional Australian pastime that has been indulged in by citizens of this country for a very long time. There must be few who have never thrown themselves upon a wave in the hope of being carried by the rush of water to the shore, and there must be few who do not know (from hearsay at least, if not personal experience) what a "dumper" is, and how it can throw a helpless surfer about. This knowledge is generally learned relatively early in childhood and, in any event, is commonsense.

34 In many ways, as the learned Judge pointed out, the very aspects of body-surfing that make it dangerous provide the pleasures and thrills that make it popular. The countless numbers of Australians who have body-surfed over the years accept the risk of danger inherent in the activity. As Gleeson CJ said in Agar v Hyde [2000] HCA 41:

"People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity. Accepting risk, sometimes to a high degree, is part of many sports."

It is noteworthy that, as the evidence demonstrates, injury from body-surfing is not a frequent occurrence - despite the risks involved. Nevertheless, unfortunate and tragic accidents do occur, and, sometimes, as in the instant case, in surprising and unexpected circumstances.

35 Counsel for the appellant submitted that even if the risk of being dumped is obvious, the risk of sustaining severe spinal injuries is not, and this is the risk that should have been warned against. He argued that the "focus on the 'obvious' danger of being dumped (as distinct from the risk of sustaining serious permanent spinal injury) was misplaced". I am unable to accept this argument. The risk of serious injury should be known to any person who knew what being dumped entailed. All the witnesses who testified described the loss of control that is part and parcel of being dumped. Perhaps the most graphic description was given by the witness who compared the experience with being inside a washing machine. Being hurled about in the sea in shallow water in a downward direction without having any control over one's own motions is a highly dangerous situation. The appellant had personally experienced this several times. The risk of serious spinal injury being caused in these circumstances is patently obvious. If the appellant did not know that body-surfing could cause serious spinal injuries (as he asserted), objectively speaking, he should have known.

The obviousness of the risk and the discharge of the duty of care

36 After finding that the risks involved in body-surfing were obvious, her Honour concluded that it was "neither reasonable nor just" to require the respondent to warn the appellant of the risk of injury. In so doing her Honour relied on the remarks of Kirby J in Romeo v Conservation Commission (NT) (1998) 192 CLR 431 (at 478), namely:

"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.

Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just."

Counsel for the appellant submitted that the concept of "obviousness" is not "now entrenched as part of Australian common law or ... that it operates as her Honour perceived".

37 The approach of Kirby J in Romeo v Conservation Commission of the Northern Territory (supra) was the same as that evinced by Toohey and Gummow JJ. Their Honours said (at 455) that the risk in that case "existed only in the case of someone ignoring the obvious". And observed (at 456) that the taking of steps to prevent persons entering the reserve in question from suffering injury "do not extend to fencing off an area of natural beauty where the presence of a cliff was obvious". Hayne J (at 489) referred to obviousness as a factor "which may go towards judging what reasonable care on the part of a particular defendant required". See also Brennan CJ (at 443 - 444), albeit that the learned Chief Justice was in dissent.

38 The principles so expressed have been adopted by several intermediate appellate courts.

39 In Franklins Selfserve Pty Ltd v Bozinovska, unreported; CA SCt of NSW; 14 October 1998 the plaintiff alleged that a supermarket operator was negligent in failing to warn customers not to stand on certain wire baskets in which merchandise was contained. Mason P said:

"The putative warning signs which the learned trial Judge held should have been displayed would presumably have proclaimed something to the effect of: 'Don't stand on the basket. It is dangerous. It may not support your weight.' Surely this was to re-state in written form that which was or ought to have been clearly apparent to all but the most short-sighted or stupid customers. It is true that a duty of care may be breached when the defendant fails to take steps designed to protect the short-sighted or the foolish. But it does [sic - not] follow that failure to warn inevitably betokens negligence. Foreseeability of possible injury is relevant, but not determinative. The reasonable occupier is entitled to have regard to the magnitude of the risk, the likelihood of an accident happening in the relevant way, the possible seriousness of the consequences if an accident were to happen, the difficulty, inconvenience and expense of taking the suggested precaution and the likelihood that the precaution would materially have reduced the risk."

40 Mason P pointed out that in Romeo v Conservation Commission of the Northern Territory the High Court held that, in deciding what is reasonable, the occupier was entitled to have at least some regard to the fact that entrants will exercise reasonable care for their own safety. His Honour remarked:

"It is foreseeable that if a person jumps off a cliff he or she will be injured or killed. It does not follow that every cliff face must be smattered [sic] with warning signs. In some circumstances the danger is so obvious that, when coupled with the likelihood that persons will exercise reasonable care for their own safety, their duty is satisfied by letting the blindingly obvious speak for itself."

41 In The Mountain Cattle Men's Association of Victoria Inc v Barron [1997] A Tort Rep 81-426 the Court of Appeal of the Supreme Court of Victoria was concerned with a case where the respondent was injured when a horse fell on her and fractured her leg. The respondent submitted that the appellant had failed to take reasonable care to prevent damage to her from an unusual danger about which it knew or ought to have known, as she was an invitee on the land. Brooking JA (with whom Phillips JA agreed) said (at 64,136):

"The danger to be guarded against here was the obvious one that a person leading a horse over small and slippery rocks, in the partly dried up bed of a river, would be injured as a result of the horse's slipping and falling. The danger that a horse would slip when walking in such a place must have been apparent to anyone with any real experience as a horse rider to say the least."

"That there was a danger cannot be gainsaid, but it was of a kind and degree which in my view the organiser could reasonably have expected participants to take, as it were, in their stride, using their own common sense, skill and experience to guard against it."

In my opinion, the respondent in this case was entitled, reasonably, to have expected that visitors to Cottesloe Beach would take the risks of body-surfing in their stride, and to use their own common sense, skill and experience to guard against them.

42 In Department of Natural Resources & Energy v Harper [2000] VSCA 36 the respondent, a visitor to a forest reserve in a National Park, was injured by a falling tree during a high wind. He claimed that the appellant should have erected signs warning of the danger of hazardous trees in the reserve, particularly in certain weather conditions. Batt JA (with whom Tadgell JA agreed), in holding against the appellant, said:

"First, the danger to be guarded against, that of death or injury from falling trees or limbs, was an obvious one, at any rate in high winds. The appellant was entitled to expect adult residents of Victoria, such as the respondent, to know that trees and limbs of trees in forests, reserves, parks and other places occasionally fall, at any rate in high winds, and do so randomly. It follows that, whatever may have been the state of awareness of ... the camper witness, before the accident, I do not consider that his Honour's statement that it 'could not be anticipated that the users of the Reserve would be likely to be aware of the potential dangers of trees in the Reserve' ... is warranted either by the evidence or by the common course of human experience. To enter a forest or its immediate surrounds, like entering the surf, is to take a risk of injury, albeit a remote risk. The risk is 'endemic' or part and parcel of the recreation of camping, walking and indeed living outdoors in the Australian bush and in particular in reserve forests."

The aptness of these remarks to the present case are self-evident. The risks of being dumped by the surf and thereby sustaining serious bodily injury are endemic to and part and parcel of the recreation of body-surfing.

43 Sea conditions often change. Currents, rips and surges unexpectedly materialise. Large and unexpected waves materialise out of the deep. These phenomena are all capable of causing serious injury or death. The currents and rips can take an unsuspecting swimmer far out to sea and result in drowning. Surges and unexpected large waves can hurl an unsuspecting swimmer against rocks or on to the sea shore, with serious damage to body and limb. And yet to suggest that signs should be placed on all beaches in Australia indicating that swimming in the sea could lead to serious injury or death would, I suggest, be absurd. The absurdity lies in the obviousness of the danger that attaches to the common, everyday, activity of swimming in the sea. There is no need to warn of the ordinary risks that are so involved, and it would be absurd to require that to be done. In my opinion, the risks attendant upon body-surfing fall into the same category. Of course, where there are dangerous currents or rips or surges or rocks, or the possibility of occasional "king" waves or other dangers that are peculiar to a particular beach or part of a beach, special warnings may be called for, but that is not this case.

44 In my opinion, a local authority charged with maintaining safety at a popular metropolitan beach is not required, in discharge of the duty of care it owes to those who come to swim on the beach, to warn about the risks of body-surfing. Negligence at common law is still a fault-based system: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 73 ALJR 1190 (per McHugh J at 1214). As a matter of law, there is a point at which those who indulge in pleasurable but risky pastimes must take personal responsibility for what they do. That point is reached when the risks are so well-known and obvious that it can reasonably be assumed that the individuals concerned will take reasonable care for their own safety: Romeo v Conservation Commission of the Northern Territory.

46 When dealing with causation the learned Judge commenced by referring to the remarks of Kirby J in Romeo v Conservation Commission of the Northern Territory (supra):

"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."

47 With respect, I do not think that Kirby J, by these remarks, was intending to express the view that the issue of causation is to be determined by an objective test. Rather, his Honour was stressing that, in deciding upon the hypothetical question as to what would have occurred had the defendant done certain things, objective factors are generally more important than the plaintiff's subjective testimony in hindsight.

48 It has been accepted at the highest level in this country that causation is to be determined subjectively. In Chappel v Hart (1998) 195 CLR 232 (at 247) McHugh J said:

"Australian Law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered."

Kirby J expressed views to the same effect (at 272 - 273).

49 Both McHugh J and Kirby J expressed warnings about the dangers involved in relying on the plaintiff's own testimony concerning causation. McHugh J (at 246, note 64) said:

"Human nature being what it is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken. In determining the reliability of the plaintiff's evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the plaintiff's evidence. It may be a ground for rejecting the plaintiff's evidence. But given that most plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence can only be determined by reference to objective factors, particularly the attitude and conduct of the plaintiff at or about the time when the breach of duty occurred."

"The subjective criterion involves the danger of the 'malleability of the recollection' even of an upright witness. Once a disaster has occurred, it would be rare, at least where litigation has commenced, that a patient would not be persuaded, in his or her own mind, that a failure to warn had significant consequences for undertaking the medical procedure ... ."

These views do not detract from the opinion expressed by their Honours to the effect that a court, in determining the issue of causation, is required to apply a subjective test, albeit that due weight has to be given to objective factors.

50 Counsel for the appellant submitted that the learned trial Judge misunderstood the remarks of Kirby J in Nagle v Rottnest Island Authority and applied solely an objective test to the causation issue. It is necessary in the light of this submission to examine in detail what the learned Judge said in this respect.

51 Her Honour commenced by stating that she accepted the appellant "as an honest and truthful witness" and remarked that "his evidence was compelling". The learned Judge accepted that the appellant "was not a man who took risks when it came to his physical safety" and generally he "takes heed of warning signs". Her Honour referred to the evidence given by the appellant that if he had been warned by a sign that body-surfers run the risk of serious spinal injury he would not have body-surfed on the day of the accident. Her Honour proceeded:

"I do accept the [appellant's] evidence but when the circumstances are assessed objectively the matter takes on a different complexion. The [appellant] 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 [appellant] 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 [appellant] found favourable for body-surfing. Looked at objectively, the presence of a warning sign may have done no more than to alert the [appellant] to the need to assess conditions. On the day of the accident there was nothing the [appellant] 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 [appellant'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 [appellant] 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."

"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 [sic]. I must approach the hypothetical question objectively - if this warning sign had been in place on the day, would it have avoided the [appellant's] injury and loss? Approaching the matter objectively and taking account of this particular [appellant], 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 [appellant]. In all the circumstances I am not satisfied that a careful swimmer in the position of the [appellant] 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."

52 In the end, I consider that her Honour did indeed apply an objective test to the issue of causation. This is particularly apparent from the last, italicised, sentence of the passage quoted. The question was not what "a careful swimmer in the position of the [appellant] would have done". The question was what would the appellant have done. The italicised remarks follow on from the warning her Honour gave herself to "approach the hypothetical question objectively" and the statement that she was "approaching the matter objectively".

53 True it is that these references to the objective approach follow on from the views the learned Judge expressed concerning the appellant's subjective evidence, but the terminology the learned Judge used in couching her conclusion indicates that her Honour considered that the ultimate question was to be answered by an objective test, solely.

54 With respect to her Honour, that approach was erroneous. The test for causation remains a subjective one although, in coming to a conclusion as to whether the appellant would have heeded warning signs had they been put up by the respondent, appropriate weight must be given to all relevant objective factors.

55 In the circumstances, as I have held that the learned Judge correctly decided that the respondent did not breach its duty of care to the appellant, there is no need to make any order in relation to the issue of causation. I should say, however, for the sake of completeness, that had I upheld the appellant's contentions in regard to breach of duty of care I would have remitted the issue of causation to the District Court. The causation issue is so bound up with the credibility of the appellant that I do not think it would be safe for this Court to make a decision on the issue without having seen and heard the appellant testify.

56 In all the circumstances I would dismiss the appeal.

57 WALLWORK J: I agree with the reasons for judgment of Ipp J and to the conclusions which have been reached by his Honour except to the extent, that in my view, in the light of the injuries which were suffered by the appellant in this case and although there is no legal duty to do so, it would be beneficial to erect signs at popular beaches warning of the dangers of body surfing. That does not mean that the whole beach front needs to be littered with signs. However, a sign in an obvious place such as a walkway down to the beach might warn some people who might otherwise not be aware of the risks involved in body surfing.

58 I agree that the remarks of Batt JA in Department of Natural Resources & Energy v Harper [2000] VSCA 36 which are quoted by his Honour, are apposite to this case. I would compare the risks of body-surfing to the risks undertaken by persons who play rugby or Australian Rules football. There are serious and sometimes catastrophic injuries suffered by the players of those sports. However it is not at law required that warnings of the kind suggested for the appellant in this case be given to the players of those sports.

59 PARKER J: I agree that this appeal should be dismissed for the reasons given by Ipp J.

60 I would add a brief comment concerning one aspect of the submissions relating to causation.

61 It was stressed that the trial Judge found the appellant's evidence, to the effect that he would not have body-surfed on 25 February 1995 had there been a warning sign, honest and compelling. It was submitted therefore that, if a subjective test is applied as the Australian authorities require, the trial Judge could only have concluded that the appellant would not have body-surfed that day had there been a warning sign. It followed, in the submission, that the issue of causation must have been determined in favour of the appellant had the correct test been applied.

62 This submission fails to take due account of the nature of the evidence in question. It was not evidence of the appellant's recollection of his actual past conduct. It was a deduction by the appellant as to what he would have done if faced with a hypothetical situation. A witness who is both honest and compelling may, nevertheless, be led into deductive error, especially under the unconscious influence of the tragic consequences of his decision to body-surf on 25 February 1995.

63 It is because the evidence is deductive, being founded in a hypothetical situation, that the objective circumstances including the nature and experience of the appellant are so material to an assessment of the reliability of the evidence. What is necessary is an assessment of the reliability of the deductive process which underlies the honest and compelling evidence. The observations in Chappel v Hart (1998) 195 CLR 232 of McHugh J at 246 and Kirby J at 272, which have been noted by Ipp J, in my respectful view serve to illuminate this feature of evidence of this nature.

64 The careful analysis of the trial Judge of the objective circumstances reveals, in my view, that it was well open to her Honour not to be persuaded by the evidence of the appellant that he would not have body-surfed that day had there been a warning sign. As the reasons of Ipp J reveal, however, her Honour applied an objective test in the end, rather than a subjective test having weighed the evidence appropriately in light of the objective circumstances.