Price v Southern Cross Television [2014] TASSC 70 | Case summary

Price v Southern Cross Television [2014] TASSC 70 | Case summary | Zoe

[19]

On 18 September 2007, Cassandra Price, the plaintiff, was with a group of people who were involved in filming for a television series, Discover Tasmania. Late in the afternoon, the group was in a boat at the northern end of Maria Island. Four members of the group swam ashore from the boat and climbed to the top of a cliff which was above a cave at water level. They intended to jump some 13 metres from the cliff top into the water below. Three of the four, including the plaintiff, jumped feet first into the water. The plaintiff injured her back when her body hit the surface of the water. She sustained a compression fracture of the T9 vertebra, and more minor fractures of the T4 and T10 vertebrae.
In that year, the plaintiff was enrolled at the University of Tasmania. She was 29 years old at the time of the incident. The first defendant, Southern Cross Television (TNT9) Pty Ltd (Southern Cross) had been engaged by the government agency, Tourism Tasmania, to produce and televise the series. On 18 September, filming had been done around Maria Island including at an underwater site, and more was due the next day. Ken Saville was the producer of the program and a member of the group on the boat. He was an employee of Southern Cross. Also on the boat was the presenter of the program for the Maria Island segment (and a regular presenter of the program), Edward (Ed) Halmagyi, who had a contract with Southern Cross to do the series. Mr Halmagyi is perhaps better known as 'Fast Ed', the chef who regularly appears in the television program 'Better Homes and Gardens'.
The second defendant, Michael Davis, was the proprietor of the business known as Island Ocean Charters which offered chartered diving tours to Maria Island. For these tours, Mr Davis used the Liquid Fever, a 7.85 metre boat with twin outboards and full cabin. Southern Cross had arranged with Mr Davis to use his boat for the purpose of the filming, and for him to be involved in the presentation of some parts of the segment. Mr Davis, in turn, had arranged with the plaintiff and her friend, Samantha Poulson, to act as 'extras' for the filming. Mr Davis was the skipper of the boat on the day.
The people other than the plaintiff who went to the top of the cliff were Mr Halmagyi, Mr Davis and Ms Poulson. Mr Halmagyi was the person who, in the end, did not jump. His reason for not doing so is the subject of some dispute, and is an issue which I will examine.
The plaintiff has sued both Southern Cross and Mr Davis for damages in negligence, for breach of contract, and for false imprisonment. The trial started as one of both liability and damages, but as a result of developments which do not need explanation, agreement was reached on the sixth day that I only determine liability at this stage.
The plaintiff's relationships with both Southern Cross and Mr Davis need to be explored, as do the events on the day leading up to the jump and the facts of what happened immediately beforehand. There is a significant difference between the version advanced by the plaintiff and her witnesses and that of the defendants' witnesses about the events leading up to and including the jump. Parts of the group's climb to the top of the cliff, most of the events at the top of the cliff, and the initial part of the jump by the three people were filmed. The reason for that is in dispute, but the existence of the footage is helpful in determining some of the issues.

[20]

The written agreement between Southern Cross and Tourism Tasmania is in evidence but it contains nothing of any real relevance. The written agreement between Southern Cross and Mr Halmagyi is also in evidence. The only thing of immediate relevance is that it sets out the requirements for him in his role as co-host of the program. (There was another presenter who was not involved in these events.) It was a requirement that Mr Halmagyi participate in adventure and action segments as required. "This could include swimming, diving, skiing, bike riding, bushwalking, sailing, abseiling, camping etc." He was also to "contribute to the segment's concepts and design", with "the programme [to be] based around [his] personality, hobbies and areas of expertise".
The arrangements between Southern Cross and Mr Davis were concluded by exchange of emails in July and August 2007. The final Southern Cross correspondent was Anthony Bagnette. Mr Davis agreed with Mr Bagnette to be involved in the making of the program. Southern Cross made it clear that the program was to expose Tasmania and tourism destinations and activities; it was not to promote businesses as such. Mr Davis agreed to be part of a segment on Maria Island which involved a scenic cruise in relation to the island itself, a visit to a seal colony at the Ile des Phoques, and a dive on the wreck of the Troy D. That vessel had been sunk off the west coast of Maria Island to serve as a dive site.
Later, at the request of Mr Saville, Mr Davis agreed to find 'extras' for the filming on 18 September. The purpose of the presence of extras was simply so that other people could be seen included in the activities shown in the footage. Mr Davis then arranged for the plaintiff and Ms Poulson to act as extras. Although the precise terms of what was said and order of things are a little unclear, the nature of this arrangement and its making do not appear to be controversial, at least to any significant extent. I will come back to these arrangements.
It is common ground that on the morning of 18 September 2007 before going out on the boat, both the plaintiff and Ms Poulson signed a document headed "Tourism Tasmania - Permission To Use Talent in Footage". This was done at Mr Saville's request. These were pro forma documents. In the exhibit copy signed by the plaintiff, she is described as "the Talent", with "the Client" being Tourism Tasmania. The product is described as "Discover Tasmania Television Series". "Footage to be used" is shown as that series so described.
By the document, the plaintiff granted permission to Tourism Tasmania and any licensees or assignees "to use footage and any adaptations thereof without limitations such that the footage may be used in an unrestricted manner in Australia and internationally and for no payment". The plaintiff also agreed that she would "not acquire any interest in the copyright of the moving images or holiday footage". Southern Cross is not mentioned in the document.

[80]

Each defendant denies the existence of any duty of care, and the breach of any duty. They each plead further that the jump involved risks of harm which were obvious risks, ones of which the plaintiff knew or ought to have known, and ones of which the plaintiff was warned or made aware. Each denies the allegations of false imprisonment. Each pleads that the plaintiff's injuries were wholly caused, or contributed to, by her own negligence. Each says that the plaintiff jumped from the cliff when she knew, or a reasonable person in her position would have known, that to do so involved a risk of injuries of that kind. Both plead that the plaintiff ignored warnings.
Southern Cross pleads that the plaintiff ignored warnings about the dangers associated with the jump given by Mr Saville on two separate occasions, and "expressions of concern" by Mr Halmagyi as to the circumstances in which the jump was to be done. Mr Davis pleads that the plaintiff ignored warnings and direction from him not to participate in the jump.
Each defendant pleads further that the risk of injury from the jump was an obvious risk within the meaning of s 15 of the Civil Liability Act 2002, and hence, by virtue of s 16, a risk of which the plaintiff is taken to have been aware. As to this, each pleads that, in any event, the plaintiff had been variously directed not to jump, or warned or cautioned about the risks of jumping. The defendants plead that in the circumstances, the plaintiff voluntarily accepted the risk associated with jumping from the cliff.
Further, each defendant pleads that jumping from the cliff was an activity engaged in by the plaintiff for enjoyment, relaxation or leisure, and was therefore a recreational activity within the meaning of s 19 of the Act. It involved a significant risk of physical harm, and was therefore "a dangerous recreational activity" within the meaning of s 19. Each defendant pleads that, accordingly, by virtue of s 20 of the Act, they are not liable for any breach of duty for harm suffered by the plaintiff because it was as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by her.

[81]

A fundamental question is whether the defendants owed the plaintiff any relevant duty of care. There is a dispute as to whether there was a concluded agreement between the plaintiff and Southern Cross and/or Mr Davis so as to give rise to a consideration of the existence of an implied term of a duty of care. As to a general law duty of care, it is pleaded against both defendants as one which existed in relation to the plaintiff' "undertaking the jump". As to Southern Cross, although the debate was in terms of whether a duty of care was owed in relation to the plaintiff jumping from the cliff, the issue might more accurately be described as one as to the nature and extent of a duty of care: Cole v South Tweed Heads Rugby Club [2004] HCA 29; (2004) 217 CLR 469 per Gleeson CJ at 472 [1]. It may be accepted that the relationship between Southern Cross and the plaintiff was such that, in broad terms, it owed to her a duty to take reasonable care in relation to foreseeable risks of injury in connection with its activities in which she was involved.
It may be also accepted that Mr Davis, as the skipper of the boat, owed to the plaintiff a duty of care in relation to the condition and management of the boat, but the issue is whether he owed any duty of care concerning the jump.[1] As conducted and argued, the basic issue as to both defendants is whether a duty existed to avoid foreseeable harm by not requiring, or pressuring or encouraging, the plaintiff' to jump from the cliff. A warning of the risk is also included in the suggested scope of the duty. In these reasons I will, as the parties have done, simply refer to the issue as the existence of a duty of care.
Essential questions of fact which need to be resolved as to that issue are how and in what circumstances did the plaintiff come to jump from the cliff. As against Southern Cross, it can be seen that one of the matters said to give rise to the duty was the fact that the plaintiff was encouraged and persuaded to jump by Mr Halmagyi. There is an issue about Southern Cross' liability for Mr Halmagyi's actions. There are later pleaded allegations that Mr Halmagyi pressured, encouraged and coerced the plaintiff to jump. The plaintiff pleads that one of the ways in which Southern Cross breached its duty of care was that the plaintiff "was required to jump from a height which was not safe" [my emphasis]. A similar situation exists in relation to the case against Mr Davis.
The plaintiff's case is primarily and explicitly put on the basis that the jump from the cliff was to be filmed, and was in fact filmed, for the purposes of the program. This affects the case against Southern Cross more than Mr Davis. The defendants' case is that the jump was something agreed to by the participants after filming for the program had finished for the day. They say the plaintiff agreed to the suggestion of the jump, and voluntarily did the jump, although some reassurance and support was given. Southern Cross says that although the jump was filmed, it was not filmed for the purposes of the program, nor was it filmed in a way which would make the footage suitable for use in the program. The footage was taken essentially as a keepsake for those involved. On that basis, it is said that there was only a coincidental connection between the jump and the activities filmed for production purposes.
The plaintiff has not pleaded that Southern Cross, or Mr Davis, had any duty or was obliged to guard against misunderstanding, and to ensure that she understood what was being done for the purposes of the program's production, and what was not.[2] The case at trial was not one of misunderstanding. On her case as principally conducted, the plaintiff seeks to establish that she was expressly or impliedly required to jump as part of the formal program filming. The existence of an implied request would have to be objectively assessed.
As I understand it however, the plaintiff does maintain an alternative position.[3] It is that both defendants owed to her a duty of care based on the fact that to one extent or another both were "in control" of the day's activities, and that in that context, they took the plaintiff to the jump site knowing of her intention to jump, when, as a fact, it had not been made clear that the jump was not to be filmed as part of the program, and when they had knowledge of a recent injury to Mr Brock doing the same thing. Within the scope of that suggested duty is a need to warn of the risks involved, and to ensure that the plaintiff jumped in the safest manner.
Making findings of fact as to these matters involves a consideration of conversations which took place during the course of the day about making the jump. Principally, those conversations happened in the morning when the jump site was first visited, in the afternoon after the dive on the Troy D had concluded, on the boat at the base of the cliff before the participants had left the boat, between the four persons at the top of the cliff, and between that group and the group on the boat immediately before the jump.
As I have mentioned, the plaintiff, Ms Poulson, Mr Halmagyi and Mr Davis made up the group who went to the top of the cliff. The group which remained on the boat consisted of Mr Saville, Timothy Maloney - the cameraman, Brett Cocking - the sound recordist, Mark Newman - a specialist underwater cameraman, and Giles Barrington who was Mr Davis' deckhand. Everybody gave evidence apart from Mr Barrington. Regrettably, because of the extent of the variations in the witnesses' accounts, I will have to examine the evidence in some detail. Before doing so, it is convenient if I deal at this stage with the alleged agreements and a contractual duty of care.

[82]

I have already outlined the essential features of the arrangements between the parties as shown in some documents and as I otherwise find them to be. Further details are as follows. The only documented dealings are in the email exchange between Southern Cross and Mr Davis, but the reference is of no great consequence. The only reference to Mr Davis arranging extras is in an email from him to Mr Saville dated 13 September 2007. After dealing with some other issues, Mr Davis said, "Still working on getting some extras for the dive."
The background to the choice of the plaintiff and Ms Poulson is that the plaintiff and Mr Davis had met before in the course of his business. On 2 September 2007, the plaintiff and Ms Poulson, along with Ms Poulson's father, had dived on the wreck of the Troy D using Mr Davis as the tour operator for the dive. Apparently, the plaintiff and Ms Poulson had talked at some length with Mr Davis about their diving experiences and ambitions.
The plaintiff said that she telephoned Mr Davis as a result of a message she had received from someone she knew from university, and who was friend of Mr Davis' deckhand. Mr Davis asked if the plaintiff and Ms Poulson would be interested in acting as extras on his boat for some filming around Maria Island in exchange for some free dives. They were to "make the dive look full", and generally to "stand around and have a good time". According to the plaintiff, the possibility of her doing paid work for Mr Davis at some stage in the future "came up in the conversation". She said that this had been discussed on the boat on 2 September. Again referring back to that earlier conversation, she also reminded Mr Davis that Ms Poulson needed more dives to qualify for her instructor's ticket. According to the plaintiff, Mr Davis said that he was willing to oblige with those additional dives.
The plaintiff contacted Ms Poulson and obtained her agreement. According to Ms Poulson, she was told only that a friend of the plaintiff's wanted to film them diving on the Troy D. It is not clear when in this process, but the plaintiff said that Mr Davis told her that they were to bring their diving gear with them on the day, to organise their own equipment; they "would just be - being filmed as extras for the promotion of the business".
The extent of Mr Davis' evidence about arranging for the plaintiff and Ms Poulson to be extras was limited. He said that he could not specifically remember the terms of the conversation with the plaintiff. He said that he remembered "talking to Southern Cross about whether there was an opportunity to get some extras for the filming". Recalling the dive by the plaintiff and Ms Poulson a few weeks earlier, he asked "whether [the plaintiff and Ms Poulson] were available and then if they were, whether they might be interested to help me". He said that they agreed to do so.
In cross-examination, Mr Davis said that he had made the arrangements for the extras on behalf of Southern Cross to assist it in making the show. He agreed that whilst he was not being paid for his involvement he was getting free publicity, and that the women were assisting him in getting that free publicity. He also agreed that at the same time, arranging for the extras assisted Southern Cross to produce the show.
The plaintiff said that when they arrived at Triabunna on the morning of 18 September, and before signing the Permission to Use Talent document, Mr Saville introduced himself as the producer, and explained that Mr Halmagyi was to be the host. According to the plaintiff, Mr Saville said that they would be going on the boat and that they "had to be perceived as ... guests having a good time". Mr Saville explained that they would do some scenic shots of Maria Island, see the seals at Seal Island [sic], have a cheese platter at Maria Island before lunch, after which they would do the dive. In cross-examination, the plaintiff said that she had had no contact with anybody from Southern Cross before that morning, and confirmed that her understanding that Mr Davis' reference to the promotion of the business was to his own business, and that she was there to help with that process.
In his evidence, Mr Saville agreed that he had not had any dealings with the plaintiff before the particular day, and that Mr Davis had arranged for her to be there. This came about after he had told Mr Davis that he needed extra people for the story, "just to be seen on the boat". He asked Mr Davis if he had any people in mind. Mr Davis told him that he did and that he, Mr Davis, organised the women to be there. He agreed that Mr Davis was acting on his behalf when finding the extras.
When speaking with the women in the morning at Triabunna, Mr Saville said that he told them of the trip to the seal colony and the dive, that "the day would probably be be a bit fluid", and that they should do as they would if as if they were actually on a tour boat.
Turning to the submissions, the plaintiff asserts that there was a tripartite contract between Southern Cross, Mr Davis and her. It is submitted that the arrangement between Southern Cross and Tourism Tasmania, and the arrangement between Southern Cross and Mr Davis were "commercial agreements", with the arrangement with the plaintiff taking on that character, and thus attracting the presumption of an intention to create legal relations.
It is the essence of a contract that there is a voluntary assumption of a legally enforceable duty. To be such, there must be identifiable parties to the arrangement, the terms of the arrangement must be certain and, in the absence of a deed, there must generally be real consideration for the agreement. However, the circumstances may show that the parties did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts. As to these propositions see South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130 per Windeyer J at 154 and Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 per Gaudron, McHugh, Hayne and Callinan JJ at 105 [24].
In Ermogenous, their Honours went on to discuss the ascertainment of intention and the use of rules and presumptions. At 105-106 [25]-[26], their Honours said (omitting references):

[85]

In the enquiry as to the issue of intention to create contractual relations, regard must also be had to the consideration for the promises in question and the certainty with which the parties have expressed their agreement: Thomas v Hollier (1984) 53 ALR 39; Darmanin v Cowan [2010] NSWSC 1118. Further, as pointed out by Ward J in Darmanin at [218], the weight of the consideration in the form of a detriment or disadvantage to the plaintiff may compensate for a lack of clarity in the arrangements, where the substance of the promise can be ascertained, but that as the substance of the agreement becomes difficult to identify with certainty, then the more likely it is the arrangement will fail for want of an intention to create legal relations.
I also need to say something at this stage about agency, but it is an issue to which I will return. There is authority for the proposition that the term "agency" connotes an authority or capacity in one person to create legal relations between a person occupying the position of principal and third parties: International Harvester Co Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16; (1958) 100 CLR 644 at 652; Scott v Davis (2000) 204 CLR 333 per Gummow J at 408 [227].
As explained by Professor Dal Pont in Law of Agency, 2nd ed, at 5 [1.2], a broader conception includes the ability of the putative agent to create or affect legal rights and duties as between the putative principal and third parties, whilst a broader characterisation of an agent is that of a person who has authority to act on behalf of a principal, either generally or in respect of a particular act or matter: Erikson v Carr [1945] NSWStRp 20; (1945) 46 SR(NSW) 9, per Jordan CJ at 12.
In Tonto Home Loans Pty Ltd v Tavares [2011] NSWCA 389, Allsop P (with whom Bathurst CJ and Campbell JA agreed) in examining the nature of agency, referred to the discussion by Finn J in South Sydney District Rugby League Football Club v News Limited [2000] FCA 1541; (2000) 177 ALR 611 at 645-647 [131]- [137], and the definitions of "agency" in the Restatement, Third, Agency and from Bowstead and Reynolds on Agency, 19th ed at [1-001]. At [177], Allsop P said:

[92]

In this case, the plaintiff agreed to go to the east coast for the day and be involved in the filming, in exchange for the enjoyment to be derived from the tour and the dive on the Troy D without charge. Additionally, she had been offered the possibility of employment with Mr Davis. Mr Davis is said to have obtained the benefit of the women's presence to assist him in getting publicity for his business, but there is no evidence to suggest that his involvement in the Discover Tasmania episode was dependent on their presence.
The agreement between Southern Cross and Mr Davis seems to have been concluded by email exchange on 12 July 2011, in the course of which Mr Davis agreed to "lock in" both segments (the cruise and the dive), with Mr Bagnette immediately advising Mr Davis that "Ken will be in touch". "Ken" had previously been identified in the exchange as the "field producer", Mr Saville. Mr Saville is shown as a recipient of the email exchanges. The plaintiff suggested, relying on Mr Saville's evidence, that the plaintiff and Ms Poulson were engaged by Mr Davis "for him, and therefore Southern Cross TV, as extras for the day".
There is no evidence of an express authority, or evidence suggesting an implied authority, from Southern Cross to Mr Davis to enter into any contractual arrangements on its behalf. The plaintiff did not know Southern Cross' involvement until she arrived at Triabunna on the morning of 18 September 2007. It was only Mr Davis who could fulfil the promises made to the plaintiff.
Viewed objectively, I am not able to see anything in the whole of the circumstances which persuades me that there was an intention to create legal relations as between the plaintiff and Mr Davis. It is highly unlikely that the arrangement can be viewed as one in which either had any remedy against the other for a failure to carry out the respective parts of the bargain. I am not satisfied that the arrangement can be described as anything more than one of a social nature, even though there is an air of commerciality about it. An example of such an arrangement held to be unenforceable is one by which a person agrees to transport another and, in return, to receive a contribution towards fuel costs: see Coward v Motor Insurers' Bureau [1963] 1 QB 259 and Buckpitt v Oates [1968] 1 All ER 1145.
As to Southern Cross, the plaintiff has not persuaded me that there was any agreement between her and the company. If I am wrong about that, I would take the same view about the intention as to the availability of a remedy as I do of that between the plaintiff and Mr Davis. Accordingly, I have the same view about a concluded contract between the plaintiff and Southern Cross.

[94]

The evidence of Mr Saville and Mr Halmagyi satisfies me of the following things about the way in which the program was planned and how its production was approached on the day. Scripts were produced for the program, with the extent of scripting depending on whether it was Mr Halmagyi or the other presenter. Mr Saville said that because of Mr Halmagyi's personality, the script for him was more of a guide. While Mr Saville had to make sure Mr Halmagyi "stayed on the facts" and with what was needed to be said, Mr Halmagyi was able to use his own words. The procedure was that Mr Saville and the cameraman set out what they were going to do, and it was up to Mr Halmagyi as to the style of how he said things, although there are certain points which he is required to make, although in this instance, Mr Halmagyi adhered quite closely to the script
Two scripts were tendered in evidence through Mr Saville. One is a two-page script for "Discover - Maria Island Tour" and the other is a three-page script for "Discover - Troy D". These documents refer to certain "shots" and then provide a script for Mr Halmagyi and, in the case of the tour, Mr Davis. These scripts were for what was described as "pieces to camera". A piece to camera is when one person talks to the camera, or there are two people, one effectively interviewing the other. "Overlay vision" was described by Mr Maloney as general vision over which spoken words are recorded later. The vision is of interesting features. In relation to this program, that included the cliffs on the north coast of Maria Island and other coastline features. It was Mr Halmagyi's voice which was later recorded over the general vision.
A jump off the cliff is not mentioned in either script. However, the fact that the activity is not mentioned is not at all decisive of the point as to whether or not the jump is part of the program. Mr Saville agreed that he told the plaintiff that the day was to be "fluid". The Tour script provides for shots of the island with the boat going into a cave, with Mr Halmagyi saying, "The one thing Mick does do is take you inside these huge sea caves, incredible! And we're going in a long way!" A little later after provision for shots of the island's north coast, the scripted commentary mentions the view on approach to Maria Island being dominated by soaring granite cliffs. Immediately afterwards is a direction: "Ed at front of boat near the waterfall - or even in the water with wetsuit on!"
It is common ground that the "waterfall" segment was taken a bit further at Mr Halmagyi's instigation. In the finished product (Episode 5 of Discover Tasmania), after a piece to camera, Mr Halmagyi is next seen in a pair of board shorts jumping into the water from the boat and swimming towards the rocks to a point where he has described a waterfall. He is then seen climbing back on board the boat. The evidence suggests that he actually climbed up on the rocks and stood in or near the waterfall and drank water from it. Mr Saville accepted that all of this was only scripted in part.

[96]

According to the plaintiff, when they were on their way out of the cave, Mr Davis said to Mr Halmagyi, "You can jump off the top of that". Mr Halmagyi went into the wheelhouse where Mr Davis and Mr Saville were. The plaintiff heard a conversation, after which both Mr Halmgayi and Mr Saville came out. Mr Halmagyi said, "it would be awesome footage of you girls jumping off that cliff - like jumping off there". She said that Mr Saville agreed.
The plaintiff's evidence was that Mr Halmagyi was keen to do it at that time, but Mr Saville said that it would be better to come back after the dive because they would be then already wet, and in their wetsuits. She said that before leaving the area, Mr Halmagyi asked her and Ms Poulson whether they would jump off from there. "We said, 'yeah sure why not'." Later in her evidence, when speaking about events just before climbing up to the jump spot, the plaintiff said that she understood the filming was being done because it was for the "grand finale". "It was for the big end of the day. We were going to jump off the cliff like we were having fun and that it was going to end the show."
When cross-examined, the plaintiff denied that when the jump was first mentioned, Mr Saville had said that it was a mad thing to do, and that a friend of his had hurt his knee jumping in that same spot. Mr Saville did not mention that injury at any time during the day. She agreed that at that time she could see no reason not to do it, and at that particular time was keen to. When asked why she agreed to jump, she said that it was because "it was for the grand finale of the day". The plaintiff was pressed about any such mention, and was asked why she had agreed to the suggestion of the jump when first asked. She said, "Oh, 'cause it was going to be for filming".
When it was put that nobody had said anything to her at that first point about filming it, she said, "No, but that's what he was implying". It was again put that nobody said anything at that point about filming it, to which the plaintiff replied, "He just asked us if we would jump off there". She agreed that she had replied, "Why not". To further questions on this point, the plaintiff confirmed that she had not been told that she was going to have to jump, but asserted that Mr Saville "said later on that we would come back and film it after we had been diving". She also agreed that the words "grand finale" were not used at that first point in time, and that neither, at that point, was there any mention of filming the jump. I will return to these matters.
Ms Poulson's evidence was that whilst the boat was at the cliffs in the morning, Mr Davis pointed out a spot where people could jump off; that people had been known to jump off the cliff. She said that there was a conversation in which Mr Saville, Mr Halmagyi and Mr Davis, along with Mr Maloney "thought it would be a great idea to do the jump at the end of the day to get that shot as the conclusive shot for the show". She said she was not asked as to whether she would jump from the cliff. In cross-examination, Ms Poulson confirmed that there was a discussion between Mr Saville, Mr Halmagyi and Mr Maloney that the jump would be a great shot for the conclusion of the show, and that it would be great to get that shot.
Counsel for Southern Cross put to Ms Poulson that she had in fact been asked in the morning. She said she did not believe that she was asked anything, although it was possible. She went on to say that there had been a discussion about people having jumped from the cliff, and that they wanted to do that for the show, but that she could not remember any discussion as to who was going to do it. Ms Poulson said that Mr Saville did not say anything to her about a friend of his jumping from the cliff and hurting his knee.

[97]

Mr Saville said that as the boat was backing out of the cave, Mr Davis suggested that it would be a great place to do a jump. He said that he thought that it was just a general comment to the people in the boat. Mr Halmagyi was pretty enthusiastic about it, and although he (Mr Saville) could not recall the exact words used, he said that the two girls had said something about it. He recalled all four of them being very enthusiastic about doing the jump.
His evidence was that he had expressed disagreement with it, that it was "silly" and that his friend had hurt his knee. He says he commented that they should not be stupid, that they all had other things to do, and that they should get going. There was some banter about him being a killjoy, after which he remembers saying, "Come on, we've got to get going, we've got too much to do for the rest of the day".
In cross-examination, he said that he could not remember the exact words he used, but he remembers the jump coming up in conversation, that everyone seemed to think it was a great idea, that he suggested that they did not have time, and mentioned the injury to his friend "Brocky". It was put to him that he did not tell the girls about "Brocky" getting hurt, but he said that it was a group discussions; "I definitely told it to everyone". He said that Mr Halmagyi and Mr Davis were in the wheelhouse and that the girls were only a short distance away, with everyone being involved in the conversation. He was "adamant" that the two women would have heard his warning about the jump. He agreed that, if for whatever reason they did not hear that warning, he did not give another one later at the jump site.
Mr Halmagyi said that he recalled the boat being taken into the cave and he did a piece to camera about that. To the best of his memory it was Mr Davis who remarked that it was a fun place to jump off because the water is deep. He was enthusiastic about doing it as it looked like something fun to do. He did not recall whether anyone else said that they would like to do it, but he did not recall any objections either. He said that he did not expect or anticipate that the jump would be done as part of the show. To the best of his understanding it could not be, as all of the storylines are developed ahead of time; that would be an entirely new story which would involve Southern Cross putting it to Tourism Tasmania for approval. The jump was "simply for our own entertainment". Mr Halmagyi explained that jumping off a cliff into deep water is something he regularly did at a place called "Jump Rock" at a beach near to where he lived. He denied referring at any time to the jump as the grand finale to the day.
Mr Halmagyi later clarified that he was in the wheelhouse with Mr Davis when he had the conversation with him about jumping from the cliff. He said that there may have been other people present but that he did not recall. It was absolutely clear in his mind that Mr Davis suggested that people did jump off the cliff, and that it was a lot of fun. To counsel for the plaintiff, Mr Halmagyi said that he did not recall whether or not Mr Saville was in the wheelhouse during the conversation with Mr Davis. He said that Mr Saville had mentioned that a friend of his had injured his knee during a jump; "Ken, in his inimitable way, said 'Don't be stupid'." Mr Halmagyi was not cross-examined about what he had said to the plaintiff about her doing the jump.
Mr Maloney said that he started out on the support boat and was backwards and forwards between the two boats in the morning. He said it was an unknown number of times, but that by the time they had left the Ile des Phoques, he was on Mr Davis' boat. Mr Maloney recalled going inside the cave on the boat. After that had been done somebody, he thought Mr Davis, said that "you can jump off the cliff above the cave". He said that he did not think much more of it. When asked whether there was any further discussion at that point about jumping he said:

[104]

The plaintiff said that everybody on board was positioned so that conversations could be heard quite clearly. Mr Halmagyi was excited about doing the jump. Mr Davis turned the boat and started in the direction of the cave. On the way back he told them to make sure they were wearing full wetsuits with booties as there were oysters and barnacles on the rocks "and then we also needed to wear shoes to climb up to the top of the cave 'cause it was quite rocky along the way". Her shoes had "big tread" on them. They arrived at the jump site at about 4.30pm.
To counsel for Southern Cross, the plaintiff seemed to agree that Mr Halmagyi had not mentioned a grand finale when he mentioned not having done the jump, but went on; "He didn't - he said that we haven't done the jump yet, but we discussed it during the day that it was for the grand finale, so that we all knew ... , he didn't need to use those words again ... ". [My emphasis] She agreed that "grand finale" would mean a big end to the day and that it fitted in with the high spirits everyone was in. The plaintiff was asked about a conversation with Ms Poulson, and said that they discussed the lateness of the hour between the two of them, but no one said that they did not want to go to Fossil Bay, they wanted to go back to Triabunna. She said there was a discussion with the camera crew about the lateness of the day, but she does not know what was said, apart from the fact that there seemed to be agreement that there was time in the day to do it. Neither she nor Ms Pulson expressed any reservations about going back and doing the jump.
The plaintiff was taken back to her assertion that she had specifically been told that the jump was the grand finale of the day. She denied that this was just her impression and said that those were the words that were used. She said that Mr Davis told her that they were to jump off the cliff like they were having fun. However, she went on to say, "The exact words from Ed was it was a grand finale, it was going to end the show, the big show, and we were to jump off like we were going to have fun to end the day". The following exchange occurred:

[116]

In response to specific questions, the plaintiff then seemed to resile from her earlier evidence, and stated that the jump had only been talked about at the site in the morning and again when it had been mentioned by Mr Halmagyi in the afternoon, but not in the meantime.
Ms Poulson said that after the dive finished they were going back to the Triabunna jetty. She said on the way back "Ed, Michael and Ken recalled that they were meant to be doing the cliff shot so we had to turn around and go back to the cliff". She said she was not asked whether she wanted to go back. She was asked by counsel for Southern Cross whether she had a discussion with the plaintiff about the lateness of the day and her (Ms Poulson's) concerns that she wanted to leave by about 4pm. She said that she recalled wanting to get home but did not remember that conversation. She said she was sure there was a discussion about wanting to get the "shot".
Mr Newman was called on behalf of the plaintiff. As I have noted, he came on board Mr Davis' boat at lunch time. He had filmed the dive on the Troy D and was sitting on the back of the boat when there was discussion about going to the north of Maria Island. He said that it was mainly Mr Davis and Mr Halmagyi who were involved. His evidence was that Mr Davis said that there was enough time left in the day to "film the sea cave, do the sunset, and investigate this jump off the cliff". Mr Halmagyi agreed, as did Mr Saville "because Ken was in control of the situation". Mr Newman said that Mr Maloney also wanted to go so that he could film the sunset which was "the other plan ... He wanted to go to the north of Maria to film the sunset and to film a little bit more in another sea cave with Ed."
He said that when they arrived at the site, the boat actually went into the sea cave. Further shots of the sea cave were taken with Mr Halmagyi sitting on the transom of the boat. "So it basically traversed across and underneath the cliff face to get into the sea cave ..." He said it was obvious to him that the jump was going to be filmed. Nobody had told him "that the the sunset or the cave shot at the north of Maria Island late in the afternoon, or the cliff ... jump was [sic] not part of the series", adding that Mr Maloney was using the same camera as he had during the afternoon.
Mr Newman was cross-examined by counsel for Southern Cross on a written statement prepared by an insurance assessor but not signed by him. It is not in evidence. He said that he could not recall making the statement that, when the question of the jump was raised, Mr Halmagyi and both the plaintiff and Ms Poulson said that they were interested in making the jump.
It was put to him that his statement to the assessors contained an assertion that he was "certainly aware that what was about to occur was not part of the filming for the Discover Tasmania episode on this day". He agreed that those words appeared in his statement but said they "... may well have been implanted in my mind at the time; I've had a lot of time to reflect on that statement and as I said, I haven't signed [it]. And watching the video and reflecting on what happened on that day and the events, I will retract that statement." He went on to say that he may have been confused and agreed with the statement at the time, but would now retract it.

[117]

Mr Saville said that they had started to head back towards Triabunna and the topic of the jump came back up. He said he was not sure who had raised it but over his protests they, being the four people who ultimately went to the top of the cliff, said they wanted to do it and insisted. He said that he was pretty annoyed about it but said to them, "OK, do what you like". He was asked whether he wanted to join in, but he thought it was a silly idea and did not want to do it. "We had things to do and I'm not going to physically stop them from doing it. If they wanted to do it, go for their life." He did not think there was any discussion about filming the jump before they arrived back at the cliff, although he thinks Mr Maloney might have said something along the lines of that, if they were going back, they could film the sunset. Mr Saville responded that there was no time for that, but said in evidence that he thought once they arrived at the jump site, it was decided that they might as well film it.
Once they had arrived there, there agreement to film the sunset. He did not think that at the time they started to head towards the site there was any discussion as to whether there was sufficient tape to film the jump. He thinks that Mr Maloney might have thought up the idea of filming the sunset if they were going back to the cliff. He said that they did not have time, but thinks that it was decided once they had arrived there, that as they were there, they might as well film it. He suggested he may have raised with Mr Maloney whether there was enough tape, but he thinks Mr Maloney said something about filming the jump when they were actually at the site. He did not say, or hear anyone say, to the plaintiff that it was to be part of the show, and he detected no pressure on the women; "They were all willing".
To counsel for the plaintiff, Mr Saville agreed that he could have simply overruled everyone, and gone back to Triabunna. He denied that part of the reason for going back was to film the sunset. It was put to him that it followed there was to be some filming for the show at the site, namely the sunset. Mr Saville replied:

[129]

Mr Saville agreed that after they had arrived at the jump site, he said to Mr Halmagyi that if the jump was any good it could be used in the show credits, but said that he had done so jokingly.[4] He explained "show credits" as meaning the program segment where the credits are shown and there is a backdrop of different scenes. He explained that Mr Halmagyi, as well as Mr Maloney, would have known that he was joking, but accepted that most likely it would not be an understanding shared by all on the boat. He denied that the jump was the grand finale of the day, and said that he did not hear Mr Halmagyi say that.
Mr Halmagyi said that after the dive, somebody, he could not recall who, mentioned that they had not gone back to the cliff and jumped. He did not recall raising it. He was asked about the plaintiff's reaction to participating in the jump, and said that to his recollection "we were all enthusiastic about going off and doing it". When asked about Ms Poulson, he said that he did not recall anybody having any hesitation. He said that on the way there he did not have an understanding as to who was actually going to do the jump; he knew he wanted to. "I didn't think it was material. I mean, we'd finished work for the day and I was going off and do something fun. If others wanted to, great, if they didn't want to, also great."
Mr Halmagyi said that at no stage from the time when the jump was first mentioned onwards, did he get any sense that either of the girls did not want to jump. He was asked about filming the jump. He said the idea was just to create a personal memento. Mr Maloney agreed to shoot it, as using the small camera would have been like trying to film it with an iPhone; there would be no detail. It was purely for their own record; he wanted something to show his children so that he could show them what "dad did". He was pressed in cross-examination as to whether he raised the jump by saying something like "hang on, we haven't done the jump yet". He maintained that he could not recall doing so, but agreed "absolutely" that he thought it was a good idea.
Mr Maloney said that after the dive, he filmed the participants having a cup of tea with Mr Halmagyi talking. They established that nothing more needed to be done, so he and Mr Cocking started to pack the gear away. He said that the boxes for the equipment took up most of the wheelhouse. During this process he heard a conversation about the jump. He said that "it was almost like a high-five moment". Above the "atmosphere" in the back of the boat, someone said that they had not yet done the jump. Other people joined in. Mr Saville was asked whether it could be done. He did not think Mr Saville was very happy about it as it was the end of a long day and they were packing up. "We were pretty reluctant to start getting things out once we've started to pack because we say that's done".
He let Mr Saville deal with the issue. He said Mr Saville reminded the group of what had been said earlier in the day about a man being hurt at the jump. He said that in the end Mr Saville seemed to be resigned to the fact that there was a wish to do it by "the group of four". Mr Saville asked him whether they had time. Mr Maloney replied, "Well if you've got time I've got time and I'll stop packing up because it could be good to film it for the group to have a memento of it, almost like a home movie."
Mr Maloney was asked whether Mr Saville had said anything about filming it for the purposes of the show. He answered:

[131]

The issue was resolved on the basis they would go to the jump site and take a "partial video record of it" as a memento which was done for a lot of stories. He packed the monitor and all of the non-essential equipment, apart from the camera with the battery and what was left on that day's tape. He was asked about whether he mentioned wanting to film the sunset. He said that at the end of every day if there was a chance to film the sunset they would take it. On this occasion, in the course of the discussion about what was going to be done, he said that he expressed a preference to go back to Triabunna, "and get a sunset". To counsel for Mr Davis, Mr Maloney said that when this conversation took place, the boat was still moored at the Troy D site. It was quiet and the engines were off and you could hear the water slapping against the boat.
To counsel for the plaintiff, Mr Maloney asserted that all conversations could be heard on the boat at the time. He was quite clear that he had used the expression "home movies". When the group of four asked to extend the journey so as to jump off the cliff, "Ken said his piece, and I said my piece and I also said it under sufferance 'I will go along and I might shoot it for you for home movies' and you could not miss that." When asked whether he had specifically used the term "home movies", he said that he could not recall, but that the essence of it was that the filming was not part of the story but was for the participants to have a record. He said that the situation was clear to everybody on the boat. "I was making the point that I was doing it under sufferance almost to say I am making my journey up there palatable by doing something for you." He agreed however that Mr Saville asked him whether there was enough film to do the jump, and that he agreed there was enough.
Mr Maloney said that when he was packing up the equipment there would have been about five metres between where he was taking it from to the wheelhouse where it was being stowed. He said that he was focused on making sure the equipment was being put away although the process was fairly casual, and he accepted that he could not hear everything which was said on the boat at that time. He denied saying that when the decision had been made to return to the jump site he said that he could put it on tape or DVD and that he might be able to use the footage later. He said that the footage was nothing that could ever have been used in the show.
Mr Cocking said that they had finished the story, they were on the way back but were first going to jump off the cliff into the water. He does not recall who discussed this. He does not recall it being mentioned earlier. He remembered Mr Saville saying that he knew someone who had hurt themselves jumping off a cliff, rather than the particular cliff, about two months earlier. He said that he was not told that the jump was being filmed for inclusion in the program, and did not hear anyone say why it was being recorded.

[134]

The plaintiff described the way up to the cliff top as a "goat trail". There is independent oral and visual evidence about the nature of the climb to the jump site, which evidence I will later discuss. For present purposes, I observe that it is not a climb which goes straight upwards, but one which goes from an access point at an oblique angle to the left looking at it from the water, and moves to and away from the edge at various points. The plaintiff says when they were about two thirds of the way up she looked over the side and swore about the height. Mr Davis told her not to worry and that at the jump site it dipped down quite a lot; he said to continue on and to have a look. They went on and then came to a big rock. Mr Halmagyi suggested that it would be a good spot to wave to the boat. Mr Halmagyi helped her up onto the rock and they all stood on the top; "and we cheered and we put our arms in the air and went 'whoo hoo'." The boat yelled out again to us to do it again, and so we kept doing it again and Ed also told us to do it again, ... and we did that all up about three times."
According to the plaintiff, what happened after that was as follows. The group kept climbing higher and higher. At one point before reaching the jump site the plaintiff said to Mr Davis that she was concerned about the height. He said that it became flatter at the jump site. They took about 10 to 15 minutes to get to the top. Approaching the edge, she said she was concerned about the height, and said, "No way", but not loudly and it was possible no one heard her. Ms Poulson came over and also said that there was "no freakin' way" she was jumping off there.
The plaintiff asked Mr Davis if he was serious; he replied that they did it all the time. The group started to space out along the top. Ms Poulson "got quite vocal and she just said again that we weren't going to do it and said again that we weren't comfortable in doing the jump". She said that the two men did not seem to be listening but just kept spacing out where they were going to stand along the cliff. Mr Halmagyi decided where he wanted to stand and the order was Ms Poulson, the plaintiff and then Mr Davis. (Mr Halmagyi is on the right of the group as it is shown in the footage.)
Someone yelled out from the boat to put their wetsuit hoods on. Ms Poulson and the plaintiff continued the discussion about how high the cliff was and that they did not want to jump. Mr Davis repeated that he had done it a lot of times before and that it was fine. "Ed jumped into the conversation and said 'it's the grand finale, girls, just think of the shot and how awesome it's going to be'." Mr Davis explained that they were to do a "pencil drop", which he explained when asked as being a jump away from the cliff with feet and legs together.
The plaintiff was scared. Ms Poulson was obviously not comfortable about jumping and was a lot more vocal than she. During the discussion about the pencil drop, Mr Davis said that there were 7 metres of water underneath and no rocks. He said that they could not get hurt. Mr Halmagyi confirmed these statements. Ms Poulson asked if she and the plaintiff could hold hands. Someone on the boat said that they would count down from 5, then yelled out "5" and then "1, 2 5". That caused the two women to lose their nerve "and we stepped away from the cliff and I was still holding her hand quite tightly and she just said that ... we didn't want to do it and I remember she was waving her hands around and Michael stepped in and said 'come on guys, wah hoo, it's gonna be awesome'. Ed then jumped in too and said again think of the footage and how awesome a shot it was going to be."
This went on for a while. It seemed that Mr Halmagyi was getting "really huffy". He moved across and grabbed Ms Poulson's hands and touched her on the shoulder. He kept telling her that it was for the grand finale, that she should think of the footage "and he really started badgering Sam because she was really vocal about not doing it". The plaintiff stepped back to have a "logical conversation" with Mr Davis. She asked Mr Davis how many times he had done the jump and he said that he had not done it before. The plaintiff replied, "Fuck off, I'm not jumping", but Mr Davis started to laugh, saying that he had done it 100 times before; that she would fine. She felt a bit relieved as she trusted him. At this time Mr Halmagyi was still talking to Ms Poulson and "still going on and on about the footage and about how awesome the footage was going to be". His demeanour "was really overpowering and ... intimidating".
At that point the plaintiff felt that she did not have a choice, and told Mr Davis that she did not want to do it. He then said, "Let's just forget about it, I'll just walk you back down". The plaintiff felt really relieved but Mr Halmagyi intervened, again saying that it was for the grand finale and that they should think of how awesome the footage was going to be. At this point Mr Davis agreed. Ms Poulson yelled an inquiry to the people on the boat as to whether it was safe. Mr Halmagyi said that it was, and someone on the boat shouted out that they had 100 feet of water. Someone on the boat also yelled out to hurry up.
The plaintiff then said that they should just get on with it and get it over with. Mr Davis said he would do the countdown from 5.

[136]

The plaintiff's feet hit the water first but her head did not go all of the way underneath the water. She felt an instant excruciating pain. Mr Davis went to her assistance. Mr Newman also jumped in and she was pulled back to the boat. She was put on a board in the water and lifted up into the boat by that means.
The plaintiff said in her evidence that it was not until she was back on the boat that she discovered Mr Halmagyi had not jumped. They had to wait until he ran back down and swam to the boat. When they were on the boat, she said she was in excruciating pain and pretty mad and called him "a chicken shit bastard". "He ... responded that he didn't jump because he was going to do a 'I gotcha' segment and then, you know, do like a thing and say 'Well, if you think I'm jumping off there, you've got another thing coming'. Like a, it was like a joke set-up he said."
In cross-examination, the plaintiff agreed that nobody had specifically said to her that she had to jump off the cliff. When it was put to her that nobody had said to her that she had any kind of obligation to do it, the plaintiff replied, "the words were it was the grand finale. I felt pressured to do it". She did not directly refute the suggestion that nobody had said to her that she was obliged to do it, in the sense that that was what she was there for. The plaintiff said, "that's the way it was conveyed though; that's how I felt".
She agreed that nobody had said to her at any stage that there would be any particular consequences for her if she refused to jump. She accepted that nobody had said anything to her to suggest that she had been given something that imposed a return obligation to jump, or that amounted to threats to have her stay on the cliff until she jumped, or to stop her going back down, but she said that it felt that way. She accepted that Mr Davis had offered to take her back down, but said that it felt as though if she were to walk away that Mr Halmagyi would just grab her. She believed that she was not free to go and that Mr Halmagyi would stop her. The following exchange then took place:

[157]

In re-examination as to this answer, the plaintiff explained what was in her mind. She said that she always thought that she would have the opportunity to go back; that she did not think there would be so much pressure upon the cliff top to actually do the jump.
Ms Poulson's version was not dissimilar to that of the plaintiff, although not given in as much detail. Ms Poulson said that the depth of the water was measured, and that each of Mr Saville, Mr Halmagyi, Mr Davis, Mr Newman and Mr Maloney had said that they were clear to jump. She said that they had to "set up again". She felt pressure; "I felt that because we were part of the day was just like the dive - if I had said that I didn't want to do the dive, like, you know, it was part of our activities so I was very concerned and ... I was never going to agree to it, I just said 'we'll go and have a look'. So I jumped out of the boat into the water".
Ms Poulson's evidence was that she said a number of times that she did not want to do this, that it was a bad idea. In response she received enthusiasm from both Mr Davis and Mr Halmagyi. Mr Davis said that if she really did not want to do it, that he could take her back down, but that it would be fun and that she would be okay. The plaintiff was also saying it was a bad idea and that they should not do it. Ms Poulson kept saying no, people on the boat were yelling saying that they were going to count, someone counted a couple of times. She felt that time was ticking and that Mr Halmagyi was getting angry. It was "really scary" and there was a lot of pressure. Mr Halmagyi's body language suggested that he was getting really angry. He was getting anxious, he wanted to do the jump and she felt she was taking up everybody's time. He reassured her that it would be fun; "I think he, you know, grabbed me on the shoulders like, really promised me that everything was okay and that it was - plenty of people had done what we'd done before [sic] and they were fine and he was just really pestering me almost, like ...".
She felt that this went on for ages. Mr Davis reassured her then about the depth and the absence of rocks. She knew Mr Newman as the father of a friend of hers, so she trusted him when he said that it was OK. She did not remember asking people in the boat if it was it safe. When asked what ultimately happened to make her jump, she said:

[161]

In his evidence-in-chief, Mr Halmagyi said that he at no stage got any sense that the plaintiff did not want to jump. He said that he got the sense that they were all nervous which is part of doing adventure things like that; the thrill you get is from it being scary. He did not get any indication that the plaintiff or Ms Poulson did not want to jump or were not prepared to do it. He heard nothing to suggest that they were not going to jump, or that they wanted to go back down. He explained that he did not jump as he was genuinely concerned that they were standing too close together, and that when Ms Poulson jumped she seemed to be crossing into his path and he stopped himself at the last minute. He was very concerned about running into her in mid air or hitting her as he landed.
He denied becoming impatient at how long things were taking on the cliff top, or telling anyone that he was impatient. He did not become angry. He said that he had viewed the footage of the jump a couple of months previously. He recalled seeing a part where he leant across and had his hand on Ms Poulson's shoulder. His evidence was that he had no recollection about the substance of what was said. "I can only surmise from my body language but it would be a surmise". As to whether he was angry at that point, he replied "absolutely not". He said that after the others jumped he had no difficulty in getting back down; it only took him a couple of minutes. As to later events, he said that if the plaintiff called him a "chicken shit bastard" he did not hear it, and that saying to her that he was going to do an "I gotcha" segment, was not something he would ever say. He denied "absolutely" telling the plaintiff that he was going to do a thing to the effect of "Well, if you think I'm jumping off there, you've got another thing coming".
In cross-examination by counsel for the plaintiff, Mr Halmagyi said that:
- he did not recall having any discussion with Mr Davis at the top of the cliff, nor being part of the discussion that he was involved in;
- he remembered talking with Ms Poulson, but that was the extent of his memory;
- if there was a conversation between Mr Davis and the plaintiff, he did not hear it;
- he does not recall Mr Davis saying anything to him;
- he moved over to the right of the group (the left from his perspective) because he was concerned that they would be jumping too close together, and at the same time he has moved apart from the other three;
- he does not recall giving any instructions to stand apart, and did not see anything in the film which showed that, although he was not saying it did not happen - he just does not recall having the conversation;
- he does not recall giving any instructions to the plaintiff and Ms Poulson to hold hands, but does remember saying that they should not be so close together;
- he does not recall the plaintiff or Ms Poulson expressing concern;
- he agreed that the footage shows a discussion between the other three which he does not say he did not hear, but just does not recall what was said;
- he does not recall Ms Poulson saying that she was fearful; she looked nervous but they were all nervous; and
- to the best of his recollection, and interpreting his own body language, he was attempting to reassure Ms Poulson and asking her whether she was okay.
In addition, he agreed that there was a degree of pressure to get back on the boat, but whether that meant jumping or coming back down the cliff was immaterial. He did not recollect any discussion other than about doing the jump. He repeated that he took Ms Poulson's shoulder or arm reassuringly but did not recall the words that he used. He did not agree that because there had been some false attempts at starting the jump, intensity was growing to get the jump done. He denied as being "absolutely false" that he was getting angry. "I mean I was crouched - over sympathetic, reassuring body posture completely inconsistent with someone getting angry. I'm not a person who gives rise to anger, certainly not over something so trivial."
Mr Halmagyi continued to deny that he was angry or impatient or aggressive and said that his essential concern for the whole of the time he was at the top of the cliff was about the risk of a collision after they jumped.

[162]

Mr Davis agreed that he told the other members of the group that it was safe for them to jump. He was aware of the depth of the water and that there were no obstructions in the water. Because of the height, he told the group that when they jumped they needed to make sure that they jumped out and feet first, extended their feet and legs "and effectively pin dropped into the water".
He denied saying to the plaintiff that jumping off the cliff would make great footage, shouting at her to hurry up, making threats to the plaintiff to encourage her to jump, or pressuring her or coercing her in any way. He agreed that there was a discussion for some time before the three persons jumped. He did not recall what that discussion was word for word. He said there was discussion about the height and he recalled that all of other three expressed some concern about that. He agreed that Ms Poulson had expressed concern about not wanting to jump but he did not remember the exact conversation.
He said he recalled both the plaintiff and Ms Poulson having concerns about the height, how deep the water was and whether there were rocks underneath the cave. They asked him again if he had jumped off it before, and he said to them he had. He did not recall saying in jest that it was the first time that he had jumped, and did not know why he would say that. He described the mood at the top of the cliff as a mix of excitement and trepidation. There was a lot of enthusiasm and excitement walking to the top of the cliff, but that when everybody got to that point, there seemed to be a realisation of how high it was and some second thoughts as to whether people wanted to do it or not.
He agreed that he would have encouraged the others to jump, "given the nature of their enthusiasm leading up to being there". He said that he would have supported them in their enthusiasm, but did not tell them they had to jump. He gave the women the opportunity not to jump by mentioning that if the jump was something they did not want to do, he was happy to take them back down. He did not recall that anybody asked him to do that.
When cross-examined, Mr Davis denied that at any time on 18 September he checked the depth with a depth sounder and assured the people on the boat that there was sufficient depth to jump. When asked whether he thought that the plaintiff deserved to know about the injury to Mr Brock, Mr Davis said that he did not understand that the plaintiff was going to be involved in the jump until they got to the cave, and he walked from the wheelhouse to the back of the boat to get dressed in his wetsuit. Although this had not been raised with the plaintiff in her evidence, he said that he told the plaintiff and Ms Poulson that they were not coming with them, when they indicated they were "and they turned around and said to me 'yes, we are, you can't stop us'." He maintained that this statement was true.
He agreed that the plaintiff was expressing concern about the height of the cliff as they were walking up. He also agreed that he gave reassurance about the fact that he had done the jump before, about the depth of the water, and that there were no rocks underneath. He agreed that he said it was a safe activity to do, and confirmed that he gave some brief advice about the appropriate technique to use when jumping. He accepts that there was some trepidation on the part of the women, but said that this extended to Mr Halmagyi as well. He gave them encouragement that if they wanted to go ahead with the jump that "it would be OK". He has no independent recollection of Mr Halmagyi touching Ms Poulson on the shoulder and hand or of anything Mr Halmagyi may have said to her at that time. His interpretation is that Mr Halmagyi gave no more encouragement to the women than what he had given.
Mr Davis did not remember that when he offered to take one or more back down, that Mr Halmagyi "jumped in and tried to persuade them to do it, with him joining in with a comment that the jump would be awesome". Mr Davis replied:

[165]

Mr Maloney's evidence of filming the events is important, as is that of Mr Cocking. Neither Mr Maloney nor Mr Cocking were Southern Cross employees. Mr Maloney operated his own company, whilst Mr Cocking accepted the description of "freelance self-employed" and said he had been engaged for this job by Mr Maloney.
Mr Maloney said that apart from one "amateur camera like a Camcorder", he had one camera which was about 30 to 40 centimetres long and weighed 15 kilograms. With a battery on the back and the attached sound equipment, he described it as "quite a big device". To pack it up, he had to strip the sound equipment from it and remove the batteries for charging. When filming he wore earphones to obtain an audio feed from the sound recordist's equipment through the camera. The camera was also attached by cabling to a monitor for the use of the producer, in this case Mr Saville. The dimensions of the monitor were, he said, 9 inches by 9 inches by about 15 inches. The monitor was so that the producer could see what the cameraman was seeing and give directions accordingly.
Mr Cocking said that he used a combination of equipment which included radio microphones, personal microphones, boom microphones and an audio mixer. It is the mixer which is connected to the camera, its function being to mix the various inputs from various microphones down to one or two tracks, and to keep the levels consistent. I infer that Mr Cocking also wore headphones when recording. The evidence about the equipment was not challenged and there is no reason to doubt it.
When they arrived at the jump site and Mr Maloney started to film what was happening, none of Mr Cocking's equipment was being used. The only sound recording device was a fixed microphone on Mr Maloney's camera. Mr Cocking said that all of his equipment had been stowed away as had the monitor and cabling. Mr Saville confirmed that Mr Cocking had not unpacked any of his sound recording equipment when the four people got off the boat and swam ashore.
Mr Maloney was asked if it had been intended to use film of the jump in the program, what he would have done differently and how would he have set it up. He said:

[170]

The footage runs for a total period of 8 minutes and 34 seconds. It starts at a time when Mr Davis has already left the boat and is swimming towards the rocks. It ends just after the three people have jumped and Mr Halmagyi is shown still standing on the cliff. It does not show the entry into the water of any person. Someone on the boat, I believe to be Mr Newman, is heard saying loudly, "What's happened to Ed?", to which Mr Halmagyi replies, "She jumped in front of me". Between the start and the finish, the filming is not continuous. There are breaks whilst the group climbs to the top of the cliff, and later breaks for lack of vision of the group on the top of the cliff whilst the boat is repositioned.
Mr Maloney said in evidence that Mr Cocking was holding on to him in order to stabilise him as much as possible. However, without a stabilising lens as referred to by Mr Saville, and despite Mr Maloney being held on to, often the vision is unsteady because of Mr Maloney's movements and those of the boat. As far as the events on the climb are concerned, the footage confirms the basic facts of what occurred. With the exception of Mr Cocking who was not asked, each witness said that they had watched the footage before the trial, so this is hardly surprising. The footage time of the group on top of the cliff before the jump is 4 minutes and 18 seconds, although as I have said, the actual period would have been longer.
Relevant features of the footage are as follows. Mr Maloney suggests to Mr Halmagyi that he let the two women go into the water from the boat before him, and as he is in the process of jumping from the boat he is asked to turn around because "we need to know it's you". Both women appear to be smiling, and one other or both join in urging that the boat be taken closer to shore so that there is less distance to swim. Just before the two women jump into the water, the plaintiff comments on the steepness of the cliff, to which Mr Halmagyi replies, "Yeah, we'll be fine, come on". When emerging on a rock ledge, the group participated in a "cheer", all raising their arms to one extent or another. This is repeated twice at the request of Mr Maloney.
When the group arrives at the jump site, from the perspective of those on the boat, Mr Davis is on the left, with the plaintiff to his left, with Ms Poulson to her left, with Mr Halmagyi to the right about a metre or so from Ms Poulson. Mr Halmagyi then seems to move a little further to the right. Mr Newman (I find) shouts out to the group to put their wetsuit hoods on. Mr Newman asks who is jumping. In my view it is Ms Poulson who is predominantly heard saying, "We all are". Mr Newman (I find) shouts out, "Count you down, on the count of 5", then says, "5" and laughs. He then says, "1, 2, 5, on the count of 5, go", and Mr Maloney tells him to "shoosh".
Mr Davis is then seen with both arms straight up in the air apparently talking to the group. About 15 seconds later, Mr Halmagyi moves towards Ms Poulson. He touches her very briefly on the shoulder and then holds onto her left hand for about 5 seconds or so. At this point he is crouched down at her head height. Mr Newman shouts out "We'll count you down again" and says, "1", at which point Mr Maloney tells Mr Newman to leave them alone. The vision is then lost as the boat has to be repositioned. When next seen, Mr Halmagyi has moved back away but by only about a metre or so. He moves back towards Ms Poulson, very briefly touches her on the shoulder, and moves away again. Ms Poulson asks of the people in the boat whether it is safe. Mr Newman replies that there is 100 feet of water. Mr Davis then counts down from 5 and the three jump, with the plaintiff jumping after Mr Davis but before Ms Poulson.
The footage is not absolutely determinative or conclusive as to what occurred on the top of the cliff. In many respects it is equivocal. I bear in mind the difficulties associated in interpreting photographic material, but I think that it more supports the defendants' case than the plaintiff's version of events. Of course, I cannot hear what is being said between the four people, but the body language is not suggestive of the level of anger and frustration suggested by the plaintiff, and Mr Halmagyi's visible actions are not as violent as the evidence of the plaintiff and Ms Poulson might suggest.

[172]

Considerations of the plaintiff's credibility have to be undertaken with her background in mind. She gave evidence that she first qualified as a hairdresser, and worked in that industry for some time. She worked with the "best colourist in Australia", and was "flown around Australia doing education". She then worked in hospitality on a cruise ship off the north Queensland coast. She learned to operate small vessels.
In 2001-2002 she went to London to become involved in the private yachting industry in the south of France. Through a crewing agency she was placed successively on two vessels based in Monaco, working as a stewardess/deckhand. She did some cooking and prepared breakfasts for all the guests, and did passenger transfers driving the boat's tender. For that she obtained a UK powerboat licence for vessels up to 23 metres.
Whilst in Monaco the plaintiff acquired an open water dive qualification. After finishing on the yachts, she went back to the UK for a time where she "worked for a really high profile salon which had a lot of A list clients and ... did stuff for Vogue magazine and London Fashion Week". She returned to Australia in 2003, going back to cruise ship work. She qualified as a deckhand, then a coxswain, then eventually as a dive master. That required 60 dives as well as theoretical work. With those qualifications she obtained a position as senior deckhand and dive master on a vessel operated by different companies. She then qualified as a diving instructor, ultimately enrolling in a degree course in marine biology.
Particularly with this background, I take the view that there is good reason to exercise considerable caution in accepting the plaintiff's evidence about the events of the particular day and her responses to various things which she says happened. I accept that a person apparently well equipped and trained to deal with difficult personal situations may, in unusual situations, not react as may be expected. However, in light of the plaintiff's age and experience, I have difficulty in accepting that she was, in general terms, lacking in robustness to the degree implicit in what she says.
Although it is pleaded that the plaintiff was unaccustomed to being filmed, to "focussed and intense male company", and "in awe of Mr Halmagyi and Mr Davis and wanting to please them", there is little direct evidence about those things. The allegations have an air of unreality about them. Further, there is reason to think that the plaintiff is a person who is prone to exaggeration when it suits her purposes.
After the accident she obtained employment as a fisheries officer in Western Australia. She said that she had some difficulties physically coping with the job, but that as a result of a personality clash, she applied for a different job within the same department but at a different location. She was cross-examined on the job application in which she claimed she had done certain things which her evidence about her physical capabilities suggested she could not do. It was suggested to her that these things were not true. The following exchange occurred:

[181]

The plaintiff's general manner of giving evidence also caused me concern. I make due allowance for an unfamiliarity with giving evidence in a court, but at times her evidence seemed rehearsed. What might be seen as rather crucial facts were omitted on the first telling, but later mentioned for the first time in cross-examination. At times she was evasive in her answers to cross-examination, failing or refusing to provide a direct answer when it might be contrary to her interests. I have just given one example; I have highlighted other examples in the recitation of the evidence. One particular thing of note is the plaintiff's original assertion that there was discussion during the day about filming the jump which included a statement made by Mr Saville, whilst her ultimate position was that there was no discussion between the morning and after the dive.
I am also very hesitant in relying on the evidence of Ms Poulson. I have already mentioned that the film footage suggests that she exaggerated the nature and extent of the physical contact with Mr Halmagyi. Some of her evidence had a dramatic tone to it. An additional difficulty with her evidence is that she has no recollection of being asked in the morning about the jump, and no recollection of discussing with the plaintiff the lateness of the hour and whether she wanted to get home. Her explanation of why it was not safe to go back down is not borne out by the film and photographic evidence of the route to the cliff. In my view, Ms Poulson's recollection of the events is poor and perhaps clouded by the fact that significant injury was suffered by her friend, and her own reaction to the event.
Generally, I do not consider Mr Newman's evidence to be reliable. There is reason to think that he is not truly independent; he the father of a friend of Ms Poulson. On anybody's version, he is plainly wrong when he says that just before the jump, the boat was taken into the sea cave and it was filmed. His answers in cross-examination about his previous statements do not give me confidence in his evidence.
At the same time, although not of any great import, I have some concerns about Mr Saville and Mr Davis, and would not unreservedly accept their evidence. I formed the view that some of Mr Saville's evidence was given in a rather peremptory way. Evidence as to his behaviour at the time the jump was mentioned might suggest that this is an aspect of his personality, but it seemed to me that Mr Saville was a little prone to distancing himself from the incident as much a possible. I would say the same thing about Mr Davis.
As to Mr Halmagyi, I take into account that he is a regular television presenter, but that is not to say that he was comfortable and at ease in giving evidence in Court. He seemed to me to be making an honest attempt to provide the best of his recollection. He does not profess to have a clear recollection of all that was said at relevant times. Given the plaintiff's allegations against him, it might be thought that, if he was seeking to mislead, he would have been more definite in his evidence. I consider him to be a reliable witness. The interests of Mr Maloney and Mr Cocking might be seen as generally aligned with those of Southern Cross, but they are not parties, and there is no allegation that they were acting as agents of Southern Cross. In broad terms, I accept Mr Maloney as a reliable witness, as I do Mr Cocking to the extent that his recollection is of assistance.
In broad terms, where there is a dispute and except where it is otherwise made clear, I prefer the version of events as advanced for the defendants to that of the plaintiff.

[183]

I make the following findings. In the morning, Mr Davis mentioned to the group the possibility of jumping from the cliff into the water. I do not accept that he and Mr Halmagyi had a private conversation about this. It appears to have started between the two in the cabin, but it eventually involved all on the boat. Mr Halmagyi asked the plaintiff and Ms Poulson, "Would you jump from there" [the cliff], to which the plaintiff replied, "Yeah sure, why not". The words used are important. I am not satisfied that anybody, at that time, mentioned filming the jump for the purposes of the program or otherwise.
I think it likely that Mr Saville said that the jump was not a good idea, and mentioned the injury suffered by his friend. However, on the whole of the evidence about who was where, and who was saying what to whom, I cannot discount the possibility that in the discussion between the various persons, the plaintiff did not hear him say that. I am not satisfied that she did., or alternatively, that she fully understood what was being said. Even if Mr Saville had ensured that she did, I doubt whether, in assessing a possible breach of duty, it would have amounted to a reasonably effective warning about the relevant risk: Nagle v Rottnest Island Authority (19930 [1993] HCA 76; 177 CLR 423 at 432.
In the afternoon after the dive, one or other of Mr Halmagyi or Mr Davis, most likely Mr Halmagyi, recalled the possibility of jumping from the cliff. On the plaintiff's own evidence, I am satisfied that she was asked if she would still be involved. She discussed it with Ms Poulson and they agreed. Again, the words used are important. I do not accept Mr Davis' assertion that he told them that they should not do it. I am satisfied that there was discussion about the jump being filmed. In this respect I prefer Mr Maloney's evidence. He agreed to film it but only as a keepsake for the participants. He made this clear to those on the boat, although not in those words.
The plaintiff may not have been specifically told that the filming was not for the program, but I am satisfied that the plaintiff would have heard the discussion. In my view, at least by the time the boat arrived at the jump site and the jump participants were preparing to get into the water, that the jump was not for the program would have been plain from that discussion along with the bulk of the equipment having been packed away, and what the members of the film crew were doing, or more relevantly, not doing.
I am affirmatively satisfied, indeed, I think there can be little doubt, that the filming was not done for the purpose of the program, nor was it even contemplated as a possible use. As to this, I accept the evidence of Mr Saville, Mr Halmagyi, Mr Maloney and Mr Cocking. In particular, I have regard to the evidence of Mr Maloney and Mr Cocking as to the packing up of most of the equipment normally used for filming program segments, the way in which program segments are normally filmed, and the equipment which was actually used to film the jump.
I accept that both in the morning and the afternoon the plaintiff was asked whether she would jump, but I am not satisfied that she was asked in any context other than one of a simple enquiry by one person of another as to whether that person is willing to become involved in a proposed activity. The plaintiff has failed to satisfy me that she was asked whether she would jump, in the context of assisting with the making of the program. I am not satisfied that there was any request or requirement, explicit or implicit, for the plaintiff to carry out the jump as part of, or for possible use in, the program, and I am not satisfied that the jump was not a voluntary act on her part in that sense. Any misplaced sense of obligation does not alter the situation. I am satisfied that the plaintiff was free to choose whether to involve herself or not.
I am inclined to think that because of the nature of the injuries which the plaintiff has suffered, and their consequences, she has rationalised her involvement by placing onto others, at least subconsciously, the responsibility of her decision to jump. Having said that, it is possible that someone did say something about the jump being a great way to end the day, but not meaning to refer to its inclusion in the program. This may have become implanted and enlarged in the plaintiff's mind. One might acknowledge the possibility that the plaintiff felt that the enquiry about the jump was made with the intention that it be part of the program. To the extent that she may have been mistaken, as I have said, the case was neither based nor conducted, (apart from an argument in closing), on the footing that the plaintiff was mistaken in her belief about the filming, and an asserted duty of care to guard against any misunderstanding; that is, to ensure that the plaintiff understood what was and was not required of her.
In any event, even accepting a lack of experience in how television programs are made, a reasonable person in the plaintiff's position would have noticed the very real differences in the way in which the Southern Cross team went about filming the exit from the boat and the jump, as distinct from segments filmed earlier in the day. I do not believe that discerning those things needed specialist knowledge. The plaintiff would have seen how things were done. At the relevant time, Mr Saville was not doing anything. He was not at the monitor; that was still in its box and not connected by cabling to the camera. Mr Halmagyi had not done any piece to camera.[7] Judging from the raw footage of the day, those often took several "takes". In particular, at the time the plaintiff jumped into the water, most of the equipment remained packed away. Mr Cocking was not involved in doing anything other than attempting to steady Mr Maloney from time to time.

[185]

Much of what I have said flows over into this aspect of the case. The plaintiff has failed to satisfy me that there was any coercion, harassment or pressure for her to climb to the top of the cliff. As she agreed, she did not have to get off the boat. She said she thought the opportunity to go back was always there until she was at the top. I am not satisfied that there was coercion, harassment or pressure to jump off the cliff into the water below, for the purposes of the program, or otherwise. The evidence of Mr Halmagyi and Mr Davis, along with the footage, affirmatively satisfies me that there was no such conduct. I accept that both Mr Halmagyi and Mr Davis did engage in persuasion and encouragement to both women, but it was not of the nature as asserted by the plaintiff or Ms Poulson.
Very frequently, groups of people involve themselves in risky and hazardous activities for enjoyment. Some members of such groups may be far more at ease than others; some may feel great trepidation. Covert peer pressure may force them on. It is quite common for members of such groups to provide support and to encourage those who are reluctant, trepidatious or even fearful. I am not satisfied that what Mr Halmagyi and Mr Davis said and did was anything more than that. I find that Mr Davis explained to the plaintiff the best way to jump, in terms which were basically the same as the "preferred technique" as described by Mr Josevski.
Mr Davis offered to take the plaintiff back down from the cliff top. It is not suggested that the offer was not genuine. I completely reject the plaintiff's evidence, which first emerged in cross-examination, that she believed Mr Halmagyi would physically prevent her from leaving. I also reject her evidence of her discussion with Mr Halmagyi after the jump in which discussion he is alleged to have mentioned an "I gotcha" segment. Mr Halmagyi's evidence is borne out by the footage.
I would add that there is nothing in the conduct of those who remained on the boat which has any significance. First, none of them is a party and, apart from Mr Saville, who did nothing of relevance, there is no allegation of agency. Second, whilst Mr Newman gave reassurance as to safety in terms of the water depth, and indicated some pressure by his false count-downs and by asking who was to jump, I do not see that as of relevance to the conduct of Mr Halmagyi and Mr Davis.

[187]

Because of my findings that the plaintiff was not asked to jump for the actual or potential purposes of the program, and that the filming was not done for such purposes, it is unnecessary to resolve this issue, but it is prudent for me to express a view about the issue. The plaintiff accepts that Mr Halmagyi was not an employee of Southern Cross, but was an independent contractor. In the face of Scott v Davis (2000) 204 CLR 333 and Sweeney v Boylan Nominees Pty Ltd (above), she does not seek to establish that Southern Cross would be vicariously liable for Mr Halmagyi's actions; see also Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21. She does however, argue that the relationship was one of true principal and agent so that Southern Cross would be directly, rather than vicariously, liable for Mr Halmagyi's actions carried out within the scope of his actual or ostensible authority: see generally Dal Pont, Law of Agency (above) at 59 - 60 [2.21] - [2.22], 596 [22.4].
The question of the ostensible authority and the creation of agency by holding out was raised in argument. However, in reality, the case is one in which an agency might be implied from the conduct of the parties. The actual authority may be reflected by the authority apparent to others: see the discussion by Clarke and Cripps JJA in Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 per at 132.
In order to succeed on this point, the plaintiff needs to show that the functions entrusted to Mr Halmagyi were those of representing Southern Cross so that he stood in its place, acting in its right, and not acting in any independent capacity; Colonial Mutual Life Assurance Society Ltd (above) per Dixon J at 48-49. That returns consideration to the need for care in the use of words such as "represent" and "representative": Sweeney v Boylan Nominees Pty Ltd (above) at 168 [16].
I have already referred to the essential aspects of the agreement between Southern Cross and Mr Halmagyi. It also contains the following clause, which, for the reasons earlier given, is not determinative:

[200]

I accept that the whole of evidence shows that Mr Halmagyi, to one degree or another, involved himself in how the various segments were put together and filmed, and that he made suggestions to the plaintiff about how, when and where to position herself. I accept that it would have appeared to the plaintiff and to a casual observer that Mr Halmagyi was integrally involved in the production process. As a fact, he was involved in that process and was so by virtue of his agreement with Southern Cross. The question is whether I am satisfied Mr Halmagyi was doing anything more than what was required or expected of him by way of his contribution to the program under his contract, and simply acting independently in that sense. The actual relationships between the parties is important, rather than descriptive labels which might be attached to a role or to particular conduct: Sweeney v Boylan (above) at 167 [13].
What Mr Halmagyi was doing was for the benefit of Southern Cross as well as for his own benefit. Southern Cross had a contractual obligation to Tourism Tasmania to produce the program. Mr Saville, as a Southern Cross employee, was closely involved with Mr Halmagyi in filming and recording program segments. They were working together at the same place and time. Mr Saville was able to, and did, exercise control over what Mr Halmagyi did, and how he did it, although he was allowed some latitude. Mr Halmagyi was allowed to dictate how some things were done by him as well as by the extras. There was a significant degree of contemporaneous co-operation and interaction.
In that scenario, I think the better view may be that Mr Halmagyi was not so much conducting his own business, but was doing things for Southern Cross as part of its business. I would hold, if it were necessary, that the actions of Mr Halmagyi in directing the movements of others for the purposes of making the program, were within the scope of his authority as an agent of Southern Cross. Of course, I have found that the business of Southern Cross was not being conducted at the relevant times. There was no actual authority for Mr Halmagyi to act on behalf of Southern Cross in relation to the jump, and no such authority apparent on reasonable grounds: Gorman v H W Hodgetts & Co [1932] SAStRp 58; [1932] SASR 394 at 404.

[217]

Basten JA (with whom Simpson J also agreed on this point) said at 690 [172] that the multifactorial approach should not be treated as a shopping list, all the items of which must have application to a particular case. "Rather, it provides a list of considerations which should be considered, as potentially relevant, depending on the kind of case before the Court." His Honour added that it was necessary to distinguish between those considerations which were essentially factual, those which require value judgments, and those which may require the application of legal policy. Each party in this case referred to Allsop P's list and highlighted various factors said to support the point of view being advanced.
I will deal first with the position of Southern Cross. It is unnecessary to go through all of the matters said to give rise to a duty of care as pleaded in par 18B of the statement of claim as set out above. Almost exclusively, they relate to the nature and the degree of control over the plaintiff's activities in the background of a foreseeable risk of injury imposed by the jump. The remaining matter is that the jump created a hazard with a high risk of significant injury if not done properly. The duty alleged is simply one "to take reasonable care to prevent ... foreseeable harm by undertaking the jump". Although judged from different time perspectives, the scope of the duty alleged may be suggested by those matters said to constitute the breach. In summary, those matters are: requiring the plaintiff to jump, coercing, harassing, pressuring, persuading or otherwise encouraging, or allowing and permitting her to do so, failing to assess the safety of the jump, and failing to warn her of the risk.
The effect of my findings is that there was no request or implied requirement, or obligation imposed, for the plaintiff to jump. There was no control over the plaintiff's activities or conduct at any relevant time by any Southern Cross employee or agent. In the absence of those features, the plaintiff must fail on the primary basis of her claim. The jump was not part of the arrangements between the plaintiff, Southern Cross and Mr Davis. It was something done by the individuals. That leaves assessment of the plaintiff's 'fall back' position; a duty of care on the residual aspects of the relationship and a knowledge of the risk.
As I noted at the outset, the plaintiff argues alternatively that a duty arises because Southern Cross was generally in control of the day's activities, that in that context both defendants took the plaintiff to the jump site when it had not been made expressly clear to her that the activity was not for the program, and when at least Mr Saville personally, and Mr Davis, had knowledge of the risk. It is a little difficult to see how this case theory fits in between the one primarily pursued, and the plaintiff's accepted position that she does not seek to allege any duty of care to prevent reasonably foreseeable harm in the context of a voluntary jump; that is, a duty to prevent her from doing what she chose to do, or a duty to advise or instruct as to how she should do it.
Ordinarily, the law does not impose a duty upon a person to take affirmative action to protect another from harm, nor to protect another from the risk of harm unless that person has created the risk: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, per McHugh J at 575-576 [81]; Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215, per Crennan and Kiefel JJ at 258 [127]. It might also be said that the suggested duty conflicts with the plaintiff's autonomy. The conflict exits because there is no "supervening or no overriding reason" that the plaintiff was not autonomous. That would be otherwise were control exercised at the relevant time by Southern Cross over the plaintiff when she was vulnerable or had become vulnerable before any control was exercised: CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 per Gummow, Heydon and Crennan JJ at 406 [38].
It is true that, but for the plaintiff's involvement in Southern Cross' activities during the day, she would not have had the occasion to consider the jump or the opportunity of doing it, but I am not able to see how that aspect contributes to the existence of a duty of care. That is a matter of co-incidence. Similarly, the mere taking of the plaintiff to the jump site when others were going to jump in any event, adds nothing.
As to the next aspect, that of not informing the plaintiff that the jump was not part of the program, I have found that the thrust of the conversation at the Troy D site and the observable features of the manner of filming reasonably showed that it was not. I also repeat my observation that the case was not conducted on the basis that the plaintiff wrongly believed that jumping was part of the program. That leaves the apparent nature of the risk, in respect of which the plaintiff relies on actual knowledge. Assuming Mr Saville's personal knowledge is that of Southern Cross, a point which seems to have been assumed but not argued and about which there may be some doubt,[8] I do not see how that alone could of itself , in the case of voluntary action by the plaintiff, give rise to a duty of care. Any such duty would be of limited scope, and I will deal separately with the question of a duty to warn of the risk.
Much of what I have said applies equally to the case against Mr Davis. The duty alleged is the same. The matters said to give rise to the duty on his part are pleaded in par 18B which is set out above. In the main, they also relate to the nature and extent of his control of events, his assistance to the plaintiff, and his involvement in the jump. His control is said to relate to the operation of the boat in going to the jump site. My finding that the jump was not done for the purposes of the program means that the extent to which Mr Davis was formally involved in the making of the program in a general way, is of no consequence. In the absence of direct control over the plaintiff's activities in any relevant sense, the facts surrounding his personal involvement in the jump cannot, in my view, give rise to a duty of care on his part.
Mr Davis also knew of an injury from the activity although perhaps not the full details. Again, I do not see how how that alone could, in the case of voluntary action by the plaintiff, of itself give rise to a duty of care on his part. I will deal with any duty on his part to warn of the risk at the same time as I discuss the point in relation to Southern Cross.
On this point, section 17 of the Civil Liability Act 2002 (the Act) has relevance. It provides that a person does not owe a duty to another person to warn of an obvious risk to that other person. Section 15 of the Act deals with the meaning of "obvious risk", and provides as follows:

[226]

Each defendant would bear the onus of establishing that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk she ran, agreed to incur that risk: Dodge v Snell [2011] TASSC 19 at [206] and the cases cited. It is well established that the three elements of the defence which must be proved are that the plaintiff perceived the existence of the danger, that she fully appreciated it, and that she freely and voluntarily agreed to accept the risk: see for instance Carey v Lake Macquarie City Council [2007] NSWCA 4 at [76]; Dodge v Snell at [207].
Section 16 of the Act provides that if, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised, and the risk is an obvious risk, the plaintiff is taken to have been aware of the existence of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the existence of the risk. I have already held that the risk of injury by impact with the water was an obvious risk. I have already noted that the plaintiff was alert to that risk, and I am satisfied that the plaintiff was aware of the existence of the relevant risk and fully appreciated it. That obviates the need for the defendants to establish the first and second elements of the defence, but they must still establish, on the balance of probabilities, that the plaintiff freely and voluntarily agreed to accept the risk.
In Dodge v Snell, Wood J considered a defence as it related to the position of a jockey injured in an organised horse race run under the auspices of a relevant body. The plaintiff jockey was held to be in breach of a duty of care to other jockeys. At [228], her Honour noted that there was no direct evidence that the plaintiff voluntarily accepted the risk of the defendant's negligent conduct, but that the defendant relied on a necessary inference, drawing attention to the fact that voluntary assumption of risk will rarely be the subject of direct evidence. Her Honour noted the submission that the plaintiff voluntarily undertook all the risks that a horse race between horses ridden by professional jockeys, and that he was under no compulsion to ride in the particular, or any other, race other than the compulsion inherent in his free and voluntary choice to take up and continue in his occupation.
At [229] her Honour said:

[229]

Section 20 of the Act provides that a person is not liable for a breach of duty for harm suffered by another person (the plaintiff) as the result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. Section 19 explains the meaning of various phrases used in s 20 as follows:
- "Dangerous recreational activity" means a recreational activity that involves a significant degree of risk of physical harm to a person.
- "Obvious risk" has the same meaning as given to it by s 15 (see above).
- "Recreational activity" includes any sport (whether or not the sport is an organised activity), and any pursuit or activity engaged in for enjoyment, relaxation or leisure.
The combined operation of the provisions is clumsy. In order for liability not to accrue by virtue of s 20, the harm suffered must be as a result of the materialisation of an obvious risk of a recreational activity that involves a significant degree of risk of physical harm. I have already discussed the meaning of "obvious" when applied to a risk. The risk needs to be one obvious to a reasonable person in the plaintiff's position. What amounts to a "significant risk of physical harm" is to be assessed by reference to the ordinary meaning of the term "dangerous recreational activity".
Whether a risk of physical harm is "significant" requires an objective assessment of the relevant activity which takes account of the probability of that harm coming to pass, and the seriousness of the harm which would or might then result. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm; a high probability of very minor injury may well not be a significant risk of harm. For these propositions see Falvo v Australian Oztag Sports Association [2006] NSWCA 17 at [28]- [30], Fallas v Mourlas (above) at [12]-[18], Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31], Jaber v Rockdale City Council [2008] NSWCA 98 at [46]- [47] and Streller v Albury City Council [2013] NSWCA 348 at [43]- [48].
Whether or not a particular activity is a recreational activity is determined on the facts of the particular case. An activity which is of a commercial or employment nature for one person, might be recreational for another; it might be recreational for that same person but done in different circumstances. To be a recreational activity it needs to be engaged in voluntarily: Dodge v Snell at [273]-[276]. As I found that the jump was not part of the activities intended to be depicted in the program, it would be very difficult to characterise the activity as anything other than recreational. There was no aspect of imposed obligation or compulsion. I have held the risk to be an obvious one.
As to whether the recreational activity is a dangerous one as involving a significant degree of risk of physical harm, I regard the risk of harm as relatively high in terms of the likelihood of occurrence, and at the same time more than trivial in terms of the extent of harm which might eventuate. I would regard the activity as one involving a significant degree of risk of physical harm. Were it to be necessary, I would hold that, by virtue of s 20 of the Act, the defendants would be absolved from liability for any breach of duty.

[233]

I have already set out much of what has been pleaded as to this issue. It will be recalled that the plaintiff says that the defendants coerced, harassed, pressured, persuaded and encouraged her to jump, that conduct having a coercive quality by virtue of the characteristics of the individuals concerned as compared to those of the plaintiff. The plaintiff says that the defendants were in a position of superior force and authority. Critically, the plaintiff alleges that once on top of the cliff there was no reasonable egress open to her.
It is pleaded that the route taken to get to the top of the cliff "would have been very difficult and dangerous to climb down, particularly whilst wearing a wetsuit and booties". It is also pleaded that the water around the rocks at the base of the cliff was surging, the swell being such that the plaintiff "having had trouble getting out of the water to get up onto the land, was very concerned that she would be unable to clear the rocks", and would have required assistance to make the descent and to clear the rocks in order to reboard the boat.
The pleading does not specifically allege an intention on the part of Southern Cross by its agents or employees, or Mr Davis, to imprison her. Neither the pleadings nor closing submissions address the issue of state of mind. The discussion in Balkin and Davis_, Law of Torts_, 5th ed 2013, at 49 [3.25] shows that normally the tort is regarded as intentional in the sense that the defendant must intend to do an act "which is at least substantially certain to cause the confinement". As a matter of principle, negligence might be sufficient to satisfy the mental element of the tort, although the point has not been decided, and there is disagreement amongst academic writers. As will become clear, I do not need to address any deficiencies in the pleadings, nor decide the point.
The following is a summary of the relevant features of the tort of false imprisonment:
- The conduct with which the law of false imprisonment is concerned must be of a coercive character and amount to a total restraint: McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289; (2007) 20 VR 250 at 260 [31].
- The restraint need not be physical nor bear any similarity to what would normally be described as imprisonment: South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 at 391 [282].
- The essence of the action is the compelling of a person to stay at a particular place against his or her will. Where a plaintiff has full knowledge and comprehension of the defendant's coercive conduct amounting to total restraint, the action depends upon proof that, were it not for the defendant's conduct, the plaintiff would not have submitted to the restraint: McFadzean at 264 [41].
- Where there has been no application of physical force there must be evidence of complete submission of the plaintiff to the control of the other party, supporting at least an inference that the plaintiff reasonably thought that there was no way of escape: South Australia v Lampard-Trevorrow at 395 [303]; Symes v Mahon [1922] SAStRp 57; [1922] SASR 447 at 453.
- Whether there is total restraint is a question of fact. A means of escape means that the restraint is not total, but that means of escape must be one which does not involve the risk of personal injury or is otherwise unreasonable: Burton v Davies [1953] St R Qd 26 at 30; R v Macquarie (1875) 13 SCR(NSW) 264; McFadzean at 264 [42].
- Whether a means of escape is reasonable or not, involves a subjective assessment and must take into account the plaintiff's characteristics: Young v Cooke [2013] NSWCA 79.
- The plaintiff does not need to prove malice or improper motive: Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269 at 272, [273]- [274]; Calabro v Western Australia (No 3) [2014] WASC 84 at [46].
The plaintiff's case is based on the proposition that by pressuring her to jump from the top of the cliff, the defendants had falsely imprisoned her at that spot. That is because the plaintiff says that going back down the way she had come up was not reasonably open. It is not entirely clear on the authorities that compelling a person to go in a given direction amounts to imprisonment. In Bird v Jones (1845) 7 QB 744, 115 ER 668, Patteson J suggested that it might, but the real point in this case was whether it was reasonable from the plaintiff's perspective to go back down and to get onto the boat.
The plaintiff must fail on this claim. My earlier findings tell against her. But the plaintiff must fail even were I to accept that the jump was for the program and the required degree of coercion. The plaintiff accepts that Mr Davis made an offer to her to take her back down, which offer she declined. I reject her assertion that she did not think they would be able to get past Mr Halmagyi as quite implausible, or least as a belief not reasonably held. Even ignoring the offer from Mr Davis, the plaintiff was wearing ordinary rubber soled shoes over her wetsuit booties, and having regard to what the evidence shows about the nature of the climb up and back, I am simply not satisfied that it was unreasonable for her to go back down on her own.
As to this, I repeat my earlier observations as to the work skills and experiences which the plaintiff had acquired. Getting from the shore into the water and onto the boat might have presented a challenge, but the plaintiff is an experienced swimmer and diver, and no doubt one or more of the people on board would have assisted her. Mr Newman was in fact quick to get into the water after the plaintiff had jumped and was in obvious difficulty. There were on the boat, no doubt, rope lines available to be thrown to her.

Price v Southern Cross Television

At a glance

Court

Decision date

Before

Source

Judgment (242 paragraphs)

Price v Southern Cross Television (TNT9) Pty Ltd [2014] TASSC 70 (22 December 2014)

Parties

Legislation Cited (1)

Cases Cited (22)