Romeo v Conservation Commission

Has it been proved that the defendant is in breach of the duty so defined? (The breach issue.)

If so, was the breach the cause of the plaintiff's damage? (The causation issue.)

(Where relevant.) Were the defaults alleged on the part of the public authority within the area of the authority's legitimate discretion on questions of policy and allocation of resources so that there was no duty of care owed to the plaintiff? Or was any suggested breach a matter left by law to the authority whose decision the courts would respect and uphold against the plaintiff's complaints? (The policy/operations issue.)

(Where relevant.) Has contributory negligence on the part of the plaintiff been proved and, if so, with what consequence? (The contributory negligence issue.)

116. If the structure of the reasons below had examined these successive issues, some of the apparent confusion in the application of established authority might have been avoided.

117. In Pyrenees Shire Council v Day [169] , I have expressed my preference for the conclusion that three considerations are involved in deciding whether a duty of care exists:

1. Whether it was reasonably foreseeable to the alleged wrongdoer that particular conduct or an omission on its part would be likely to cause harm to the person who has suffered damage or a person in the same position [170] ;

2. Whether there exists between the alleged wrong-doer and such person a relationship characterised by the law as one of "proximity" or "neighbourhood" [171] ; and

3. Whether it is fair, just and reasonable that the law should impose a duty of a given scope on the alleged wrong-doer for the benefit of such person [172] .

1. (1998) 192 CLR 330 at 419, adopting Caparo Plc v Dickman [1990] 2 AC 605 at 617-618 2. Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488, applying Hackshaw v Shaw (1984) 155 CLR 614 at 662-663, per Deane J. 3. Whereas some authorities treat proximity and foreseeability as substantially synonymous, the differentiation reflects the long history of the common law in which foreseeability of the risk of harm to another is insufficient of itself to impose a legal duty to act to avoid consequences to that other: cf McHugh, Neighbourhood, Proximity and Reliance in Finn (ed) Essays on Torts (1989) 5, at p 17. 4. This tripartite test reflects Caparo Plc v Dickman [1990] 2 AC 605 at 617-618It is to be preferred to simplistic tests which impose undue work to be done by the notions of proximity and foreseeability; cf Dugdale, Public Authority Liability: To What Standard, Tort Law Review, vol 2 (1994) 143, at p 156.

118. If the test which the law required in this case was that stated by Deane J in Hackshaw v Shaw [173] , adopted in Zaluzna [174] and applied by the majority in Nagle [175] , it was a prerequisite of a duty of care that there had to be the necessary degree of proximity between the parties. The touchstone of the existence of proximity was that there was reasonable foreseeability of a real risk of injury to a person such as the appellant. Questions of legal policy, reflecting the need sometimes to limit the imposition of a duty of care to that which is fair and reasonable, have also been recognised by this Court [176] . Although this last consideration is sometimes overlooked, it should not be, for the law of negligence must ultimately respond to common notions of fairness and justice. If foreseeability and proximity, alone, take the law into the imposition of duties of care which are unfair, unreasonable and unrealistic, the time will have come to re-express the preconditions for the existence of the duty in a way more harmonious with such considerations.

1. (1984) 155 CLR 614 at 662-663. 2. (1987) 162 CLR 479 at 488. 3. (1993) 177 CLR 423 at 428. 4. See, eg, Gala v Preston (1991) 172 CLR 243 at 253, 260-262, 277.

119. Whether the Commission ultimately conceded a relevant duty of care to the appellant is not entirely plain from its pleadings and argument. It appeared to be willing to accept a general duty limited to its statutory obligations for the management of the reserve and nothing more. It disclaimed a duty of the kind for which the appellant argued. By its submissions that decisions on the way the reserve would be managed were policy matters for it alone, it seemed to be contending that there was no relevant duty. The Court of Appeal did not accept that submission. In this, I consider that the Court of Appeal was correct.

120. The foundation for the Commission's duty of care to the appellant was the statutory power of management and control of the reserve. But the factual circumstances of the case went beyond mere power. This was not a case of unalienated Crown land, left entirely, or virtually entirely, in its natural state [177] . The cliffs were part of a public reserve, which attracted up to half a million visitors a year. Although it would be quite wrong to describe the reserve (as the appellant did) as akin to a suburban park, it was certainly close to the outlying suburbs of Darwin. The cliffs, to the knowledge of the Commission, attracted a proportion of those visiting the reserve. The Commission did not create the ungraded road and carpark as an allurement to people to visit the cliff area, but rather as a means of controlling traffic and limiting damage to the environment. However, these improvements certainly facilitated access to the cliffs by visitors. The positioning of logs at the edge of the carpark was obviously designed to mark the limit of vehicular access in a way that still preserved the natural character of the site. It would have been foreseeable that the logs would have been used by visitors, sitting on them and watching the scenery. It was obvious that visitors would arrive at the reserve and the cliffs of different ages, different visual capacities, different states of sobriety and exhibiting different levels of advertence to their surroundings.

1. cf South Australia v Wilmot (1993) 62 SASR 562 at 574

121. Accordingly, the elements of foreseeability and proximity were satisfied in this case. Subject to any special considerations of legal policy deriving, for example, from the fact that the Commission is a public authority with limited resources committed to its discretion, the considerations necessary in law to give rise to a duty of care were all satisfied. But the question remains: what was the scope of that duty and was the Commission in breach of it?

122. It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty. The failure to distinguish these concepts can only lead to confusion.

123. The ordinary formulation of the common law is that a body such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the reserve, including the cliffs, as of common right [178] . However, that expression of the duty must be elaborated if it is to be of any practical guidance. The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertance of the entrants. While account must be taken of the possibility of inadvertance or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety [179] . For example, it would be neither reasonable nor just to impose upon a body such as the Commission an obligation to erect secure climb-proof fencing along the entire elevated headland of the reserve against the risk of injury suffered by the occasional visitor bent on suicide. In judging the measure of the duty which is owed regard will certainly be had to any particular statutory obligations or powers enjoyed by a public authority. But where, as here, the statutory duties are stated in general and permissive terms, the scope of the duty of care imposed by the common law will be no more than that of reasonable care. Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just. In considering whether the scope of the duty extends, in a case such as the present, to the provision of fencing or a wire barrier, it is not sufficient to evaluate that claim by reference only to the area of the Dripstone Cliffs. An accident of the kind which occurred to the appellant might have occurred at any other elevated promontory in every similar reserve under the control of the Commission to which members of the public had access. The projected scope of the duty must therefore be tested, not solely with the hindsight gained from the happening of the accident to the particular plaintiff but by reference to what it was reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public generally coming upon any part of the lands under its control which presented similar risks arising out of equivalent conduct [180] .

1. cf Nagle (1993) 177 CLR 423 at 429-430 2. McLean v Tedman (1984) 155 CLR 306 at 311-312 Nagle (1993) 177 CLR 423 at 431cf Phillis v Daly (1988) 15 NSWLR 65 at 74 3. Cekan v Haines (1990) 21 NSWLR 296

It must never be forgotten that, in defining the measure of the duty of care, a court is not only determining an element essential to the ascertainment of the rights of the particular parties. It is also giving expression to the standards which occupiers of land or premises generally must reach, and possibly insure against, in case similar mishaps befall them [10] .

The conclusion that a duty of care is owed to a class of persons including the plaintiff, is not, of itself, determinative of the negligence of the defendant. The critical question in many cases is whether the plaintiff has proved that the duty has been breached in the circumstances of the case.

In Wyong Shire Council v Shirt [11] , Mason J expressed the test which is accepted in Australia for ascertaining whether a breach of a duty of care of the defined scope has occurred. He said that the tribunal of fact must ask whether a reasonable person in the defendant's position would have foreseen that the conduct complained of involved a risk of injury to the plaintiff or to a person in a similar position [12] :

If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. 1. (1980) 146 CLR 40. 2. Shirt (1980) 146 CLR 40 at 47-48

It was not contested that this was the test to be applied in the present case. Thus, it is the reasonableness of a defendant's actions or inactions, when faced with the relevant risk, which is critical in determining whether a duty of care has been breached. The question whether the defendant has met the requisite standard of the reasonable person must be assessed on the facts of each case with reference to considerations such as those collected by Mason J in Shirt . These considerations provide a framework for determining which risks the defendant should guard against and which it can safely ignore.

Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be "balanced out" before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that will put a brake on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law. Thus, under the consideration of the magnitude of the risk, an occupier would be entitled, in a proper case, to accept that the risk of a mishap such as occurred was so remote that "a reasonable man, careful of the safety of his neighbour, would think it right to neglect it" [13] . It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness [14] . Although it is true, as the appellant argued, that an occupier is not entitled to ignore safeguards against dangers because of the absence of past mishaps, it is equally true that years of experience without accidents may tend to confirm an occupier's assessment that the risks of harm were negligible.

1. Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1967] 1 AC 617 at 642-643cf Inverell Municipal Council v Pennington (1993) 82 LGERA 268 at 276[1993] AustTorts Rep ¶81-234 at 62,404-62,405, per Clarke JA. 2. Phillis v Daly (1988) 15 NSWLR 65 at 73, per Mahoney JA.

129. As to the expense of taking alleviating action, it is increasingly recognised that courts must "bear in mind as one factor that resources available for the public service are limited and that the allocation of resources is a matter for" bodies accorded that function by law [15] . Demanding the expenditure of resources in one area (such as the fencing of promontories in natural reserves) necessarily diverts resources from other areas of equal or possibly greater priority [16] . Whilst this consideration does not expel the courts from the evaluation of what reasonableness requires in a particular case, it is undoubtedly a factor to be taken into account in making judgments which affect the operational priorities of a public authority and justify a finding that their priorities were wrong [17] . I leave aside, but shall return to, the extent to which "true policy" decisions of a public authority are justiciable. But even in so-called operational decisions, which are subject to court assessment, it is necessary to evaluate more than simply the cost of preventing the particular accident. Inherent in the suggestion of the obligation of prevention is the cost that would be incurred in the measures necessary to prevent all equivalent accidents of a like kind and risk [18] .

1. Knight v Home Office [1990] 3 All ER 237 at 243, per Pill J; cf Just v British Columbia [1989] 2 SCR 1228(1989) 64 DLR(4th) 689. 2. Cekan v Haines (1990) 21 NSWLR 296 at 314, per Mahoney JA; Dugdale, Public Authority Liability: To What Standard?, Tort Law Review, vol 2 (1994) 143, at pp 154-155. 3. Swanson Estate v Canada (1991) 80 DLR(4th) 741. 4. Cekan v Haines (1990) 21 NSWLR 296 at 307-309

130. In the reference to "other conflicting responsibilities" regard may be had to considerations such as the preservation of the aesthetics of a natural environment [19] and the avoidance of measures which would significantly alter the character of a natural setting at substantial cost and for an improvement in safety of negligible utility [20] .

1. Phillis v Daly (1988) 15 NSWLR 65 at 68, per Samuels JA. 2. South Australia v Wilmot (1993) 62 SASR 562 at 569-570, per Cox J.

131. When, therefore, the considerations mentioned by Mason J in Shirt are given their full measure, the conclusion in this case that no breach was shown on the part of the Commission must be upheld. The important distinction between this case and Nagle is that there the danger of the submerged rocks was hidden from the ordinary users of the Basin. Here, the danger of the elevation of the cliffs was perfectly obvious to any reasonable person.

132. In determining what risks the defendant was required by law to respond to, it is necessary to have regard to what acts the defendant may have reasonably anticipated in the circumstances. Given the prominence of the danger, past usage of the site and accident experience it was not reasonable to expect the defendant to anticipate the inadvertance of the plaintiff in this case. So far as her complaint about the clearing of the vegetation and its appearance as a path is concerned, that appearance would not have deceived her, according to the primary judge's findings, but for her alcohol affected state. It is true to say that the Commission, acting reasonably, would have to anticipate a variety of visitors, including children, the elderly, the shortsighted, the intoxicated and the exuberant. However, because the risk was obvious and because the natural condition of the cliffs was part of their attraction, the suggestion that the cliffs should have been enclosed by a barrier must be tested by the proposition that all equivalent sites for which the Commission was responsible would have to be so fenced. The proposition that such precautions were necessary to arrest the passage of an inattentive young woman affected by alcohol is simply not reasonable. The perceived magnitude of risk, the remote possibility that an accident would occur, the expense, difficulty and inconvenience of alleviating conduct and the other proper priorities of the Commission confirm the conclusion that breach of the Commission's duty of care to the appellant was not established. The Commission's failure to provide protection against the risk that occurred was not unreasonable. The decision of the Court of Appeal to that effect was correct. It should be confirmed.

133. The foregoing conclusion relieves me of the obligation to deal at length with the remaining arguments of the parties concerning causation, policy decisions and contributory negligence. Nevertheless, out of deference to the arguments, I shall deal briefly with the first two.

134. Where a breach of a relevant duty of care is shown, it is still necessary for a plaintiff to prove, on the balance of probabilities, that such breach caused or materially contributed to the damage [21] . This means that the plaintiff must show that, if the defendant had fulfilled its duty, as defined, doing so would have resulted in the avoidance of the plaintiff's damage and loss [3] . Necessarily, the question is hypothetical. It calls for a consideration of what might have been if certain things had been done because, by definition, they were not done and that is the plaintiff's complaint [4] . Sometimes a plaintiff has been asked directly what he or she would have done if the acts constituting fulfilment of the suggested duty had occurred [5] . Normally, however, there is no direct evidence on the point and in any case the question is one for objective assessment, not subjective protestations after the event. In this case, the appellant was not asked. It was left as a question of fact for the tribunal of fact to decide whether the protective measures suggested would have been effective in preventing her loss and damage [6] .

1. cf Public Trustee v Sutherland Shire Council [1992] AustTorts Rep ¶81-149 at 61,139. 2. Heyman (1985) 157 CLR 424 at 467 Parramatta City Council v Lutz (1988) 12 NSWLR 293 at 335 3. Mallett v McMonagle [1970] AC 166 at 176, per Lord Diplock. 4. As was done in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 559-561, 581-582. 5. Public Trustee v Sutherland Shire Council [1992] AustTorts Rep ¶81-149 at 61,140.

135. It is often easy, after a mishap, to conceive of precautions which might have been taken. Doing so involves the application of a great deal of wisdom after the event. Many of the cases concerning reserves, and particularly those involving swimming accidents, have addressed the need for signs to alert entrants about particular dangers. Occasionally, the absence of a relevant sign [7] or the inadequacy of the signs provided [8] have been held to constitute a breach of the duty of care which caused the plaintiff's injuries [9] . On the other hand, cases exist where the courts have been convinced that the impetuous nature of the conduct of the plaintiff was such that it was unlikely that a mere sign would have deflected the plaintiff from the course leading to injury and loss [10] . In judging both the need for, and possible effect of, a sign or other precaution, a court is entitled to take into account the plaintiff's own knowledge of the site and understanding of the risks involved as well as its own commonsense [11] .

1. Nagle (1993) 177 CLR 423 2. Inverell Municipal Council v Pennington (1993) 82 LGERA 268[1993] AustTorts Rep ¶81-234. 3. In Inverell Municipal Council v Pennington , Meagher JA commented that the conclusion of the trial judge that the absence of an adequate sign was causative of the plaintiff's injury was "very extraordinary" but not one which he felt he could disturb. See Inverell Municipal Council (1993) 82 LGERA 268 at 282; [1993] Aust Torts Rep ¶81-234 at 62,409. 4. Public Trustee v Sutherland Shire Council [1992] AustTorts Rep ¶81-149, at 61,143; cf South Australia v Wilmot (1993) 62 SASR 562 at 572 5. Black v City of South Melbourne (1964) 38 ALJR 309

136. In the Court of Appeal, Mildren J expressed doubts about the primary judge's factual finding that the appellant had been deceived by the break in the vegetation and path-like appearance caused by a natural watercourse leading to the edge of the cliff. He suggested that it was equally possible that the appellant and her companion had decided, in their alcohol affected state, to jump off the cliff and had mistaken the height [12] . Moreover, as his Honour pointed out, by the time the appellant's family revisited the scene the day after the accident, a considerable number of people had walked over the area including police, rescue workers and others. Obviously, the scene and vegetation would have altered still more between the date of the accident and the time that photographs were taken and the view conducted at the trial. Even accepting that the break in the vegetation gave an appearance of a path to a person, affected as the appellant was, it would have remained a path to the edge of a cliff whose elevation the appellant well knew [13] . This is not a case where lighting or signs would have been appropriate or effective. So far as a log fence is concerned, it seems scarcely likely to have deterred the appellant. She had already passed beyond the logs placed to mark the edge of the carpark. That leaves only the suggestion that a wire barrier should have been created.

1. Romeo (1995) 123 FLR 84 at 101 2. Romeo (1995) 123 FLR 84 at 104-105

137. In her state of intoxication, it is not certain that such a barrier, had it been erected, would necessarily have prevented the appellant from approaching the cliff edge. This was the conclusion which the primary judge reached with the advantages which he enjoyed [14] . Care must be taken by appellate courts in substituting their assessments of such factual questions for those reached by the primary judge [15] . Such matters require commonsense and judgment [16] . However, if duty and breach had been established in this case, I am inclined to think that causation would not have stood in the way of the appellant's recovery. In view of my earlier conclusion, it is unnecessary for me to reach a final opinion on this question.

1. Romeo (1994) 123 FLR 71 at 83104 NTR 1 at 12. 2. Nagle (1993) 177 CLR 423 at 433 3. cf March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 at 515

138. It was then suggested that the Commission, being a governmental authority, was exempted from a duty of care in circumstances such as the present because the decision on whether to provide the kinds of precautions urged by the appellant, or any of them, at the Dripstone Cliffs involved detailed evaluation of financial, economic, social or political factors. It was argued that, by law, such considerations, and the budgetary allocations which they entailed, were committed to the Commission, as matters of policy. They were therefore beyond the purview of the courts. Either there was no duty of care in such a case, whatever the foreseeability of the risk of injury and the proximity factors. Or the questions which the appellant presented by her allegations of breach would be classified as non-justiciable, such that a court would hold back from substituting its conclusion for that of the public authority [17] .

1. Dugdale, Public Authority Liability: To What Standard?, Tort Law Review, vol 2 (1994) 143, at p 155.

139. As Mason J observed in Heyman's Case [18] , there is a great deal of learning in the United States on this question. There is still comparatively little legal authority about it in Australia [19] . In this country, a distinction has occasionally been drawn between the policy-making powers of a public body which are treated as quasi-legislative in character [20] and so-called operational or managerial decisions which are susceptible to judicial evaluation. It is a distinction which it is not easy to apply [21] . Outside the United States, common law courts have been loath to accept the submission that public authorities can conclusively and exclusively determine, by their allocation of funds, what is required to be done in the discharge of their powers [22] . Unless an express statutory exemption is enacted [23] , courts normally prefer to exercise their responsibility to decide whether, in the particular circumstances, a duty of care is imposed and whether it has been breached. They have sometimes acknowledged that no such duty will arise from decisions on matters of pure policy on the part of public authorities [24] . In other matters, they have accepted that budgetary, political and other constraints within which such authorities must operate are factors to be taken into account in determining the scope of the duty of care and whether, in a particular case, it has been breached [25] .

1. Heyman (1985) 157 CLR 424 at 469 2. See South Australia v Wilmot (1993) 62 SASR 562 at 577 3. Heyman (1985) 157 CLR 424 at 500, per Deane J. 4. Heyman (1985) 157 CLR 424 at 469, per Mason J; cf Lord Wilberforce in Anns v Merton London Borough Council [1978] AC 728 5. See, eg, Knight Area v Home Office [1990] 3 All ER 237 Bull v Devon Health Authority [1993] 4 MedLR 117; Dugdale, Public Authority Liability: To What Standard? Tort Law Review, vol 2 (1994) 143, at pp 152-154. 6. Just v British Columbia [1989] 2 SCR 1228 at 1244-1245(1989) 64 DLR(4th) 689 at 708, per Cory J; but see at 690-691; 1247-1248, per Sopinka J (dissenting). 7. Just v British Columbia [1989] 2 SCR 1228 at 1244-1245(1989) 64 DLR(4th) 689 at 708, per Cory J; see also at 696; 1255, per Sopinka J. 8. Cekan v Haines (1990) 21 NSWLR 296

140. When the foregoing principles are applied to the present case, I do not doubt that the determination of whether some preventive measures, such as a wire barrier, should have been installed at the perimeter of the Dripstone Cliffs was properly to be classified as an operational or administrative rather than a policy or discretionary decision [26] . Although it had financial, economic, social and possibly political implications, so would many, if not most, decisions of public authorities. Virtually every suggested precaution, said to be necessary to prevent damage, has financial and economic implications, whether the defendant is a public authority or private individual. In relation to the operational decisions of a body such as the Commission, the present state of the law would not sustain its submission that such questions were exclusively for it. Nor would such consideration justify the conclusion that the Commission was released from any duty of care to entrants onto land such as the reserve or from a court's consideration of the case which the appellant brought [27] . In the conclusion which I have reached the final issue, that of contributory negligence, does not arise for consideration.

1. cf South Australia v Wilmot (1993) 62 SASR 562 at 577 2. cf Allen, Liability of a public authority as occupier: Romeo v Conservation Commission of Northern Territory, Torts Law Journal, vol 5 (1997) 7, at p 16.

141. The appellant established that the Commission owed her a duty of care. Its scope was determined by the general law of negligence. The Commission was not exempt from the duty owed to an entrant such as the appellant coming upon the reserve in its charge as of common right. Nor was the appellant's claim non-justiciable, as the Commission submitted. However, the Court of Appeal rightly dismissed the claim on the basis that no breach of the duty of care was established. That conclusion makes it unnecessary to determine the remaining issues and in particular whether the additional reason given by the primary judge was made out, namely that the appellant had failed to prove that any such breach of duty was the cause of her damage.

143. The facts giving rise to this appeal are set out in the reasons for judgment of other members of the Court and I need not repeat them.

144. It was submitted that the Court should reconsider the principles that were applied in Nagle v Rottnest Island Authority [28] because, so it was submitted by the respondent, these principles have extended too far the liability of public authorities which manage or control land which the public use. It was submitted that the Court should limit the extent of that liability by giving full weight to what was said by Dixon J in Aiken v Kingborough Corporation [29] leaving such authorities liable (so the argument went) only to take reasonable care to prevent injury to persons who enter such land as of common right against dangers that are hidden and not to be avoided by the entrant exercising ordinary care.

1. (1993) 177 CLR 423. 2. (1939) 62 CLR 179 at 210.

145. Nagle established no new principle. In particular it established no new principle governing the responsibility of public authorities controlling land which members of the public use as of right. Rather, the majority applied principles that had been stated in Hackshaw v Shaw [30] and Australian Safeway Stores Pty Ltd v Zaluzna [31] in holding that the Rottnest Island Board (to the liabilities of which the respondent authority was successor) "was under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the Reserve" [32] . The Court accepted [33] that "foreseeable risk" was to be understood in the way described by Mason J in Wyong Shire Council v Shirt [34] , ie, "that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable."

1. (1984) 155 CLR 614 at 662-663, per Deane J. 2. (1987) 162 CLR 479 at 488, per Mason CJ, Wilson, Deane and Dawson JJ. 3. Nagle (1993) 177 CLR 423 at 429-430, per Mason CJ, Deane, Dawson and Gaudron JJ. 4. Nagle (1993) 177 CLR 423 at 431, per Mason CJ, Wilson, Deane and Dawson JJ; at 439-440, per Brennan J. 5. (1980) 146 CLR 40 at 48.

146. The Court held that the risk that someone would dive into the water where the plaintiff did and suffer injury was reasonably foreseeable [35] . The majority held that a warning sign would probably have deterred the plaintiff from diving into the water where he did [36] , and that the Board acted in breach of its duty of care by not erecting a sign [37] . Brennan J was of the view that, although the Board owed a duty of care to the public, that duty "did not require that the possibility of carelessness in diving be forestalled by a warning sign" [38] . As I have said, no new principle was applied. That may well be reason enough to reject the call to reconsider Nagle but there are other important reasons not to do so.

1. Nagle (1993) 177 CLR 423 at 430-431, per Mason CJ, Wilson, Deane and Dawson JJ; at 441-442, per Brennan J. 2. Nagle (1993) 177 CLR 423 at 433 3. Nagle (1993) 177 CLR 423 at 431-432 4. Nagle (1993) 177 CLR 423 at 442

First, the need for stability and predictability in this area of the law is no less than it is in others. Persons have ordered their affairs on the basis that the principles applied in Nagle will be applied to their circumstances. Thus, persons have started or not started litigation, have settled or not settled litigation, have entered insurance and other commercial arrangements on that basis. Very powerful reasons would need to be shown to warrant the Court changing the basis on which those persons have acted or chosen not to act.

Secondly, the suggestion that the liability of public authorities has been taken too far is a suggestion that, in my view, does not withstand close analysis.

It was not (and could not be) seriously suggested that the respondent in this case owed no duty of care to members of the public that might go to areas which it manages. The real subject for debate was what that duty required of it, for it is only when the content or scope of the duty is identified that questions of breach and causation of damage can be considered. So, too, in Nagle the central question was not whether the Board owed any duty of care to those visitors lawfully visiting the island, it was what that duty of care required it to do. No question arose in Nagle (and no question arises here) whether the presence of the injured person in the area managed by the Board (or in this case the Conservation Commission of the Northern Territory) was reasonably foreseeable. No question arose in Nagle (or arises here) whether there was the necessary degree of proximity of relationship between the parties.

It is as well, however, to say why the question of the existence of a duty of care, as opposed to its scope, is not an issue in this case.

The Commission is given power by the legislation that creates it to "occupy, use, manage and control" any land owned or leased by the Territory [39] . The Casuarina Coastal Reserve, of which the Dripstone Cliffs is a part, is an area of land (and sea) managed by the Commission pursuant to those statutory powers.

1. Conservation Commission Act 1980 NT, s 20(2)(e).

152. It has now long been held by this Court that the position of an authority, such as the Commission, which has power to manage, and does manage, land which the public use as of right is broadly analogous to that of an occupier of private land [40] . It is the management of the land by the authority which provides the necessary relationship of proximity between authority and members of the public.

1. Aiken (1939) 62 CLR 179 at 190-191, per Latham CJ; at 199-200, per Starke J; at 205-206, 209, per Dixon J; Schiller v Mulgrave Shire Council (1972) 129 CLR 116 at 120, per Barwick CJ; at 124-128, per Walsh J; at 134, per Gibbs J; Nagle (1993) 177 CLR 423 at 428, per Mason CJ, Deane, Dawson and Gaudron JJ.

153. I, therefore, need not (and do not) consider the difficult questions that can arise in connection with other activities of public authorities such as the exercise of (or failure to exercise) powers to inspect and approve the work of others [41] or powers to require others to perform works on land near a road [42] .

1. Sutherland Shire Council v Heyman (1985) 157 CLR 424 2. Stovin v Wise [1996] AC 923

154. Further, I need not (and do not) deal with the difficult issues that the law must sometimes grapple with when the complaint is that a person has failed to act and not a complaint that the person has acted but acted without reasonable care. Just as private owners of private land may be liable for their omissions as well as their positive acts [43] so, too, may public authorities that manage land the public use [44] .

1. See, eg, Hargrave v Goldman (1963) 110 CLR 40 Goldman v Hargrave (1966) 115 CLR 458[1967] 1 AC 645 2. Schiller (1972) 129 CLR 116

155. In this case the Commission owed visitors who lawfully entered land which it managed, a duty to take reasonable care to avoid foreseeable risks of injury to them. But the bare fact that the risk of the injury which in fact occurred was reasonably foreseeable (in the sense of not far-fetched or fanciful) does not conclude the inquiry about the scope of the Commission's duty [45] . The duty is a duty to take reasonable care, not a duty to prevent any and all reasonable foreseeable injuries.

1. Wyong Shire Council (1980) 146 CLR 40 at 48, per Mason J.

156. The fact that an accident has happened and injury has been sustained will often be the most eloquent demonstration that the possibility of its occurrence was not far-fetched or fanciful. Indeed, often it will be difficult, if not impossible, to demonstrate the contrary to a tribunal of fact. That is why it is of the first importance to bear steadily in mind that the duty is not that of an insurer but a duty to act reasonably.

157. What is reasonable must be judged in the light of all the circumstances. Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring and the difficulty and cost of averting the danger will loom large in that consideration. But it is not only those factors that may bear upon the question. In the case of a public authority which manages public lands, it may or may not be able to control entry on the land in the same way that a private owner may; it may have responsibility for an area of wilderness far removed from the nearest town or village or an area of carefully manicured park in the middle of a capital city; it may positively encourage, or at least know of, use of the land only by the fit and adventurous or by those of all ages and conditions. All of these matters may bear upon what the reasonable response of the authority may be to the fact that injury is reasonably foreseeable. Similarly, it may be necessary, in a particular case, to consider whether the danger was hidden or obvious, or to consider whether it could be avoided by the exercise of the degree of care ordinarily exercised by a member of the public, or to consider whether the danger is one created by the action of the authority or is naturally occurring. But all of these matters (and I am not to be taken as giving some exhaustive list) are no more than particular factors which may go towards judging what reasonable care on the part of a particular defendant required. In the end, that question, what is reasonable, is a question of fact to be judged in all the circumstances of the case [46] .

1. Herrington v British Railways Board [1971] 2 QB 107 at 120, per Salmon LJ cited, with approval in Hackshaw (1984) 155 CLR 614 at 663, per Deane J.

What then is the reasonable measure of precaution for the safety of the users of premises, such as a wharf, who come there as of common right? I think the public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care. If Dixon J was intending to state the scope of the duty of care of a public authority exhaustively, I do not consider that such a statement of the scope of that duty can stand with later decisions of the Court - particularly Nagle . It would be a statement of the scope of the duty which is unduly restricted and it would proceed from an unstated premise that public authorities which manage land owe a different and more limited duty of care from the duty which others managing land owe. This premise can no longer be accepted. If it is a statement of the scope of duty, it is a statement which may be seen to have been much influenced by the then current distinctions between the duties of care owed by an occupier to particular classes of entrant as well, perhaps, as by what Dixon J described as the then "present chaos" which had overtaken "the law of torts" [48] . But in any event what is the "reasonable measure of precaution for the safety of users of premises, such as a wharf, who come there as of common right" is not frozen for all time. The reasonableness of measures of protection must be judged according to the prevailing standards of the day. Moreover, for my part, I doubt very much that Dixon J was intending to give a comprehensive or exhaustive statement of the scope of the duty owed by a public authority such as Kingborough Corporation. The respondent corporation in that case was found not to have taken reasonable care to prevent injury to the public through dangers arising from the state or condition of the premises which were not apparent and were not to be avoided by the exercise of reasonable care. It was not necessary to consider whether it would have been liable in other, different, circumstances. 1. (1939) 62 CLR 179 at 210. 2. Aiken (1939) 62 CLR 179 at 208What Dixon J (at 206) called "the already well-known statement of Lord Atkin in Donoghue v Stevenson " [1932] AC 562 was then but seven years old.

It is because the duty is a duty to take reasonable care that the suggestion that the liability of public authorities has been taken too far is a suggestion that should be rejected. As I have pointed out, it may be relatively easy to show that the risk of occurrence of an injury which a person has suffered in fact was a reasonably foreseeable risk, but if it was reasonable for the defendant authority to take steps to avoid such a risk there is no reason why it should not be held liable for its failure. And if it was not reasonable to take steps to avoid the risk the authority will not be liable.

It may be said that this analysis does not recognise, or even may be said to obscure, the forensic disadvantage which a defendant suffers once a court concludes that a risk of injury was reasonably foreseeable. Counsel for the Commission suggested, in effect, that some cheap solution can always be put forward after the event and that a finding of liability is then inevitable once foreseeability of the risk is accepted. This case is a good illustration of why that argument is flawed.

It was suggested in this Court, and below, that all that would have been necessary to stop the plaintiff walking off the edge of the cliff was two star pickets and one or two strands of wire across the part of the cliff which the trial judge inferred that she and her companion had mistaken for a path. Thus, so the argument ran, a cheap and obvious means of avoiding catastrophic injury was readily available. That attributes a false degree of precision to identification of the foreseeable risk; it attributes too high a probability to the occurrence of that risk and it fails to identify properly the response that would have had to be made to that risk to avoid it.

First, it is as well to recall that the trial judge, who had the benefit of hearing the witnesses and seeing the place of the accident, said of the area of the cliff concerned that:

In the gloom it had the deceptive appearance to the girls of a footpath leading to the gap in the vegetation. It did not have that appearance in daylight. Nor would it have so appeared to a sober alert person on the night in question. [49] 1. Romeo v Conservation Commission (1994) 123 FLR 71 at 78104 NTR 1 at 7 (emphasis added).

The plaintiff was not sober and alert that night. In the view of the trial judge, she was "adversely affected" by alcohol [50] having consumed about 150 mls of rum on that evening [51] between about 10.15 pm and the happening of the accident somewhere between 11.30 pm and 1 am [52] . Thus the risk which was to be foreseen by the Commission was that a person (or perhaps a young person) adversely affected by alcohol would mistake the appearance of an area on the cliffs at night (in a way which a sober and alert person would not) and walk off the edge of the cliff. It will be noted that I refer to "the cliffs" generally rather than a particular part of the cliffs for it is apparent from the photographs of the area included in the appeal book that the point on the cliffs from which the plaintiff fell is not unique (and indeed the contrary was not contended). Thus it is to attribute a false degree of precision to the identification of the foreseeable risk to say that it was this area (and only this area) which needed fencing against the possibility that a person affected by alcohol would be deceived in a way that a sober and alert person would not. To say that only this area needed fencing assumes (wrongly) that it is only at this point on the cliffs that a mistake of the tragic kind made by the plaintiff on this night might be made.

1. Romeo (1994) 123 FLR 71 at 75104 NTR 1 at 5. 2. Romeo (1994) 123 FLR 71 at 74104 NTR 1 at 4. 3. Romeo (1994) 123 FLR 71 at 73-75104 NTR 1 at 2-4.

164. Further, to say that it was reasonable to fence this area (or some other areas as well) assumes that a reasonable person would think that the possibility of such an unusual combination of circumstances as led to this accident was sufficient to warrant taking the step of installing fences. No doubt the reasonable person takes account of the fact that people do not always pay attention, that people do not always take care for themselves [53] and that people may be affected by alcohol [54] . But what was the likelihood of the events which happened here occurring? Was it a possibility that required serious consideration? If the risk was of sufficient likelihood to warrant serious consideration did reasonableness require the authority to fence all areas of the Dripstone Cliffs from which a person affected by alcohol might have fallen? Did it require like attention to all other elevated parts of the area under the Commission's management? Should this area have received special attention because of the height of the cliffs and the provision of car parking, or because it was known to be a place that young people went at night?

1. cf McLean v Tedman (1984) 155 CLR 306 at 311, per Mason, Wilson, Brennan and Dawson JJ. 2. March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506 at 520, per Deane J; at 536-537, per McHugh J.

165. The courts below have answered these questions in the negative and in my view no error is shown in those conclusions. They are, in the end, questions of fact and I see no error in their being resolved against the plaintiff in this case.

166. Counsel for the Commission invited us to say that there are certain "policy decisions" of bodies like the Commission which are not to be reviewed by the courts. I do not consider that that question now falls for decision. In Sutherland Shire Council v Heyman [55] Mason J said that:

it is possible that a duty of care may exist in relation to discretionary considerations which stand outside the policy category in the division between policy factors on the one hand and operational factors on the other. He went on to say that [56] : The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognise that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness. The difficulties of drawing such a distinction are emphasised by Lord Hoffmann in Stovin v Wise [57] and there seems to be much force in what is said there but, as I say, it is not necessary to decide now whether the distinction can be drawn or, if it can, whether it does offer "a touchstone of liability" [58] . In this case the plaintiff failed to demonstrate that the Commission, in the exercise of reasonable care, should have fenced the area in some way that would have prevented her falling and suffering the horrific injuries which she has. Her claim against the Commission must therefore fail and her appeal be dismissed. 1. (1985) 157 CLR 424 at 469. 2. Heyman (1985) 157 CLR 424 at 469 3. [1996] AC 923 at 951. See also Rowling v Takaro Properties Ltd [1988] AC 473 at 500-501 4. Rowling [1988] AC 473 at 501