THE COUNCIL OF THE MUNICIPALITY OF WAVERLEY v. BLOOM [1999] NSWCA 229

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 97/95 LOWER COURT JUDICIAL OFFICER : Solomon DCJ

COUNSEL : M. T. McCulloch (Appellant) M.J. Joseph SC (Respondent) SOLICITORS : Phillips Fox (Appellant) Carroll & O'Dea (Respondent) CATCHWORDS : NEGLIGENCE - Local council - Control and management of surf beach - Surfer struck by surfboard - Whether surfboard within prohibited area - Council's duty of care - Whether breach of duty - Whether breach causative of damage; JUDGMENTS AND ORDERS - Statement of reasons for decision - Inadequacy of reasons DECISION : By majority: Appeal dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40536/97 DC 97/95

MASON P SHELLER JA POWELL JA

THE COUNCIL OF THE MUNICIPALITY OF WAVERLEY v. BLOOM

JUDGMENT 1 MASON P: On a Saturday afternoon in February 1994 the respondent was injured in the surf at Tamarama Beach. He was body surfing between the flags some 60 to 70 metres from the beach. The flags had been located near the southern end of the small beach by employees of the appellant. As the respondent rode a wave he was struck in the neck by a fibreglass surfboard. He remonstrated with the surfboard rider, who then paddled off with a companion on another board in the direction of Mackenzie Bay, a bay immediately to the north of Tamarama. The respondent made his way back to the beach where he "collapsed on the sand". 2 Tamarama Beach is part of the municipality of Waverley and under the care, control and management of the appellant. It is now common ground that the appellant owed the respondent a duty of care in the circumstances. 3 The respondent recovered a verdict of $39,911.81 plus costs. The appellant was found to have been negligent on three bases which will be set out below. 4 One ground of appeal can be disposed of briefly. It was submitted that the trial judge, Solomon DCJ, failed to give sufficient reasons for his decision. I disagree. He found the relevant facts, some of the findings turning upon his acceptance of the evidence of the respondent and of his son who was surfing with him. The critical issues, both at trial and on appeal, were negligence and causation. The trial judge exposed his reasoning process on these matters with sufficient clarity. I shall refer further to the judgment below. 5 The real issues in the appeal can be summarised by this question: Did the appellant fail in its assumed duty to exercise reasonable care to keep surfboard riders out of Tamarama Beach on the afternoon in question, and did such failure cause or contribute to the respondent's injury?

6 The learned judge held that the risk of an accident from surfboard riders was foreseeable. This conclusion was clearly correct. 7 When Tamarama Beach is opened to swimmers by the erection of flags, fibreglass surfboards are not permitted in the beach area. Nevertheless, the presence of surfboard riders was a known hazard. Tamarama Beach is narrow, estimated as being between 80-100 metres wide. And the distance around from Mackenzie Bay to Tamarama is about 150 metres. Board riders could and did enter the water and surf to the north of Tamarama at Mackenzie's Beach or at the headland between Mackenzie Beach and Tamarama; or to the south, at the headland between Tamarama and Bronte Beach, or from Bronte Beach itself. Although board riders might enter the surf away from the beach at Tamarama, Tamarama was a very convenient sandy point of exit (AB 64). 8 On the day in question the beach and its adjacent reserve were patrolled by two beach inspectors employed by the appellant, Mr Colquhoun and Mr Hastings. Their written duties included the obligation to patrol the beach and immediate surrounds "continuously" (par 6) and to exercise "strict supervision of surf craft areas…at all times" (par 8). 9 The beach inspectors' duty statement attests to the perceived need for strict supervision of surf craft. It was the practice to exclude surfboard riders from the beach entirely when the flags were up because Tamarama was so small and board riders posed a known danger to swimmers (AB 123). There was also a sign placed in the middle of Tamarama Beach, facing out to sea, which indicated by words and picture that surf craft were prohibited, with the exception of surf and lifesaving rescue craft. Inspectors were equipped with a whistle and megaphone that could be used to warn off board riders. 10 Notwithstanding the sign, the inspectors, and the self-evident dangers of colliding with swimmers of which most board riders would be aware, there was considerable evidence that board riders disregarded these prohibitions from time to time. Beach Inspector Hastings described board riders as "always a problem" (AB 140). If board riders entered Tamarama Beach when they were not supposed to be there, they were usually directed away by the inspectors (AB 60T, 65R, 106B). Mr Hastings said that board riders were "pretty easily picked up" (AB 124), in the sense of being easily detectable. His practice would be to try to whistle at them and attract their attention if they were close enough, ie within a distance of "20, 30 metres, maybe 40 metres" depending on conditions (AB 125). Failing that, an inspector could resort to the megaphone. If that proved unavailing then he could get on the malibu board that was part of his equipment and "go after them and tell them to get out and give them the old impound board threat" (AB 125). Mr Colquhoun's evidence was to similar effect (AB 148). 11 Other witnesses attested to the not infrequent presence of board riders in Tamarama Beach when it was open to swimmers. Timothy Lindsay described the presence of board riders as "a constant problem at Tamarama" (AB 106). Mr Cooper also agreed that surfers surfing the break near the Tamarama Bay/Bronte headland did, on occasions, come into Tamarama Bay and pose a hazard to swimmers there (AB 89). 12 His Honour was well aware that foreseeability of the risk of injury did not in itself establish negligence. He cited the familiar passage from Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at 47-8. 13 The amended Statement of Claim gave a number of particulars of negligence. It is clear that the judge had them in mind when he made what were in effect findings of negligence (AB 175). The findings are stated twice, although in their second manifestation they are described as facts which increased the risk of injury to the plaintiff. I do not think anything turns upon this manner of expression. Three grounds or particulars were established to the satisfaction of the trial judge:

1 There were no beach inspectors on the beach at the time of the accident; 2 There were insufficient surf patrol members on the beach at the time of the accident; 3 There were insufficient signs erected to warn and deter surfboard riders. 14 It is convenient to deal with the first two findings together, since they are partly interdependent. The primary judge held that neither of the two employed beach inspectors were on the beach or patrolling the beach at the time of the respondent's accident. This was an inference, but one which in my view was clearly open to his Honour. 15 Each beach inspector conceded that his primary duty was to ensure the safety of persons in the water (AB 121C, 137L, 151Q). Mr Hastings said that the procedure adopted or tried to be adopted was that if one inspector was otherwise engaged the other should be keeping an eye on the water (AB 124K). Neither inspector observed the incident in question, even when the respondent staggered ashore and was attended to by Timothy Lindsay. In the light of the unchallenged finding that the accident did take place and that the respondent spoke only to Mr Lindsay when he staggered ashore, the inference was open, and was properly drawn by his Honour, that neither inspector was on the beach looking out in the direction where the respondent was swimming at the time of the accident. 16 As indicated, the second finding of negligence was that there were insufficient surf patrol members on the beach at the time of the accident. Assisting the inspectors on the Saturday in question was a surf lifesaving patrol consisting of a Master and students from Scots College, Bellevue Hill. However, there was only one member of that patrol who was on duty when the respondent staggered up to the sand. He was Timothy Lindsay, aged 13. If one accepts, as I do, the finding that both inspectors were absent, then it was clearly open to find lack of due care in a situation where the only lookout was a 13 year old boy. This is not a reflection on the young man's capacity to spot dangerous situations. But he lacked the official status or seniority to police rogue board riders with the same authority as beach inspectors. Mr Lindsay said that there had been situations where riders of surfboards had refused or ignored his directions (see AB 106V, 126V). 17 The first and second findings as to negligence, taken together, do not suggest that the appellant's system was inadequate. Had that been the thrust of the respondent's case then it would have been necessary to show that a reasonably practicable alternative system would have obviated the risk of injury (Vozza v Tooth & Co Limited (1964) 112 CLR 317 at 318-321). But even the best of systems can fail through acts of casual negligence, and this in my view was what happened here. 18 I am inclined to think that the third finding of negligence is more problematic. The primary judge found that a reasonable council would have erected additional signs, including a sign on the rock north of Tamarama Beach between the beach and Mackenzie Bay. This finding strikes me as problematical, because it is far from clear that additional signs (wherever located) would have deterred board surfers generally, and the board surfer who struck the respondent in particular. It is far from clear to me that the respondent proved that the erection of additional signs would have obviated the risk of injury. 19 Since, however, I am comfortably satisfied on the alternative bases of negligence I shall tarry no further with this one.

20 The findings as to causation were expressed in the following form: I find on the balance of probabilities that the risk of injury to the plaintiff was increased due to the facts one, that the beach inspectors were not on the beach at the time of the accident two, that there were insufficient surf patrol members on the beach at the time of the accident and three, that there were insufficient signs erected in the vicinity of the Tamarama Beach, the Rocks north of Tamarama Beach and Mackenzie Bay. I find that on the balance of probabilities, that had there been beach inspectors employed by the defendant patrolling the beach and adequate signs, that this accident probably would not have occurred. I reinforce that view because there is evidence from Beach Inspector Colquhoun that had he observed a surfer on a fibreglass board some 60 metres from the beach, between the flags, that that surfer would have heard this [his?] direction to leave the area. In so far as the facts in this case are concerned, there is no evidence that either of the council beach inspectors were on the beach at the time of the plaintiff's accident. In that regard, I refer to the evidence of Tim Lindsay. There is no evidence that surf patrol members were present, apart from himself and I stress that he was 13 years of age at the time. There is evidence that there were no signs on the northern rocks or in the Mackenzie Bay area. There is evidence in this case that there were surf craft, fibreglass surf craft sighted off Tamarama Beach prior to this incident occurring (AB 175-176).

21 The sign that was erected and the evidence of the inspectors accepted by the trial judge established that the appellant prohibited surf craft entering Tamarama Beach when it was open to swimmers. Indeed, as I have demonstrated, a primary task of the beach inspectors was to enforce this prohibition by various means. 22 The evidence of Mr Hastings that unwanted board riders could be easily detected (AB 124) is important. I have summarised it at par 10 above. So too is Mr Hastings' and Mr Colquhoun's evidence as to the means adopted to ensure compliance with this obligation. Nothing suggested that two inspectors were inadequate to the task, had either or both been present. 23 In challenging the causation finding, the appellant pointed to the variety and extent of the duties imposed upon the beach inspectors. And, based upon Mr Hastings' evidence as to the various means used by him to enforce the ban on surfboard riders, it sought to have it inferred that some minutes may be required to enforce the prohibition once a surfboard rider is detected entering Tamarama Beach (Appellant's submission par 5(n)). 24 I do not draw that inference from the inspector's evidence. He said that it was not a problem to keep an eye on the board rider situation because generally they were "pretty easily picked up". His evidence about attracting board riders' attention by whistle, megaphone and ultimately by riding out to them and threatening to impound their boards did not suggest that the task of keeping the beach safe for swimmers was an impossible one or even one that was inherently difficult. Mr Colquhoun said that the system of communicating with megaphone or whistle was usually effective (AB 155). 25 Nor does the aspect of Mr Lindsay's evidence that is relied upon by the appellant assist it in this regard. Mr Lindsay saw that the respondent was in some distress. He jumped up and met him just a little distance from the water's edge. He was told that the respondent had been hit by a fibreglass board. Mr Lindsay looked over the respondent's shoulder to see if he could see any boards, but he could not (AB102-3). The appellant submits that this evidence reinforces its submission that the dynamic actions of the surfboard rider were not capable of any form of reasonable control. Once again this is an inference which I would not draw from Mr Lindsay's evidence. And it is certainly not a matter which would falsify the contrary inference drawn by the trial judge based upon the totality of the evidence. Mr Lindsay first saw the respondent when he was in about knee-deep water and clutching his shoulder (AB102V). It was at an uncertain time prior to that that the respondent was struck (some 60-70 metres from the water's edge). It is clear that the two surfers paddled off quickly after the respondent's remonstration. And there was obviously some lapse of time between Mr Lindsay first spotting the respondent in his distress and coming over to him and finding out what had happened. I do not think that it is possible to reason backwards from this evidence and to infer that "the dynamic actions of the surfboard rider were not capable of any form of reasonable control" (Appellant's submissions par 11). 26 The appellant also relies upon the absence of evidence as to: • where the surfboard rider who collided with the respondent came from; • how long he had been at Tamarama Beach before the collision; • the lapse of time between him catching his wave and colliding with the respondent; • the time it would have taken an inspector to have detected him and taken necessary steps to enforce the prohibition; • and any reasonably practicable system which could have obviated the risk of injury. 27 In my view absence of evidence as to all or any of these matters do not dictate the upholding of the appeal. They are a counsel of perfection. Indeed, it strikes me as quite unrealistic to expect evidence on these matters. I do not overlook that the ultimate onus rested with the respondent. But what is critical, in my assessment, is that the totality of the evidence indicates that the type of accident that occurred was avoidable through the exercise of reasonable care. After all, the appellant chose to open the beach to swimmers on the afternoon in question. It set in place a system (the sign and the beach inspectors) explicitly designed to protect swimmers from a perceived risk and a known danger. According to Inspector Hastings' evidence referred to above, it was within the capacity of the one inspector who remained on beach duty (if he did) at any point of time (absent some extraordinary event) to control the occasional board rider before he or she became a danger to swimmers. The finding that neither inspector was looking out from the beach at the relevant time comfortably satisfies me that this was a situation where a casual act of negligence was shown on the balance of probabilities to have materially contributed to the accident. 28 Accordingly, I find no error in the process of reasoning adopted by the trial judge in which he inferred both breach and causal link from primary facts. 29 There is in my view an alternative reason why the ultimate finding on causation should stand. In Betts v Whittingslowe (1945) 71 CLR 637 at 649 Dixon J referred to a principle that: The breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary , that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty. (emphasis added)

30 This principle is not confined to breaches of statutory duty. In Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 467 Mason J said: When there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm.

See also Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-21; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 315-6. 31 These principles were restated and applied in Chappel v Hart (1998) 72 ALJR 1344; [1998] HCA 55 at 10 per Gaudron J, 34(6) per McHugh J, 68 per Gummow J, 93(8) per Kirby J. See also Naxakis v Western General Hospital [1999] HCA 22 at 31, 76, 127. 32 The inference of causation does not have to be drawn, but it may. In my view the trial judge was entitled to draw it on the facts of this case. There was no evidence to suggest that board riders who entered the surf from off Tamarama Beach on the day in question and who caught a wave and rode it into Tamarama as close as 60 to 70 metres from the beach came upon the scene in such a short time as to make it impossible or difficult for them to be spotted in time for a whistle or megaphone warning or some other action to be initiated. The general evidence was to the contrary. It should not be overlooked that if an inspector or member of the beach patrol had started whistling or calling through the megaphone this would probably have alerted swimmers to the danger of board riders in their vicinity. 33 Since preparing the above I have had the opportunity to consider the matters raised by Powell JA. I agree with him tha tthere are matters appearing from the evidence some at least of which could have generated in the trial judge's thinking a chain of reasoning that may have led in the opposite direction to that finally reached. But this does not, in my opinion, demonstrate miscarriage. A trial judge is not required to address every possible inconsistency or possible issue of fact arising on the evidence. As Mahoney JA expressed it in Soulemezis Dudley (Holding) Pty Ltd (1987) 10 NSWLR 247 at 271: "… the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact …" 34 The appeal should be dismissed with costs.

35 SHELLER JA: I have had the benefit of reading the reasons for judgment prepared by Mason P and Powell JA. I agree with Mason P.

36 POWELL JA: I have had the opportunity of reading in draft the Judgment which has been prepared by Mason P with which Judgment I understand Sheller JA to agree. I regret, however, that I am unable to agree with Mason P's reasons for Judgment or with the orders which he proposes. 37 Although, in his Judgment, Mason P has set out the basic facts which gave rise to the proceedings in the District Court, that statement of facts, so it seems to me, tends to obscure, rather than to illuminate, what appear to me to be deficiencies in the Judgment delivered by Solomon DCJ which Judgment is the subject of this appeal. Those deficiencies, so it seems to me, are as follows:

Solomon DCJ appears not fully to have understood the evidence which had been given as to the nature, lay-out and size of Tamarama Bay and its immediate surroundings;

by reason of that fact, his Honour appears to have misapprehended the effect of the evidence given by the Respondent and his son as to the place where they were surfing at the relevant time;

in his Judgment his Honour, at many places merely records some - but not all of the relevant - evidence which had been given on the hearing before him and did not make findings of fact as to relevant matters;

although there were inconsistencies between statements which had been made by the Respondent shortly after the occurrence of the incident which gave rise to the proceedings and the evidence given by the Respondent at the trial, his Honour did not record, or deal with, those inconsistencies;

although there appear to have been differences between a statement made by the Respondent's son shortly after the incident in question and the evidence given by the Respondent's son at trial, his Honour did not record, nor did he attempt to deal with, those differences;

although there were differences between the evidence given at trial by the Respondent and by his son and the evidence given by other witnesses at trial - one at least of whom had been called on behalf of the Respondent - the evidence of those other witnesses being apparently accepted by his Honour, he did not record, nor did he attempt to deal with, those differences;

in the event, so it seems to me, his Honour failed adequately to deal with the critical questions of breach of duty and causation which arise for consideration. 38 In order that I might demonstrate the basis for my criticisms of Solomon DCJ's Judgment, it is necessary that I deal, in some detail, with the matters to which I have just referred. 39 In his Judgment, Solomon DCJ appears to use the description "Tamarama Beach" or "the beach" as synonymous with the bay - Tamarama Bay - within which the beach itself is located. By doing so, his Honour fails to note, and to appreciate the significance of, the features of the bay itself. 40 As is apparent from the photographs (Exhibit "A", AB 159-162) the bay is enclosed by a headland on the Northern side, the rocks at the foot of that headland protruding South to a point opposite the rocks at the foot of the headland on the Southern side of the bay. The result thus is that, although the beach itself and the park which is beyond it appear to be oriented in a direction which seems to be roughly from West-Nor-West to East-Sou-East, that part of the bay beyond the Eastern edge of the beach appears to be oriented in a roughly North to South direction. 41 Enclosing the bay on its Northern, Western and Southern sides are stone cliffs which fall away to the West and along the top of which appears to run what might be called a marine drive. 42 Beyond the Western end of the beach is a park area which seems to be about 80 metres or thereabouts in depth and perhaps about 30 or 40 metres in width at its widest point at the edge of the beach. Within or adjacent to that park area appear to be a toilet block and small shop. 43 The beach area from the water's edge to the Western end appears to be about 80 metres in depth and is said to be about 80 metres in width at the water's edge. Surrounding the actual beach area on its Northern, Western and Southern sides appears to be a concrete promenade which at the Eastern end on the Northern side leads to steps up to the Tamarama Surf Lifesaving Club which is located on top of the headland on the Northern side of the bay. 44 Because of the configuration of the bay, the distance between the waters edge on the North Eastern side of the beach to the break between the rocks at the foot of the Western and Southern side of the headland on the Northern side of the bay and the distance between the water's edge on the South Eastern side of the beach and the headland on the South Western side of the bay, beyond which one can see Bronte beach, does not appear to be great, nor does the distance between the rocks on the seaward ends of the bay appear to be great - if, as the evidence suggests, the actual beach area is about 80 metres in depth, then the distance between the water's edge and the rocks at the foot of the headland on the South Western side of the bay would appear to be even less, and if, as the evidence suggests, the beach is about 80 metres wide at the water's edge, then the distance between the rocks on each side of the bay at its seaward side would appear to be no greater. The significance, in the present case, of these various distances will shortly become apparent. 45 To the North-East of the headland on the Northern side of Tamarama Bay is an area apparently known as Mackenzie's Bay which, so the Respondent's son suggested (AB 47), would have been situated at a distance of between 150-180 metres - an estimate which other evidence suggests is not accurate - from the point at which he and the Respondent were surfing at the time of the incident which gave rise to these proceedings. Mackenzie's Bay, which, so the evidence suggests, is commonly used by surfboard riders, could be approached either by walking around the rocks at the foot of the headland on the Northern side of Tamarama Bay or by means of a path or track which seems to run from a road on or near the headland which surrounds Mackenzie's Bay. 46 As the evidence - including contemporary records (see for example, Exhibit "E" (AB 166) clearly enough demonstrate 5 February 1994 was a Saturday. The day was fine and sunny (Exhibits "D", "E", AB 167), the winds were from the North East (Exhibit "D"), the surf was small, the swell being 0.75 metres (Exhibits "D", "E"), the crowd in the morning was small but somewhat larger in the afternoon (Exhibit "E"). Rostered for duty that day were two lifeguards, Messrs. Colquhoun and Hastings, employed by the Council, the former of whom came on duty at 8.00 a.m. and finished duty at 5.00 p.m. and the later of whom came on duty at 10.00 a.m. and finished duty at 7.00 p.m. There was also in attendance between 1.00 p.m. and 4.30 p.m. a surf patrol - seemingly some five in number - who appear to have been members of the Tamarama Surf Lifesaving Club and also students of The Scots College. Of that number some two or three would have attained the Surf Lifesaving Association Bronze Medallion (AB 85) while the others - who included Timothy Lindsay to whom I will later refer in more detail - would have attained the Surf Lifesaving Certificate. The patrol captain was Paul Cooper, a master at The Scots College who, at the time, appears to have been involved in the surf lifesaving movement for approximately 25 years (AB 77) and who was called at the trial to give evidence on behalf of the Respondent. What was described in the evidence at trial as "the patrol booth" (AB 101) - which appears to be the type of shelter where one is accustomed to see members of surf patrols stationed on surf beaches - was located about 20-25 metres from the water's edge and slightly off-centre towards the Southern end of the beach (AB 101). The flags on the beach had been set about 20-25 metres apart, the right-hand, or Southern, flag being located close to the edge of the beach on the Southern side (AB 101). 47 Although as Solomon DCJ recorded in his Judgment, the duties and responsibilities of a beach inspector or lifeguard included: "6. The beach and immediate surrounds to be continuously patrolled and supervised and lifeguards not remain unnecessarily in staff room . ……… 8. Strict supervision of surf craft areas to be given at all times . Surf craft users must not be permitted to use areas other than that allocated and defined."

their duties were more extensive including, as they did, the enforcement of the provisions of ordinances under the Local Government Act 1919. 48 The daily report for 5 February 1994 (Exhibit "E", AB 167) records that, on that day, Messrs. Colquhoun and Hastings carried out three rescues which they considered to be minor and which were carried out using a rescue board (AB 129), that they administered first aid on one occasion for a minor cut or abrasion, that having been done in the first aid room "in (the) office at the back of the beach" (AB 130), that two dogs were removed from the beach (AB 130) and that on "four occasions during the day (they) had to stop a surfboard rider from entering the water or asked them to leave the water if they were already there but … whether they were in the water, out of the water, whether (they were) caught … in the park … could be anywhere" (AB 130). 49 In his evidence in chief (AB 12 et seq) the Respondent said that, accompanied by his wife and son and a friend from America who was visiting, he went to Bondi where they had lunch. Having had lunch and observed that the surf at Bondi was very flat (AB 12) - a fact which was hardly surprising given that the wind was from the North-East and Bondi Beach, which is to the West of Ben Buckler is aligned in a direction roughly North-West to South-East - they decided to go to Tamarama "because (there is) always a little bit more surf there, and it was big rolling waves" - as the Respondent said (AB 14) that it was about 10 to 15 minutes after he entered the water at Tamarama before he found a wave that he might be able to ride, and as he was later (AB 30) to agree that, more probably than not, "the surf was about .75 of a metre", to describe the surf at Tamarama as "big rolling waves" was an exercise it hyperbole. 50 The Respondent's evidence in chief was, further, that the group arrived at Tamarama at about 3 to 3.30 p.m. When they did so the Respondent parked his car on the road near the Tamarama Surf Lifesaving Club on the headland on the Northern side of the bay (AB 56-57) and, having done so, they proceeded by way of the steps near the surf club to the concrete promenade around the beach area and thence onto the sand. At the time, so the Respondent said (AB 13) he noticed that the beach had very few people on it and that "there were about 6 people out catching waves between the flags". Although it is not entirely clear that this was so, it would appear (AB 35) that the Respondent's wife and their American friend sat on the beach while the Respondent - who was wearing flippers (AB 13) - accompanied by his son, swum out to the area where the waves were breaking. 51 In his evidence in chief (AB 14), the Respondent suggested that they had swum out some 60 to 70 metres from where they had entered the water. In his evidence in chief (AB 44) the Respondent's son's evidence said that they had swum out about 70 metres but, in the course of his cross-examination, (AB 54-55) he seemed to think that they could well have been some 80 metres from the water's edge. The Respondent's evidence (AB 14) was that the water at the point which they reached was very deep, at least "at least about 4 metres deep". Both the Respondent (AB 30) and his son (AB 44) appear to have agreed that at the point when they stopped swimming they were a short distance, perhaps 5 metres, apart, the Respondent's son suggesting (AB 44) that he was a little further out than his father. At that point, so the Respondent suggested (AB 14) he and his son "were right in the middle of the flags". The distance which the Respondent and his son claim to have swum, the time - 2 to 3 minutes (AB 34) - for which they claimed to have swum, the depth of the water at the point which they reached - would lead strongly to the conclusion that at the point - which the Respondent's son said (AB 51) was "out the back … well out to where the waves (were) breaking" - when they ceased swimming and commenced to tread water they were beyond or at least level with the rocks at the foot of the headland on the Southern side of the Bay. 52 At that point, so the Respondent said (AB 32), they were in a group of about half a dozen body surfers. 53 The Respondent's evidence in the course of his cross-examination was, at first (AB 31-32), that, at that point, they saw no one riding a surfboard - neither a fibre glass surfboard nor a "Coolite" surfboard. The Respondent, at the same time (AB 31-32) said that at no time before the incident which gave rise to the proceedings did he see anyone riding a "Coolite" board. The Respondent's son also said (AB 47) that he saw no "Coolite" boards in the area where they were swimming or waiting for a wave and (AB 49-50) that he saw no "Coolite" boards within "the flagged area", a fact of which he was positive "because (they) swam straight out through the flags and (he) would have seen them". 54 A number of observations might be made at this point about the evidence of the Respondent and his son on these matters. They are:

1. the evidence of Mr. Cooper, who, as I have earlier noted, was called to give evidence on behalf of the Respondent was, first, that, on 5 February 1994 and at about the time of the incident which gave rise to the proceedings, "there were a number of board riders surfing, for want of reference, off the point between Bronte and Tamarama … they weren't trying to catch waves into Tamarama, they were trying to surf the break off the point … the break on that particular day, and certainly under normal circumstances where it was, wouldn't carry a surfer into Tamarama, you'd invariably end up on the rocks" and (AB 89) "they certainly weren't surfing at that stage in towards Tamarama, they were off the break and more going towards Bronte"; and, second, (AB 87) that he observed "Coolite" boards in the water within the flags, there being no restriction on where "Coolite" boards could be used at Tamarama;

2. the Respondent's evidence as to his not having seen any "Coolite" boards whatsoever was in conflict with the terms of a letter (Exhibit "1") - which unfortunately is not reproduced in the appeal papers - written by him to the Appellant on 3 March 1994. However, the substance of that letter emerges from the following passage in the transcript of the Respondent's cross-examination (AB 33): "Q. … In the middle paragraph, you say these words do you not, the absence of the two beach inspectors, while the beach was open to the public, allowed the two surfboard riders to surf between the flags while a number of coolite boards were also in the surf between the flags? A. Yes. Q. Now you agree with me, that the last portion of that paragraph is wholly and consistent ( quaere inconsistent) with the evidence that you've given in respect to that matter? A. Yes I agree. Q. Now would you agree with me that on reflection, it is highly likely that you did observe a large number of coolite boards in the surf between the flags on the day in question? A. Yes that was the reason for writing this to make sure that I didn't have to rely on my memory."

3. the less than satisfactory nature of the Respondent's evidence is also indicated by the following further passage in the transcript of his cross-examination (AB 40-41): "Q. You agree with me don't you, that at the time or shortly before the time you were hit on the right hand side of your neck, you had seen coolite boards in the beach water (sic)? A. Yes they were in - my letter's not very clear there. There were no boards where we were surfing, but there were boards, boogie boards, styrofoam boards in closer. Q. You see you were swimming in proximity with the coolite boards were you not? A. Proximity meaning what distance? Q. Well say within 15 yards or so? A. No, nowhere near it. Q. You say there were no coolite boards …? A. … no there weren't…. Q. … at all? A. There were not. Q. And in other words is it right to say that there was (sic) no surfcraft near you that you could see whilst you were swimming? A. Yes. Q. And also whilst you were body surfing back to shore? A. Well I can't … Q. That you could see? A. … remember surfing back to shore because I'd only just caught the wave when I was hit. Q. All right well at the time you just caught the wave, is it true to say that you had seen no surf craft within your proximity? A. I've looked over my left shoulder and had seen nothing, the board was over my right unfortunately. And the other point I'd make is that coolite boards are not out where we are. The coolites are a toy, they are not a surfer's board. Q. Mr. Bloom yesterday when you gave your evidence prior to me showing you the letter that you had written to the council? A. Yes. Q. Would you agree with me that you were quite adamant that there were no coolite boards seen by you on the day in question? A. Well I was - not seen by me on the day in question. I was referring to the area where we were surfing in, there were no boards there at all. Q. You were swimming between the flags were you not? A. Yes. Q. And in your letter of 3 March 1994 you refer to a large number of coolite boards in the surf between the flags? A. Yes but they were, they were in close to the beach, not where we were. Q. Well then why did you make reference to coolite boards in your letter if they were nowhere near you? A. I have no idea. Q. Wasn't it because there were coolite boards near you at the time that you were swimming? A. No there weren't any coolite boards near us at the time we were swimming. Q. And you can give no explanation as to why you made reference to coolite boards in your letter of 3 March 1994? A. No I don't have no idea of it. I tried to state everything that occurred so that it would be written down and we could refer back to it and I didn't have to remember it, but there were no boards where we were swimming."

4. the Respondent's evidence in this regard might also be contrasted with the report (Exhibit "F", AB 168), of a Mr. Quigley, apparently the Appellant's beach supervisor, seemingly prepared in February, or early, March 1994, which report was tendered by the Respondent's counsel (AB 99). That report was as follows: " REPORT: INQUIRY INTO ACCIDENT - TAMARAMA BEACH Mr. Philip Bloom Lifeguard Peter Coloquhoun (sic) (hours of duty 8.00 a.m. - 5.00 p.m.) and lifeguard Glen Hastings (10.00 a.m. - 7.00 p.m.) were on duty on Saturday 5 February 1994. No report of an incident involving a fibreglass surfboard was reported to them. They cannot understand how a surfboard was reported between the swimming flags. The surf was very small and a fibre glass surfboard would have been very easily detected. There were, however, a number of 'coolite' boards between the flags. Coolites are soft foam boards and are of a very similar shape to a fibre glass surfboard. Members of the public are often mistaking them for the fibreglass type surfboard. Coolite boards are permitted between the swimming flags and are very popular with the younger generation. Attached are two reports from members of Tamarama Surf Club, who were on patrol on the day in question."

Exhibit "F" does not contain either of the two reports referred to - however, Exhibit "M" (AB 169), a statement by Timothy Lindsay, to which statement I will shortly refer, may well have been one of those two reports. 55 The Respondent's evidence in chief as to the circumstances in which he came to sustain the injury of which he complained, and of the events which followed it, was as follows (AB 14 et seq): "Q. Well then, for how long was it that you were in that position in the water before you found a wave that you thought you might be able to ride? A. My guess would be ten and most probably at the most fifteen minutes. ……… Q. What eventually happened as far as you moving from that position? A. Well I caught a wave that was just a very nice rolling wave, not a dumper or anything, well it was very deep water … I caught the wave, and was in the foam and then all of a sudden I was hit on the right hand back of the neck from nowhere and nearly passed out. Q. Well at the time you were hit, what did you feel? A. Well I was tangled in the guy's leg rope so I knew at that point that I'd been hit by a board even though I hadn't seen him and as I came out of the water, my whole left hand - left side's gone numb, my fingers are tingling, so I knew I'd had quite a whack in the neck and I'm fighting to stay conscious in the water so I hung onto his board. He, in the meantime, got back on the board and sat up on it and told me I was … Q. You had some conversation with this person who got back on the board? A. Yes. Q. Did you notice the presence of any other board or boards at that time? A. Yes his friend paddled up beside him and wanted to known what had - sorry? Q. All right, well just tell us what you saw, rather than what people said at that time? A. Well his friend paddled up beside him. Q. Did you make an observation of the type of board it was that you said you held onto - A. Yes. Q. - And that had struck you in the neck? A. It was a fibreglass board. ……… Q. For how long were you in the water at about that spot in the vicinity of these two boards from the moment when you were struck until you moved away from that spot? A. One, two minutes, because I'm trying to stay afloat, I'm at that point of passing out. ……… Q. After the conversation, where not concerned with what was said? A. My son, my son yelled out to me, he was most probably five, six metres away, 'Are you all right Dad', and I waved to him and then I proceeded to swim to shore with one arm trailing, my left arm, I swam to shore. Q. And what did you do when you got to the shore? A. I virtually collapsed on the beach and lay there for some period of time. ……… Q. Whereabouts did you first rest after you got out of the water, was it close to the water's edge or whereabouts? A. It was just off the water's edge, virtually in front of the surf patrol. Q. And, about how long were you in that position before you left that spot? A. Most probably 15 minutes. ……… Q. Well then after you got to the beach, what did you do next? A. Well when I felt that I could stand up, I went to the surf patrol because I couldn't see anyone else and complained to them that they should have been watching out etc. Q. Now whereabouts in relation to where you were on the beach was the surf patrol when you spoke to the surf patrol? A. Right in front of me. Q. And was that a group of young boys? A. Yes it was. ……… Q. Did you when you spoke to this group of boys did you know any of them. A. No, but I spoke to the boy in charge of the surf patrol. ……… Q. And what was that conversation? A. It was that I had said to them that I had just been hit and they should be looking out for boards as I was bathing between the flags, and they said it was not their role to do this, and that was the inspector's role. ……… Q. And after that conversation what did you do? A. My arm was still numb, my fingers were tingling so I was worried about my condition, so I decided that I would go and have a CAT scan immediately. My wife came to the beach, Lehman was helping me and we decided to go to the San because they have - the Adventist Hospital - as they have a CAT scan. ……… And we proceeded to walk from the beach and that was when I met Paul Cooper. Q. Now whereabouts was it exactly where you say you first came upon Mr. Cooper. A. My recollection is that it was just at the bottom. He would have been no more than 10 metres onto the beach from the club house at the bottom of the rocks. HIS HONOUR: Q. 10 metres from the edge of the beach - A. From the inspector's small, I call it cubby house, it's an inspection box up on stilts at the bottom of the clubhouse where, you know on the left side."

56 Later (AB 37) the Respondent appeared to concede that his recollection of the events which occurred after he came out of the water might be defective. 57 The Respondent's evidence in this respect was given some, but far from total, support by the evidence given by his son in chief, which evidence, if I may say so, is, in some respects, decidedly curious. That evidence was (AB 44 et seq): "Q. Did you see your father catch a wave? A. Yes. Q. Now between getting out there and seeing your father catch a wave, how long was it that you were waiting before your saw your father catch the wave? A. Most probably ten to 15 minutes. Q. And after you saw your father catch the wave what did you see next? A. I saw his struggling with a person on a surfboard, he looked to be sort of talking to him, arguing, then I saw another surfboard paddle across to him as well. Q. And when you say surfboard, what do you mean by that? A. A fibreglass surfboard. ………. Q. Well then whilst you were watching that go on what did you see next? A. I saw my dad struggle with the guy for approximately about a minute or maybe a couple of minutes, and then I saw dad start to, or I signalled to him to sort of see if he was all right as best I could 'cause I was out the back and I saw the two board riders paddle back in the direction of Mackenzies Bay and dad made his way back towards the beach. Q. And did you remain out the back at that stage? A. Yes. Q. And did you eventually catch a wave and come in? A. That's right. Q. How long was it between seeing your father speaking with the people - man on the board and you getting into the beach, how long did it take you to get a wave? A. Most probably ten to 15 minutes. Q. And when you got into the beach did you see your father? A. Yes. Q. And where did you see him and what was he doing? A. He was laying (sic) on the beach about five metres up from the water and he was laying (sic) on the beach, my mother and his friend was (sic) there. ……… Q. How long was he there before he moved? A. About another five minutes. ……… Q. And what happened after that 5 minute period? A. Well I helped him up and we made our way to the surf life saving area, boxed off area, and that's where he talked to one of the surf lifesavers, told them what had happened. ……… Q. Well then after that conversation what happened, where did you go and where did you see your father go? A. We were then for a few minutes at the area for the surf lifesavers, and then we started making our way towards to the stairs that lead up to the club house and that's where now Paul Cooper came down to see what was going on."

(Although, at one stage (AB 55), the Respondent's son appeared to suggest that he followed his father to the beach within a minute or two after the Respondent had reached the beach, in later evidence the Respondent's son adhered to the suggestion that it was 15 to 20 minutes after the Respondent had reached the beach before he followed his father in.) 58 The evidence given by the Respondent and his son invites the following comments:

as will be observed from what I have earlier recorded, although the Respondent and his son had, at the relevant time, been in position for 10 to 15 minutes, each claims to have seen no surfboards whatsoever during that time;

although the Respondent's son was, as he said, within about 5 metres of the Respondent when the latter caught the wave, and had seen him catch the wave, the Respondent's son did not see the Respondent struck by the surfboard - all he saw was the Respondent arguing with a man on a surfboard at a time when the Respondent was about 15 metres away from him (AB 56);

although the Respondent's son was only a comparatively short distance away from the Respondent, he did not attempt to join his father to ascertain what was the cause of the Respondent arguing with the surfboard rider; nor does he appear to have been concerned at whatever had occurred, as he did not follow the Respondent into the beach for another 15 to 20 minutes;

the Respondent's claim that, having reached the water's edge he collapsed on the beach in front of the patrol shelter and remained there for about 15 minutes before he stood and went to speak with Timothy Lindsay is in conflict with the statement made by Timothy Lindsay within a short time after the alleged incident and with the evidence given by Timothy Lindsay at the trial, it being noted, in this respect, that Timothy Lindsay's version of what occurred appears to have been accepted by Solomon DCJ (AB 172-173). The written statement (Exhibit "M", AB 169) which was made by Timothy Lindsay on 17 February 1994 was as follows: "TO WHOM IT MAY CONCERN RE: - MR. P. BLOOM - SURFING INJURY On the afternoon of Saturday fifth of February, I was sitting on the beach in the Tamarama SLSC patrol enclosure with other members of the rostered patrol. Shortly after 4.00 p.m., a Mr. P. Bloom emerged from the surf and approached me about a board rider who had collided with him whilst he was body surfing between the flags. He had been some 60 m off the beach. He was complaining about a slight numbness in his left arm and associated pain in his neck. He was accompanied by other members of his family who were taking him off to seek medical attention. I offered him some 'Panadol' to relieve the pain but he declined. He then asked me who was responsible for keeping the board riders out of the flags and to remove them from between the flags. I explained that the ultimate responsibility for keeping surfboard out of the entire beach area was in fact the duty of the Waverley Council's Beach Inspectors and then swam out to the approximate area where he had been hit. I could not see any fibre glass surfboards in the vicinity. I could only see about half a dozen 'Coolite' type boards. On returning to the beach I reported the incident to my patrol captain."

while the evidence given by Timothy Lindsay at the trial was as follows (AB 102-104): "Q. The best recollection you have is that you were seated in the booth looking out at the beach at the water at about 4 o'clock? A. Yes sir. Q. And then what happened at about 4 o'clock? A. At that time I can remember sort of, I was facing the water, just sort of we browse around the water, make sure no one's in trouble or anything, and I can remember Mr. Bloom was about, when I first saw him I think he was in about knee deep water and he was clutching his sort of shoulder. I can't remember which side it was. I think it might have been his right arm on his left side. I'm not completely sure. And I could see that he was in some distress, so I sort of straight away jumped up and met him just a bit away from the water's edge, and he told me that he'd been hit by a fibreglass board, and I didn't see any fibre glass boards. And as soon as he said that I sort of looked. Like he was standing in front of me and I sort of looked over his shoulder to see if I could see any fibre glass boards. And at the time I couldn't, and so we continued our conversation and he sort of came up from the water's edge a bit and I think he sat down at that time and I sort of offered any assistance, like an ambulance or for me to get the person in charge, which was Mr. Cooper, to come down and speak to him. And he sort of said 'No, I just want you to go and get that guy get the guy that had hit me'. So I said, 'Okay, well I'll do that.' And at that time I think his wife and daughter possibly, I'm not completely sure, came down and sort of started chatting to him and helped him up and he sort of started walking up towards the stairs to go up to the clubhouse, and at that time I left and sort of swam out to see what I could see in the water. Q. When you saw Mr. Bloom walk away with who you thought may have been his wife and daughter … A. Yeah. Q. …. You said he walked up towards the northern end of the beach up the stairs? A. Yeah, just basically straight across the sand. Q. Did you observe him other than talking to his wife and daughter, speaking to anyone else? A. Well I think - I noticed them earlier in the day. There was sort of a group of maybe six and I think his son was with him, and at that time when they were sort of half way to the stairs I think the whole group sort of saw that he wasn't well, and they all sort of, like I think his son met him then I think the whole group went up the stairs. I'm not sure. ……… Q. During the course of the conversation with Mr. Bloom did you look out beyond him to the water? A. Yes I did, straight away I did. Q. And can you recall how many occasions during the course of the conversation you looked out beyond him to the water? A. I think it was about three times. The first time was when he first mentioned the fibreglass board, but I mean if there was one in the water it would have been quite easy to miss, cause that was just a quick sort of check. And then when he sat down he sort of pointed the vicinity that he was in and I had a quicker look, like a, not a quick look, but sort of a more in depth look. And then again as he was walking away I sort of looked again as I was starting to swim out, and all three times I couldn't see a fibre glass board. There were boards in the water, but I mean it was a fair way out and by the time I got there could have either left or if there was one there I am not sure. Q. Did you see any coolite boards out there? A. Yeah, definitely. Q. And were they in the direction Mr. Bloom indicated? A. Yes they were. Q. You swam out? A. Yeah. Q. How far did you swim out? A. Approximately 50 to 70 metres off-shore. Q. And did you observe any surfboard in that area. A. Not at that time, no. Q. Did you see any surfboards at all? A. Not fibre-glass boards. I say quite a, like I'd say about four coolite boards, but I couldn't see any fibreglass surfboards."

The Respondent's son's evidence as to having gone with the Respondent to the patrol shelter is at variance with the statement (Exhibit "B", AB 163) made by him on 12 February 1994, which statement was as follows: "On Saturday the 5th of febuary (sic) at approximately 3.30 I went with my parents and a friend of theirs from America to Tamarama Beach for a swim. My father and I were swimming between the flags catching the waves. We were about 3 meters (sic) apart, when he swam for a wave and caught it. I then turned towards the beach and saw him approximately 15 meters (sic) away speaking to a man on a surfboard. Another man then paddled across on a board so I realised something had happened. I saw my father speaking to the board riders and then proceed to swim to shore. The board riders then paddled away towards Mckenzie's (sic) Bay. We were in 3 to 4 meters (sic) of water and between the flags at the time. About 20 minutes later I caught a wave to shore to see my dad lying on the beach accompanied by my mother and our American visitor. He then told me he had been hit on the neck by one of the board riders, and was feeling pretty rotten. It was decided as his arm was numb, to go to casualty for a x-ray. As dad was not feeling well I drove the car to the hospital. We met Paul Cooper (from the surf club) on the way to the car, my father told him he had been struck by a surfboard whilst swimming in the flags. There were no beach inspectors on the beach at the time."

although the Respondent (AB 16) and his son (AB 47) - the latter of whom was later (AB 58) to concede that it was possible that beach inspectors were present at the time - both asserted that they had not seen any beach inspectors on the beach, the evidence of Mr. Cooper, who, as I have earlier noted, was called to give evidence on behalf of the Respondent, and whose evidence appears to have been accepted by Solomon DCJ (AB 173), was, both, (AB 96) that, on 5 February, he had seen the two inspectors on the beach during the course of the day, and, (AB 82) that, when he spoke to the Respondent as he was leaving the beach, he (Mr. Cooper) saw one of the beach inspectors at the back of the beach - at the kiosk area near their office and facilities room - and, having seen one of the inspectors, "didn't bother looking" for the other. 59 Despite the various matters to which I have referred, in particular:

1. what, in my view, is the correct view of the evidence as to where the Respondent and his son were swimming at the time of the incident which, so the Respondent alleged, led to his injury;

2. the inconsistencies between the previous statements made by each of the Respondent and his son and the evidence given by them at the trial;

3. the inconsistencies between the evidence given, on the one hand, by the Respondent and, on the other, by his son;

4. the inconsistencies between the evidence given by, on the one hand, the Respondent and his son, and, on the other, of witnesses - Mr. Cooper and Timothy Lindsay - whose evidence appears to have been accepted by Solomon DCJ;

his Honour, in the course of his Judgment, did not record, nor did he attempt to deal with, any of those matters. 60 The first of the matters to which I have referred is, as it seems to me, of significance for, if, as the evidence of the Respondent and his son suggests was the case, the Respondent and his son were beyond the rocks on the headland to the South of Tamarama Bay and if, as the evidence of Mr. Cooper suggested, there were board riders beyond the headland seeking to ride the break into Bronte Bay and not attempting to ride their boards into Tamarama Bay, there would appear to have been little which the Appellant's employees could effectively have done to prevent a board rider suddenly and unintentionally riding his board into an area where there were body surfers. In that event, as it seems to me, the Appellant would be entitled to a verdict in its favour on the ground, either, that there had been no breach of any duty of care owed to the Respondent or that the Respondent had failed to demonstrate that any breach of such duty had caused his injury. 61 The second matter to which I have referred is, as it seems to me, of significance, for, while it is clearly open to a trial judge to accept the evidence of a witness notwithstanding that the witness had made earlier inconsistent statements, it seems to me that, if he is so to do, it is incumbent upon him, both, to make clear that he is aware of the inconsistencies between that evidence and the earlier statements, and, to explain why it is that he prefers to accept the version of events given in evidence over that given in those earlier statements. This was the course taken, at first instance, by Legoe J in Devries v. Australian National Railways Commission, as the following passage in the joint Judgment of Brennan, Gaudron and McHugh JJ in the High Court in that case (1992-1993) 177 CLR 472, 474 makes clear: "The learned judge expressly accepted the plaintiff's account 'given in evidence as to this particular incident'. His Honour said that, in doing so, he was fully conscious of the fact that the plaintiff's evidence was inconsistent with the statements of the incident or accident contained in reports filled in by the plaintiff on 24 January 1985. However, his Honour accepted the plaintiff's evidence as a truthful and reliable account of what had occurred. The learned judge found that the inconsistencies were the result of the confusion of the plaintiff caused by pain at the time when he filled in the reports by his inability 'to express himself in written English properly'. It should be noted that on the morning that the plaintiff filled in the reports - which had been brought to him in hospital by his son - the treating doctor thought that the plaintiff was in too much pain to take a detailed history from him."

If, however, a trial Judge faced with inconsistencies between the evidence of a witness, as a matter of importance, and earlier statements of the witness, either, does not refer to those inconsistencies, or, while referring to those inconsistencies, provides no reasons for his preferring one or other version, then, so it seems to me, he fails properly to perform the function which the law calls upon him to exercise, and the trial is to be regarded as having miscarried. 62 The third and fourth matters to which I have referred above attract similar comments to those which I have just made. If, as appears to have been the case here, there are clear inconsistencies between the evidence of a witness and the evidence of another witness, or of other witnesses, whose evidence the trial Judge appears to accept, then it seems to me it is not open to the trial Judge - or, at the very least, it is not open to the trial Judge without first recording his awareness of those inconsistencies and providing clear and convincing reasons for the course which he ultimately adopts - to accept the evidence of both the first witness and of the other witness or other witnesses, and, if he does so, without recording that awareness providing those reasons, he fails properly to perform the function which the law calls upon him to exercise and the trial is to be regarded as having miscarried. 63 In the circumstances, it seems to me, that the trial is to be regarded as having miscarried, it following that, in my view - which, in the event, is of no consequence - that the appeal should be allowed, the verdict and judgment in the District Court set aside, the proceedings remitted to the District Court for a new trial on all issues, the costs of the first trial to be reserved to the trial Judge on the new trial, and the Respondent ordered to pay the Appellant's costs of the appeal, but if qualified to have a Certificate under the Suitors Fund Act 1951. ******

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