Uzabeaga v Town of Cottesloe [2002] WADC 71

Uzabeaga v Town of Cottesloe [2002] WADC 71 | Case summary | Zoe

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4 The defendant is a body corporate pursuant to s 9 of the Local Government Act 1960. At all material times it was the occupier of the land described as Reserve Class A6896 pursuant to an order in Council published in the Government Gazette on 17 January 1936 vesting the land in the defendant pursuant to s 33 of the Land Act 1933 for the purpose of recreation.

5 Cottesloe Beach is part of that reserve. It comprises all land west of Marine Parade from Vlamingh Memorial in the south to the junction of Marine Parade and North Street to the north (Exhibit 32, p 2). The area is described as Perth's premier beach front (Exhibit 32, p 2). The defendant's care and control of the beach benefits not only Cottesloe residents but all West Australians as well as interstate and international visitors. In its 1978 "Cottesloe Beach Report" the defendant noted that Cottesloe Beach enjoyed year round popularity for swimmers, fishermen and strollers with ideal surf-boarding conditions during winter storms. The defendant's reports on Cottesloe Beach in 1978 and 1995 show ever-increasing popularity and usage of the beach.

6 Cottesloe Beach has been described as the most developed beach in the Perth metropolitan area. It has a very long history even prior to its vesting in the defendant. Mr Don Morrison (Exhibit 39), a long time Cottesloe resident who has been a member of the Cottesloe Surf Life Saving Club for over 60 years since 1938, described diving and jumping off a jetty which used to be at Cottesloe Beach and then catching waves back to shore. That jetty is long gone. In about 1960 a groyne was built at Cottesloe Beach. The groyne extended in a north westerly direction from Mudurup Rocks as depicted in the attachment to Exhibit 5 and in the photographs in Exhibits 1 and 2. The groyne consists of a pile of large rocks set on the sandy seabed. A concrete pathway has been built on the groyne to enable easy access. The defendant's reason for building the groyne was to conserve beach sand on its northern beaches, particularly Cottesloe Beach. The defendant's Draft Coastal Management Plan of May 1986 (Exhibit 21) states at p 23:

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7 The groyne comprises the southern boundary of the main swimming area at Cottesloe Beach.

8 The defendant has encouraged the use of the beach and the groyne by constructing a bitumen and concrete path leading from the car park to the groyne and by constructing concrete steps leading from the beach to the groyne. It also maintains lighting on the groyne and other areas of Cottesloe Beach. The defendant has encouraged public use of the beach by constructing and maintaining change rooms, toilets, a children's swimming pool and shade houses. A beach volley-ball court and volley-ball are available to beach users.

9 The defendant first regulated activities on Cottesloe Beach by making By-law No 3 relating to beaches and reserves published in the Government Gazette on 7 August 1963 (Exhibit 30). The by-law regulates conduct generally and specifically deals with public activities, dogs and livestock, fishing, boats, camping and bathing. The by-law is directed to the safety of swimmers and beach users and gives authority to beach patrols provided by the Cottesloe Surf Life Saving Club on weekends and public holidays during the warmer months between October and April. The by-law authorises the appointment of beach inspectors who patrol the beach generally from 6.00 am to 6.00 pm (or until dark) year round.

10 The 1963 by-laws were in force on the date of the accident but have since been revoked and replaced by the Town of Cottesloe Beaches and Beach Reserves Local Law No 3 published in the Government Gazette on 11 December 1998 which, in turn, was revoked and replaced by the Beaches and Beach Reserves Local Law No 3 published in the Government Gazette on 14 April 1999.

11 For the purposes of the trial the plaintiff arranged for Mr Frank Rodda, a licensed surveyor, to prepare a detailed survey of the surface of the north eastern side of the groyne from the beach to the end of the groyne. This involved measuring the shape and size and height of the rocks comprising the groyne. Mr Rodda was provided with the photographs (Exhibits 2 and 3) and, from those, concentrated on what has become known as the "dive rock" - a rock located on the north side of the groyne as depicted in the enlargement drawing in the groyne survey (Exhibit 3). The location of the dive rock was determined based on the photographs which show persons jumping and diving from the rock (Plaintiff's Book of Documents: Vol 1, pp 29 - 34).

12 Mr Rodda's survey was a land based survey conducted on 30 March 1995, some two years after the accident. The survey depicts the rocks as they were in 1995 and relies on the sea levels supplied to Mr Rodda by the Department of Transport based on Tide Datum for Fremantle and the Cottesloe Area on 1 March 1993 from 1200 to 1500 hours (Exhibit 4). Mr Rodda conceded in his evidence that groynes move and sand beds move. The sea level he depicts takes no account of waves or the swell. He did, however, believe the dive rock to have remained the same as was depicted in the photos (Exhibits 1 and 2). I note, of course, that those photos were not themselves taken at the time of the accident. Exhibit 1 was taken on 8 November 1993, some eight months after the accident, and Exhibit 2 was taken on 22 January 1994, some 10 months after the accident. Thus Mr Rodda's survey can, at best, only be relied upon as an approximation of the groyne and the sea level. The exact depth of the water at the time of the accident is not known. The evidence at trial established that the accident occurred closer to 1700 hours on 1 March 1993 and not between 1200 and 1500 hours as in the datum provided to Mr Rodda.

13 Nonetheless the survey is of some value, particularly given the assurance of Mr Rodda that the position of the dive rock remained the same from the 1993 photos to the time of the 1995 survey. That information assures me that Mr Rodda's survey at least shows the horizontal distance the diver must cover in order to clear the rocks before entering the water. Mr Rodda calculated that distance as 1.6 metres (T109).

14 Mr Rodda depicted the dive rock as 2.18 metres above the water at the time of the accident. He said the concrete path on the groyne was 3.7 metres wide and the dive rock was located 7.3 metres beyond the position of the light pole. Mr Rodda calculated the depth of sea at the dive rock as 1.74 metres based on the sea level datum provided to him and the sand seabed as it was in March 1995. At the northern-most corner at the end of the groyne Mr Rodda measured the depth of the sea as 3.96 metres.

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15 The plaintiff was born on 29 March 1978 in Chile. He never knew his mother and lived with his godparents until he was 8 or 9 years old when he travelled to Australia to reside with his father and his father's then partner, Gemina, in Canberra. He remained in Canberra for several years, then came to Western Australia for a period of time before returning again to the eastern states. When he was 12 or 13 years of age in 1990 or 1991, he returned permanently to Western Australia with his father and his father's new partner, Ana. The family lived in South Fremantle and the plaintiff attended South Fremantle Senior High School in Years 8 and 9.

16 The plaintiff was a somewhat troubled youth while in South Fremantle and spent time as a street kid living away from his father's home. The plaintiff described street kids as kids "...kicked out of home whose parents don't want them any more because they are too much trouble...". The plaintiff's troubles included car stealing and breaking and entering offences. He had been involved in a number of car stealings, most recently on Australia Day in 1993 when he stole the keys to his friend Eduardo's car and used the car to drive a group of street kids to the Sky Show. The plaintiff admitted he knew it was against the law and that it was wrong to steal the car and to drive when he was only 14 years old. He said he did care that it was against the law but he did it anyway.

17 The plaintiff had no experience with swimming or with water activities while in Chile. He was a soccer player. He played soccer for Chile and was also chosen for State soccer. When the plaintiff moved from Chile to Canberra he attended swimming classes where he learned how to swim and float and to always jump into water feet first to check the depth of the water to see whether it was safe to dive.

18 In Western Australia the plaintiff and his friends played soccer during the soccer season from May to late November or early December. When the soccer season ended they went to the beach. The boys went with their families to Rockingham Beach once or twice each weekend. They visited Cottesloe Beach during the week - sometimes as often as three times each week. They would generally spend five or six hours at Cottesloe Beach where they played soccer and volley-ball, swam and jumped and dived from the groyne. The plaintiff said the lifesavers provided a volley-ball for their use on the beach.

19 At Rockingham Beach the plaintiff visited the area near the second jetty. The plaintiff and his friends jumped and dived from that jetty and did "bombies" and back flips from the jetty. The plaintiff described "bombies" as "getting up on the pole and just diving like scrunched up and then the water would splash everywhere." Back flips involved standing on the jetty with his back to the water, diving backwards and doing a somersault so that he landed feet first in the water. The plaintiff described himself as a very good swimmer.

20 The plaintiff's first visit to Cottesloe Beach was with his family in 1990 or 1991. After that he visited with his friends. The plaintiff gave evidence that he saw people diving and jumping from the groyne "all the time" at Cottesloe Beach. He said they were mainly kids his age, teenagers and young adults about 13, 14 to 16 or 17. He was unable to recall when he first dived or jumped from the groyne but admitted he used to do it. Not wanting to feel like the odd one out he said he joined the rest of the kids. He thought he started jumping and diving from the groyne on about his second or third visit to the beach.

21 The plaintiff said he always jumped in feet first before diving to make sure there weren't any rocks under the water. He said he and his friends always jumped or dived from a smooth rock just after the light pole on the north side of the groyne. After jumping in and checking for rocks and sand the plaintiff would swim back to the groyne, climb up to the same smooth rock and dive. He said he always did a shallow dive with his hands over his head. He said he knew not to do a steep dive from the groyne. He did more of a shallow racing dive, coming up straight away. He said it would have been stupid to dive in a steep dive with his head down.

22 The plaintiff had swum out to the pylon or "Bell" located north of the groyne in the water off Cottesloe Beach's main swimming area. He found the pylon was too high and too scary to dive from but he jumped off it. The plaintiff said he only did that once. Otherwise all his jumping and diving was from the groyne at Cottesloe Beach.

23 The plaintiff admitted that he thought about the depth of the water he was jumping and diving into and he admitted that he talked to his mates about making sure the water was deep enough to dive into, but he said there was no particular reason for making sure the water was deep enough. The plaintiff denied it had ever occurred to him that if he dived into water that was too shallow he might injure himself. He said he had never thought of it.

24 The plaintiff agreed that after he jumped in the water he would only dive in if the water was up around his neck level. Otherwise he believed it would have been unsafe. He also checked underneath the water to make sure there were no rocks - that the seabed hadn't changed since the last time he dived.

25 In evidence and in his interrogatories (Exhibit 12) the plaintiff admitted that he had dived hundreds of times from the groyne prior to the accident on 1 March 1993. He also admitted in his interrogatories that one month prior to the accident he dived from a position on the groyne about 10 metres closer to the beach where the water was about 1.5 metres deep. On that occasion he struck part of his body on the seabed. The plaintiff was unable to recall that incident when he gave evidence at trial.

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26 The plaintiff and two of his friends who were at the beach with him that day, Cristian Araya and Osman Alvarez, gave evidence about the accident. The plaintiff conceded that as a result of the injuries he suffered in the accident his memory has been affected, including his memory of events prior to the accident. The plaintiff could not recall what time he went to the beach on 1 March 1993. He remembered that Eduardo Jorquera drove to the beach that day and invited him to come along. Besides the plaintiff and Eduardo, Eduardo's brother, Jamie Jorquera, Ivan Diaz, Cristian Araya, Osman Alvarez and Rodrigo Cortes came along. They parked on Marine Parade and walked down the stairs and followed the path to the groyne. The plaintiff's recollection is that they went directly to the groyne and did not play soccer or volley-ball. The plaintiff recalled they arrived in the afternoon but could not recall the time. 1 March 1993 was a Monday and was the Labour Day holiday for the long weekend.

27 The plaintiff gave evidence that he and his friends were wearing shorts so they did not need to change. They followed the path and walked up onto the groyne and just removed their shoes, socks and shirts. They walked to a position past the light pole a few metres and the plaintiff climbed down to a smooth flat rock about half a metre to a metre above the water. It was the same flat rock he always jumped and dived from.

28 The plaintiff was unable to recall at trial conditions on the day of the accident. He was not sure if the water was clear or not. He thought there were a few waves but he did not think they were very high. The plaintiff was reminded of what he had told Mr John Hymas, a loss assessor instructed by the plaintiff's solicitors near the time of the accident. Mr Hymas interviewed the plaintiff in hospital in late 1993 or early 1994 and, at that time, the plaintiff told Mr Hymas the water was very clear, the sandy bottom could be seen quite easily and there were no rocks or projections on the bottom of the ocean. The plaintiff was unable to recall any of those matters at trial.

29 The plaintiff gave evidence that he jumped in feet first as he always did to check the depth of the water. He could not touch anything. He remembered that the water was about shoulder or neck high and when a wave came past it pulled him up and he couldn't touch the sand. The plaintiff had told Mr Hymas in 1993 or 1994 that the water was just over head high but he could no longer remember that at trial. The plaintiff gave evidence that he went under water to see if there were any rocks or if he could touch the sand. He said he couldn't touch the sand and he didn't find any rocks. He then swam back to the groyne, climbed up and dived again from the same rock. The plaintiff said he did a shallow dive with his hands over his head "after the waves were coming" (T125). When he went back to take another dive he remembered Jamie being there to his left, sitting on a rock at the groyne. The plaintiff dived again from the same rock and all he remembered is leaving the rock. He woke up in Princess Margaret Hospital.

30 Under cross-examination the plaintiff admitted that it would have been really dangerous and stupid to ever do a steep dive from the dive rock with his head down and he was conscious of that all the times he dived from the rock.

31 Cristian Araya gave evidence that 1 March 1993 was a hot day, with a temperature of 38 to 40 degrees Celsius and the beach was very crowded. Mr Araya said they went directly to the groyne when they arrived that day arriving at about 1.00 pm. They sat down at the groyne and, according to Mr Araya, only the plaintiff and Rodrigo jumped in first and then did a few dives before the accident happened. Mr Araya said the plaintiff dived the second time and started going down. His friends thought at first he was joking but then realised something was wrong. They jumped in and pulled him out and took him back to shore. Cristian Araya did not see the plaintiff dive but he heard Jamie Jorquera say in Spanish, "Look at that dive. He's dived too steep".

32 Osman Alvarez gave evidence that on 1 March 1993 he was with the group of friends when they went to Cottesloe Beach. He remembered they arrived at 11.00 am or 12 o'clock and played soccer for one or two hours before going to the groyne to swim. Mr Alvarez said they followed the pathway onto the groyne and moved about halfway along, past the light pole, where they climbed down a few rocks. Mr Alvarez said he dived four or five times before the plaintiff's accident. He said the water he was diving into was higher than he was. He said he could not stand after diving and had to swim back to the rocks. Mr Alvarez said he dived before the plaintiff, just before the accident. When he was swimming back the plaintiff dived and when Mr Alvarez climbed back up the rocks he saw the plaintiff floating on the water. Mr Alvarez thought the plaintiff was joking around at first but then realised he was in trouble and dived in and assisted to bring him to shore.

33 As it developed during the trial neither Mr Araya nor Mr Alvarez was correct about the time of the accident. Mr Wayne Spindler, a long time member of the Cottesloe Surf Life Saving Club who was patrol captain from 4.45 pm to 5.00 pm on the day of the accident, referred to the patrol log (the Plaintiff's Book of Documents Vol 1, p 176). The patrol log indicates that the Surf Life Saving patrol was notified of the accident at 4.58 pm. The plaintiff was resuscitated by members of the patrol and taken by ambulance from the beach at 5.20 pm.

34 Mr Spindler recalled the water near the groyne at around the time of the accident was reasonably flat and calm. Earlier that day Mr Tim Plester had been on duty as beach inspector from 6.00 am to 1.30 pm. His daily log indicated a fine day with light north easterly winds in the morning and light south westerly winds in the afternoon. The crowds were described as huge in the afternoon (Plaintiff's Book of Documents Vol 2, p 470). The beach ranger's daily log for 1 March 1993 showed that Sam Knowles was the beach inspector on duty at the time of the accident. The defendant did not call Mr Knowles to give evidence.

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35 There were two signs prohibiting diving in place on and near the groyne at the time of the accident. In answers to interrogatories 4 and 5 tendered by the plaintiff (Exhibit 42) the defendant said that the signs prohibiting diving were erected in about April 1990. There was other evidence to support this contention. The defendant said the signs were erected in response to a New South Wales Supreme Court decision dated 15 December 1989 reported in the Australian Local Government Reporter. The signs were there from the time they were erected in April 1990 and were there on the day of the accident. The signs contain the words "Diving Prohibited" in large black letters below a red circle enclosing the graphic depiction of a diver crossed with a red line. It is the standard Diving Prohibited sign, depicted as sign No 213 in the Australian Standard (Exhibit 36). The signs were placed on two light poles. One was on a light pole about half way along the groyne. Its position is depicted in the photographs (Exhibit 1). The sign was placed at the height of 7 feet on the light pole and faced south. That light pole and the dive rock are depicted on the survey, (Exhibit 3). It is necessary to walk directly past this sign to reach the dive rock when approaching along the groyne as the plaintiff and his friends did on 1 March 1993 and on all of the other occasions when they visited the beach and went onto the groyne.

36 The second sign prohibiting diving was on a light pole on the beach just north of the path or walkway leading to the groyne and in the vicinity of the children's wading pool. This sign was also at the height of 7 feet on the light pole and faced south. Its position is clearly shown in a photograph in Exhibit 1. Anyone approaching the groyne on the pathway as the plaintiff and his friends did on the day of the accident would walk directly past this sign.

37 The plaintiff denied ever seeing the signs prohibiting diving from the groyne. He denied ever being warned that it was dangerous to dive from the rocks and denied ever seeing or hearing anybody else being told not to dive from the groyne. The plaintiff was cross-examined about an answer he gave to the defendant's interrogatories dated 15 November 1995. He was asked for the precise location of the rock on the groyne from which the dive was executed. His sworn answer was: "Approximately 4.5 metres west of the second signpost along the groyne." Under cross-examination the plaintiff said he did not know why he called the light pole a signpost. He was unable to recall whether it was because there was a sign on it. He was unable to explain why he had called the light pole a signpost (T153 - 154).

38 During his examination-in-chief he said, (T127):

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40 Cristian Araya gave evidence that when he went to Cottesloe Beach he would always see a few people, like five sometimes, diving and jumping off the groyne. Cristian Araya was shown the photographs of the signs prohibiting diving and was asked if he had seen those any time he went to the beach between 1990 and 1993. He said he couldn't remember but he may have seen a sign saying "No Diving", but he couldn't really recall it. When he was asked even if there was a sign there saying "No Diving" would he have dived anyway his answer was that he didn't know. He couldn't say because he takes care of himself a lot, "I make sure everything's safe". He admitted he would make his own decision and make up his own mind. Mr Araya said he would decide for himself to jump or not to jump even if he saw a sign.

41 Under cross-examination Mr Araya denied telling Mr Hymas that he believed he had seen the sign on the day and on previous occasions but he did admit that he was unwilling to put that information in a statement for Mr Hymas. Later Mr Araya contradicted himself on a number of occasions about the number of times he had been back to the beach and tried to explain seeing the sign as a "flash back". Eventually, Mr Araya admitted that he told Mr Hymas, "I think I saw the sign on the pole" and that that was the truth. Later Mr Araya admitted that he thought he saw the sign but doesn't remember what the sign said.

42 Osman Alvarez said in his evidence-in-chief that he never noticed anything really in relation to signs prohibiting diving from the groyne. Under cross-examination, Mr Alvarez admitted that he may have seen the sign on the day but he can't really recall it. He admitted that if he had seen the sign at the age of 14 it probably would not have stopped him diving. That was because he can judge from jumping in feet first to check the depth of the water and always did a shallow dive out with his body parallel to the sea. He considered that safe and had done that hundreds of times. He had also seen the plaintiff do it. Mr Alvarez was older than the plaintiff. He said he had been diving at Cottesloe Beach from the groyne for about five years prior to the accident. He also had gone back to Cottesloe Beach four or five years ago on two occasions and dived from the rocks to lose his fear. He said he dived from the same spot and he did so because he checked it and concluded that it was safe to do so. Mr Alvarez agreed that he and his group of friends had dived off the groyne hundreds of times before 1 March 1993 and had never injured themselves.

43 The plaintiff, Mr Araya and Mr Alvarez admitted that during the same period when they were visiting Cottesloe Beach they also visited Rockingham Beach. Their visits to Rockingham Beach were generally on the weekend with their families where they had a Chilean picnic. At Rockingham Beach the boys swam, jumped and dived from the second jetty. Mr Keith Ashfield, a security administrator for the City of Rockingham, gave evidence that he took three photographs of the second jetty at Rockingham Beach on 10 January 1992 (Exhibit 13) for reasons unrelated to this trial. The plaintiff, Mr Araya and Mr Alvarez each admitted the jetty depicted in those photographs was the one they swam, jumped and dived from. The photographs clearly show signs posted on the jetty "Swimming Prohibited" and "Diving Prohibited". These signs are standard signs of the same kind as those used at Cottesloe Beach.

44 The plaintiff denied seeing any signs prohibiting diving at Rockingham Beach. He said he made his own decision about diving after he had determined it was safe. When Mr Araya was shown the photographs (Exhibit 13) and asked if he had ever seen the sign prohibiting diving, he gave a rather stumbling, disjointed reply before saying he could not remember seeing the signs. Under cross-examination Mr Araya admitted that even if he had seen the signs he would make up his own mind about diving after determining whether it was safe or not. If he thought it was safe he would dive (T172, 176).

45 Mr Alvarez was older than the plaintiff and had been visiting Rockingham Beach and the second jetty pictured in Exhibit 13 since about 1988. He said he first jumped in to check the depth. Then he knew the depth so he dived from the top of the jetty. Mr Alvarez could not recall if he had seen the signs prohibiting swimming and diving. He admitted that it would not have made any difference if he'd seen the signs. He would probably have jumped and dived off the jetty anyway.

46 Mr Thomas Locke, who had been a member of the Cottesloe Surf Live Saving Club since 1966, gave evidence that he had walked on the groyne but he had never especially noticed the signs prohibiting diving although he had a feeling the signs were there. It was not a sign he had ever read. Mr Tim Plester, who now teaches at the Bunbury Grammar School, was a member of the Cottesloe Surf Live Saving Club and had been engaged in beach patrols with the club between 1979 and 1999. He also worked as a casual beach inspector between 1991 and 1994 and during the third year he was a senior beach inspector. Mr Plester gave evidence that he did not recall seeing any signs on the groyne before he commenced his employment with the defendant in 1991 as a beach inspector. During the time that he was a member of the Cottesloe Surf Life Saving Club he did not notice the signs but he did stop people jumping or diving off the groyne because of the danger of it. Mr Plester only became aware of the signs when it was part of his duties as a beach inspector to check signs for vandalism. Mr Plester looked at the photographs, particularly the bottom photograph on p 22 of the Plaintiff's Book of Documents, and admitted that from that angle you could not read the sign. That photograph was taken from a position at the commencement of the groyne so that the person would be well east of the sign and would not be able to see it as it faces south.

47 There was evidence that the defendant added further signs to the signposts between 8 November 1993 when the photographs in Exhibit 1 (except the bottom photograph on p 24) and 22 January 1994 when the photographs in Exhibit 2 were taken. The defendant added four signs to the light pole in pairs, two facing east and two facing west. In each pair of signs the first sign prohibits fishing in the bay and the second sign is another standard sign prohibiting diving.

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That entry seems to indicate that in 1966 there was some sort of accident when a person was skylarking, there was publicity and that the beach inspector attempts now to warn children off. At that time the beach inspector did not consider it to be particularly dangerous to dive off the groyne because of the depth of the water. In December 1983 the beach ranger reported that of the 38 first aid cases that month the majority were for cuts and stubbed toes caused by running and jumping off the groyne and pylon.

49 John Hymas visited the groyne on two occasions. On 8 November 1993, when he took the photographs in Exhibit 1, he saw folks on the groyne fishing, walking and sitting but no-one jumping or diving. When he returned in January 1994 he saw people sight-seeing, jumping and diving from the groyne. Photographs of those activities are recorded in Exhibit 2 (Plaintiff's Book of Documents Vol 1, pp 30, 31 and 32). Frank Rodda, the licensed surveyor, conducted his survey on 30 March 1995 and saw no evidence of anyone diving or jumping from the groyne. The plaintiff, Cristian Araya and Osman Alvarez all gave evidence of people diving and jumping off the groyne all the time.

50 Mr Bruce Prance, a cartographer and diving coach, visited the groyne on 4 April 2001 and saw a young man diving from the groyne from the same rock that has been called the dive rock. Mr Prance told him not to do so and the young man laughed. Professor Hartley visited the groyne but saw no-one diving. The expert witnesses, Mr Geoffrey McElroy and Dr Jennifer Blitvich, visited the groyne on 22 and 23 December 2000 and on both visits saw members of the public entering the water from the groyne. Photographs were taken showing diving from the groyne at a time when that area of Cottesloe Beach was within the flags designating the area patrolled by the surf patrol (Exhibit 35, photos 2, 3, 4).

51 Both Thomas Locke and Donald Morrison, long time users of Cottesloe Beach and long time members of the Cottesloe Surf Life Saving Club, recall that until five or six years ago the annual Cottesloe Surf Life Saving Club marathon involved participants running along the beach, out along the groyne and plunging off the groyne into the water to commence the swimming leg of the race. That use of the groyne was stopped five or six years ago.

52 Mr Timothy Plester, who had served with beach patrols for the 20 years from 1979 to 1999 and worked as a beach inspector between 1991 and 1994, said that at the start of school holidays there were often teenage boys and girls jumping and diving off the groyne. They were generally in the 13 to 16-year-old category and often in groups showing off and diving, doing "bombies", crawling up the rocks and mucking around. He gave evidence that he always stopped them. He told them it was dangerous and to stop being silly and directed them to the signs. He did not notice any particular change when the signs went up. Mr Plester considered it an ongoing problem but he did not believe that diving off the groyne had become a culture. He knew people were still jumping and diving off the groyne despite the signs but did not know how many people had stopped once the signs went up. Mr Plester's experience was that once he warned jumpers and divers of the danger they didn't do it again. Mr Plester said on a given day there could be up to 10 people jumping or diving but then there might be no-one doing it for a week.

53 Mr Wayne Spindler had commenced as a junior patrol member with the Cottesloe Surf Life Saving Club in 1975 and became a surf patrol captain in 1979 and 1980. Mr Spindler reported that if anyone was jumping from the groyne people were sent to warn them of the danger and advise them not to do it and ask them to stop. He said most people stopped when they were warned and that jumping was the most prevalent activity particularly doing "bombies" off the groyne. Mr Spindler said that there were people jumping and diving during every patrol, that it was an attraction and that everyone did it. The majority of those who jumped and dived were young people.

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59 His experience was that when people were asked to stop diving or jumping they would comply. The surf patrols were on duty from 9.00 am until about 5.00 pm, depending on the weather and conditions.

60 Mr Plester also worked between 1991 and 1994 as a casual beach inspector and during the third year was a senior beach inspector. He usually did the morning shift from 6.00 am until around 2.00 in the afternoon. The other shift was done by a beach inspector who commenced at 12.00 midday and worked until 5.00 or 6.00 in the evening. The beach ranger's office is on the southern corner of the bathing pavilion now under the Indiana Tea Rooms. The beach inspector has a chair outside the office and when sitting in that chair has a clear view looking directly across to the groyne.

61 Mr Plester said, however, that the beach inspector did not always remain on Cottesloe Beach. He had a small four-wheel drive vehicle and used it to check the beach, to check signs for damage and vandalism. He would do a foot patrol on the groyne to look for broken glass or dead fish. He would drive slowly up to North Street and drive back again. In any given hour the beach inspector would be away from Cottesloe Beach out of view of the groyne for 30 minutes on the move. The patrols up to North Street and back were conducted about every hour. Also he was involved sometimes in rescues as a result of rips or drownings. The beach inspector also had duties in the morning in particular to deal with the rubbish on the beach. In the afternoon there was less tidying up and the beach inspector could focus more on the beach itself. Mr Plester said that the beach inspector liaised with the beach patrol. Generally it was the patrol captain who would send someone to stop diving from the groyne. If they did not stop then the beach inspector would intervene and eventually the police would be called.

62 On the day of the accident Mr Plester admitted being on duty from 6.00 am until about 1.30 or 2.00 pm. He learned about the accident after it had happened. Mr Plester said that when he commenced employment Mr Trevor Ratcliffe, a beach inspector, had told him to stop people jumping off the groyne because it was dangerous. He knew there was a ban on doing that. He was aware some people continued to dive off the groyne despite the signs prohibiting it and that he had to warn those people. He didn't remember seeing the same people as repeat offenders. Once warned people generally did not come back.

63 Mr Wayne Spindler was a member of the Cottesloe Surf Life Saving Club from 1975 to 1998 and was involved in surf patrols as a surf patrol captain in 1979 and 1980. He now lives in Manjimup and is a teacher at Kearnan College. Mr Spindler did up to 20 patrols each year and said a patrol was four hours long either from 9.00 am to 1.00 pm or from 1.00 to 5.00 pm. The patrol in the morning would choose the safe swimming area. While on duty the patrol kept the beach under observation, provided first aid and looked after such problems as lost children. The patrol had an observation point on the promenade and one member of the patrol sat there for 30 minutes at a time. The observation point was in front of what is now the Indiana Tea Rooms on the promenade, a two metre raised platform. The patrol officer on lookout looked for swimmers and sharks and also kept an eye on groups who might get in trouble on the beach. Sometimes on a hot day the patrol would wake up people who lay asleep for several hours in the hot sun. They also were concerned about people jumping off the groyne and for children in small craft.

64 Mr Spindler said that the patrols periodically sent two people on foot patrol with a radio and a rescue tube. He said that generally the flags were packed up by about 4.50 pm. So far as prohibiting diving from the groyne Mr Spindler said that if people jumped off the groyne the patrol always sent people down to warn of the dangers. It was a preventative action. Jumping off the rocks was dangerous and they were aware of the danger and they warned people.

65 Mr Spindler was cross-examined about factors that affected the depth of the water. He conceded that the height of the wave could affect the depth of the water and then went on to say:

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70 Professor Hartley is a professor of psychology at Murdoch University. He earned his Doctorate at the University of London and is a Fellow of the Australian Psychological Society. His relevant experience and a list of the occasions when he has previously given expert testimony are included in Exhibit 15. The bulk of Professor Hartley's experience is in road safety. He has over the years worked on issues concerning compliance with signage in the road safety context. He has no direct experience of diving.

71 In his report (Exhibit 16), Professor Hartley notes that there are many factors which determine what impact a sign will have. He noted that even if a warning is understood it may not be complied with if it does not fit with people's attitudes and values. He considered this to be relevant to the plaintiff in terms of his perception of risk. Professor Hartley reviewed the literature concerning research on the effectiveness of consumer product warnings and noted that compliance rates vary between 0 per cent and 100 per cent. He initially said after reviewing Wogalter and Young "Behavioural Compliance to Voice and Print Warnings" (Exhibit 17) that when there was no warning 20 per cent of people avoided the dangerous area but that figure rose to 42 per cent when there was a visible printed warning. From that he concluded that an additional 20 per cent more people heeded a printed warning over those who simply avoided a danger. Under cross-examination, however, he conceded it could be that all 42 per cent were influenced by the sign as they were different people from the 20 per cent who avoided the danger without a warning sign.

72 Professor Hartley also conceded that the 28 per cent shown in his summary at the bottom of p 2 of his report (Exhibit 16) was wrong and that he had been selective and that he was unable to say with assurance how he arrived at this figure.

73 Professor Hartley spent a good deal of time discussing and analysing a learned article by Goldhaber and deTurck "Effectiveness of Warning Signs: 'Familiarity Effects'" (Exhibit 18). This 1988 study by the two authors involved highly conspicuous no diving signs placed at the shallow end of a middle school diving pool for four weeks. The signs contained bold letters "Danger" and under that "Shallow Water" with an exclamation point and under that "No Diving" with an exclamation point and under that "You Can Be Paralysed" with an exclamation point. The signs also contained a red circle with a line through it with a graphic depiction of a person diving and striking his head on the bottom of the pool. Within the circle was the depiction of a wheelchair. After leaving the signs in position for four weeks the authors questioned students at the school that had the signs and then checked these results against another school that had a pool without warning signs. The authors found that among those who would dive into the shallow end of the pool 28 per cent saw the signs when the signs were present while 26 per cent thought they saw a sign when no sign was present. Later in their discussion of the research the authors said this at p 296 of their published report:

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74 Professor Hartley conceded that it was not correct to say "When a sign was present 28 per cent of students reported seeing a sign. 72 per cent were unaware of the signs." Professor Hartley conceded that the work of Goldhaber and deTurck concluded otherwise. Professor Hartley agreed that the authors conclusion was that it was doubtful any students did not see the sign but they processed the information automatically and subconsciously.

75 Professor Hartley's research in road safety found that without compulsory legislation compliance is typically 25 per cent to 30 per cent. In Australia where seat belts are compulsory compliance is in the order of 98 per cent or 99 per cent. Professor Hartley concluded that a sign stating a prohibition which is not enforced will generally not be complied with.

76 Professor Hartley spoke of the hierarchy of hazard control in safety literature which evaluated the effectiveness of various means of controlling a hazard. Professor Hartley said the most effective is simply designing out the potential for the hazard. In road safety, for example, separating carriageways or removing unforgiving obstacles from the side of the road are both effective means of designing out collisions. In the case of the groyne it was Professor Hartley's opinion that whoever built the groyne really designed in a hazard. Professor Hartley suggested having built the groyne the council should have erected fencing at the very least and possibly deepened the water level by removing some of the sand.

77 The next level down from designing out a hazard was engineering or guarding against the hazard. In road safety terms he referred to air bags, seat belts, crumple zones and the like as solutions to the hazard of a crash. Signage is looked on as the third level supplement to the two primary measures of getting rid of the hazard.

78 Professor Hartley conceded that he had no direct experience of diving and that all of his experience was with compliance in terms of road safety. He did believe that where there is an obvious danger and an obvious means of minimising or extinguishing the danger that 25 per cent to 30 per cent of people will look out for their own safety. This means that in terms of wearing seat belts or not drink driving or not driving at dangerous speeds that a significant section of the community who would not do those things would also not dive into shallow water for the same safety reasons. However Professor Hartley emphasised that young people are not good at risk assessment.

79 Professor Hartley was asked whether signs saying no diving would be unlikely to have an impact on someone who by attitude, personality or disposition was anti-authoritarian. He conceded the impact may be less than the impact on someone who is very compliant. He conceded that even verbal warnings are not always successful with children and agreed that that could extend to a 14-year-old child.

80 Professor Hartley however would not concede that there was any connection between someone who occasionally engaged in stealing cars and someone who might dive when diving was prohibited. The connection would really be, in Professor Hartley's view, with that person's level of risk perception. A person who stole cars might have very well developed risk perception and good survival skills. However, Professor Hartley said that if swimmers were used to disobeying no diving signs when swimming in Rockingham then they were people quite likely to disobey no diving signs at other places.

81 Under cross-examination Professor Hartley gave evidence that in the general population there are some people who won't do something that appears dangerous even if there are no signs warning or prohibiting the activity. And then there are some people who might do something that was dangerous if they were not warned but if they are warned would obey the sign. Professor Hartley agreed, however, there is a third group who irrespective of whether there's a sign or not will make up their own minds. Finally, there is another group who, if there's a sign, will do the very thing the sign prohibits. Professor Hartley agreed a small proportion of persons fall into the last category.

82 Professor Hartley agreed that if people had done something when it was prohibited and they have done it safely on a number of occasions that signs will not be effective. Those people will make up their own minds about the risk. Professor Hartley said such persons have a better understanding of the risk if they have done it many times successfully in the past and watched other people do it successfully.

83 Professor Hartley conceded that his suggestion of deepening the area of sand around the groyne was not in his report and that he had got that idea from reading the expert evidence of the witnesses Dr Blitvich and Mr McElroy. Professor Hartley's ultimate conclusion was that on the basis of available research one would not expect the "No Diving Signs" to be effective in preventing diving as indeed they did not appear to be. Effective steps to prevent the hazard of diving from the groyne would have included, as a minimum, restricting access to the groyne by erecting some sort of barrier fence or providing a beach patrol to enforce the ban on diving.

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84 Mr McElroy is a Research Associate in Aquatics at the University of Ballarat. His qualifications include a Bachelor of Arts (majoring in history, geography and psychology), an undergraduate physical education qualification, a Diploma of Teaching and a Master of Education from the University of Western Australia. His CV was tendered as Exhibit 34.

85 Mr McElroy has been associated with the Royal Life Saving Society since his teenage years and has had full time experience in employment with responsibility for researching and revising all of the Society's teaching programmes and award schemes. As part of that work he became quite familiar with the Australian Standards Association, particularly standards for signs for aquatic safety. He has worked both in Australia and in Canada. He represented Australia at Commonwealth Technical Conferences in London and in Canada and he has also been involved in the Western Australian Amateur Swimming Association and continues to be an active swim coach. He is now retired from his formal academic position which was that of Senior Lecturer at the University of Ballarat but he has been appointed for a three year period as a Research Associate to continue his research work in the aquatics area. He remains the head coach of the Swimming and Lifesaving Club at the University of Ballarat.

86 Mr McElroy's report compiled in association with his colleague Dr Blitvich was tendered as Exhibit 35 but par 4 on p 6 and the commentary headed "Comments with regard to the Defendant's statement" that commence at the bottom of p 6 and includes all of pp 7, 8, 9 and 10 of the report are deleted and not tendered in evidence.

87 Mr McElroy and Dr Blitvich visited Cottesloe Beach on 22 December 2000. On that occasion they saw several children jumping from the groyne into the water. On December 23, a Saturday, they observed two young men diving from the dive rock, the same area as the plaintiff had dived from and that continued throughout the duration of their 30 minute visit. They included photographs of that diving as part of their report and stated that the diver demonstrated a lack of skill typical of recreational swimmers in that he dove without his arms extended beyond his head as is necessary to protect the neck. Mr McElroy and Dr Blitvich noted that the young men were diving into waters that were delineated as part of the patrolled area just adjacent to the rocks. The flags placed by the Surf Life Saving Patrol are visible in the photographs in their report. During the half hour they were there no intervention occurred and the young men were continuing their diving when the experts departed.

88 It was the opinion of Mr McElroy and Dr Blitvich that the standard signs prohibiting diving in place on the light poles did not conform to the Australian Standard 2416-1995 for design and application of water safety signs in size, legend or positioning. That was because while they contained the "diving prohibited" symbol they did not include the words "shallow water" which are also required by the standard. In their opinion the high position of the sign made it easy for users of the groyne not to notice it. Also, the sign was not visible to swimmers who might access the groyne from the water and climb up the rocks. They also noted that the similarity of the sign to a no parking sign may result in persons who notice it interpreting the consequences to be a fine rather than assuming that to dive from the groyne could result in a permanent catastrophic injury. Attached to their report are copies of a number of signs which not only prohibit diving but contain the words "Danger", "Shallow Water" and some indication that crippling injury may result or that one may break one's neck or be permanently injured.

89 Mr McElroy gave evidence that the international federation that controls competitive swimming allows a start in a competitive swimming race in 1 metre of water depth provided the dive is from the actual water level itself. When there are starting blocks in place which have a maximum height of 0.75 of a metre there must be 1.35 metres of water depth underneath to allow a start for that kind of race. Mr McElroy said that their research showed about a 25 cm increase in depth with divers when they dive from the diving blocks compared with diving from deck level. The higher above the surface of the water you are when you dive, the deeper you will go.

90 Mr McElroy also noted that if you don't have much outward velocity you will go deeper so that the more horizontally you push yourself and the shallower the angle when you hit the water the more shallow you will stay. A purposeful dive over a distance to start a race is, therefore, obviously shallower than a casual entry just to be in the water which is more often a steep angle entry. Mr McElroy was firmly of the view that those depths that would be safe for competitive swimmers who are skilled, trained divers would not be safe for recreational swimmers. This is because a skilled, competitive swimmer places one hand over the top of the other locked together or a thumb hooked around a wrist locking the hands together and the head locked between the arms. His research has shown that recreational divers usually allow the hands to come apart hopefully in front of their head but not in all cases. He has found at the University of Ballarat Aquatic Centre, where they film underwater, that 17, 18, 19 and 20-year-old people in about a third of the cases had their hands apart when they hit the water. They also found that about a third of their swimmers reached the deepest point of their dive with their head and neck exposed and hands back by their hips. In all the dives that they measured, which was over 300, they found the diver travelling fast enough at the deepest point of their dive that if they did strike a solid object their velocity was such that they would crush or dislocate cervical vertebrae. From their studies they have concluded that a third of recreational swimmers were leaving themselves exposed to danger by failing to use their arms to protect their head and neck when they dived. Therefore they advocate teaching all swimmers to lock their hands together so that the worst they would get would be a sprained wrist rather than a broken neck.

91 Their research has found that most spinal cord injuries occur in depths of 0.6 metres to 1.35 metres. Mr McElroy said that occurs because in less than 0.6 metres the shallowness may be obvious and persons will not dive whereas when one dives into 1.35 metres of water or less recreational swimmers - who are not consistent in the depth they dive - may well experience an accident. Mr McElroy went on to say that judging depth through water is notoriously difficult.

92 The report of Mr McElroy and Dr Blitvich recommends that the defendant take certain steps to minimise the risk of spinal cord injury being sustained through diving from the groyne. First, the writers recommend improved signage so that the sign complies with the Standards Association of Australia and includes the words "Shallow Water" and also a symbol indicating the serious injury that could result from diving. They also recommend that the sign be positioned lower on the light poles than the current signs and in a position so that they can be seen both from the groyne and from the water. The use of the words "Danger" "Warning" and "Caution" and unmistakable illustrations of the consequence of not obeying the sign are recommended. For a fully protected environment Mr McElroy said that you need a sign that gives not only the prohibition but the reason for the prohibition and the consequence of breaching the prohibition.

93 As to the height of signs Mr McElroy said Australian Standards say the sign should be 1.5 metres above the position where the viewer would be standing and within 5 degrees line of sight above or below that level. He conceded that it must be placed so that a passer-by does not strike his head but said it should be somewhere directly in the line of sight of the observer. Mr McElroy conceded that if a sign is side on as you are walking along the groyne you couldn't be presumed to have seen it while you were approaching it. In this case swimmers would have to walk close up to the pole and then look from the path towards the pole and in his opinion that would require them to lift their eyes much more than 5 degrees to see the sign.

94 The second recommendation is a barrier fence. Mr McElroy said that a fence has a deterrent effect. In their report the recommendation is made that a fence, as appears in photo 8, fencing the groyne at the commencement over areas of the beach would be an appropriate kind of fencing. Mr McElroy said it would serve as a physical barrier, but more importantly, it would clearly indicate to a potential diver that he had crossed into a forbidden zone. It was also suggested you would have signs on the fence that you are not supposed to go to the other side of the fence and, then, once you have crossed that, the onus would be on the swimmer who would have assumed a risk after knowingly crossing the fence.

95 In their report Mr McElroy and Dr Blitvich recommended as a third step that the flat and smooth dive rock be changed to make it less inviting for diving. Mr McElroy considered this a less effective measure but gave evidence that even with the swimming starting blocks used at pools it had become good practice to put a pyramid or some shape on the top so that recreational swimmers would not use it in diving into shallow water. Mr McElroy said that it has also become standard for swimming pool furniture to have unequal height of arm rests to discourage people from standing on the arm rest to dive. He suggests that if this particular rock has become a favourite sort of cultural place to dive from then some sort of mechanical solution making it uncomfortable and less inviting would be helpful but only in conjunction with the other recommendations.

96 Mr McElroy said in his evidence that he assumes because of the lack of intervention when diving was observed when he and Dr Blitvich visited the groyne in December 2000 that diving is commonly taking place and that the surf lifesavers do not intervene to stop lads diving from the groyne. On one of their visits the diving took place into the patrolled area and yet at no stage did a member of the patrol intervene. On one of his visits Mr McElroy said he saw the Cottesloe Ranger in his utility chatting with an official and the ranger did not intervene despite the diving activity taking place. Mr McElroy said that if diving were to be prevented from taking place on the groyne it is going to take human intervention in the form of someone with an official capacity, a life guard or otherwise actually patrolling or a media campaign or some way of getting the message across to the youths who continue to use that area as a diving area.

97 Mr McElroy also noted that what is called "a suicide dive" (where the hands are kept by the hips just for the fun of hitting the water head first) is a very high risk activity but is not an uncommon one amongst youths of this age. Even where young people are intending to have their hands in front of them his research found that about a third of them enter the water with their hands near their sides. Mr McElroy has found in his research that inexperienced divers are extremely variable in the depth they dive. They are not reliable in repeating a particular depth dive. They also tend to over balance and in that case it is highly likely they will do a steep entry and have a very deep outcome.

98 Under cross-examination Mr McElroy conceded that until 12 months ago the minimum depth of water for swimmers using a 0.75 metre starting block was 1.2 metres. Mr McElroy, however, warned that while he would be quite comfortable for a competitive swimmer diving into 1.35 metres of water he would not be comfortable for a recreational swimmer to dive in that situation. For recreational swimmers he would require at least 2 metres of water because of the unreliability of their shallow diving and their failure in so many cases to protect their heads.

99 Mr McElroy was asked what "shallow water" means in the Australian Standard. He said "shallow water" means "water in which there is a risk of hitting your head on the bottom if you dive into it". Therefore, for the purpose of competitive swimmers, shallow water means 1.35 metres if there is no where to dive from higher than 0.75 metres.

100 At p 4 of their report it is stated:

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104 Dr Blitvich was awarded a Ph.D. from the University of Western Australia in 2000 on the topic "Prevention of Shallow Water Diving Spinal Cord Injury". She also holds a Masters of Physical Education, a Diploma of Education and a Bachelor of Physical Education from the University of Western Australia. In her research for her doctoral dissertation she found that increasing awareness alone was insufficient to prevent spinal cord injury. She took a multi-faceted approach not just concerned with awareness but also with education, as well as legislation and policy going more to structural efforts to prevent spinal cord injury. Dr Blitvich said that the school at Ballarat University where she is presently located has two areas of research focus; aquatics and injury prevention and control. Her research fits under both of those. She also has coached swimming and competitive swimming and has published widely in the field of risk reduction in spinal cord injury and teaching safe diving skills. She has received a number of awards and has been a consultant to the Royal Life Saving Society of Australia (Victorian Branch) during the development of guidelines for the design of starting blocks and the supervision of recreational diving. She is also a regional coordinator for AUSTSWIM for the greater Ballarat region which provides national certification for swimming teachers. Although her educational qualifications are in the area of human movement and physical education Dr Blitvich believes that, because of her extensive research over nearly six years in completing her Ph.D. topic, she is able to comment over all the areas covered by the report she prepared with Mr McElroy.

105 Dr Blitvich's attention was brought to the same comment about the Goldhaber and deTurck research to the effect that only a minority of the 527 school students exposed to the "No Diving" signs placed at the shallow end of the pool were aware of the signs. She would not accept that she had overstated the position despite being taken to the discussion by Goldhaber and deTurck to that effect at p 296 of their paper.

106 Dr Blitvich argued strongly that signs do have a place but they are insufficient by themselves and their research shows that unless they are enforced they will be ineffective.

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107 Mr Prance is a retired cartographer and diving coach with some 40 plus years experience. Mr Prance was the head coach of the Australian Institute of Sport, has been an Olympic coach, a Commonwealth Games coach, and, in close association with the FINA Diving Committee, re-wrote the books about pool depths.

108 Mr Prance was asked to visit Cottesloe Beach and examine the groyne. He attended on 4 April 2001 for that purpose. While he was there he saw a young man diving from the same spot that he believed the plaintiff had dived from. Mr Prance indicated to him that he should not be doing that, but - according to Mr Prance - the man just laughed and continued to do the same thing. Mr Prance thought that on that day the water looked pretty shallow. He was not sure of the depth but thought 1.5 metres really was not deep enough. He said that if a person does a belly flop it's fine but if they dive and start to go over and try to save it and panic then some rather silly things can happen. It was Mr Prance's opinion that it is definitely not safe to dive under any circumstances from the groyne because there is nowhere to stand to do the dive properly and the rocks are slippery and the water depth is way under what it should be.

109 Mr Prance gave evidence that an inexperienced diver could get themselves in trouble trying to do a shallow dive and starting to rotate and create quite a dangerous situation. He described going from a horizontal into a vertical dive as he had seen happened when he saw people clowning around and messing around.

110 Mr Prance was particularly concerned that inexperienced people are unable to cope with a dive and can hurt themselves. In his view a person may start doing what he called a short dive, that is more a horizontal dive, but with inexperienced people you do not know really when it is going to be vertical and when it is going to be short.

111 Mr Prance's cross-examination was not helpful. He failed to answer direct questions asked by cross-examining counsel and was not a helpful witness.

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112 The plaintiff's tetraplegia made the taking of his evidence while he sat in his wheelchair an uncomfortable event. Nonetheless he bore up well to it. In some respects he was quite open in his evidence and direct in his answers, particularly when he freely admitted his past breaches of the law and his involvement in car stealing and burglary offences. But at the heart of his evidence there was a disquieting tendency to avoid the obvious. The plaintiff gave extensive evidence of the steps he took to ensure it was safe to dive by jumping in feet first and checking for rocks and checking the depth of the water. He gave evidence the minimum depth for diving was water to his neck. Those matters were asserted and confirmed in his examination-in-chief and reconfirmed in his cross-examination. Yet he claimed there was no particular reason for doing these things and that it had never occurred to him that if he dived into water that was too shallow he might injure himself. I cannot accept his evidence about that. He is an intelligent person and I do not accept his denial of what is patently obvious in his behaviour.

113 I have similar concerns about his evidence that he denied seeing the "Diving Prohibited" signs on and near the groyne. That denial does not sit well with his answer to interrogatories in which he referred to the light pole as a signpost. Nor does it sit well with the fact that he walked past the signs on every occasion between 1990 and the date of the accident when he went to the groyne and dived. I accept that there may be some question as to the positioning of the signs but the signs were the only signs on the light poles at that time. Even though the signs face south I find it difficult to believe that he never saw the signs over those years. I consider it much more likely that he saw the signs and ignored them, or, did not consciously process their content. That phenomena was discussed by Goldhaber and deTurck and was confirmed by Professor Hartley. Information on signs may be processed automatically and subconsciously.

114 The plaintiff's change of his evidence under cross-examination did not assist his case and damaged his credibility. After maintaining in examination-in-chief that he did not see the signs, under cross-examination he gave evidence that he did have a recollection. He claimed under cross-examination to know for a fact there weren't any signs (T148). That assertion is contrary to his own case as put by counsel on his behalf. It is contrary to his earlier evidence. It is contrary to the facts. The signs were clearly there on the day. I do not accept his evidence that he did not ever see the signs nor do I accept his evidence that he did not know he could seriously injure himself if he dived into water that was too shallow. I do not find the plaintiff to have been a truthful and reliable witness on those issues.

115 I have no confidence in the evidence of Cristian Araya about the signs. He first claimed he did not remember seeing the signs before the accident. Under cross-examination it was apparent that he was not being truthful. He changed his evidence repeatedly. He eventually conceded that he thought he saw the sign but then he retreated from that and said he saw the sign but could not remember what it said. I do not find Mr Araya to have been a witness of truth. His evidence is not reliable.

116 Mr Osman Alvarez initially maintained that he could not recall seeing the signs but eventually conceded that he may have seen them. He also conceded that he knew this evidence was important to the plaintiff's case and that he had spoken with the plaintiff about it. Mr Alvarez admitted that he knew it was important because if they had seen the "Diving Prohibited" signs they should not have been diving. There seems no doubt to me that both Mr Araya and Mr Alvarez realised the importance of this issue to the plaintiff's case and tried to assist his case. I have no doubt the plaintiff appreciated this as well. It has affected all of their evidence.

117 There were no issues affecting the credibility of the two witnesses called by the defendant. Both Mr Spindler and Mr Plester had been long-time members of the Cottesloe Surf Life Saving Club and were experienced surf patrol members. In Mr Plester's case he had also been employed by the defendant as a beach inspector. At the trial both men were working and living away from Perth, Mr Spindler in Manjimup and Mr Plester in Busselton. They were both very credible, well-spoken witnesses. I am confirmed in my view to some extent by the plaintiff's reliance on the evidence of Mr Plester as part of the plaintiff's case.

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118 The defendant has challenged aspects of the plaintiff's expert evidence on the basis that the experts have given opinions outside the area of the expertise in which they are qualified to give opinions. It is well settled that expert evidence is admissible "to furnish scientific information which is likely to be outside the experience and knowledge of a judge or jury" (R v Turner (1975) QB 834 at 841: approved in Murphy v R [1989] HCA 28; (1989) 167 CLR 94 at 111: Farrell v R [1998] HCA 50). In considering the admissibility of expert evidence I am required to consider whether it deals with a subject that an inexperienced person in the position of the court would be "unlikely to prove capable of forming a correct judgment upon without assistance" (Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486). The test is whether the testimony is "relevant and given by a qualified expert upon a subject which was properly susceptible of expert evidence and on which expert evidence could be of assistance ..." (Murphy v R (supra) per Deane J).

119 Professor Hartley's expertise and experience is in the field of road safety. He has particular expertise about compliance with signage. Professor Hartley conceded quite properly that he has no expertise in water safety or diving.

120 For the most part Professor Hartley confined his evidence to signage and signage compliance issues. He was a very careful expert and his evidence generally kept within his areas of expertise. I accept his opinion that signage alone without enforcement is not generally effective. His explanation of the findings of Goldhaber and deTurck was of considerable assistance to the court. Their work was clearly within Professor Hartley's area of expertise, i.e. compliance with signage. Professor Hartley was also impressive as an expert witness who engaged with his cross-examiner and was willing on occasion to thoughtfully alter aspects of his opinion.

121 The defendant submits that Professor Hartley has no special expertise qualifying him to give an opinion that the defendant should have erected fencing on the groyne to place a physical barrier to diving for groyne users. It seems to me that Professor Hartley's expertise in road safety and in compliance with signs does qualify him to give opinion evidence to the effect that designing out a hazard may be more effective than prohibition signs in eliminating the risk. Also, as a psychologist. Professor Hartley clearly has expertise in the area of the effectiveness of barrier fences. Both of those opinions are relevant to the case put by the plaintiff and I consider this testimony to be not only relevant but given by a qualified expert on a subject susceptible of expert evidence on which I require assistance. I consider that evidence to be admissible.

122 Professor Hartley's opinion that the defendant should excavate the seabed adjacent to the groyne to increase the water depth does not meet this test. This opinion is outside Professor Hartley's area of expertise. He admits it is no more than his agreement with a suggestion of Mr McElroy and Dr Blitvich. I do not accept Professor Hartley's opinion about that.

123 Mr McElroy's and Dr Blitvich's qualifications are set out in Exhibits 34 and 37 respectively. Mr McElroy's academic qualifications are in physical education but he has specialised in human movement and aquatics. He is well qualified as an expert on diving and diving depths. Dr Blitvich is also academically qualified in physical education but has specialised in human movement and in sports sciences. Of considerable importance is her Ph.D. dissertation in 2000 on the topic of "Prevention of Shallow Water Diving Spinal Cord Injury". I accept that she has studied and done research and read widely over a number of years prior to the submission of her Ph.D. thesis.

124 The defendant accepts the expertise of both experts on topics related to diving, diving depths and human movement entering the water but the defendant objects to those portions of their report (Exhibit 35) and their evidence relating to signs. The defendant submits these experts are not qualified to give opinions about appropriate signs and are certainly not qualified to give opinions about the effectiveness of signs on the behaviour of children.

125 I accept that the defendant's physical education, aquatics and human movement expertise does not extend to expertise such as Professor Hartley's expertise about compliance with signs. But Dr Blitvich has read widely and researched in preparation for her Ph.D. thesis. I accept that her study and readings extended to the issue of signage as part of her overall thesis topic. I accept that the experience and work of Mr McElroy has extended into the area of signage. Given that background and the witnesses' expertise in diving it seems to me this is an area where their evidence with the Australian Standards for signs should be received. It pertains to an issue which the court needs to determine. Their evidence about Australian Standard 2416 - 1995 was of particular assistance to the court. These experts are able to advise the court on the meaning of "shallow water" in that standard in the context of diving from the groyne. It is a subject that an inexperienced person in the position of the court would be unlikely to prove capable of forming a correct judgment upon without assistance (Clark v Ryan (supra)).

126 In Executive Director of Health v Lily Creek International Pty Ltd & Ors [2000] WASCA 258; (2000) 22 WAR 510 the Full Court distinguished between opinion evidence and expert evidence at 519 [42]:

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

(a) to that person; or

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

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

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

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

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

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

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

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

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

(c) the nature of the premises;

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

(e) the age of the person entering the premises;

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

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

[82]

131 The test to be applied under the Act is the same as the common law test (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Westralian Caterers Pty Ltd v Eastmet Limited (1992) 8 WAR 139). The court must determine whether, in all the circumstances, the defendant owed a duty of care under the ordinary principles of negligence. Those principles have come to be well understood in cases involving public authorities (Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431) and in a case involving this defendant (Prast v Town of Cottesloe [2000] WASCA 274; (2000) 22 WAR 474; and Prast v Town of Cottesloe [1999] WADC 116).

132 Cottesloe Beach was part of the reserve vested in the defendant in 1936. By by-laws first made in 1963 the defendant has regulated conduct on the beach and taken measure to ensure the safety of beach users. Around the time of the accident the defendant expended $30,000 annually on beach patrols and inspections (Exhibit 47), over $90,000 annually on its swimming areas and beaches (Exhibit 48) and nearly $25,000 on foreshore protection and restoration (Exhibit 46). These expenditures covered three beaches vested in the defendant; Cottesloe Beach, North Cottesloe Beach and Swanbourne Beach. Of those Cottesloe Beach was the premier beach and attracted the biggest crowds.

133 The 1978 Cottesloe Beach Report (Exhibit 19), the 1978 Cottesloe Beach Studies Interim Report (Exhibit 20) and the 1986 Draft Costal Management Plan (Exhibit 21) all show the ongoing concern of the defendant with conservation and preservation of its beaches and its ongoing effort to maintain amenities and ensure the safety and comfort of beach users.

134 The defendant has encouraged the public to use Cottesloe Beach by building walkways for easy access, providing toilets and change rooms, providing a beach volleyball site and a ball for users, and providing walkways and lighting on the beach and groyne. The defendant provides a beach inspector on duty every day from 6.00 am to 6.00 pm during daylight hours and has arranged for beach patrols with the Cottesloe Surf Life Saving Club who are on duty on weekends and public holidays from October to April to look after the safety of swimmers. The defendant has posted signs warning of dangers such as rips and rocks exposed in the water and has prohibited certain activities including diving from the groyne or pylon, using fibreglass surfboards in the swimming area except in winter months and fishing in the swimming area.

135 I am satisfied that in these circumstances the defendant was in a position not unlike that of the Rottnest Island Board in Nagle's case and identical to that of the Town of Cottesloe in Prast's case. By its management of the land the defendant brought itself within a relationship of proximity with visitors to Cottesloe Beach. In Romeo's case at [152] Hayne J said:

[113]

141 The defendant owed the plaintiff a duty to take reasonable care to avoid foreseeable risks of injury to the plaintiff. Foreseeability of the risk of injury and the likelihood of that risk occurring are two different matters. "A risk which is not far-fetched or fanciful is real and therefore foreseeable". (Council of the Shire of Wyong v Shirt & Ors [1980] HCA 12; (1980) 146 CLR 40 per Mason J at 48.)

142 All of the diving experts agreed that there was no place on the groyne safe to dive from. Both Mr Plester and Mr Spindler acknowledged that diving from the groyne is dangerous. But their testimony differed. Mr Plester agreed that the depth of water near the groyne changed continuously and that it was difficult to judge the depth if there was even a slight swell depending on where you were on the groyne. Mr Spindler, on the other hand, conceded some change in the depth based on the height of a wave but discounted the effect of the swell, tide or wind on the depth of water on the north side of the groyne. Mr Plester noted the danger of slipping off the rocks and the danger of someone striking their head on the bottom while Mr Spindler agreed the risk of breaking your neck was one of the dangers but also referred to other dangers - falling, breaking your arm, twisting your ankle or just cutting yourself on the rocks.

143 The water adjacent to the dive rock on the date of the accident was considerably deeper than the deepest water where most diving injuries occur. I accept the evidence of Mr McElroy and Dr Blitvich that most spinal cord injuries occur in depths less than 1.35 metres. The plaintiff dived into more than 1.8 metres of water. The depth of the water provides some explanation for the lack of early safety concerns on the part of the defendant. In 1966 because of the depth of the water it was not considered particularly dangerous by the defendant's beach inspectors for children to dive from the groyne. Of course the depth of the water in 1966 is unknown. But there is some basis for a belief that it may not have been much deeper in 1966, if at all, than it was on the date of the accident. Until five or six years ago, which was a few years after the accident, participants in the Surf Life Saving Club's annual marathon regularly dived off the groyne as part of that event. I doubt that the Cottesloe Surf Life Saving Club would have allowed that to happen if the water around the groyne had not been sufficiently deep.

144 The depth of the water also provides some explanation for the fact that there has never been a serious spinal injury suffered by any of the numerous persons who have dived off the groyne over the years. In the case of the plaintiff and his friends they had dived hundreds of times from the dive rock without incident.

145 Nonetheless, given the evidence of the diving experts and of Mr Plester and Mr Spindler and given what happened to this plaintiff I am satisfied that the risk of serious spinal injury from diving off the groyne was foreseeable. It was a real risk and was not far-fetched or fanciful.

146 In his submissions counsel for the plaintiff pressed on me the proposition that the risk of serious spinal injury was not remote, that diving off the groyne was extremely dangerous and that serious spinal injury was very likely to occur. The plaintiff relied on evidence that the depth of the water continually changed because of the size of the swell, the effect of waves, the tide and the shifting seabed sand. I accept that the depth of the water can be affected by waves but of course the plaintiff dived into the height of the wave, not the trough of the wave. I do not accept that the variations in tide have any but a minimal effect in Cottesloe and I accept Mr Spindler's evidence that the groyne itself protects the water adjacent to the dive rock from the effect of waves and swell. There is no evidence of any substantial shift in the seabed suddenly reducing the water depth.

147 I do accept the evidence that it can be difficult to judge the depth, although I accept the evidence that when the water is clear it tends to look shallower than it actually is.

148 The plaintiff also relied on evidence that recreational swimmers were unreliable in estimating their diving depths, that they often failed to protect their heads and necks with their hands when diving and that there was a risk of a recreational diver losing control of a shallow dive and over-compensating so that the dive became a steep dive. From that evidence I accept that there are risks in diving and that things can go terribly wrong. But in this case there was evidence of many, many people diving off the groyne over the years since 1960, most of them young persons who, I am told, are not good at assessing risk. Yet no-one has ever before suffered serious spinal injury. In these circumstances, and given the depth of the water, I am satisfied that the risk of suffering serious spinal injury from diving off the groyne was foreseeable but was remote and unlikely to occur.

149 That leads me to consider the fundamental question in this case - what a reasonable council in the position of the defendant was required to do by way of response to the foreseeable risk of serious spinal injury to persons who dived from the groyne at Cottesloe Beach.

150 The law is clear as to the approach I need to adopt.

151 In Council for the Shire of Wyong v Shirt Mason J said at 47 - 48:

[116]

"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.

What is reasonable must be judged in the list 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."

[122]

156 Whereas a competitive swimmer may be able to dive safely into relatively shallow water from a .75 metre starting block I am satisfied, based on the expert opinions of Mr McElroy and Dr Blitvich and Mr Prance, that in the case of recreational swimmers a greater depth of water is needed for safe diving. That arises from a number of factors. Recreational swimmers are much less likely to keep their hands locked above their heads protecting their necks at the deepest point of their dives. Recreational swimmers are much less reliable about the depth they dive. Recreational swimmers may intend to do a shallow dive but over-correct and inadvertently dive steeply.

157 These factors are compounded to some degree in the case of young people who are not generally as good at risk assessment as are adults and who tend to dive in pairs or groups when they may be showing off or generally "mucking around" so that normal precautions would not always be adhered to. There is even a tendency on occasion for young people to indulge in "suicide" dives with their hands at their sides and their necks entirely unprotected throughout the dive. There is no evidence the plaintiff did this in this case.

158 An assessment of the magnitude of the risk of diving from the dive rock must take account of all of those factors and take account of the height of the dive rock and the depth of the water. The height of the dive rock will of course vary depending on the depth of the water. When the water is deeper the height of the rock will be less than when the water is shallower. I have found that at the time of the accident the water was 1.8 to 1.9 metres deep and the dive rock about 2 metres above the water. No doubt there are times when the water is more shallow and the dive rock would be at a greater height above the water. It would also be the case that at times the water would be deeper and the dive rock at a lesser height above it.

159 When Mr Prance visited the groyne he estimated the water was 1.5 metres deep. He provided no basis for that opinion and did not measure the depth. Mr McElroy and Dr Blitvich neither measured nor estimated the depth. No-one gave evidence of how deep the water would need to be to dive safely from the dive rock. The closest to an opinion was that of Mr McElroy who said for a recreational swimmer diving from a .75 metre starting block he would want 2 metres of water depth. In this case the dive rock was much higher and one assumes a much greater depth would be needed. But there was no evidence to assist me on this point.

160 Every witness who dived from the dive rock gave evidence of testing the true depth of the water by jumping in feet first before diving. In determining the magnitude of the risk I believe it is reasonable to take that into account. Ordinarily a defendant may assume that visitors to the beach will take reasonable care to look out for their own safety. If persons choose to dive from a groyne where diving is prohibited the defendant should be able to assume that the diver will check the depth of water for himself or herself to determine if it is deep enough to dive.

161 Once the water depth has been verified I do not accept that there will be any sudden changes in the water depth. The water is protected to some extent by the groyne from the effects of wind, waves and swell. What are minimal tidal changes will be gradual, not sudden.

162 In assessing the magnitude of the risk in this case I take account of the fact that the water was considerably deeper than the water in which most diving accidents occur. Most diving accidents happen in 1.35 metres or less of water. In Curley's case the water was 1.4 metres deep and the jetty was about 2.5 metres above the surface of the water. In Pennington's case they had not converted to metric. The plaintiff was over 6 feet tall and dived into what he thought was 5 feet of water when it was only 4½ feet of water. That converts (1 inch = 2.54 cm) to expecting 1.52 metres of water when the water was only 1.37 metres deep. In both Curley's case and Pennington's case the water was considerably shallower than it was in this case.

163 The evidence of the diving experts about the inherent risks of diving for recreational swimmers who are children must be tempered by considering the 33 year history of diving from the diving rock by numerous children without any previous accident causing serious spinal injury. I assume this has been because of the depth of the water. It is the basis for my finding that the risk of serious spinal injury was remote and unlikely to occur. Of course I am only referring to the depth of water at the time of the accident. At other times the water may have been shallower or it may have been deeper.

164 Both Mr Plester and Mr Spindler believed diving from the dive rock was dangerous because, among other things, it could result in serious spinal injury. They recognised that diving from the dive rock was an attraction, an allurement to young people visiting the beach. Despite its inherent risks diving is fun, an attraction that increases the pleasure of the beach for young beach goers. In considering this case the court recognises that many of the joys of childhood involve dangers and risks. We do not stop our children from riding bicycles because of the risk of an accident with a car. We do not stop our children from climbing trees because of the risk they may fall and injure themselves. We do not stop our children from swimming because of the risk they might drown. Life is to be lived and enjoyed and we do not wrap our children in cotton wool and keep them indoors.

165 In this case the defendant bears a special responsibility. It built the groyne for a legitimate purpose but in doing so it created the dive rock, a hazard which presented young beachgoers with an opportunity for fun which was dangerous and carried the risk of seriously injuring them. Numerous young people have enjoyed diving from the dive rock since 1960. While the risk of serious spinal injury was real it was remote and unlikely to occur. In these circumstances I am satisfied the magnitude of the risk of diving from the dive rock was slight but the numbers of young people who were involved in this activity is a factor which must be considered when I consider the response of a reasonable defendant in the position of the Town of Cottesloe.

166 The plaintiff has pleaded the following particulars of negligence:

[135]

172 The 1985 Australian standard which was current at the time of the plaintiff's accident was in slightly different terms but to the same effect. In the standard the word "shall" is to be understood as mandatory (par 1.5.3).

173 Compliance with this standard depends on what is meant by "shallow water". Mr McElroy said "shallow water" means water in which there is a risk of hitting your head on the bottom. The plaintiff's case is that the defendant breached its duty of care by failing to comply with this mandatory standard. The plaintiff submits that in addition to prohibiting diving the defendant should have posted a sign "Shallow Water".

174 The difficulty with the use of a "Shallow Water" sign on the groyne is that it is obvious that the water is not shallow in the sense most people understand that word to mean. Over 1.8 metres of water would not normally be considered shallow. It is over most people's heads. Certainly the water near the start of the groyne is shallow. But that is obvious and there is no evidence anyone ever dived into the shallow water at the commencement of the groyne. The 3.96 metres of water at the far end of the groyne is deep, not shallow.

175 Mr McElroy's definition of "shallow water" must be considered in the context of the nature of the defendant's duty of care. It is a duty to take reasonable care to avoid foreseeable risks of injury to the plaintiff. I do not believe a reasonable council in the position of the defendant would have considered putting a sign saying "Shallow Water" on the groyne when the water was not shallow. Such a sign could bring signage into disrepute. Any notion of reasonableness that required such a sign would be neither practical nor sensible (Romeo's case at [28]). In the circumstances of this case the Australian standard requiring a "Shallow Water" sign does not seem to be directly relevant to the defendant's duty of care.

176 On the basis of their reading Mr McElroy and Dr Blitvich advised that mere prohibition of diving is not sufficient. They suggest the signs should state not only the prohibition but the reason for the prohibition and the consequence of breach. So it is suggested that the words "Danger" "Warning" or "Caution" should be used. There should be graphic depiction of a person hitting his head on the seabed and there should be a depiction of the consequences - either a wheelchair emblem or words such as "You Could Be Paralysed".

177 With considerable hesitation I accept the recommendations of Mr McElroy and Dr Blitvich. The defendant, through its employee Mr Plester, knew of the dangers of diving from the groyne. It knew one of the dangers was of serious spinal injury. In those circumstances I believe signs merely prohibiting diving were not sufficient. They did not provide an adequate warning that the groyne was unsafe for diving. I accept that the signs prohibiting diving should have explained why diving was prohibited and should have included a graphic depiction of a person hitting his head on the seabed along with some indication of the consequences - serious spinal injury.

178 Such signs should have been placed so they could be seen and read by persons approaching along the groyne and by persons clambering onto the rocks from the water. They should not be lower than 7 feet on the light poles. They should not put pedestrians at risk.

179 I have come to these conclusions with a good deal of hesitation. I note that the expert on compliance with signs, Professor Hartley, did not recommend extending the content of the signs. Nowhere in his evidence did he speak of the need to increase signage to explain the reason for the prohibition and to indicate the consequences. There is no evidence from Professor Hartley that more extensive signage would be more effective and lead to any greater compliance. His evidence was to the effect that signs alone would not be effective without enforcement. That means that in reaching this conclusion I am relying on the opinions of Mr McElroy and Dr Blitvich who are experts in diving but who have no expertise about compliance with signage.

180 Another factor that makes me pause is the research of Goldhaber and deTurck. The signs used in their study contained all of the recommended features. They were large signs and emphatically warned of the danger and graphically illustrated the consequences. Yet they had no direct impact on the behaviour of the students in the study. I am somewhat encouraged, however, by Goldhaber and deTurck's research finding, as understood by Professor Hartley, that such signs were probably seen and the information processed automatically and subconsciously.

181 It has been said that a sign prohibiting diving is perhaps the most effective warning of the danger of diving (Nagle per Mason CJ, Deane, Dawson and Gaudron JJ at 432). But in this case, when the defendant's beach inspector and the surf patrol were aware of the risk of serious spinal injury to divers from the groyne and the defendant knew that numbers of young persons were diving from the groyne, I do not accept that signs merely prohibiting diving were sufficient. The signs should have specified the danger and alerted beachgoers to the possible consequence of breaching the prohibition.

182 For these reasons I am satisfied the defendant breached its duty of care by failing to erect signs warning of the dangers of diving from the groyne.

[137]

183 The plaintiff's particular (v) contains two particulars of negligence. First it alleges breach of the defendant's duty of care by its failure to adequately police the ban on diving and alleges the defendant did not always direct divers not to engage in diving. Secondly, it alleges negligence on the part of the defendant by not passing and enforcing a by-law making it an offence to engage in diving off the groyne. I will consider each in turn.

184 There are two issues to consider in respect of supervision. First is the failure of anyone to warn the plaintiff on 1 March 1993, the day of the accident. The second is the general adequacy of supervision and enforcement of the prohibition on diving.

185 I have found that on the day of the accident the plaintiff and Osman Alvarez each jumped off the groyne. Osman Alvarez dived four or five times and the plaintiff dived twice before the accident. No-one warned them of the dangers of diving from the groyne during that time. The accident happened at about 4.50 pm. The surf patrol was still on duty. The flags had not been taken in but they had been putting equipment away since about 4.30 pm in preparation for finishing the patrol at 5.00 pm.

186 There are two troubling aspects about the evidence. First is the failure of the defendant to call Mr Sam Knowles, its beach inspector who was on duty that afternoon, to give evidence in the trial. Mr Knowles would have been expected to explain where he was at the time, whether he saw Mr Alvarez and the plaintiff jumping and diving, and why they were not warned. I accept the plaintiff's submission that the defendant's failure to call Mr Knowles allows the Court to draw the inference that his evidence would not have assisted the defendant's case on the issue of supervision (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).

187 Another troubling aspect of the evidence was the wrong times given in evidence by Mr Alvarez and Mr Araya. The time of the accident was near 5.00 pm and not near 12.00 noon or 1.00 pm as they remembered. I accept it has been a very long time - nine years - since the accident but there was evidence they were interviewed by Mr Hymas within 12 months of the accident and there is nothing to indicate their recollection was correct at that time. This raises the question of whether there was any reason they would deliberately give a false time earlier in the day and say it was not later when the surf patrol was putting away equipment that they were jumping and diving from the groyne. That concern is amplified by the fact that on the second day of the trial counsel for the plaintiff announced he would be calling all of the plaintiff's friends who were there on that day. The plaintiff's counsel referred not only to Osman Alvarez and Cristian Araya but also Eduardo Jorquera, Cristian Cortes and Jamie Jorquera (T85). It was indicated that Mr Diaz would not be called as he was overseas. However, once Mr Araya and Mr Alvarez had given their evidence and been cross-examined the plaintiff did not call those witnesses. I accept the defendant's submission that the plaintiff's failure to call those witnesses allows the court to draw the inference that their evidence would not have assisted the plaintiff's case (Jones v Dunkel (supra)).

188 I am left to determine whether the defendant breached its duty of care to the plaintiff by failing to warn him during the five or 10 minutes he jumped and dived from the groyne immediately prior to the accident. That issue in turn requires consideration of the level of supervision the defendant had in place at Cottesloe Beach.

189 Supervision on Cottesloe Beach is provided by the beach inspector, an employee of the defendant, and by surf patrols on duty from 9.00 am to 5.00 pm on weekends and public holidays from October to April. I accept Mr Plester's evidence that he always warned divers both as a member of a surf patrol and later when he worked as a beach inspector. I also accept Mr Spindler's evidence he did the same as a member of the surf patrol. The plaintiff, Mr Alvarez and Mr Araya denied they had ever been warned by anyone not to dive. I accept that they were not warned on the day of the accident. I do not find their evidence that they were never warned persuasive and I make no finding about that. I do note, however, that they usually visited Cottesloe during the week when the surf patrol was not on duty. The beach inspector would only have the groyne under observation about half the time on weekdays. This could explain why they were not warned if that were the case.

190 I accept, however, the anecdotal evidence of independent witnesses that on a number of occasions when they visited Cottesloe Beach there were people diving from the groyne without interference or warning. The occasion of most concern is in December 2000 when Mr McElroy and Dr Blitvich visited on two consecutive days. On one occasion they saw two young men diving from the dive rock into water that was between the flags set out by the surf patrol. That is evident in the photographs in their report (Exhibit 35). On that occasion the surf patrol clearly was on duty but no action was taken to warn or stop the young men during the 30 minutes the experts were in attendance. I also accept Mr McElroy's evidence of seeing the Cottesloe Ranger nearby on the beach speaking with someone and not intervening when diving was going on.

191 John Hymas did not see anyone diving from the groyne when he first visited on 8 November 1993 but in January 1994 he saw people jumping and diving from the groyne. Frank Rodda did not see anyone jumping or diving from the groyne on 30 March 1995 when he visited to prepare the survey. Neither did Professor Hartley when he visited the groyne. Bruce Prance, on the other hand, visited on 4 April 2001 and saw a young man diving from the dive rock. Mr Prance spoke to him and told him not to but he laughed.

192 The plaintiff relies on this evidence as evidence that the diving prohibition was not adequately enforced and that there was a diving culture at Cottesloe Beach among teenagers who visited the beach. The plaintiff submits that given that diving culture among young people and the risks of diving from the groyne that the defendant had to do more than merely put up signs prohibiting diving. The plaintiff submits that the defendant must ensure that supervision of the groyne takes place during daylight hours in order to stamp out this dangerous practice among young people.

193 The plaintiff submits this is particularly necessary because the defendant created a serious hazard by constructing the groyne. It has encouraged people to use the groyne by building the concrete path and providing lighting. The plaintiff submits that the groyne was an allurement to young people and the defendant owed a high duty of care to ensure that diving off the groyne did not occur.

194 To support these propositions the plaintiff relied on Jolley v Sutton London Borough Council [2000] UKHL 31; [2000] 1 WLR 1082. In that case a boat was left abandoned for at least two years beside a block of flats owned by the Council. It proved to be an allurement to local children. The council placed a sign on the boat "Danger Do Not Touch This Vehicle Unless You Are The Owner". The Council intended to remove the boat but did not do so. Two boys, aged 13 and 14, decided to try to repair the boat. They jacked it up. The wood of the boat was rotten and the boat fell on one of the boys causing serious spinal injury. The trial Judge found the accident and injuries were reasonably foreseeable and gave judgment for the plaintiff under the Occupiers' Liability Act with some reduction for contributory negligence.

195 The plaintiff relies on the trial Judge's observations as confirmed in the House of Lords at 1085:

[139]

196 Insofar as Jolley's case turned on the issue of foreseeability it is not directly relevant to this case. The dicta quoted do, however, remind the court that the age of persons attending at Cottesloe is a matter which needs to be taken account of (s 5(4)(e) Occupiers' Liability Act). There is no suggestion the defendant was under a duty to remove the groyne because it was an allurement to children. But the plaintiff submits that because of his age and the evidence that teenagers dived from the groyne the defendant was under a higher duty of care.

197 The plaintiff was three weeks away from his 15th birthday when the accident occurred. He was certainly old enough to attend at the beach without parental supervision. He could read signs. In Romeo's case I note that the plaintiff was aged 15, nearly 16 years, at the time of the accident and no particular point was taken concerning her age. Of course in Romeo's case there was no evidence as there is in this case of numbers of teenagers engaging in any dangerous or prohibited activity.

198 The real issue is whether the plaintiff was of an age where he would be expected to look out for his own safety. I am satisfied he was. He was an experienced swimmer and an experienced diver. He knew what to do to ensure the water was deep enough and free of obstacles. He knew not to dive steeply from the dive rock. However, I accept that teenagers are not as good at assessing risk as are adults. They do not yet have the judgment that comes with years of experience. I have already mentioned their tendency to dive in pairs and groups where they tend to show off and "muck around". Taking all of these factors into account I do accept that the plaintiff was under a somewhat higher duty of care because teenagers were involved in the diving.

199 There was other evidence the plaintiff relied on to support its case that the defendant did not adequately enforce the prohibition on diving from the groyne. It tendered Vol 2 of the Plaintiff's Book of Documents containing beach ranger/inspector reports and beach ranger's daily logs from 1961 to 1997 inter alia as evidence that because very few entries record warnings given to divers the inference should be drawn that warnings were not given. Section 79F of the Evidence Act 1906 provides:

[141]

200 On the basis of s 79F I received all of the reports in Vol 2 into evidence because s 79C(3) of the Act makes such statements admissible notwithstanding the rules against hearsay and the rules against secondary evidence of the contents of documents.

201 The plaintiff submits that the absence of any mention of warnings to divers in any but a very few of the beach ranger/inspector's reports and daily logs provides evidence that those events did not happen and that those officers did not regularly warn divers.

202 I do not accept the plaintiff's contentions based on s 79F. Before that section can be relied upon the plaintiff must prove that "a system has been followed to make and keep a record of the happening of all events of that description". There was no such proof in this case. Quite to the contrary, in his cross-examination Mr Plester gave evidence that he did not generally make a record in the beach ranger's daily log of warnings given to persons jumping or diving off the groyne (T488). Mr Plester acknowledged that there were a number of entries in the beach ranger's daily logs during January and February 1994 recording warnings given for jumping and diving off the groyne (Plaintiff's Book of Documents Vol 2 at 617 - 623). Mr Plester could not explain these except to surmise that after the plaintiff's injury the beach rangers may have kept more detail of warning people off the rocks. But, even then, Mr Plester denied that warnings were recorded on every occasion after the accident. Mr Plester said there was no set routine because the log book was kept in the office, not in the vehicle and not with the beach inspector walking down the groyne (T495).

203 The plaintiff's failure to prove that any system was followed to record warnings precludes reliance on s 79F to support his case. Applying the civil standard of proof the inference that no other warnings were given cannot be drawn on the facts in this case; it would amount to no more than mere conjecture (Nominal Defendant v Owens (1978) 22 ALR 128 at 132).

204 The issue of enforcement is a complicated one. The evidence shows that diving from the groyne was a well-established practice among some teenagers from as early as 1966. It was a practice the defendant knew of and, through its beach inspectors and surf patrols, did warn and try to stop. It is also apparent that the defendant did not succeed in putting a stop to the diving. That is not surprising when so many young people had dived from the groyne over the years without mishap. Those people would not tend to take any warning very seriously. I accept Professor Hartley's evidence that if people had done something when it was prohibited and had done it safely on a number of occasions signs would not be effective. They would be in the position of the young man who laughed when Mr Prance spoke to him.

205 The effect of all this is that as people did dive without mishap others would see them doing so and then try it for themselves. That is what the plaintiff said happened in his case. He saw others diving and he did so as well. Of course the plaintiff seemed to dive wherever he went whether it was prohibited or not. I do not accept the plaintiff's submission that a "culture" of diving had developed because the word "culture" has a number of meanings many of which are not appropriate to this issue. I do accept that young people diving from the groyne was a regular occurrence. It was obviously an activity they enjoyed and, fortunately, the depth of the water was such that accidents, although foreseeable, were unlikely to occur.

206 I accept the plaintiff's submission that the defendant did not use every means at hand to ensure that the practice was stamped out. To do that would have required a doubling of beach inspectors so that one inspector always remained on Cottesloe Beach with the groyne in sight. It would not require a beach inspector to sit on the groyne in a chair during daylight hours but it would come close to that. The defendant would have to keep a beach inspector within sight of the groyne during daylight hours directed to stop anyone who dived from it.

207 The issue I must determine is whether the defendant breached its duty of care by failing to provide this level of supervision. I remind myself that I am considering the position of the defendant before this accident occurred and not with wisdom gained by hindsight. The defendant had signs in place prohibiting diving and its inspectors and surf patrols generally warned divers of the dangers as part of their duties, but they did not always do so. That duty to warn had no special priority among their many duties. They warned when they saw young people diving but they did not direct constant attention to the groyne. Drownings, rips and other events took their attention. The beach inspector spent at least half of his time out of sight of the groyne involved in other duties.

208 Given the depth of the water and the unlikelihood of such accidents occurring and taking account of the somewhat higher duty of care because the defendant knew teenagers were involved in diving, I do not find that the law required the defendant to supervise at any higher standard than it did at the time of this accident. There are many risks and dangers to persons visiting the beach besides the risks associated with diving from the groyne. These include sharks, rips and submerged rocks. The defendant, through its beach inspector, was responsible to warn about all sorts of risks. Once the defendant prohibited diving from the groyne by putting up signs and supplemented that prohibition with some regular enforcement by beach inspectors and surf patrols among their other duties, it seems to me the defendant met its duty to take reasonable care to avoid the foreseeable risk of injury from diving from the groyne. The defendant was not an insurer. Its duty was to take reasonable care. It was not a duty to prevent any and all reasonably foreseeable injuries (Romeo's case at [55]). It was not a duty to stop every person from diving from the groyne. The defendant was entitled to expect beach users to take reasonable care for their own safety and to obey signs prohibiting diving. The duty did not extend to physically stopping every person who might decide to dive from the groyne despite the prohibition.

209 I accept Professor Hartley's opinion that one could not expect the "No Diving" signs to be effective without some enforcement. But I do not accept that a reasonable public authority in the position of this defendant in 1993 would have undertaken the extraordinary enforcement measures suggested by the plaintiff. The magnitude of the risk was not such as to require such action.

210 The accident took place at a time when the surf patrol was bringing in its equipment. That could explain why no-one came out to warn the plaintiff on the day. It was a very busy day and the beach was crowded. The whereabouts of the beach inspector is unknown but he would not be expected to have the groyne within sight more than half the time. In all the circumstances I do not find any breach in the defendant's duty of care to this plaintiff arising from its failure to warn him on the day of the accident.

211 The plaintiff submits that the defendant breached its duty of care by failing to make and enforce a by-law making it an offence to dive from the groyne. The plaintiff submits that if warnings and directions did not prove to be adequate then the defendant should have amended its by-laws to make it an offence to jump or dive off the groyne, punishable by a substantial fine and should have enforced such a by-law. The plaintiff relies on the High Court decisions in Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 and Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1. I do not find anything in those authorities to directly support the plaintiff's submission on the making of a by-law. The Pyrenees Shire Council case was concerned with the public law duty of the Pyrenees Shire Council to exercise its statutory powers, not about any duty to make a by-law. In the Pyrenees Shire Council case the Local Government Act conferred power on the Council to take measures for the prevention of fires and to inspect fireplaces and chimneys for the purpose of detecting fire hazards. The High Court looked at the duty of care imposed on the Council arising from the circumstances where it was responsible for inspection and was aware of the defective fireplace and had the means of averting or preventing the fire and did not exercise its powers to do so. In the Crimmins' case all the Judges of the High Court held that the Authority was not under a common law duty to exercise its powers under the Stevedoring Industry Act to make orders having legislative effect for the protection of the class of persons to which the worker belonged. Crimmins' case is an authority contrary to the proposition put by the plaintiff in this case.

212 The plaintiff tendered the by-laws of the Municipality of the City of Stirling as Exhibit 49 and relied on them as an example of the by-law that should have been made in Cottesloe. Specifically they rely on by-law 323 which provides that:

[145]

219 The erection of a barrier fence was recommended by Professor Hartley as part of a strategy the defendant should have taken to design out the hazard created by building the groyne. Professor Hartley did not specify the nature of any fence. He supported the more detailed recommendation of Mr McElroy and Dr Blitvich. They recommended a fence of the same construction as shown at the start of the groyne as is shown on the photo at p 36 (Plaintiff's Book of Documents Vol 1). The fence is best described as an iron pipe fence supported by iron pipe posts. The fence appears to be about waist high and contains two horizontal rows of piping, one along the top of the fence and one about halfway down.

220 The proposal is to erect such a fence along the edge of the concrete path on the groyne. I understand it would be a permanent fixture, probably set in concrete. The idea of the barrier fence was explained by Mr McElroy. It would serve as a physical barrier and indicate to a potential diver that he had crossed into a forbidden zone. It was suggested signs be placed on the barrier fence prohibiting crossing onto the rocks of the groyne. There was no evidence of the cost of erecting such a fence but it does not appear to be a costly sort of construction. It would seem to involve a relatively modest expense and could be expected to be manageable within the funds expended annually by the defendant on its swimming areas and beaches.

221 The plaintiff did not provide any evidence about the maintenance of such a fence or about whether or not it was an appropriate construction on a groyne which is awash during winter storms. The effectiveness of such a fence as a barrier is a matter that was not explored in evidence or in submissions. It is obvious that swimmers could easily duck under or climb over such a fence to access the rocks. It would provide no barrier for swimmers accessing the groyne from the water.

222 Another matter that the defendant would need to consider is whether such a fence could itself be used as a platform for jumping or diving. There was no evidence about that.

223 In considering whether the defendant breached its duty of care to the plaintiff by failing to erect a barrier fence I consider the position of the defendant prior to this accident. Taking account of the depth of the water, the defendant's experience over more than 30 years of young people diving from the groyne without suffering any serious spinal injury and my finding that the risk of suffering such injury was remote, and taking account of the effectiveness of such a fence being somewhat problematic, and the maintenance and risks associated with the fence being uncertain, I am not persuaded that the defendant breached its duty of care by failing to erect such a fence. It would have been an extraordinary measure that the law would not have required the defendant to undertake in fulfilment of its duty of care to beachgoers.

[170]

236 Damages have been agreed between the plaintiff and the defendant with one exception. The issue which requires my determination changed in the course of the trial. Initially the issue was the plaintiff's claim for the costs of accommodation for the carer in a separate granny flat not part of the plaintiff's house. Mr John Christopher Keen, an architect with expertise in assessment of architectural needs for persons with severe disabilities, was called by the plaintiff and provided a report (Exhibit 38) detailing the costs of the two options. Mr Keen concluded that the costing of each option was much the same and, as a result, that issue fell away during the trial.

237 The remaining issue is the plaintiff's claim for modifications to his father's residence to enable himself and his carer to visit his father and spend a few days with him each month. This claim is made in addition to the claim for modifications to a house for the plaintiff with accommodation for the carer. The plaintiff gave evidence that he has seven half-brothers and sisters. Since the accident he has lived apart from the family in hospital and later at the Shenton Park Rehabilitation Centre. Now he would like to be able to spend time with his family occasionally as they are growing up. There was evidence his youngest half-sister is only aged 7 years.

238 The plaintiff plans to live in Fremantle. His father now lives in Kwinana and I accept that his father's house is not suitable for the plaintiff to remain for overnight visits. The bathroom is too small, the doorways will not accommodate a wheelchair and his father's lot is sloping and sandy. The plaintiff gave evidence that his stepmother Ana recently moved to Mt Lawley. She and the plaintiff's father remain married but now live separately. That has occurred within the last few months. Of the seven step-siblings only Richard, who is 18 years of age, now lives with his father. The other six younger siblings live with Ana in Mt Lawley.

239 In assessing this claim I bear in mind that the plaintiff should be awarded such sums of money as will restore him as far as money can do to the position he would have been in if there had been no negligence. The issue is whether it is reasonable to allow the costs of modifications to the plaintiff's father's house in addition to architectural modifications for his own home and for accommodation for his carer. As the facts have emerged in this case this claim should not be allowed. The basis of the plaintiff's claim is his desire to spend time with his family as his step-siblings are growing up. Yet the evidence shows that six out of seven of the step-siblings do not live with his father in Kwinana. Expending funds to modify that house to accommodate the plaintiff and his carer will not provide the plaintiff with the opportunity he seeks. In the separated circumstances of his family it would not be reasonable to allow these additional costs.

240 For these reasons there should be no award for modifications to the plaintiff's father's house.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (175 paragraphs)

Uzabeaga v Town of Cottesloe [2002] WADC 71 (12 April 2002)

Parties

Legislation Cited (2)

Cases Cited (28)