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: