And, at 62,402:
"The danger from diving into shallow water is well recognised: it is the kind of thing of which a public pool owner must be conscious. The damage apt to result from the danger, if it eventuates, is apt to be very great: it is well known as a source of paraplegia or quadriplegia. The precautions which may be taken are simple and involve no great cost: warning signs and depth marking will often be sufficient. In these circumstances, the response of a reasonable person who has set up or conducts a pool facility would, in my opinion, be to guard against the risk of inadvertence in this way."
147 I accept Mr Semmler's submission that liability under the modern law of negligence does not depend upon the payment of an entry fee. However, I do not approach the determination of the issues raised in this case upon a view that there is no distinction to be drawn between the content of the reasonable response of a council to the foreseeable risk of injury arising out of the operation of a municipal swimming pool and the content of the reasonable response of a council to the foreseeable risk of injury associated with a natural formation in a reserve the subject of its care, control and management. In this respect I have regard to the observations of Hayne J in Romeo at [157] emphasising that what is reasonable must be judged in the light of all of the circumstances including in a particular case whether the danger was hidden or obvious and whether it is one created by the action of the authority or a naturally occurring one. His Honour continued:
"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 of the circumstances of the case ( Herrington v British Railways Board [1971] 2 QB 107 at 120 per Salmon LJ cited, with approval in Hackshaw (1984) 155 CLR 614 at 663, per Deane J).
148 In Manly Municipal Council v Boylan (unreported) NSWCA, 26 April 1995 the plaintiff executed a shallow dive from a standing position in a swimming area at Manly Dam. His head collided with a barely submerged rock. In Mr Semmler's submission implicit in the judgments in the Court of Appeal in that case was a rejection of the proposition that the danger was an obvious one. Indeed, Gleeson CJ observed of the plaintiff's conduct that it was a "much less obviously dangerous form of behaviour than that engaged in by the plaintiff in Nagle, who, in a rocky area, dived into the water in the full sense of the word."
149 The plaintiff instanced Scarf v State of Queensland [1998] QSC 233 and Hornberg v Horrobin [1998] QCA 283 as further illustrations of diving cases in which the suggested obviousness of the risk had not operated to relieve the public authority of the obligation to warn. In the result each of those cases turned on the issue of causation.
150 Mr Semmler referred me to the decision of the Western Australia Court of Appeal in City of Rockingham v Curley [2000] WASCA 202; 112 LGERA 123. The plaintiff in that case dived off a jetty from a height of 2.7 metres into shallow water. He sued both the City of Rockingham ("the City") and the Fremantle Port Authority ("the FPA"). Each defendant was found to have been negligent and damages were apportioned seventy-five per cent as against the FPA and twenty-five per cent as against the City. On appeal it was argued that the provision of warning signs would have been of no use because they would have simply told the plaintiff what he knew already. The evidence established that the plaintiff had used the jetty area for recreational purposes for some time prior to his accident. On behalf of the City it was argued that it had no control over that portion of the jetty from which he dived. The Court of Appeal allowed the appeal by the City, each of the members of the Court deciding the matter differently. Mr Semmler directed attention to the observations of Wallwork J:
"In my view it is relevant that the plaintiff had previously dived from around the same place at the jetty and had never before encountered difficulties. Also that Mr Bazzica [the plaintiff's friend who had dived in before the plaintiff] did not think that the water was 'obviously way too shallow to dive into'. There was evidence that there had been other people diving from the jetty. Until very recently there were no signs on or about the jetty warning people that it was dangerous to dive from it, or that the water might be too shallow to dive into."
151 Murray J found the FPA was negligent because it had not prohibited diving, it having the power to do so. In relation to the question of prohibition his Honour said at [158] - [159]:
"In my opinion the FPA was negligent not to take action to prohibit diving from defined portions of the jetty, including the point from which the plaintiff dived, where, once the depth of water is known, it becomes obvious that a dive could not be safely executed no matter how skilful the diver was in keeping the dive at a shallow trajectory. The FPA through its servants was well aware of the recreational uses to which the jetty was put. It was well aware that persons of all ages and various degrees of skill dived from the jetty and the landing stage. There was an obvious foreseeable risk that a person might come to grief as the plaintiff did simply by diving into water which was too shallow or by misjudging the angle of a dive and diving too deeply. The risk of injury being received in this way was clearly foreseeable despite the fact that prior to the plaintiff's accident there had been no reported cases of diving injury associated with the use of the jetty.
Until the water becomes quite deep the FPA ought to have appreciated that it would be difficult for a person on the jetty to accurately assess the depth of water, even under favourable conditions such as applied on the day in question when the bottom could be seen, and particularly in an area such as that from which the plaintiff dived where the depth of water had increased to the point that it was no longer obvious that it was too shallow. Recognising the difficulty of accurate assessment, the likelihood of misjudgement and consequent injury, and the ease with which the harm could be averted, the FPA should have taken steps to remove the foreseeable risk of injury by prohibiting diving from parts of the jetty where it might be unsafe, and it should have erected before the event the warning signs which it subsequently placed on the jetty. The negligence of the FPA represented by that failure being causally related to the harm suffered by the plaintiff, the judgment against it was in my respectful opinion rightly entered."
152 Anderson J, in dissent, did not agree that the Authority had been negligent in failing to prohibit diving or otherwise.
153 The plaintiff sought to distinguish cases such as Buttita v Strathfield Municipal Council [2001] NSWCA 365 (golfer suffered injury slipping on a moderately steep, downward slope behind the green); The Mountain Cattlemen's Association of Victoria Inc v Barron (1997) Aust Torts Rep ¶81-426, (plaintiff injured when leading a horse over slippery rocks - the horse slipped falling upon her); Department of Natural Resources and Energy v Harper [2000] VSCA 36 (the plaintiff injured by a falling tree in high winds while camping in a forest reserve). The risks in Buttita and the Mountain Cattlemen's Association were said to be plainly visible. In the case of Department of Natural Resources & Energy the risk was one endemic to the activity undertaken.
154 The parties advanced competing submissions concerning the decision of the Western Australian Court of Appeal in Prast v Town of Cottesloe [2000] WASCA 274; 22 WAR 47. The Council contended that the risk with which the Court was there concerned was of the same character as the risk inherent in diving off a rock into water of unknown depth. In Prast the appellant was body surfing at Cottesloe Beach. He was dumped by a wave that threw him onto his head, causing severe spinal injury. It was his case that the respondent Council should have erected warning signs as to the risks associated with body surfing. This proposition was not accepted by the Court. Ipp J (in a judgment with which Wallwork and Parker JJ agreed) observed that the trial judge had distinguished the case from the "diving" cases such as Nagle, Inverell Municipal Council v Pennington and City of Rockingham v Curley. Ipp J agreed with the trial judge's conclusion in this respect. In the diving cases relied upon there were hidden dangers which created serious risks in performing an act that would otherwise be relatively safe as distinct from the obvious risk inherent in body surfing [32]. In this connection his Honour observed:
"The risks of striking one's head on submerged rock obscured by the glare of the sun, or on a misleadingly shallow bottom, are not an inherent part of diving. Those were hidden dangers that brought about the need to warn. They are to be contrasted with the risk facing all body surfers, that is, the risk of being hurled onto the seabed, out of control, by a wave that turns out to be a dumper."