VAIRY v WYONG SHIRE COUNCIL [2002] NSWSC 881 | Case summary | Zoe

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VAIRY v WYONG SHIRE COUNCIL

[2002] NSWSC 881

Supreme Court of NSW|2002-12-20|Before: Bell J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2002-12-20

Before

Bell J

Catchwords

112 LGERA 123 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59
22 WAR 474 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5
(1998) 192 CLR 431
Saroukas v Sutherland Shire Council (1992) Aust Torts Rep 81-149 Scarf v State of Queensland [1998] QSC 233 Tame v State of New South Wales [2002] HCA 35

Source

Original judgment source is linked above.

Catchwords

112 LGERA 123 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 5922 WAR 474 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5(1998) 192 CLR 431Saroukas v Sutherland Shire Council (1992) Aust Torts Rep 81-149 Scarf v State of Queensland [1998] QSC 233 Tame v State of New South Wales [2002] HCA 3576 ALJR 1348 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Waverly Council v Lodge [2001] NSWCA 439(2001) 117 LGERA 447Western Australia v Dale (1996) 15 WAR 464 Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 976 ALJR 483 Wyong Shire Council v Shirt (1980) 146 CLR 40 DECISION : Verdict and judgment for the plaintiff in the sum of $ 5,054,753.25The defendant to pay the plaintiff's costs as agreed or assessed

Judgment (113 paragraphs)

[1]

CITATION : VAIRY v WYONG SHIRE COUNCIL [2002] NSWSC 881 FILE NUMBER(S) : SC 13576/93 HEARING DATE(S) : 9/9/02, 10/9/02, 11/9/02, 12/9/02, 13/9/02, 16/9/02, 17/9/02, 18/9/02, 19/9/02, 23/9/02, 24/9/02, 26/9/02 JUDGMENT DATE : 20 December 2002

[3]

COUNSEL : P. C. B. Semmler QC / L.T. Grey (Plaintiff) I.G. Harrison SC / D. F. Villa (Defendant) SOLICITORS : Carroll & O'Dea (Plaintiff) Minter Ellison (Defendant) CATCHWORDS : Negligence - public authority - diving from rock platform in public reserve - breach of duty - obviousness of danger Crown Lands Act 1989 Crown Lands Consolidation Act 1913 Law Reform (Miscellaneous Provisions) Act 1965 LEGISLATION CITED : Local Government Act 1919 Local Government Act 1993 Public Trusts Act 1897 Stevedoring Industry Act 1956 (Cth) Aiken v Kingborough Corporation (1939) 62 CLR 179 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Buttita v Strathfield Municipal Council [2001] NSWCA, 365 Caparo Industries Plc v Dickman [1990] 2 AC 605 Chappel v Hart (1998) 195 CLR 232 City of Rockingham v Curley [2000] WASCA 202; 112 LGERA 123 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 Department of Natural Resources and Energy v Harper [2000] VSCA 36 Franklins Selfserve Pty Ltd v Bozinovska (unreported), NSWCA, 14 October 1998 Inverell Municipal Council v Pennington (1993) Aust Torts Rep 81-234 Hornberg v Horrobin [1998] QCA 283 Manly Municipal Council v Boylan (unreported) NSWCA, 26 April 1995 CASES CITED : The Mountain Cattlemen's Association of Victoria Inc v Barron [1997] Aust Torts Rep 81-426 Nagle v Rottnest Island Authority (1989) Aust Torts Reports 80-298 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 492 Prast v Town of Cottesloe [2000] WASCA 274; 22 WAR 474 Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431; Saroukas v Sutherland Shire Council (1992) Aust Torts Rep 81-149 Scarf v State of Queensland [1998] QSC 233 Tame v State of New South Wales [2002] HCA 35; 76 ALJR 1348 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Waverly Council v Lodge [2001] NSWCA 439; (2001) 117 LGERA 447; Western Australia v Dale (1996) 15 WAR 464 Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 76 ALJR 483 Wyong Shire Council v Shirt (1980) 146 CLR 40 DECISION : Verdict and judgment for the plaintiff in the sum of $ 5,054,753.25; The defendant to pay the plaintiff's costs as agreed or assessed

[17]

18 Section 344(1) of the Local Government Act provided: "(1) The council shall have the care, control and management of - (a) public reserves which are not under the care of or vested in any body or persons other than the council, and are not held by any person under lease from the Crown; and (b) public reserves which the Governor by proclamation places under the care, control and management of the council." 19 Part XIII of the Local Government Act conferred certain powers on councils in respect of public reserves and parks. Division 3 of Part XIII of the Local Government Act dealt with the subject matter of baths and bathing. Section 354 provided: "354. (1) The council may control and regulate public bathing and the conduct and costume of bathers - (a) in any public baths under the care, control and management of the council; (b) in any private baths open to the public view; (c) in any river, watercourse, or tidal or non-tidal water; (d) in the sea adjacent to though outside the area; and (e) in any public place or public reserve adjacent to any of the aforesaid places. (2) The council may prohibit bathing in any specified locality by notices erected in the vicinity of such locality." 20 Section 367 made provision for Ordinances to be made for the purpose of carrying into effect the provisions of Part XIII of the Local Government Act. 21 Ordinance 52 made under the Local Government Act, dealt with the topic of public baths and bathing and, relevantly, provided: "8. A person shall not bathe in any public bathing reserve or in any part thereof in respect of which a warning has been given that it is dangerous to bathe therein. For the purposes of this Ordinance a warning may be given by an inspector, or by a flag, signal, or notice exhibited or given in the vicinity of the bathing reserve or part thereof. … 21. The council may, by notices exhibited in or in the vicinity of a public bathing reserve, public baths or public swimming pool, regulate the lighting of fires, require animals and vehicles to be kept off places indicated, indicate where bathing shall be prohibited, regulate the vehicular and pedestrian traffic, regulate the conduct of persons, and generally regulate the use of the reserve, baths or swimming pool by the public." 29. (a) Any person not complying with or offending against any of the provisions of this Ordinance or the terms of any notice, order, direction, warning, or signal exhibited, issued, or given thereunder shall be guilty of an offence, and shall where no other penalty is provided be liable for every such offence to a penalty not exceeding $20. (b) Any person guilty of an offence may be forthwith removed from the bathing reserve or bath by a servant of the Council, or the lessee or caretaker of the bath or dressing sheds (as the case may be), or by an inspector, or by a constable or officer of police, without affecting his liability to be subsequently prosecuted for such an offence."

[30]

37 The plaintiff said the water level on the day of his accident was higher than the water level depicted in the photograph, Exhibit "D(9)". He said the water was lapping over the rock platform at the dive location. It will be necessary to return to the question of the water level. 38 The rock platform was flat at the dive location. The plaintiff was able to see the water. He said that he could not see the bottom. I will return to this aspect of his evidence. 39 The plaintiff did not take any steps to assess the depth of the water adjacent to the rock platform before he dived. He assumed that it was safe to dive from the rock platform because he saw people on that day diving and jumping from it and coming back to have another turn. I am satisfied that he also assumed it to be safe to dive from this location because he had frequently seen people doing so on other occasions. In the course of explaining why he considered it was safe to dive from this location he said that it was "a known thing". He went on to say: "Well, that's, like, what people were - that's where I'd always seen people and that was the spot. That's the place. … That's the place to go, to dive in or to jump in or whatever. It's safe" (T62). 40 The plaintiff noticed that the surface of the rock immediately in front of him looked wet and slippery. He took three steps back in order to avoid striking his feet on the slippery edge of the rock as he dived. He dived into the water at a forty-five degree angle with his arms stretched out in front of him. As he passed through the water he felt a bump on the top of his head and within a short interval he floated to the surface. He described the sensation at the time of the bump as being as though he had hit a soft pillow. As he floated to the top he noticed that his arms and legs were limp and hanging down. He was not able to lift his head. He thought that he had broken his neck and he believed that he was dying. He started to breathe in the water. He was conscious of hearing noises, including the voice of his niece calling out to him. He appears to have lost consciousness for a time thereafter. The next thing he recalled was coming to on the flat surface of the rock. A lifesaver was saying to him "it's okay". He was taken by helicopter to the Intensive Care Unit at the Royal North Shore Hospital. The cause of the plaintiff's injury 41 By his further amended statement of claim the plaintiff pleads that he struck his head on a sandbar. The Council submitted that the evidence does not establish that the plaintiff suffered injury as the result of impact with the ocean floor. In the defendant's submission it is difficult to see how the plaintiff's head might have hit the ocean floor given that his arms were outstretched in a conventional dive. The plaintiff's description of the impact (as if being hit by a soft pillow) is said to be inconsistent with that which might be expected had the plaintiff struck his head on the ocean floor. It was submitted that the plaintiff's account is more suggestive of a collision with another person.

[31]

42 The plaintiff did not suffer abrasions or bruising to his head or forehead as the result of the accident. He believed that his head hit the sand because of the amount of sand in his hair. He recalled Dr Yeo or one of the other specialists at the Royal North Shore Hospital commenting on the amount of sand in his hair. 43 The plaintiff had a vivid recall of the moments after the impact. He remembered the content of his thoughts in the moments that he understood to be the process of dying. While not able to say as a matter of certainty what it was that his head had struck, the plaintiff was conscious at the moment of impact and he remained alert as he floated to the surface. The only things he described seeing were small fish. He denied that he had collided with another person. 44 I am not persuaded that the plaintiff's injuries were sustained as the result of a collision with another person in the water. Had that happened I think it likely that the plaintiff would have been aware of it. I accept him when he says that he did not. I also think it probable that had the plaintiff collided with another person with sufficient force to sustain the injuries that he did, the incident would have been notable not only to him, but also to the other person and to those viewing the scene. Stevie Jackson watched the plaintiff dive and then she jumped into the water immediately after him. As he floated to the water he could hear Stevie's voice calling out to him. It was not suggested to Stevie that the plaintiff had collided with another person. 45 I do not find the description of experiencing a sensation like being hit with a soft pillow to be suggestive of impact with another person as distinct from impact with the sandy bed of the ocean floor. 46 I consider that the probabilities strongly favour the view that the plaintiff sustained his injuries because his head hit the ocean floor. 47 There was no evidence as to the plaintiff's height. I am able to draw no more from my observations of him in his wheelchair (and the photographs of him taken prior to the accident) than to find that at the date of the accident he was an adult male who was neither notably short nor tall. 48 It was not suggested that the plaintiff executed a vertical or otherwise inherently dangerous "skylarking" style of dive. The plaintiff hit the ocean floor because the water was not sufficiently deep to admit of a dive at a forty-five degree angle being safely executed by an adult male of his height.

[34]

54 The plaintiff believed that his accident took place at about 11:00 am. The evidence does not disclose the precise time of the accident however I am satisfied that it occurred later than 11:00 am. The significance of the time of the accident relates to the level of the tide and to the distance, if any, between the rock platform and the top of the water at the dive location. 55 Ambulance records establish that initial contact was made with that Service at 12:44 pm. It is not clear that any person contacted any of the emergency services before the plaintiff was removed from the water and placed on the rock surface. Making allowance for a number of minutes before the contact was made, I approach the matter upon the basis that the plaintiff sustained his injury at about 12:30 pm. 56 Attached to the Drummond Report is a chart plotting the movements of the tide on 24 January 1993 by reference to the Fort Denison Tide Gauge. There is only a minor difference in height between the tides recorded at Fort Denison and the tides recorded at other points along the coast. Thus, the difference in height between the Sydney and Newcastle tides varies by only a few centimetres. High tide on 24 January 1993 was at 10:25 am daylight saving time. Low tide that afternoon was at 4:40 pm daylight saving time. The plaintiff's accident occurred at a time when the tide was going out, but well before low tide. Making an adjustment to reflect that it was daylight saving time on 24 January 1993 the tide height was 1.2 metres at the time of the plaintiff's accident. Upon the assumption that there was no swell or surge in the water adjacent to the rock platform this would mean that the distance from position "C" on the Drummond survey to the top water level at 12:30 pm was 1.6 metres. Again on the assumption that there was no swell or surge, I take the distance from the dive location to the top water level to be somewhat less than 1.6 metres at the time of the plaintiff's accident (upon my view that the dive location is somewhat lower than the position marked "C").

[36]

58 Mr Semmler QC, who with Mr Grey appeared on behalf of the plaintiff, submitted that it introduces an element of unreality to attempt to determine the level of the water relative to the rock platform at any given time by reference to the tide survey. In his submission the ocean is dynamic and account needs to be taken of phenomena including swell or surge. To illustrate this proposition he pointed to two photographs, Exhibit "R" (1) & (2), that were taken within seconds of one another on the day of the view. In "R" (1) the water level is above the rock platform at the dive location. In "R" (2) the water level is more than a metre below the surface of the rock platform at this location. 59 Section 54 of the Evidence Act 1995 permits me to draw any reasonable inference from what I saw, heard or noticed during the view. However, the evidence does not establish that the conditions on the day of the view (13 September 2002) were comparable to the conditions on 24 January 1993 at the time of the plaintiff's accident. It seems to me that the observations that I made during the view (and the record of those observations contained in Exhibit "R") do not usefully assist me in determining the level of the water relative to the surface of the rock platform at the time of the accident. 60 A number of witnesses gave evidence concerning the appearance of the ocean on the day of the accident and the water level relative to the rock platform. 61 The plaintiff said that the water that day had been "pretty calm, fairly calm". The ocean was not as rough on the date of his accident as it appears in Exhibit "G" on 16 January 1994 at 12:50 pm. Exhibit "G" also contains film of the scene taken on 23 January 1994. The plaintiff said that the ocean on the day of his accident was, "still a bit calmer" than it appears in the film taken on 23 January 1994 at 2:50 pm. 62 Maryanne Kotkis joined her husband and the plaintiff in the water on 24 January 1993 taking Rachel with her. The child was fearful of the surf. This is consistent with the view that the sea was calm on the day of the plaintiff's accident.

[37]

63 Gregory Kotkis gave evidence of the water conditions on the date of the accident: "Q. What kind of water conditions were there? A. Oh, it was quite calm, bit of surge. There was surge there. Q. What's a surge? A. The water goes up and down. It's not a swell, it's just the water goes up and down. Q. It's not waves, I take it? A. No. Q. It's just the movement of the water in the broad sweep? A. Yeah, that's right, yeah" (T162). 64 Mr Kotkis recalled that the water level was below the point from which he understood the plaintiff to have dived. His impression was that there was a 1 - 2 metre drop from the dive location to the water. He formed this impression by looking across to the dive location from a little distance. 65 Maryanne Kotkis went over to the rock platform after learning that the plaintiff had suffered an accident. She recalled the water level as being just about level with the rocks. Mrs Kotkis was distraught on learning of her brother's accident. Her husband stopped her from approaching too close to the scene where others were attempting to revive the plaintiff. She described looking at the water and having Stevie point out the dive location to her when she was in the car park after the plaintiff had been removed from the scene by helicopter. Mrs Kotkis' impression was that the water level on the day of the plaintiff's accident had been a lot higher than the water level shown in the photograph Exhibit "D"(9). In cross-examination she was not able to give an account of the extent to which it had been higher. She said that she did not have a distinct recollection. 66 Stephen Callaghan said that there was a drop from the rock platform to the water that he estimated to be as much as 4 metres. I consider that Mr Callaghan was mistaken in his estimate of the extent of any drop. I am satisfied that there was not a drop of as much as four metres. However, it remains significant that Mr Callaghan's impression was of a noticeable drop. Mr Callaghan described the day as a sunny one with no swell. 67 Stevie Jackson remembered that the day had been a calm one. She was not able to recall how high the water was relative to the rock platform.

[38]

68 It is not possible to determine the level of the water relative to the rock platform at any given moment by reference to the tide survey. However, I am satisfied that 24 January 1993 was a calm day and that the tide survey provides a reliable measure for assessing the approximate level of the water relative to the rock platform. I take into account Mr Kotkis' evidence that there was some surge in the water. I accept that there may have been occasions when, as the result of the surge, water came up to the level of the rock platform on which the plaintiff was standing. However I do not think it likely that the water was at the level of the rock platform throughout the period during which the plaintiff stood on it waiting to dive. I am satisfied that generally the water level around the time of the accident was below the level of the rock platform at the dive location by an amount greater than 1 metre and more likely by as much as 1.5 metres. 69 The plaintiff said that he could not see the ocean floor. He agreed that the day had been a sunny one and that the water had not been covered in weed or foam. He recalled that the water was quite dark blue and that it "looked deep" (T 128). 70 Gregory Kotkis said that one could see the bottom but not judge the depth. He described the water as being fairly clear. It was dark with rock shelfs here and there (T 163). He was not able to estimate the depth of the water in the vicinity of the spot where the plaintiff was lying after he was removed from the water. 71 Stephen Callaghan said that it was a clear, flat day and that one could see the bottom looking down from a position on the rock platform. 72 Ian Walker, who gave evidence of his familiarity with Soldiers Beach over many years, said that on a clear sunny day when there was no weed one could see the ocean floor from the dive location. He went on to say, "you wouldn't be able to estimate the actual depth, but you would possibly see it". "Q. So, in your experience, without being able to estimate the depth when the water was that high, I assume you would have formed the view it was too dangerous to dive? A. Depending. Maybe if other people had gone into the water before me, I would assume from that." 73 Taking into account the evidence of Gregory Kotkis, Stephen Callaghan and Ian Walker, and given that the day was a calm one with no weed, I think it likely that the plaintiff could have seen the ocean floor had he looked. In the five minutes that he spent standing on the rock platform watching others jumping and diving into the water he described himself and Stevie as being "just back from the rocks" (T 60). The plaintiff indicated that they had stood on the rock platform in a position somewhat to the rear (west) of the dive location. I accept that from this position the water appeared to the plaintiff to be quite dark blue. The Council's knowledge of dangers associated with diving from the rock platform

[57]

106 Mr Browne inspected the accident site on 2 December 2001. In his report he expressed the opinion: "The nature of the northern end of the beach with its rock platforms and variable depths of water would lead to the conclusion that there were inherent dangers at this location particularly related to diving, jumping and bombing." 107 In the course of his oral evidence Mr Browne was invited to expand upon this opinion. He said: "[A]s the Chief Engineer I would have been knowing that this activity was taking place and, knowing about the phenomena of littoral drift, I would conclude, and I believe quite reasonably so, that the seabed would be changing and there would be a variable depth. And accordingly, if there's a variable depth and people are diving, then I would consider that to be a foreseeable risk which would require me to take some action to ensure that these people were prohibited from undertaking these activities or, alternatively, warning them of the danger." 108 The water adjacent to the rock platform would be of variable depth (apart from tidal movements) because of changes in the level of the ocean floor caused by littoral drift. This phenomenon refers to the movement of sand associated with current and wind activity. The sand forming the ocean floor is constantly moving. The ocean floor along the eastern coast of Australia is very fluid and active. Shoals and channels are formed with the movement in the sand. The greatest amount of activity in this respect is found around rocky headlands because the sand is restrained, builds up and then moves on again. 109 Mr Browne considered that most civil engineers, particularly those working in municipalities with coastal boundaries, would be aware of littoral drift. It is a well-recorded phenomenon. I accept that to be the case. 110 Mr Browne was shown the film, Exhibit "G". He expressed the opinion that the activity depicted in that film was a cause for alarm. In his view there were very significant dangers associated with people jumping and diving from the rock platform. He identified two. The first was that people might slip and fall onto the lower rocks. The second was that people diving might strike their heads on the ocean floor because of the difficulty of estimating the depth of the water. The variations in the depth of the water made this risk the greater. I will return to this aspect of Mr Browne's opinion. 111 Mr Browne considered that the best means of reducing or eliminating the risk of injury was the erection of signs in accordance with the Australian Standard AS 2416-1985 (i) No 213 "Diving is prohibited" and (ii) 228 "Beware of shallow water when diving" in the vicinity of the rock platform. He did not consider that the risk of injury to members of the public as the result of diving from the rock platform could be eliminated altogether. One could only do that by demolishing the rock platform and he considered that was not a practical option. He was also inclined to dismiss any suggestion that the rock platform might be fenced off to members of the public. Among the various matters that he took into account in expressing the latter view was that such a solution would be extremely visually intrusive. The plaintiff did not particularise either the failure to demolish the rock platform or to fence it off from the public as negligent.

[58]

112 Mr Browne expressed his preference for a prohibition sign and a sign warning of the danger of shallow water to be displayed together on the one pole. As I understood him the warning sign explained the reason for the prohibition and tended to reinforce it. Mr Browne suggested that warning signs be placed at the bottom of the gravel track that gives direct access to the rock platform and on the platform itself in a position he marked on Exhibit "C". Members of the public approaching the rock platform from the beach would see this sign. 113 Mr Browne's opinion, that signs in conformity with the Australian Standard sign Nos 213 and 228 should have been erected at points of access to the rock platform, was based upon his view that diving from the rock platform was dangerous (in that it carried the risk of causing serious injury) and because of the numbers of people engaging in this pursuit. 114 Warwick Kiernan is a consulting engineer with many years experience in local government. His experience includes the management, construction and maintenance of parks, reserves, coastal baths and beach bathing facilities within the Warringah Shire Council. He was overseas at the date of the hearing and was not available for cross-examination. In a report dated 7 December 2001, Mr Kiernan expressed the following opinion: "The unknown danger that existed was the height of the dive or jump in relation to the changing seabed level and the depth of water. Some of the photographs show persons standing on the seabed which is probably a shallow rocky outcrop, whereas the diving location may have been into deeper sandy bed areas. However, these areas are subject to water depth variations and would be hazardous to jumpers and divers at various times [7.0]. … Where a public safety hazard has been reported, the excepted process is to either provide a physical barrier to the hazard or to warn persons of the hazard. In general, remote or natural areas do not require action by authorities. The rock platform at this location is part of the natural rock formation in the area and under normal circumstances would not attract any need for specific warnings or restriction of access by rock walkers. The exception to the need for warnings and physical barriers in natural environment areas is where persons are attracted to a physical feature, eg, the Kiama Blowhole on the south coast of NSW. At this location tourists and others are guided to safe viewing areas connected by paths and physical barriers are erected where necessary. Another reason for management action in natural areas is antisocial or dangerous human activity. This would be usually activated by a complaint from the public to council or the activity could be observed by a council employee. If this jumping and diving activity was known to council officers and was clearly dangerous, action by council was required [10.0]". 115 In Mr Kiernan's opinion it would have been relatively inexpensive for the Council to have erected "No diving" signs both at the end of the gravel track and on an approach to the rock platform from the beach. The enforcement of such a sign could have been carried out by a council officer attending the site at appropriate times. Mr Kiernan recommended that the wording of the sign should contain the message: "No diving, no jumping and shallow water [11.0]. … Physical measures to control the use of the rock platform for diving and jumping are limited because of its location beyond the headland and within the tidal zone. Thus it is not considered practical to place physical barriers to prevent access to the rock platform. Diving at typical unsafe locations, eg, rivers, water holes, creeks and similar recreational areas, is a problem faced by local government authorities. The prohibition of diving for safety reasons is usually one of the key behavioural messages displayed at the entrance to these recreational areas. And the message is reinforced by signage at significant locations where persons enter the water. The erection of regulation and prohibition warning signage also requires enforcement. It has been common practice for local government to have trained officers to enforce compliance with council's regulations and the control of behaviour at water based recreational areas. In my opinion, the appropriate action would have been to observe the area at appropriate times and report any activity to council together with estimates of the observed diving heights and water depths. Based on the surveys carried out, this would have shown the danger of this practice [12.0]."

[62]

120 In 1993 the Council employed a Risk Manager. The focus of the Risk Manager's role was the assessment of Council activities and not risks associated with land over which it exercised care, control and management. With respect to the latter Mr Dawson explained the Council's approach in 1993 in this way: "Our approach was one of where if the risk was evident to the user then it was not - Council was not derelict in its duty of care by not erecting signs. For example, beach fishing; everyone knows there are risks inherent in beach fishing. Surfing on unpatrolled beaches. There are numerous others. They are activities that take place on a daily basis up and down our coastline, and they are frequently on Council property or property vested in the Council, but are risks where the person concerned would be able to detect that there was that risk, there was that hazard and danger. And that's the distinction I'm attempting to draw". 121 The Council promoted tourism. Mr Dawson agreed that it had been Council's policy prior to 1993 to encourage members of the public to visit the patrolled beaches within the shire. He was not able to recall whether Soldiers Beach had been formally publicised by the Council. In this connection he said, "we wouldn't have lost an opportunity to tell people about it, no". He agreed that by providing facilities such as the Clubhouse people were encouraged to use Soldiers Beach. Mr Dawson acknowledged that the construction of the car park served to encourage members of the public to attend Soldiers Beach. He was aware that as at 1993 members used the car park to enable them to more readily access a number of points along the coastline, including the rock platform. 122 Mr Dawson was aware that people of all ages visited the rock platform. He understood that on weekends young people would jump and dive off the rock platform. He had seen groups of ten to fifteen or perhaps more young people engaging in these activities. 123 Mr Dawson acted under a wide delegation of power from the Council. In cross-examination he explained why the Council did not erect warning signs at natural locations such as Soldiers Point : "It comes back to the Council's duty of care. You have to draw the line somewhere because it is a physical impossibility for the Council to warn every user. We have twenty-seven kilometres of coastline, all of which is dangerous, all of which is accessible to the public, and all of which contains specific dangers from sand moving, to rips, to sharks, to blue bottles, to sunbathing if you like. The Council - it is a physical impossibility for anyone to sign post all of those risks, because most of them ought to be evident to the user, and Council attempts to deal with that issue by having a number of beaches which are patrolled in the major swimming seasons". 124 In 1993 the Council's budget was of the order of $100 million. There was no suggestion that the erection of warning signs would be a drain on the financial resources of the Council. Mr Dawson was concerned with the practicality of erecting warning signs (as to a variety of dangers) along the length of the coastline controlled by the Council. 125 It was apparent that in Mr Dawson's view there were no dangers associated with diving from the rock platform that would not have been obvious to a member of the public engaging in that activity. I note that Mr Dawson understood that variations in the level of the seabed were likely to be less noticeable in areas adjacent to rock headlands because these locations are more sheltered. I am satisfied that his understanding in this respect is wrong. I accept Mr Browne's evidence that the movements in sand along the coast are pronounced around rock headlands such as the rock platform. The duty of care 126 The plaintiff submitted that the Council had the care, control and management of the Norah Head Reserve and that it provided facilities designed to encourage the public to make use of it and accordingly that it owed to him a common law duty of care. In written submissions it was characterised as a duty to take reasonable care for the safety of visitors. The plaintiff relied on the joint judgment in Nagle v Rottnest Island Authority (1993) 177 CLR 423.

[67]

135 As I have noted, the plaintiff placed reliance on the decision of the High Court in Nagle. The majority found that the failure to erect signs at the Basin, a natural swimming hole, warning of the dangers of diving from the rock ledge to be a breach of the Rottnest Island Board's duty of care to the appellant. In their joint judgment Mason CJ, Deane, Dawson & Gaudron JJ said at 429-430: "The trial judge was plainly right in concluding that the Board was under a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors lawfully visiting the Reserve. As stated earlier, the Board was the occupier of the Reserve and was under a statutory duty to manage and control it for the benefit of the public. Moreover, the Board promoted the Basin as a venue for swimming and encouraged the public to use it for that and other purposes by installing, maintaining and servicing various facilities on that part of the Reserve which was immediately adjacent to the Basin. In these circumstances, it is beyond question that the Board brought itself into a relationship of proximity with those visitors who lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to any foreseeable risks of injury to which they might be exposed. In this case, the basis for holding that the Board came under a duty of care may be simply stated: the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who swam in the Basin. As occupier under the statutory duty already mentioned, the Board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged." 136 The Council submitted that this case differed from Nagle in two respects. Firstly, the extent of the Board's encouragement of members of the public to swim at the Basin was said to have been significantly greater than any encouragement by the Council of members of the public to make use of the rock platform at Soldiers Beach. Mr Harrison drew my attention to the judgment at first instance in Nagle v Rottnest Island Authority (1989) Aust Torts Reports ¶ 80-298 at 69,231 which details the extent of the encouragement in that case. Nicholson J observed that the plaintiff pleaded that the Board promoted the use of the Basin as a venue for swimming and associated past-times in tourist literature and by signs. It constructed a bituminised path leading to the Basin and it erected signs directing members of the public to the Basin. There were change-rooms, toilets and other facilities in the immediate vicinity of the Basin. Steps were constructed from the change-rooms down to a small beach and the natural rock ledge immediately adjacent to the swimming area. Signs were erected warning swimmers of dangerous rips. The Board denied that it encouraged members of the public to use the Basin, but otherwise admitted the pleading. 137 I am satisfied that the Council as part of its promotion of tourism encouraged members of the public to visit patrolled beaches within the Wyong Shire, including Soldiers Beach. The development of the car park was designed to facilitate access by members of the public to Soldiers Beach and its surrounds. Access was provided from the car park directly to the rock platform. The provision of the kiosk, toilets and the Clubhouse amounted to encouragement to members of the public to visit Soldiers Beach. The rock platform was an attractive natural formation adjoining the beach that was popular for sunbaking and as a platform for jumping and diving into the ocean. The Council was aware of the use of the rock platform in this way. I consider that the facilities provided by the Council encouraged members of the public to make use of the rock platform as well as the beach. I do not consider that these proceedings should be distinguished from Nagle on the basis that the Council did not encourage members of the public to visit Soldiers Beach or the rock platform. 138 The principal distinction which Mr Harrison identified between the plaintiff's claim and that in Nagle was that in the latter case the submerged rock was a hazard that was not obvious to a person diving from the rock ledge. In Nagle the trial judge's findings in this respect are set out in the joint judgment at 427 - 428: "But the trial judge found that members of the public would assume the ledge, as a natural platform, was suitable for the purpose of diving. The trial judge accepted that an observer looking at the sea in the direction of the sun might well see a sun glint or glitter pattern as a consequence of the reflection of the rays of the sun. His Honour found that, when the appellant dived into the water of the Basin, the glitter effect would have been visible to him and would have obscured his vision to some extent. However, the rock which his head struck would not have been totally obscured and he could have avoided any glitter pattern by moving his head." 139 The Council contends that the only danger in this case was that the water was too shallow to admit of diving safely into it. To my mind this submission pays insufficient regards to the evidence of Mr Edwards set out at [78], [89] & [90] or that of Mr Walker set out at [93] - [97]. Both Mr Edwards and Mr Walker were persons with a considerable knowledge of Soldiers Beach and the rock platform dating back over many years. I accept what they had to say.

[72]

145 In the plaintiff's submission the cases dealing with hazards associated with diving are to be distinguished from claims such as those in Waverley Council v Lodge or Franklins Selfserve Pty Ltd v Bozinovska (unreported), NSWCA, 14 October 1998. In his written submissions Mr Semmler reviewed a number of the diving cases and contended that in none had the danger been held to be of such an obvious nature as to not require action to warn of it. In Saroukas v Sutherland Shire Council (1992) Aust Torts Rep ¶81-149 the appellant failed on the issue of causation but Mr Semmler relied on the judgment of Gleeson CJ at 61,139: "A lot of people were jumping and diving from the walkway into the pool, and the possibility that somebody might decide to jump in the other direction, with the attendant risk, even bearing in mind the presence of the fence, was not something that the Council was entitled to disregard." 146 In Inverell Municipal Council v Pennington [1993] Aust Torts Rep ¶81-149 the plaintiff suffered spinal injuries as the result of diving into the water at the shallow end of a municipal swimming pool. The water was very clean and the bottom of the pool could be easily seen. The Council had depth notices at each side of the deep end of the pool. There were depth notices on either side of the pool, at the six-foot mark. There were no signs indicating the depth of the water in the position from which the plaintiff dived. The plaintiff, a seventeen-year-old youth of six foot one inches in height, dived into the pool at a point where the water was approximately four foot six inches deep. It was his evidence that he believed the water to have been about five foot deep. Mr Semmler placed reliance in particular, on passages in the judgment of Mahoney JA at 62,401: "Does the law extend so far as to require the defendants to do that which is apt to bring to the plaintiff's immediate attention the necessity to ensure that the water is sufficiently deep and the depth of water at that point? With some hesitation, I accept that, in this case, it did."

[73]

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."

[78]

158 In Romeo Hayne J considered that to approach the matter upon the basis that all that the Conservation Commission need to have done was to have fenced off that part of the cliff over which the plaintiff had fallen was to attribute a false degree of precision to the identification of the foreseeable risk; [161]. His Honour said at [163]: "Thus the risk which was to be foreseen by the Commission was that a person (or perhaps a young person) adversely affected by alcohol would mistake the appearance of an area on the cliffs at night (in a way which a sober and alert person would not) and walk off the edge of the cliff. It will be noted that I refer to 'the cliffs' generally rather than a particular part of the cliffs for it is apparent from the photographs of the area included in the appeal book that the point on the cliffs from which the plaintiff fell is not unique (and indeed the contrary was not contended). Thus it is to attribute a false degree of precision to the identification of the foreseeable risk to say that it was this area (and only this area) which needed fencing against the possibility that a person affected by alcohol would be deceived in a way that a sober and alert person would not. To say that only this area needed fencing assumes (wrongly) that it is only at this point on the cliffs that a mistake of the tragic kind made by the plaintiff on this night might be made." 159 The majority in Romeo approached the determination of the reasonableness of the Commission's response upon the basis that the question could not be confined to consideration of whether or not the area in the immediate vicinity of the car park should have been fenced off. 160 The position on the cliff top from which the appellant fell in Romeo was not said to be relevantly different to any other part of the cliff top. 161 Mr Dawson said that the Shire comprises some eight hundred and twenty-seven square kilometres including approximately twenty-seven kilometres of coastline. He described the latter as, "largely sandy beach, with intermittent prominent headland with rocky foreshores" (T515). In addition to its long coastline the Shire also includes the Tuggerah Lakes system covering an area of approximately 25 kilometres.

[92]

183 In the Council's submission its power to regulate diving was provided under the Local Government Act and the Ordinances made thereunder as follows: (a) The erection of a notice prohibiting bathing pursuant to s 354(2); (b) the erection of a notice prohibiting bathing pursuant to cl 8 of Ordinance 52; or (c) the erection of a notice regulating the conduct of persons pursuant to cl 22 of Ordinance 52. 184 With respect to the erection of notices pursuant to s 345 or cl 8 of Ordinance 52 the Council submitted that its power was to prohibit bathing. It accepted that "bathing" may be interpreted so as to include diving and jumping into the ocean, but submitted that the power did not extend to preventing only one of the activities that constitute "bathing". Accordingly its power was to prohibit "bathing" in all its manifestations and did not admit of the prohibition of diving alone. 185 The powers by which the Council might prohibit diving were characterised by Mr Harrison as "quasi-legislative". In his submission the Council could not be in breach of a duty of care owed to the plaintiff by reason of failure to exercise quasi-legislative powers; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 per Gaudron J at [32]; McHugh J (with whom Gleeson CJ agreed) at [93]; Gummow J at [170]; Kirby J at [238] and Hayne J at [288] - [297]. 186 In Crimmins the High Court was concerned with the question of the circumstances in which a statutory body will be subject to a common law duty to exercise its statutory powers. The question was whether the Stevedoring Industry Finance Committee (the successor in liabilities to the Australian Stevedoring Industry Authority) owed a duty of care to the appellant, a waterside worker. The appellant was diagnosed as suffering from mesothelioma caused as the result of inhaling asbestos fibres. He had been required over a number of years to unload asbestos for different stevedoring companies. He was not employed by the Authority. However, the functions of the Authority included the encouragement of safe-working practices in stevedoring operations and the use of articles and equipment, including clothing, designed for the protection of workers and, where necessary, the provision of waterside workers with articles and equipment designed for that purpose (s 17(1)(o) of the Stevedoring Industry Act 1956 (Cth) ("the Stevedoring Industry Act")). 187 The majority in Crimmins held that the Authority owed the appellant a common law duty to take reasonable care to protect him from reasonably foreseeable risks of injury arising from his employment. 188 The Council's submissions are based upon the approach taken in each of the judgments to that part of the appellant's claim which contended that the Authority was negligent by its failure to make orders pursuant to s 18 of the Stevedoring Industry Act restricting his exposure to asbestos or obliging his employers or the owners of vessels upon which he worked to take steps to eliminate the risk to his health posed by exposure to asbestos. 189 Section 18(1) of the Stevedoring Industry Act conferred power on the Authority to make orders which by virtue of s 20(1)(c) of the Act were given the force of law. Their Honours were unanimous in finding that the Authority was not under any common law duty to exercise its quasi-legislative order-making powers.

[97]

197 In Nagle the appellant's particulars of negligence included the Board's failure to give a warning that the ledge was unsafe for diving. The majority said at 431-432: "In our view, the giving of a warning that the ledge was unsafe for diving was the action that a reasonable person in the respondent's situation would have taken to guard against the foreseeable risk of injury which existed. True it is that the particulars might have been more specific by stating the form of notice, for example, 'Diving from anywhere in this area is prohibited', with or without a reference to the presence of dangerous rocks and by identifying the place or places where the notice might be located. But the particulars sufficiently drew to the respondent's attention the relevant omission which constituted the alleged negligence, that is, the failure to warn of the danger of diving at the place where the accident occurred. A notice prohibiting diving is but one form of notice - perhaps the most effective form of notice - warning of the danger of diving." 198 I am not persuaded that the plaintiff's claim, to the extent that it propounds a case that the Council was in breach of the duty that it owed to him, by failing to erect signs prohibiting diving from the rock platform, must fail by reason of the decision of the High Court in Crimmins. 199 I consider that the plaintiff has made good his claim that the Council breached the duty of care that it owed to him by its failure to take steps to eliminate or reduce the risk that members of the public such as the plaintiff lawfully entering the Norah Head Reserve would suffer serious injury as the result of diving from the rock platform. I am mindful of Mr Browne's acknowledgement in cross-examination that he knew of no natural rock formation on which a local council had erected a warning sign. However, given the considerations to which I have referred in [157] and [158] above I have concluded that the reasonable response of the Council to a risk of this magnitude required that it take steps to eliminate or reduce the danger by erecting signs at the access points identified by Mr Browne prohibiting diving from the rock platform. 200 If I am wrong in my conclusion that the Council was in breach of the duty it owed to the plaintiff by its failure to erect signs prohibiting diving from the rock platform, I would be of the view that it was, at the least, required to erect signs warning of the danger of diving from the rock platform. Such a conclusion seems to me to be consonant with the decision of the High Court in Nagle.

[98]

201 The next question to be addressed is whether the plaintiff has established that his injuries would have been prevented had the Council erected signs prohibiting diving and or warning of the dangers of diving in the locations suggested by Mr Browne and Mr Kiernan. The question of causation is to be determined subjectively; Chappel v Hart (1998) 195 CLR 232 per McHugh J at 247. In answering the question of whether the plaintiff would have avoided the injury he suffered had he been warned of the risk it is relevant to consider his evidence on that topic. Equally it is important to keep in mind the observations of McHugh J in Chappel v Hart at 246: "Human nature being what it is, most plaintiffs will genuinely believe that, if he or she had been given an option that would or might have avoided the injury, the option would have been taken. In determining the reliability of the plaintiff's evidence in jurisdictions where the subjective test operates, therefore, demeanour can play little part in accepting the plaintiff's evidence. It may be a ground for rejecting the plaintiff's evidence. But given that most plaintiffs will genuinely believe that they would have taken another option, if presented to them, the reliability of their evidence can only be determined by reference to objective factors, particularly the attitude and conduct of the plaintiff at or about the time when the breach of duty occurred." 202 The plaintiff said that had he seen a sign in the vicinity of the rocky outcrop before he dived, either on the day of his accident or on the preceding days or weeks, which said "Diving prohibited" or which contained a pictogram symbol of a person diving with a red line across it, indicating that diving was not allowed, he would not have dived from the rock platform. He said he would have understood that the person placing the sign was aware that it was dangerous to dive from that location and, accordingly, that he would not do so. I accept that the plaintiff honestly believes that to be the case.

[100]

204 Conscious of the considerations to which McHugh J referred in Chappel v Hart, I move to a consideration of whether to accept that evidence by reference to the evidence that touches on the attitude and conduct of the plaintiff around the time of his accident. 205 The plaintiff's brother-in-law, Gregory Kotkis, had been on water skiing trips with the plaintiff. Mr Kotkis and others of his associates liked to ski fast on one ski. Mr Kotkis said that the plaintiff would not engage in any conduct that was a bit daring. The plaintiff persisted in skiing with two skis and did not appear keen to advance to the single ski technique. Mr Kotkis did not observe the plaintiff on any occasion to contravene signs on the Georges River notifying speed zones and areas where skiing was prohibited. In this respect Mr Kotkis volunteered that one would get caught if breaking the rules, since there was a substantial water police presence on the river at any time. 206 The plaintiff's sister, Margaret Jackson, gave evidence of his lack of disposition for risk taking. She was the seventh of the ten children in the Vairy household. The plaintiff was the eighth. They were close in childhood. Mrs Jackson's impression was that the older children were the risk takers, whereas she and the plaintiff had tended to be the sort of children who would stand back and observe. Mrs Jackson did not consider it likely that the plaintiff would ignore a warning sign. More importantly in the approach I take to this issue was Mrs Jackson's evidence concerning the plaintiff's responsible attitude to the supervision of her children. Mrs Jackson impressed me as a precise and careful individual. She had a high regard for the plaintiff and because of that he frequently acted as babysitter for her children. They loved him and he had a lot of contact with them. The plaintiff was a stickler for ensuring that the children obeyed the "Don't Walk" and the "Walk" signs on the road. 207 Maryanne Kotkis gave evidence consistent with that given by Margaret Jackson as to the responsible manner in which the plaintiff looked after her daughter, Crystal. He had taught Mrs Kotkis to drive and impressed on her the need to comply with road signs and to drive safely. 208 In the event that the Council had erected warning signs, such as those recommended by Mr Browne and Mr Kiernan, I think it reasonable to assume that a number of people would have been deterred from diving. Although I expect that some people would have ignored signs, the pattern of activity on the rock platform would have been different. Fewer people would have been observed jumping and diving from the rocks on 24 January 1993. Had the signs been in place for some time prior to that date I would expect that fewer people on any given day would be seen jumping and diving from the rocks by a visitor to the beach, such as the plaintiff. 209 The plaintiff's former wife's uncle, Chris ("Uncle Chris"), had suffered severe spinal injury as the result of a diving accident in the Nepean River. This incident occurred some years before the plaintiff and his wife married. The plaintiff was aware of it and it made him conscious of the risk of severe injury associated with diving. 210 There were no signs to suggest that there were any dangers associated with diving from the rock platform. People were either jumping or diving from the rock platform on the morning of 24 January 1993. On this day the plaintiff visited Soldiers Beach as part of a family group. He went to the rock platform not because he had formed any intention to dive off it. In the four years that he had regularly visited Soldiers Beach he had never done so. He went to the rock platform because his niece asked him to take her. Her aunt would not allow her to go without an adult to supervise her. As he and she walked over the platform I am satisfied that it was in his mind to dive off it. However, I do not consider that he was so intent on diving off the rock platform that he was unlikely to have been deterred by a warning sign. Indeed, to my mind the evidence points persuasively to the contrary conclusion. I think it unlikely that the plaintiff would have dived from the rock platform contrary to the terms of a warning sign in the presence of his eleven-year-old niece.

[102]

213 The Council contended that, in the event it was to be found liable to the plaintiff, I would find that the plaintiff's own negligence contributed to his loss. In the Council's submission any damages awarded ought be reduced by an amount between seventy percent and eighty percent pursuant to s 9 of the Law Reform (Miscellaneous Provisions) Act 1965. 214 In deciding whether the Council has established that the plaintiff's negligence contributed to his damages and, if so, in apportioning responsibility as between it and the plaintiff, I am guided by the principles enunciated in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 492 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ at 494: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and the cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." 215 In the Council's submission an assessment both of the culpability of the parties and of the relative importance of their respective acts in causing the plaintiff's damage ought to dictate a very substantial reduction in the award of damages to the plaintiff. It was submitted that the plaintiff had been extraordinarily careless. He acknowledged in the course of his evidence that he did not know how deep the water was, nor did he form a view as to its depth. He conceded that in diving into the water without being able to see the bottom he "took the risk" that the water was not deep enough. The Council pointed to the evidence concerning Uncle Chris's accident and submitted that the plaintiff was armed with knowledge of the grave consequences that might befall a person who dives into unknown water without first investigating its depth. 216 On the plaintiff's behalf it was put that when regard was had to the whole of the circumstances I would not find that the Council had established the plaintiff to have departed from the conduct of a reasonable person. It was submitted that the plaintiff had as a matter of practical reality checked that it was safe to dive from the rock platform. He did so by reference to observing the conduct of others. This was not a case where the plaintiff had impulsively dived off the rock platform without satisfying himself that others had done so without apparent injury. Although the plaintiff had not previously dived from the rock platform he had seen many people doing so over the previous four years. As far as he was aware there was no risk to persons engaging in this activity. He stood on the platform watching the conduct of others for a matter of minutes before making his dive. 217 The plaintiff referred me to the decisions in Boylan and Western Australia v Dale (1996) 15 WAR 464 in support of his submission that it was appropriate to reject the Council's claim of contributory negligence in this case. In Boylan the plaintiff was aware of the dangers of diving into shallow water and of the dangers of diving into murky water. The trial judge came to the conclusion that a reasonable person armed with the plaintiff's knowledge was entitled to think that, after wading out until the water reached to the middle of his thighs, it had been safe to assume that there were no concealed rocks in his path. This finding was not disturbed on appeal. 218 I do not accept that submission that the facts in Boylan are comparable to the facts of the plaintiff's claim. It is sufficient in this respect to refer to the summary of the facts in Boylan set out in the judgment of Gleeson CJ which is in part extracted at [148] above. 219 In Dale the plaintiff was a sixteen-year-old youth. He dived from a rock outcrop known as "the mound" into a popular swimming hole. He struck the water bed and suffered severe spinal injury. The trial judge accepted his evidence that he had seen two persons dive into the water from the mound without incident before he dived and that he had inspected the water to ensure that there were no obstacles. He noted the water was dark blue in colour which suggested to him that it was deep. The trial judge rejected the defendants' claim that the plaintiff's negligence contributed to his damages. This determination among others was the subject of the appeal to the Court of Appeal.

[103]

220 In Dale Kennedy J (in a judgment with which Rowland and Franklyn JJ agreed) said: "The evidence accepted by the trial judge was that Mr Dale checked for danger before diving. He saw other people diving and he looked over the edge of the mound for obstructions. He saw what he perceived to be deep water by reason of its dark blue colour, and only then did he dive. There has been no appeal from her Honour's finding as to the deceptive nature of the swimming hole, which had been made worse by the lower than normal level of the water at the time of the accident. In evaluating the evidence, consideration must also be given to the age of the first respondent, he being just over sixteen years of age. Kitto J, on this question, said in McHale v Watson (1966) 115 CLR 199 at 213: 'The standard of care being objective, it is no answer for [a child], any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow witted, quick tempered, absent minded or inexperienced. But it does not follow that he cannot rely on his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard.' (See also Menzies J at 219 and Owen J at 229). … Whilst it is true that Mr Dale did not get into the water and ensure that the depth was sufficient, he did make a number of visual checks, to which I have referred, before diving into the water hole which was, as her Honour held, of a deceptive nature. Having regard to her Honour's findings, I do not consider that Mr Dale failed to exercise reasonable care for his own safety, and there should not, in my opinion, be any apportionment against Mr Dale for contributory negligence. The responsibility for Mr Dale's injuries should rest upon the appellant alone." 221 In this case I am satisfied that the plaintiff who was a mature adult did not make any independent assessment of the depth of the water before diving. His only assessment depended upon the inferences that he drew from seeing other persons jumping and diving from the platform in the minutes before he dived and his observations of people jumping and diving from the rock platform over the previous four years.

VAIRY v WYONG SHIRE COUNCIL

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Cases Cited (26)

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