WAVERLEY MUNICIPAL COUNCIL v SWAIN

Swimming Between the Flags? 32 A central issue at the trial, and on the appeal, was whether the Respondent entered the water, as he testified, between the flags. In this regard the Appellant relied only on the weight of the evidence ground. It accepts that there was evidence in this regard. 33 The Respondent gave evidence that he swam between the flags. He chose that location because he believed it to be a safe, patrolled, area. The examination in chief of the Respondent included the following: "Q. Did you make a decision to go into the water? A. Yes. Q. Now, in relation to the flags that were on the beach? A. Yes. Q. Where did you go? A. In between the flags. Q. And were they the red and yellow flags you see on beaches? A. Yes, they were." 34 Counsel for the Appellant put to the Respondent that he was swimming outside the flags. The Respondent disagreed. 35 Mr Wilson marked on an exhibit, which was an aerial photograph of Bondi Beach, that the Respondent went into the water between the flags, and that he pulled the Respondent out of the water to the southern side of the southern most flag. 36 Mr Wilson was cross-examined by counsel for the Appellant. The cross-examination was directed to establishing that the Respondent was not swimming between the flags and that the Respondent was running when he dived into the sandbar. Mr Wilson did not concede either of those propositions. 37 Ms Galvin's evidence was equivocal in relation to whether she and the Respondent swam between the flags, where on the beach in relation to the flags Mr Wilson was sitting, and where the Respondent was helped out of the water. 38 There were a number of transparencies in evidence on which the witnesses indicated where they thought the flags were placed and where various events occurred, particularly where the Respondent entered the water and where he was seen after he was taken out of the water. These transparencies were marked by placing each one over the same aerial photograph of Bondi Beach and indicating the location of the relevant things and events. Evidence about the location of the flags and where the Respondent entered and left the water was given in this way. Mr Taylor relied in submissions on the distances marked on the transparencies. Mr Menzies made no objection to this course or to the accuracy of any of the distances referred to in submissions. 39 The Respondent's evidence was that the southern flag was roughly opposite the midpoint of the pavilion. Mr Wilson's evidence was that the southern flag was just north of the midpoint of the pavilion. 40 The Appellant called Mr Sean Tagg, a volunteer lifesaver who was at Bondi Beach on the day in question, although he was not on patrol as a lifesaver. On the day of the Respondent's accident, Mr Tagg and his friend were completing a training run on Bondi Beach. Mr Tagg interrupted his training run when he came across a man prostrate on the beach and a distressed woman beside the prostrate man. Mr Tagg suspected that the man, who was the Respondent, had suffered a spinal injury. 41 Mr Tagg could only give evidence about what was referred to in submissions as the "point of discovery", not about the point at which the Respondent entered the water, or where the Respondent was injured, or for how long the Respondent was in the water before he was rescued, or how far south he drifted during that period. Mr Tagg's evidence, as translated from a transparency marked by him, was that the point of discovery was 150 metres from the midpoint of the Bondi Pavilion. This location, on any account, is well south of the flags. 42 The Appellant called Mr Harry Nightingale, a lifeguard on duty at the time of the Respondent's accident. Mr Nightingale gave evidence to the effect that the flags were positioned further north along the beach than was indicated in the evidence of the Respondent and of Mr Wilson. Mr Nightingale said that the southernmost flag was almost level with the northern end of the Pavilion, that is about 60 metres north of the midpoint of the Pavilion. 43 Mr Nightingale first noticed the Respondent when he was lying injured on the beach to the southern side of the flags near the board riding area. Mr Nightingale's mark on the transparency for where he first noticed the Respondent is recorded in the Appellant's submissions as being "200-300 metres" south of the northern end of the Pavilion, where Mr Nightingale had been. Mr Nightingale could not give evidence about where the Respondent entered the water or suffered the injury. 44 The jury had the advantage of assessing the transparencies to which I have referred above. The jury could well have concluded that the method of identifying locations on the beach was imprecise. This difference between 200 and 300 metres, referred to in the Appellant's submissions, is a strong indicator of the approximate nature of the exercise. The imprecision is compounded by the fact that the evidence about the location of the flags on a particular day was given almost five years after that day. On the other hand, the Pavilion provides a reference point by which meaningful comparisons could be made. 45 The evidence of the Respondent and of Mr Wilson that the Respondent entered the water between the flags was not directly contradicted. The Appellant sought to convince the jury, and this Court, on the basis of the evidence given by Mr Tagg and Mr Nightingale about where the flags were and where the Respondent was first seen by them and Mr Wilson's estimate of how the Respondent drifted when incapacitated, that he could not have been injured while between the flags. It is only necessary to say that this was an archetypical jury question. It was open to a reasonable jury to conclude on the evidence, particularly the Respondent's sworn evidence as corroborated by Mr Wilson, that the Respondent entered the water, and was injured, between the flags but that he drifted, when incapacitated in the water, to the south. 46 It was open to the jury to conclude that the evidence of how far to the south of the southern flag the Respondent was found - between 60 metres and 200 metres south on different versions - was not sufficiently large a distance or precise a calculation, to render the Respondent's evidence unacceptable. Mr Wilson testified that he had been swept to the south of the flags in the course of his swim, indicating the existence of a current or rip in that direction. The movement of the Respondent could be explained by the pull of the water upon his inert body and the process involved in carrying him out of the water. I am not satisfied, to use the formulation from Calin set out in [15] above, that "the evidence, in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach". 47 In my opinion Ground 1 insofar as it refers to this factual issue and Ground 7 should be rejected.

The Sandbar 48 Grounds 5 and 6 concern the evidence about how the accident could have occurred. The Respondent's case was that he performed a flat dive into an oncoming wave and hit sand in the form of a rise in the level of the sand immediately in front of him. 49 In all the circumstances it is difficult to conceive of the Respondent's injuries as having been caused in any other way than a dive into sand. There was no alternative medical explanation proffered. There was no suggestion of any object in the water or of a wave having dumped the Respondent. It was a matter for the jury to determine whether there was a rise in the sand, consistent with the Respondent's case of a flat dive or, alternatively, that there was no such rise and, accordingly, that the Respondent must have executed a deep dive. 50 I have quoted above the Respondent's evidence that his dive was executed when he was in water "a little bit higher than waist deep". The dive, he said, was "through the wave", not under it. 51 No evidence was led for the Appellant relating to the sand structure beneath the water at the relevant time. The jury heard evidence about the sand structure from the Respondent's witnesses and heard nothing from the Appellant on this subject. 52 Both Mr Wilson and Ms Galvin gave evidence about the existence of a sudden rise in the same at the relevant point. 53 Mr Wilson testified: "Q. What did you notice as you went in, if anything, about the depth of the water? A. It seemed to go out pretty fluidly. Q. When you say it seemed to go out pretty fluidly, what do you mean by that? A. I mean it seemed to go out like normal, like on a downward slope. Q. Did you continue walking out through the water? A. I did. Q. How far did you get out from the water's edge - how far did you go out from the water? A. I went out to about 15, 20 metres. Q. At that point how deep was the water? A. I got up to about waist-deep. Q. Having got up to about waist-deep, what did you do next? A. I continued walking out. Q. How far did you go continuing? A. Only a few steps. Q. What happened? A. I hit a sandbar. Q. What do you mean, you hit a sandbar? A. I kicked a sandbar. Q. What did you notice about the depth of the water then in front of you? A. That with that sandbar I then, when I stepped over it, I was at a depth of up to my knees. Q. You said you got about 15 or 20 metres, the water was about waist-deep. You said you continued walking and you hit a sandbar. In terms of steps, how many steps had you taken before that occurred? A. About three or four. Q. Having hit the sandbar, what did you do then? A. I got a bit of a surprise because it was quite a big step and I hadn't been used to such conditions, so I, you know, I did notice it and think, ooh, that's a bit dangerous, because I was thinking of diving when I got to waist-deep, as you do, thinking that it's safe. Q. Before you kicked the sandbar, had you seen anything which indicated to you the sandbar? A. No. Q. You did tell me, but how deep was the water? A. The sandbar? Q. How deep was the water on the sandbar? A. The sandbar went up - I was knee deep. Q. And what happened, did you continue walking? A. I continued walking, where it dropped off again and I dove [sic] in and breast stroked out." 54 Ms Galvin gave evidence that "there was a definite sort of ditch or hollow in the water because I fell down. And as I kept moving forward I stood up and it was shallow again without a doubt". Her evidence was that it was at the point that she stumbled, that the Respondent dived. 55 Ms Galvin gave the following evidence about entering the water with the Respondent: "Q. Can you remember where he was in relation to you at that time? A. He was to the right of me. Q. And how far away? A. Maybe a metre or two metres. Q. At the time he dived in what do you recall you were doing? A. I think it was about the same time that I fell into that ditch in the water. Q. After you fell into the pit or ditch in the water, what did you do; what was the very next thing you did? You fell into the pit or ditch. What happened then? A. Well, I stood up like just keep moving forward and I noticed that it got really shallow again straightaway afterwards. And then I just kept going. I stepped into the water after that, kept going out. Q. When you fell into the pit or ditch, do you have any recollection of how deep the water was then? A. Inside the ditch you mean? Q. How far down into the water did you go at the maximum? A. Well, it was enough to make me actually lose my balance and fall over, basically. Q. And up until you did that, up until that occurred, what was your perception, what did you feel was happening so far as the depth of the water was concerned as you walked in? A. It was shallow. Q. Did it remain shallow or did it change in depth as you went into the - A. Before the ditch it was just shallow water. Q. When you say shallow, how deep or how shallow? A. I couldn't tell you exactly but shallow enough to be jogging in. Q. And then come forward to the point where you are swimming. You've slipped into the water and you are swimming out. When was the next occasion, if at all, that you saw Guy? A. I swam out beyond the break and when I looked back Guy was still in the shallows and I wondered why he hadn't come out with me." 56 Mr Tagg gave evidence that Ms Galvin had told him that the injury had occurred when the Respondent "ran into the water and dove head first and landed on his head". Ms Galvin was not cross-examined on this matter or anything else. 57 There was, accordingly, evidence from Mr Wilson and Ms Galvin about the existence of a sandbar and no evidence contradicting it. Mr Wilson estimated the variation in depth as being from waist deep, (confirmed by the Respondent as the point at which he dived), to knee deep. Ms Galvin also said the Respondent dived at the "ditch", after which the water "got really shallow again straight away". She did not estimate the height of the variation but it was clearly substantial and sudden. 58 That the Respondent was injured when he dived was accepted by the jury. The Appellant asserts that the injury could not have been suffered in the way described by the Respondent. The Appellant asserts that it must have occurred by the Respondent diving into shallow water and hitting the bottom. Accordingly, it had nothing to do with a sandbar. The only shred of evidence that supports this is Mr Tagg's account of what Ms Galvin said, in circumstances where Ms Galvin was never asked whether she did in fact say such a thing. 59 It was open to the jury to accept the Respondent's case about how the injury was suffered. It is not inherently implausible. The evidence of Mr Wilson and Ms Galvin supports it. Such discrepancies as there are in the evidence are minor and within the normal variation of eyewitness accounts of the same event. The evidence of Mr Tagg is ambiguous. Whether or not it should have led to a conclusion that the injury did not occur in the manner put forward by the Respondent was a matter for the jury. Ground 5 should be rejected. So should Ground 6 insofar as it refers to Ground 5 and Ground 1 insofar as it refers to this subject.

Causation 60 The Respondent gave evidence linking each of the two basic acts of alleged negligence - the positioning of the flags and the absence of a warning - to his own conduct and, therefore, to his injuries. 61 As to the flags, the Respondent said in chief: "Q. And why did you choose to go between those two flags? A. I believed it was safe and a patrolled area. Q. And had you believed that the area was not safe what do you think you would have done? A. I wouldn't have swum there. Q. Did you see anything about the water that indicated to you that there was any obvious danger? A. No, not at all. Q. And what was the surf like? A. It wasn't rough it was quite calm." 62 As to a warning, the Respondent gave the following evidence in chief: "Q. Were you aware of any signs or warnings or notices which were related to the existence of a sand bar or some dangerous condition on the beach? A. No, the only other sign I saw was the one that is always there for the surfboarders to stay out twenty metres away from the flags. Q. Had there been a sign on the beach which warned of the existence of the sand bar, what would you have done had you seen such a sign? A. Well I would have paid attention looking for the sand bar, and I mean, it would have been in my mind, so I would have paid a lot more attention to it." 63 This theme was revisited in re-examination of the Respondent by Mr Menzies: "Q. Had such a sign been there, would that have had any effect upon before your diving or doing anything to determine the existence or otherwise of the whereabouts of any obstruction in the water? A. I would have found the sand bar before I dove through any waves." 64 In each respect, it was open to the jury to accept this evidence. It established a sufficient chain of causation between the negligence relied upon and the injuries. In any event, the Appellant did not challenge causation with respect to the particular of negligence concerning placement of the flags. Ground 4 and Ground 6 in this regard, refer only to a finding that the absence of a warning caused the Respondent's injury. There was evidence to support a finding of causation. These Grounds should be rejected. I do not understand, in the absence of any separation in the question to the jury between the two particulars of negligence, how this ground could ever have succeeded.

Duty and Breach 65 No issue has arisen concerning any legislation or subordinate legislation relevant to the Council's authority over the breach. It was common ground that the Council had care, management and control of the beach. 66 The trial judge gave directions to the jury, without objection, as to the relevant duty of care, in the following terms: "… [L]et me tell you as a matter of law the Council being in control of the beach and having the care of this and management of it owed a legal duty to take reasonable care for the safety of those citizens who are using the beach. What the law requires is the Council exercise reasonable care in all the circumstances to protect the plaintiff from unnecessary risk of injury." 67 This direction was in accordance with High Court authority. (See e.g. Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 429-430; Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at [47]-[49], [65]-[66], [74]-[76], [123] and [145].) 68 The proceedings in this Court were conducted on the basis that a duty of care of this character was owed by the Council to users of the beach, including the Respondent. The issue was breach. 69 Grounds 2 and 3, together with Ground 1 and Ground 6, insofar as each refers to Grounds 2 and 3, focus on the position of the flags and the failure to identify and warn about the potential hazard of the sandbar. These grounds must be considered on the basis that the jury correctly found that the Respondent was swimming between the flags. 70 Two omissions were and are relied upon by the Respondent as constituting the relevant departure from the requisite standard of care. First, the failure of the Appellant to position or reposition the flags in such a way as to avoid the hazard of the sandbar into which the Respondent dived. Secondly, the failure of the Appellant to warn the Respondent of the hazard. Other matters particularised lead to one or other of those alleged deficiencies. 71 No attempt was made at trial to separate the issue of flag placement from the issue of warning. The question put to the jury was general: "Has the plaintiff proved that the defendant was negligent?" 72 This appeal was conducted on the basis that the Appellant had to succeed on both issues. 73 I will summarise the evidence on placement of the flags and warning signs before considering whether it was open to the jury to find that the Appellant was in breach of its duty. For reasons I have given elsewhere I do not think anything is gained by asking whether a finding was "reasonably open" as distinct from "open". (Attorney-General (NSW) v X (2000) 49 NSWLR 653 at [56]-[63].)

Placement of the Flags 74 Mr Jeffrey Williams, a senior ocean lifeguard and beach and surf education officer for the Sutherland Shire Council, was called by the Respondent. Mr Williams has been a professional ocean lifeguard since 1978 and, from 1998, has been the beach and surf education officer for the Sutherland Shire Council. He has considerable experience with respect to water safety, including with respect to safety signage. 75 Mr Williams gave evidence that red and yellow flags are placed on the beach by whoever has control of the beach, and that the placement of the flags is made after some consideration of the conditions. His evidence was that the purpose of the red and yellow flags is to designate swimming areas. Mr Williams also gave evidence that before positioning flags on a beach, the following should be taken into account: "The condition of the surf and the effect of the wind and tide and currents, potential hazards."

The types of hazards that he had in mind were: "Wind can be a hazard, current can be a hazard, the occurrence of currents and channels and the actual formation of the beach". 76 The present case is concerned with "the actual formation of the beach". 77 Mr Williams gave evidence about various factors that influenced conditions and sand structure at a beach. He said that a normal feature of a beach is the creation of a sandbar and the formation of channels, commonly known as rips, on either side of the sandbar, which is where the water flows back out to sea. His evidence was that depending on the circumstances on any particular day, the structure of a sandbar and channels may change throughout the day. He further gave evidence that he believed that such changes were things that a prudent lifeguard would take into account, and that variation of beach conditions of this type could result in a lifeguard taking steps with respect to the positioning of the flags. Mr Williams said that a sandbar can present a hazard because of the variable depth of the water that is created. 78 Mr Williams was cross-examined. He agreed that the person responsible for placing the flags has to make a judgment about the conditions on the day and agreed that flags are often placed adjacent to sandbanks because that can be the safest place to swim. He agreed that an area with a "shallow trough" could be an ideal spot for young children, but added: "… well, depending on the circumstance on the day, the trough could be the biggest hazard on the day." 79 The Council did not call the person who placed the flags on the day of the accident. However, Mr Nightingale who came on duty by 10.00 am gave evidence that there was no change in conditions which required the flags to be moved. 80 Mr Nightingale gave the following evidence: "Q. What's the normal procedure, if there is one, for the beach being open when it's being patrolled by lifeguards? What do lifeguards do? A. The flags are up. The flags are on the beach. Q. And can you tell the members of the jury what the flags are? A. The flags … indicates to people a reference where they can swim safely. If they stay between the flags, ideally they should come to no harm. It's safe swimming." 81 Mr Nightingale gave evidence about the placement and repositioning of the flags: "We set up at six but during the course of the day we are always observing the beach, of course, and at times situations change; you might have a wind change, a swell starts to come up and what was a safe area might have to be minimised or moved. So we basically - apart from watching for people in trouble we are waiting to reassess the situation." 82 Mr Nightingale said that on 7 November 1997 the flags were not moved from the time that he commenced his shift at 10.00am. Mr Nightingale said in cross-examination "I could definitely tell you now there was no change in the beach conditions". 83 He agreed in cross-examination with the proposition that "Things can look safe to an ordinary swimmer but in fact be quite dangerous, and the danger will be recognised by an expert but perhaps not by the average swimmer." He then referred to the difficulty of identifying an 'average' swimmer because of the vastly different levels of experience of different beach users, and said "I think basically all we can do is - what we could do is pick out something that is a danger. If we pick out or see a situation that is a threat, doesn't matter to whoever it is." 84 Mr Nightingale gave evidence that on 7 November 1997 he would have checked the "set out" of the beach, including checking for rips. He likened this process to checking the lay of a golf course. The following interchange occurred in cross-examination: "Q. What do you do to identify dangerous positions for swimmers? A. I do it visually by colour checks. That is the way I do it. Dark green, to me, signifies deep water. And more oftentimes than not there is a current in the deep water. That is the first thing that I looked at on the beach; that is the first thing I would see. And then I would be drawn to that position and to check it out to see if there is a current running out or whether it's a still piece of ocean."

Warning Signs 85 Mr Nightingale gave the following evidence in chief: "Q. Apart from the flags, are there any other things the lifeguards do in patrolling the beach? A. Yes. We also - we are experienced to basically examine the beach and point and we find the dangerous places which may bring swimmers that aren't very efficient to trouble. … We usually mark those areas with a danger sign to basically give a warning to the public." 86 The witness proceeded to describe different signs relating to various hazards. 87 In cross-examination, Mr Menzies QC went to the issue of warning signs immediately after the interchange reproduced in par [84] above, relating to checking the colour of the water and identifying characteristics and potential dangers of the beach in that way. The cross-examination of Mr Nightingale continued: "Q. And if there is a current running out, then you might consider whether or not the conditions were so dangerous that perhaps some warning sign would need to be placed … A. That's correct that's the way we do it. Q. And you have told my learned friend about a number of the warning signs. If you saw blue bottles, you would put a sign out, I take it? A. Yes. Q. And if there was a strong current running somewhere, you would put a sign out about that? A. Yes. A "no swimming" sign. … Q. …[I]f you found there were deep holes, for example, near the shore, would you put out some sign to warn - A. Not necessarily. And see, there again that's relying on our expertise. We look at the situation. Sometimes, see, it depends on how deep is deep. Q. Sure. Okay. A. Sometimes a deep hole would be a safe place to swim as long as there is not a current et cetera, et cetera. Q. So the answer to my question is not necessarily, but sometimes you would and it would depend upon whether you perceive the deep hole to be a danger or not? A. Exactly yes that's right. …" 88 There was no description in evidence of a sign that can be readily used to warn of sandbanks in the surf. The Respondent described how he thought one might look. Whatever a creative signwriter might be able to devise, a sign with the words 'Sandbanks: use caution when diving' is entirely conceivable.

Breach of Duty 89 As I have indicated above there was no issue at the trial, or on the appeal, that the Council did owe a duty of care to users of the beach. The critical issue is one of breach. The relevant risk, which falls within the accepted duty, is the risk of a person diving into a sandbank formation at a time when his or her ability to see that there was a sudden rise in the level of the sand was obscured by a breaking wave. What, if anything, should a reasonable Council have done by way of response to the existence of this risk? Specifically, in the present case, should the Council have provided some kind of warning of the risk and/or should it have ensured that the position of the flags was such as to avoid a section of the beach where there was a sudden rise in the sand level of the character suggested in the evidence in this case? I reiterate that the issue for the Court is not whether this court believes that there was such a breach, but whether it was open to the jury to so find. 90 The factors involved in making the assessment of what a reasonable response would be is a multifaceted one including, in accordance with the basic Australian authority on the subject, issues of magnitude of risk, probability of occurrence, expense, difficulty and inconvenience of action and conflicting responsibilities of the person who owes the duty. (See Wyong Shire Council v Shirt (1980) 146 CLR 40 at 46-48.) 91 It is sometimes said that the decision as to what reasonableness requires by way of a response to a risk is a 'question of fact'. That is so when that terminology is contrasted with the terminology of 'question of law', as constituting the relevant universe of discourse. However, a decision as to reasonableness is not the making of a finding of fact strictly so called. It involves the exercise of judgment. The permissible range of judgments as to reasonableness of conduct can be very wide. It can rarely be said, on the basis of any particular set of circumstances, that only one judgment can reasonably be reached. (See e.g. Glass, McHugh and Douglas "The Liability of Employers in Damages for Personal Injury" (2nd ed) Law Book Company, Sydney, 1979, at 209.) This is of particular significance in a case such as the present, where the Court operates under the constraints of an appeal from a jury trial. 92 There is now a substantial body of case law about when warnings are required to discharge a duty of care. There is also a significant number of cases in which the necessity for some kind of warning or barrier has been considered in the context of diving into water. (Bell J has summarised this line of cases in Vairy v Wyong Shire Council [2002] NSWSC 881 esp at [145]-[152].) It is possible to look at these cases with a view to teasing out the elements in the final judgment of reasonableness that were given weight in reasons for decisions, where a trial has been by judge alone and reasons for judgment are published. 93 In the past when a substantial proportion of trials were conducted before juries the standard of reasonableness applied was not able to be discerned at all. The availability of reasons obscures the fact that the formulation of the requisite judgment is a matter for the tribunal of fact and what is an appropriate judgment is something on which reasonable minds can differ. 94 As Lord Somervell of Harrow said in Qualcast (Wolverhampton) Limited v Haynes [1959] AC 743 at 757-758: "The question whether on the facts in [a] particular case there was or was not a failure to take reasonable care was a question for the jury. There was not, and could not be, complete uniformity of standard. One jury would attribute to the reasonable man a greater degree of prescience than would another. The jury's decision did not become part of our law citable as a precedent. In those days it would only be in very exceptional circumstances that a judge's direction would be reported or be citable. So far as the law is concerned they would all be the same. Now that negligence cases are mostly tried without juries, the distinction between the functions of judge and jury is blurred. A judge naturally gives reasons for the conclusion formerly arrived at by a jury without reasons. It may sometimes be difficult to draw the line, but if the reasons given by a judge for arriving at the conclusion previously reached by a jury are to be treated as 'law' and citable, the precedent system will die from a surfeit of authority."

(See also at 759-761 per Lord Denning and Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 at 463-464.) 95 The wide scope of permissible variation in making the relevant judgment plainly exists in the present case. Judgments in other warning or diving cases must be treated with care. They are not precedents to be followed or distinguished. 96 Two distinct matters arise in assessing whether there was evidence before the jury and whether the jury's verdict was against the weight of the evidence. First, with regard to the alleged breach by failure to warn. Secondly, with regard to the alleged breach in the placement of the flags.

Breach by Failure to Warn 97 One factor which generally arises in a warning case is the degree of obviousness of the risk. This may arise at the level of causation, i.e. would a warning have made any difference. It also arises at the level of reasonableness of the conduct suggested to have been necessary to avoid or minimise the risk. The case law on obviousness reflects in a stark manner the proposition to which I have referred above, i.e. that there is a wide range of permissible judgment when deciding what reasonable conduct requires. 98 At one end of the spectrum are risks about which any warning would be entirely superfluous. As Latham CJ put it in a case which bears some resemblance to the present case: "The dangers … are so obvious that they advertize themselves."

( Bressington v The Commissioner of Railways (NSW) (1947) 75 CLR 339 at 349.) 99 The Full Court of the Supreme Court of Western Australia concluded that the risk of a body surfer being dumped was obvious and inherent in body surfing (Prast v Town of Cottesloe (2000) 22 WAR 474 at [42]-[44] per Ipp J with whom Wallwork and Parker JJ agreed). A similar conclusion has been reached with respect to the risks to a customer standing on a wire basket in a supermarket (Franklins Self-Serve Pty Ltd v Bozinovska, NSWCA, 14 October 1998 per Mason P); the risk of horses slipping on mossy rocks when crossing a stream was "part and parcel of the recreation" (Mountain Cattlemen's Association v Barron [1998] 3 VR 302 at 309 per Brooking JA with whom Phillips JA agreed); the risk of a tree falling on someone walking in a forest in windy conditions (Secretary to the Department of Natural Resources & Energy v Harper (2000) 1 VR 133 at [47] per Batt JA); the risk that a single pronged hook may come out of a bale of wool and cause a wharf labourer to fall from the top of the wool bales was an "obvious and inherent incident" of his occupation (Foufoulas v F G Strang Pty Ltd (1970) 123 CLR 168 at 170 per Barwick CJ); loss of money was an inherent risk of gambling (Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43 at [27]). 100 Classification of a risk as "inherent" or equivalent, considers only one factor in determining whether a duty of care exists, or identifying the appropriate standard of care, or determining breach. The whole of the circumstances need to be considered, even in the case of an inherent risk. (See Rootes v Shelton (1967) 116 CLR 383 at 385 per Barwick CJ and 390 per Kitto J; Agar v Hyde (2000) 201 CLR 552 at [14] per Gleeson CJ.) 101 The case law on warnings sometimes contrasts the issue of "obviousness", with a danger said to be "hidden", in the sense that the particular risk was not observable on the relevant occasion. Nagle v Rottnest Island Authority was such a case. The joint judgment said at 427-428: "The trial judge also accepted that an observer looking at the sea in the direction of the sun may 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." 102 To similar effect is the judgment of Bell J in Vairy v Wyong Shire Council where the risk of diving into the sea from a rock platform above a beach varied considerably because of the movement of the sand leading to significant variations in the depth. Although the ocean floor was generally visible, her Honour held that it was not possible to gauge accurately the depth of the water from the rock platform. (See at [167]-[168].) 103 In the present case the Respondent's vision was obscured by the action of a breaking wave, so that he could not see the rise in the sand level immediately in front of him. 104 The weight to be given to 'obviousness' as a consideration in determining what reasonableness requires of a person who owes a duty of care, is complicated by a further consideration. To what degree is it appropriate for a person who owes such a duty to assume that persons to whom the duty is owed will take reasonable care for their own safety? Alternatively, to what degree should the person take into account the possibility of inadvertence or negligent conduct on the part of others? This is a matter on which there are distinctly different approaches on the part of judges when determining questions of reasonableness. A similar wide range of permissible opinion must be conceded in the case of a jury trial. Nevertheless, it remains a real question as to when it is appropriate to warn a person about something that person already knows, as appears to be true in the present case. 105 In Bressington v The Commissioner of Railways, a widow sued the Commissioner of Railways on the death of her husband, a railway worker. He had been struck by a railway van which lurched forward in the course of a shunting operation. Two acts of alleged negligence had been withdrawn from the jury by the trial judge. These were: · There was no notice warning persons in the yards of the danger of crossing the lines. · There was no system of providing a warning when stationary trucks standing in the shunting yard were about to be moved. 106 Both of these matters were considered in the Full Court of this Court (Bressington v Commissioner of Railways (1947) 47 SR (NSW) 472). By majority the appeal was dismissed. Only the second of the two alleged acts of negligence remained in issue in the High Court. By majority of 4-1 the appeal was dismissed ((1947) 75 CLR 339). 107 In this Court, Roper J, when dealing with the issue of a printed notice, emphasised that it would only warn employees of something which they already knew (at 481-482). Street J made the same point with respect to the suggested system of an oral warning (at 480), as did Latham CJ in the High Court (at 349). 108 The divergence of opinion on such matters is highlighted in two cases in the High Court in which a skilled electrician was electrocuted while working. In Sydney County Council v Dell'Oro (1972) 132 CLR 97 Jacobs J concluded that there was no evidence of negligence in the case of an electrician who knew that certain exposed links carried live current (at 120-121). In the subsequent case of Bus v Sydney County Council (1989) 167 CLR 78 at 87-88, the Court said that particular aspects of the reasoning of Jacobs J did not receive support in other judgments of the majority in Dell'Oro and concluded at 90: "since the decision in Dell'Oro the law has progressed by placing an increased emphasis upon the relevance of the possibility of negligence or inadvertence on the part of the person to whom the duty of care is owed. That possibility is now recognised as being relevant to the standard of care owed by an employer to an employee and as well generally in situations in which a duty of care exists." 109 Their Honours referred to the development of this proposition in McLean v Tedman (1984) 155 CLR 306 at 311-312 and Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309. Subsequently to Bus, this line of authority was affirmed in March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 519, 520, 536 and 537 and in the joint judgment in Nagle v Rottnest Island Authority at 431. In these cases, the foreseeability of inappropriate conduct by a Plaintiff was expressed in different terminology, including "thoughtlessness", "inadvertence", "carelessness" and, subsuming a legal test, "negligence". 110 On the other hand it is pertinent to the determination of what reasonableness requires by way of conduct on the part of a person who owes a duty of care, to consider what behaviour can reasonably be expected on the part of persons to whom a duty is owed. 111 Kirby J referred to the issue in Romeo v Conservation Commission (NT) at [123]: "While account must be taken of the possibility of inadvertence or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety … Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just." 112 In Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 at [44] Gleeson CJ quoted the second of these two sentences from the judgment of Kirby J in Romeo and added: "[45] It is right to describe that observation as a comment. It is not a proposition of law. What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all the circumstances, of which the obviousness of a risk may be only one. And, as a proposition of fact, it is not of universal validity. Furthermore, the description of a risk as obvious may require closer analysis in a given case. Reasonableness would not ordinarily require the proprietor of an ice skating rink to warn adults that there is a danger of falling; but there may be some skaters to whom such a warning ought to be given. Nevertheless, as a generalisation, what Kirby J said is, with respect, fair comment." 113 Kirby J referred to the same passage in Romeo in his own judgment in Woods v Multi-Sport Holdings Pty Ltd and said: "[127] As Gleeson CJ has pointed out, that comment did not amount to a universally applicable rule of law. It was not intended to be. … [128] Obviously, that proposition could not apply to every situation of potential risk, so as effectively to abolish the need for warnings altogether. It could not apply, for example, to relieve a risk creator, simply because the risk was obvious. In a sense, the greater the risk, even if obvious, the greater may be the obligation to the party in control of it to warn others about it. … Warnings are sometimes required by those in control of situations to alert those who are inattentive, distracted or unlikely in the circumstances to consider the risk, although objectively, and with hindsight, it is 'obvious'. The duty to warn depends on the circumstances of the case not just a suggested lack of 'obviousness' of the risk." 114 As quoted above, Bus v Sydney County Council identified a change in the law, between Dell'Oro in 1972 and 1986, to the effect that the law has "progressed" by giving greater weight to the possibility of inappropriate conduct on the part of others. It now appears possible to identify a change in the law in the other direction, i.e. greater weight is being given to the proposition that people will take reasonable care for their own safety. (See in addition to the observations in Romeo and Multi-Sport quoted above, Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 esp at [163] and [355]; Richmond Valley Council v Standing [2002] NSWCA 359 at [54] and [59]-[60] per Heydon JA; RTA v McGuinness [2002] NSWCA 343 at [33] and Burwood Council v Byrnes [2002] NSWCA 343 at [33] per Handley JA; Edith Cowan University v Czatryko [2002] WASCA 334 at [29] per Murray J.) 115 Heydon JA said in Van der Sluice v Display Craft Ltd [2002] NSWCA 204 at [74]: "The fact that the higher up a ladder one moves the more care one must take for one's own safety is one of those simple facts affecting human existence in the physical world which adults in industrialised societies have learned by the time, or indeed well before the time, they have become adults. It is a fact as fundamental, as elementary, as clear and as well known as, for example, the fact that it is dangerous to behave boisterously near pots cooking on stoves, the fact that broken glass needs to be carefully handled when picked up, the fact that rocks along the seashore can be slippery, the fact that shells in the sand of beaches can be sharp, and the fact that when moving about rubbish dumps one must bear in mind the possibility that rubbish may be lying there. These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks." 116 Relevantly to the present case, in my opinion, no person attending an Australian beach could fail to know that there are sudden variations in the sand level under water. The formation of the ocean floor at the edge of the water is subject to continuous movement of currents and the pounding of waves which causes undulation in the sand formation that can, sometimes, become quite steep. There is an element of hidden danger involved in the inability to see the formation of the floor beneath an oncoming wave. Unlike the slip and fall cases e.g. Ghantous, Standing, McGuinnes and Byrnes, the Council officers are in a better position to assess the risk because they have elevated viewing platforms. 117 However, unlike many other cases of hidden danger (such as those referred to in Brodie v Singleton Shire Council at [163] or in Nagle or Vairy) the fact that any danger was hidden was itself quite apparent to the swimmer. He or she could see the breaking wave and realise that whatever was underneath was hidden. 118 I would assess the degree of obviousness of the risk of diving into a wave without knowing the formation of the floor as high, albeit not at the end of the spectrum described as "inherent in body surfing" in Prast v Cottesloe at [32] or as "part and parcel of the recreation" in Mountain Cattlemens' Association v Barron at 309. This factor is, therefore, entitled to weight in deciding what a reasonable Council should have done with respect to warning, but is not determinative. 119 In my opinion, the outcome in this regard turns on the absence of evidence as to the reasonableness of the content and location of the warnings which would be required to reduce the relevant risk. 120 This is not a case where a warning sign could be located at a specific rock ledge as in Nagle v Rottnest Island Authority and Vairy v Wyong Shire Council. Issues of practicality and visual pollution arise in assessing the reasonableness of the Council's failure to provide a warning. There are also doubts about the scope of warnings that ought be given. 121 In Waverley Council v Lodge (2001) 117 LGERA 447 this Court was concerned with a factual situation of a plaintiff slipping on wet rocks at the pool area at the northern end of Bondi Beach. I entirely agree with the observations of Bryson J when his Honour said: "[35] Everyday experience does not support attributing talismanic force to signs as means of averting dangers. It is commonplace to see warning signs ignored. An attempt to analyse considerations supporting and adverse to erecting warning signs of this kind is made difficult by the obvious nature of the information which they would convey. The respondent's counsel did not appropriately address the difficulties of the situation by claiming that consideration should be limited to the erection of a sign near the place where the respondent fell. What is under consideration is not so simple as what a reasonable person in the appellant's position would have decided to do about erecting a sign at that one spot; the same considerations present themselves wherever there is ready access from the beach or promenade to rocks which may be covered by the tide and on which persons may walk. A decision to erect signs would lead to consideration of how many signs were to be erected and their spacing; to be effectual the exercise would have to be complete and the erection of one sign could not be enough. Little would be achieved by erecting signs in one place or in a few places, which would equip persons who slipped at other places or at earlier times with material with which to garnish a complaint about the lack of signage. It is not in my judgment correct to adopt a speedy conclusion based on the view that a sign near the place where the respondent fell would have cost little. It should not be readily concluded that it would be easy or cheap to erect signs; that judgment could only come as part of an appraisal which could show how many signs should be erected and where, and what they should say; and of the projected costs; including costs of maintenance and repair. Other considerations besides cost present themselves. A decision appraising the difficulty or facility of erecting signs requires administrative ability which courts do not have readily available, especially when not assisted by any relevant evidence. [38] There is a succession of subsidiary questions. One, subsidiary but quite important, is the choice of languages to be used in the signs. There is also the text of the sign, not a simple matter as the sign must be a strong claim on attention, a simple message with no potential ambiguity. It would be for consideration whether the sign should show a pictorial representation of the danger. Shirt's case illustrates that the terms of the warning on a sign may be open to criticism, debate and the adverse finding. Another is an appraisal of other risks, such as risks related to rips, currents, waves and submerged rocks, and no doubt others, which in terms of the incidence of risk may have the same or a stronger claim to be dealt with by warning signs. Another important subject, potentially the subject of evidence but rarely addressed in forensic contests, is the actual impact of signs on human behaviour, their utility and the extent to which they are read and if read complied with. These are the difficulties which the appellant would be drawn to consider in detail if it decided to erect signs. [37] In my view the response of the reasonable person in the position of the appellant would be to do nothing, in the situation of control which I have found, and to leave persons who walked on rock to perceive and avert the risk themselves. If that reasonable person pursued his thinking to the point of defining a reason for so deciding, the reason would be that the risk was obvious to any reasonable adult, who could look about and see where he was walking and whether it was safe. In my view it would not be the response of a reasonable person to decide to erect signs which would do no more than to state the obvious for the information of persons who had much better access to the obvious from their own observations than a sign would give them." 122 Although the degree of obviousness in the present case is not quite as stark as that considered in Waverley Council v Lodge (that case is closer to the slip and fall footpath cases), nevertheless his Honour's general approach is applicable. It is also similar to the approach of the High Court in Romeo and of the Victorian Court of Appeal in Secretary, Department of Natural Resources v Harper. See also Mulligan v Coffs Harbour City Council [2003] NSWSC 49, esp at [303]. 123 In the present case a large number of signs would be required along the length of the beach, which is in excess of one kilometre. There was no evidence to suggest that signs should be confined to the area near the flags. Persons can and do swim anywhere. However, even in the case of signs near flags what would be required is mobile signs to be moved with the flags and in sufficient number to point in all of the different directions from which swimmers can approach the area between the flags, which may be a considerable distance. 124 The situation of a beach, particularly one as long as Bondi Beach, appears to me to be similar to the position of the shunting yard considered both in this Court and the High Court in Bressington v The Commissioner of Railways, where warning notices and oral warnings were rejected on the grounds of practicability (see 47 SR (NSW) 472 at 480, 481-482 and 75 CLR 339 at 348 - the written notice particular having been abandoned in the High Court). It is of the same character as the length of cliff face of two kilometres which would have needed to be fenced in Romeo, together with other similar cliffs in the area administered by the Conservation Commission (see e.g. Romeo at [54], [132], [161]-[164]; see also Woods v Multi-Sport Holdings Pty Ltd at [127]). It is similar to, but perhaps not as extensive as, the areas of forest considered in Secretary, Department of Natural Resources v Harper at [5] and [45]. 125 This conclusion is reinforced by the necessity to provide warnings with respect to a wide range of other risks associated with swimming at, or indeed walking along, a beach which would necessarily be implied if a warning related to the facts of the particular causal process in issue in these proceedings was itself required. (See Waverley Council v Lodge at [36] quoted above at [121]; Secretary, Department of Natural Resources at [5] and [45].) The signs required would have to be of considerable length and, no doubt, available in a number of languages. There appears to be no good reason, once one embarks on this particular path, why some form of special provision would not be required for persons who cannot read. 126 In my opinion, there was no evidence before the jury which could justify a finding that the Council was in breach of its duty of care to users of the beach by failing to warn them of dangers involved in diving arising from sand formation. In particular, there was no evidence to determine the number, location and content of signs that would be required and whether a reasonable Council would have done so. There was no proper basis upon which the jury could determine that reasonable conduct on the part of the Council required warning signs. 127 That, however, is not the end of this matter, as noted above. The finding of fact that the Respondent was swimming between the flags gives rise to different issues.

Breach by Placement of the Flags 128 Nagle v Rottnest Island Authority contains elements of similarity between the issues of that case and those which arise in the present case. Their Honours said at 427: "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." 129 In the present case, it was, in my opinion, open to the jury to find that members of the public would assume that a point of the beach where flags are located and where the water becomes deeper was "suitable for the purpose of diving", at least for the flat dive of which the Plaintiff gave evidence in the present case. What may be an obvious risk to a high degree generally, is not so with respect to the area specifically designated as reasonably safe by the location of flags. 130 In my opinion, the Appellant had a duty of care with respect to the placement of the flags. That placement involves an express indication that bathing between the flags is reasonably safe. It is not, of course, an assurance of safety. It is similar in its effect to a speed advisory sign on a road. It constitutes an assumption of responsibility on the part of the Council. 131 Diving under waves is an integral part of body surfing. In my opinion, the assurance of reasonable safety can reasonably be held to extend to such conduct. What should a reasonable Council do with respect to the placement of flags in a context where diving may involve common but hidden dangers? This question must be answered in the context of a jury verdict. Could a reasonable jury have found that the Council failed to take reasonable steps to avoid the risk of injury? 132 A council in control of a beach has been held to owe a duty of care with respect to the beach e.g. to prevent surf board riders intruding upon body surfing areas. (See Glasheen v Council of the Municipality of Waverley (1990) Aust Tort Reports ¶81-016; Council of the Municipality of Waverley v Bloom [1999] NSWCA 229). I have no difficulty in extending this duty to encompass a duty to take reasonable care with respect to the placement of flags calculated to induce persons to swim between them. It would, for example, be a breach of the standard if a council placed flags without regard to the existence of a strong rip at that point on the beach. A failure to have regard to other hazards is in the same position. 133 The evidence with respect to the placement of the flags in this case has been set out above. It is in a narrow compass. It is noteworthy that the Council did not adduce any evidence about what its officers had in fact done with respect to the placement of the flags on the day in question. There was evidence that one of the two lifeguards on the beach was overseas. The Council did call Mr Nightingale who, although not responsible for the original placement at 6.00am, said there had been no change in relevant conditions. 134 The witnesses in the case, including Council witnesses, accepted that the placement of flags is an indication of safety. They did not challenge the proposition that diving into waves was within the scope of such indication. Furthermore, the evidence was that the configuration of the sand and the depth of the water, which was observable from differentiation in colour, was one of the factors taken into account in the placement of flags. 135 Mr Williams accepted that a sandbar can be a hazard because of the variable depth of water created. He added, as quoted above, that a trough may be "the biggest hazard on the day". He acknowledged that the "formation of the beach" created hazards to be taken into account when positioning the flags. 136 The Council called no evidence about the location and width of the sandbar into which the Respondent dived. Indeed, it challenged the existence of such a sandbar and, in any event, pursued a primary case that the Respondent was not swimming between the flags at all. It was, in my opinion, open to the jury to infer that the Council officers failed to have regard to the hazard involved in the existence of a steep and sudden increase in the level of the sand when placing the flags. 137 Significantly, the Council by its staff is in a better position to identify such a hazard than swimmers. Its staff have elevated platforms from which they can see underwater sand formations, which are not apparent to a swimmer from the water's edge or in the water, particularly in front of a breaking wave. The relative situation of the Council and a swimmer is quite different to that in the slip and fall cases (Lodge; Ghantous; Standing). This comparative position of knowledge or control on the one hand and vulnerability on the other hand is of significance in determining what reasonableness requires. 138 There was, in my opinion, evidence of breach before the jury. Furthermore, I am of the opinion that the verdict was not against the weight of the evidence. The formation of the beach in the form of a sudden rise in the sand level at a point where the view of swimmers was obscured by breaking waves was a potential hazard which the Council could be reasonably held to be obliged to take into account when placing the flags. That its officers did not do so was an inference available on the evidence. 139 As I have said above, sudden variations in sand levels are an inevitable and predictable occurrence on Australian beaches. It is not the task of this Court to decide that a Council acting reasonably with respect to the placement of flags should organise that placement to avoid a location where there is such a variation of significant height by reason of the risk to swimmers diving under waves. The issue for this Court is whether a reasonable jury could so decide. 140 In a case where the Council called no evidence about how it had decided to place the flags on the day in question, I am not prepared to hold that a reasonable jury could not have concluded that the Council acted in breach of its duty in this regard. It was, in my opinion, open to the jury to conclude that the Appellant should have placed its flags so as not to induce swimmers to swim in such an area. 141 Grounds 1, 2 3 and 6 should be dismissed.

Conclusion 142 It is important to recognise that a jury case does not create a legal precedent. (See paras [91]-[95] above.) The dismissal of this appeal would not mean that in a future case, most likely in a trial by judge alone, a Council is likely to be found negligent unless it establishes that it placed the flags in such a way as to avoid places where there were sudden changes in the level of the sand floor. 143 Whether such a conclusion is open will depend on all of the circumstances and require a statement of reasons of a character which is absent in the case of a jury trial. What a jury has decided in one case that reasonableness required, does not determine what another jury, or a judge, should decide in another case, even one involving diving into a sandbank. The surrounding circumstances are never the same. There are always differences in degree. In particular, the evidence that Council may call in another case may be quite different in scope and character to that which was before the jury in these proceedings. 144 In my opinion, the appeal should be dismissed with costs. 145

HANDLEY JA and IPP JA: We have had the benefit of reading the reasons for judgment of Spigelman CJ in draft form. He has set out the basic facts and there is no need to cover the same ground. We agree with his reasons and conclusions other than on the question of breach of duty by the placement of flags on the beach. In our judgment there was no evidence of negligence in that respect and the appeal should therefore succeed. 146 The respondent argued that, for the appellant to succeed on this ground, it had to demonstrate that there was, literally, no evidence to support the finding of the jury. This submission cannot be accepted. 147 In Ryder v Wombwell (1868) LR 4 Exch 32 at 38-39, Willes J, in delivering the judgment of the Exchequer Chamber, referred to the preliminary question that arises in every jury trial: "... [w]hether there is any evidence on which the jury could properly find the question for the party on whom the onus of proof lies. If there is not, the judge ought to withdraw the question from the jury ... the question for the judge ... is ... not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established". 148 In Metropolitan Railway Company v Jackson (1877) 3 App Cas 193, Lord Blackburn (207) and Lord Gordon (210) approved this statement of principle. 149 In Shepherd v Felt & Textiles of Australia Limited (1931) 45 CLR 359 Dixon J, commenting on the predecessor of s 108(3) of the Supreme Court Act, said at 379: "[the section applies] to cases in which upon the evidence the party is, as a matter of law, entitled to a verdict. Such a case arises when a party upon whom the burden lies of proving an issue fails to adduce evidence sufficient to discharge the onus. For the insufficiency of evidence to support an issue is a matter of law, upon which the Court must direct the jury". 150 In Hocking v Bell (1945) 71 CLR 430 Latham CJ said at 444-445: "In order to determine whether as a matter of law the defendant is entitled to a verdict, it is necessary to determine whether there was any evidence upon which the jury could reasonably find for the plaintiff".

Starke J said at 487: "The question is not whether there is a scintilla of evidence to support the verdict - not whether there is literally no evidence; but whether there is evidence on which the jury could reasonably find its verdict. But a distinction is drawn between a case in which there is no evidence to support a verdict and a case in which the verdict is against the weight of the evidence. In the latter case the verdict is not disturbed unless the jury, viewing the whole evidence reasonably, could not properly find it ….".

Starke J (486), Dixon J (497) and McTiernan J (503) approved the statement of Willes J in Ryder v Wombwell . 151 Viscount Simon LC, when delivering the judgment of the Privy Council in Hocking v Bell (1947) 75 CLR 125, approved (130-1) the following passage in the judgment of Latham CJ: "... in the present case the Full Court could properly order a verdict to be entered for the defendant only if the defendant is 'as a matter of law entitled to a verdict'. If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in [the] case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable , there is no function left for the jury to perform, so that the Court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case". (emphasis supplied) 152 It follows that the "no evidence" question for this court is whether there was evidence on which the jury, acting reasonably, could have found its verdict. 153 The fact that the appellant did not make a no case submission at the trial does not prevent the submission being made on appeal: Banbury v Bank of Montreal [1918] AC 626, Hampton Court Limited v Crooks (1957) 97 CLR 367. 154 The respondent, who was 24 when injured, started surfing when he was about 9 or 10 and he did a "Learn to Surf" course at Collaroy when he was 11 or 12. He agreed that he was "a keen surfer", who had surfed "fairly regularly" until he was injured. He had been to Bondi about ten times before and board surfed once at the southern end. He normally board surfed at North Curl Curl. 155 The accident occurred when the respondent dived into a wave. The swimming area within the flags on the shore was over a sandbank. On "a beach like Bondi" there will be a large sandbank on which the waves break and on one or both sides there will be a rip where water flows out to sea. The water is shallower and calmer over the sand bank than in the rips and the respondent accepted that flags would "certainly" be positioned away from rips and opposite a sandbank. 156 It is necessary to distinguish between a "sandbank" and a "sandbar". Troughs or channels are created by the movement of water "to the left and right across the sandbank". The seaward edge of a channel is known as a sand bar. 157 "Guttering" was used in the evidence to describe the formation of troughs or channels. Mr Williams, a senior ocean lifeguard for the Sutherland Shire Council called by the respondent, said it was inevitable that there would be "guttering" over a sandbank, and "some degree of relocation of sand in the inshore area". The position and shape of the channels (and sandbars) would vary during the day and from day to day. 158 The respondent's knowledge of the existence of irregularities in a sandbank is apparent from the following exchange in his cross-examination: "Q. You said to me yesterday in relation to surfing on sand bars that one of the reasons you don't surf there is because as the waves break over them and then you get closer to the shore, you tend to get the water getting deeper again? A. Right. Q. It's a characteristic of the beach line? A. What beach line? Q. Of any beach line; that closer to the shore you tend to get an area where you get irregularities closer to the shore? A. I'm not sure about that. Q. But you do get it from time to time? A. You may. Q. Because in that area closer to the shore, the water is constantly going to and fro and scurrying and filling up and scurrying? A. I suppose, yes. .... TAYLOR: You know when you go to the beach in those first 10 or so metres of the water, you can get irregularities? A. I suppose you can. Q. And you have to watch your footing? A. That's correct. Q. You have to be careful about running? A. Well, yes." 159 The reference to "sandbars" in the first question was to "sandbanks", as we have explained that term. 160 The respondent did not board surf over a sandbank "... because the waves aren't always the best over the sandbank" and "... because of the inconsistency of the depth in the water". He knew there were likely to be channels and sandbars in sandbanks. 161 It was put to the respondent that the water tended to be shallower over the sandbank and he replied "Yes, of course it does". It was "deeper again closer to the shore". The following exchange is relevant. "Q. It's quite a normal common feature that you have the waves coming in, they hit the sand bank and break? A. Yes. Q. Then as they wash towards the shore, the water gets a bit deeper again? A. Yes. Q. Then it washes up on the shore? A. Yes. Q. That slightly deeper area in front of the sand bank is where you have the water going off to the sides and finding its way out towards the rip area and is being fed out to sea? A. Yes. Q. That pattern of behaviour of waves breaking on the bank washing over the sand bank and feeding out, you've been aware of for all of your surfing years? A. Yes." 162 The respondent therefore knew that:

(a) There might be irregularities on a sandbank closer to the shore.

(b) They are found in the "first ten or so metres of the water".

(c) The irregularities include channels and sandbars.

(d) Swimmers have to watch their footing and be careful running.

(e) Waves break as they hit the sandbank and the water usually gets deeper where a channel has formed closer to the shore.

(f) Inshore from the channel, the water becomes shallower again. 163 The respondent was about 15 metres from the beach line when he dived to get under an oncoming wave which had already broken. The wave was then about a metre or a metre and a half away. The water was "about waist depth, maybe a little bit higher than waist depth". He agreed that the water was at the level of his navel. He was 175 centimetres or about five foot eight inches tall. The water must have been about one metre deep where he dived. He had dived under incoming waves "many times before". 164 Mr Wilson went into the water shortly before. When he was "probably above knee deep" in the water, having gone out "about 15, 20 metres", he took a "slight step down" into a "trench" when the water went "up to waist deep." He took a few steps, "kicked the sandbar", and stepped up over it. He was then "at a depth of up to my knees". He took a few more steps, the water became deeper and he dived in. 165 Mr Wilson was asked: "What do you call a slight step down; from about knee deep to waist deep?" He replied "No, it wasn't that great. That's why I said it was above - higher than the knee before the trench". He gave this evidence: "Q. What you indicated is the water about a third of the way up your thigh above the knee? A. Yes. Q. And then waist deep to about your crotch level or maybe a little bit higher? A. Yes". 166 Ms Galvin jogged into the water, reached "a definite sort of ditch or hollow," and fell. She kept moving forward and the water became shallower and she swam out to deeper water. She did not give any other evidence about the channel and sandbar. 167 The respondent gave no evidence of walking on the floor of the channel. He entered the water behind Ms Galvin. According to her the respondent dived about the time she fell into the "ditch or hollow". Thus the respondent dived before he reached the "ditch or hollow". He said he dived to get under an approaching wave which was half a metre high. 168 In summary, on the evidence of the respondent, the water just before the channel was about a metre deep (waist high or a little higher). Mr Wilson's evidence was not materially different. He said the water there was above his knee and in the channel was up to "crotch level or maybe a little bit higher". Thus the channel was only about 40 centimetres or about one foot four inches deeper. It was a "few steps" wide. The top of the sandbar was about 60 centimetres or about two feet above the bottom of the channel. 169 These heights, depths and distances can only be approximate. The witnesses were speaking of events that occurred five years before, and the depth of water is constantly changing on a surf beach. 170 Spigelman CJ has said: "no person attending an Australian beach could fail to know that there are sudden variations in the sand level under water". On the evidence this is so, and is the inevitable result of the continuous movement of the water and the sand as waves approach the shore. 171 It is common knowledge that variations in the sand floor of surfing beaches can include channels and sandbars of the dimensions which, according to any evidence the jury might have accepted, existed at Bondi Beach when and where the respondent was injured. 172 There was no evidence that the conditions of the channel and sandbar within the flags that afternoon where the respondent was injured were materially different from those encountered there on previous hours, days, weeks, months or years, or that they were unusual or more dangerous than those which would be encountered on other surfing beaches in Australia. 173 We agree with Spigelman CJ that the Council had no duty to erect signs to warn bathers about the sandbank. The respondent knew that there would be irregularities in the ocean floor particularly in the "first few metres of the water". A sign warning of the existence of channels and sandbars between the flags would have told the respondent nothing he did not already know. 174 The appellant had a duty of care with respect to the placement of the flags. As Spigelman CJ states: "That placement involves an express indication that bathing between the flags is reasonably safe." (emphasis supplied) 175 The flags are there to designate swimming areas and to indicate to people where they can swim safely. They do not indicate that it is safe to dive anywhere between them. They do not indicate, for example, that it is safe to dive at the water's edge, or that it is safe to dive into a channel. The flags were not intended to convey, and did not convey, any indication to persons in the water of the condition of the sand floor or the depth of water immediately in front of them. 176 The respondent said he went in between the flags because he "believed it was safe and a patrolled area" and if he had not thought it was safe he "wouldn't have swum there". He said "you swim in between the flags". In fact it was safe to swim there. He did not say, knowing he was between the flags, that he thought for that reason it was safe to dive as and where he did. His evidence of reliance was directed, not to the flags which were on the shore, but to the warning signs which were not. 177 In Prast v Town of Cottesloe (2000) 22 WAR 474, 481-3, Ipp J referred to the distinction between the inherent risks of body-surfing and the risks in the "diving" cases such as Nagle v Rottnest Island Authority (1993) 177 CLR 423, where there were held to be hidden dangers which created a duty to warn. The risk of being dumped is inherent in body-surfing and well-known and can only be avoided by avoiding waves that are dumpers. 178 The risks of channels and sandbars, such as those that caused the respondent's injury, close to the shore, are also well-known and can only be avoided by not diving or diving with care. When one dives into a wave over a channel close to the shore there is an inherent and well-known risk of encountering a sandbar. Although a broken wave may obscure a channel and sandbar this does not mislead a swimmer who has surfed before. A sensible swimmer in that situation will either not dive into a wave or will make a shallow dive with little force and arms extended for protection. The dangers of doing otherwise are obvious. 179 The respondent had dived through waves before in waist deep water, and before doing so had made his own assessment of whether or not it was safe to do this. He said that even if he had seen warning signs he would have made his own assessment of the water in front and would have relied on his own experience. 180 The surf at the time was very light, and the respondent said it was "quite calm", with waves about three to four feet high at the front and two feet high at the back. He was referring to the waves before they broke. Mr Nightingale, one of the Council's lifeguards, said the surf was "very small", "next to no surf", it was about half tide, which was going out. 181 The appropriate place for the flags was opposite a sandbank where it is safest to bathe, not opposite a rip. It was therefore normal, if not inevitable, that there would be a channel and therefore a sandbar in the swimming area between the flags. Moving the flags along the beach in front of another part of the same sandbank or another sandbank would not have protected the respondent from a channel and its sandbar. 182 In our opinion therefore there was no evidence that could sustain a finding of negligence on the part of the Council in the placement of the flags. 183 Nothing we have said is intended to detract from the fact that the respondent has suffered a tragic and terrible accident that has cut him off in the prime of his youth. But the real and genuine sympathy that all must have for his plight cannot obscure the need for there to be evidence of negligence before the jury, acting reasonably, could find a verdict for the respondent. 184 The appellant has only succeeded on grounds of appeal which were not argued at the trial and were added by amendment during the hearing. The amendment led to an adjournment and a further hearing on a later day. If the no evidence points had been taken at the trial, there should have been a directed verdict for the defendant and the appeal would have been unnecessary. In these circumstances there should be no order as to the costs of the appeal. See NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273, 282. 185 Accordingly, we make the following orders:

(2) Verdict for the respondent set aside and verdict and judgment entered for the appellant.

(5) Respondent to have a certificate under the Suitors' Fund Act 1951 .

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