( 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.