HEARING DATES: 19 August, 15 November, 19 December 2002

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Commencement of proceedings; originating process - Renewal of writ - Whether reasonable efforts made to serve defendant or other good reason shown.

Limitation of Actions - Extension of time - Arguable case - Explanation for delay - Prejudice - Exercise of discretion.

Limitation Act 1974 (Tas), s5.

Torts - Negligence - Public recreation area - Injuries to persons entering - Liability generally - Injury to person diving into shallow water - Whether duty of care owed by public authority.

Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423, distinguished.

Judgment Number: [2003] TASSC 1

1 On 26 October 1997, the plaintiff suffered incomplete quadriplegia, as a result of executing a running dive from the sandy Carlton Beach into shallow tidal water in the Carlton River which cuts across the sand at the end of the beach where it enters the sea. Carlton Beach is vested in the Crown and has been reserved under the Crown Lands Act 1976, s8, for public recreation and land conservation purposes, with the Crown having a power of management under s3. Although the beach is a Crown reserve, the tidal part of the river is I infer simply unreserved Crown land as it is most unusual for the Crown to grant coastal land below the high water mark. The plaintiff, through his former solicitors Simon Parsons & Co, issued a writ alleging that his injury was the result of the negligence of the State of Tasmania, shortly before the expiry of the three year primary limitation period prescribed by the Limitation Act 1974, s5(1). The writ was not served and it became ineffective for service on 17 October 2001, by virtue of the operation of the Supreme Court Rules 2000, r107. By application filed by the plaintiff's present solicitor, Mr Green, on 28 June 2002, the plaintiff has applied for an order extending the time limited for applying for the renewal of the writ; for an order renewing the writ or, in the alternative, for an order under the Limitation Act extending time for the bringing of a new action.

"107 - (1) An original writ is in force for 12 months commencing on, and including, the date of issue.

(2) On the application of the plaintiff made whilst a writ is in force, the Court or a judge may order that the original writ and any concurrent writ be renewed for 6 months if a defendant named in the writ has not been served. "

Rule 52 provides that the Court may extend the period for doing any act or taking any proceeding on such terms as are considered just and an extension may be ordered notwithstanding the expiry of the period originally allowed or limited. Here no reason has been advanced as to why time should not be enlarged for the bringing of the renewal application and so it follows that if renewal is appropriate, so too is the enlargement. See Lapham v Wood 66/1995.

3 Rule 107, unlike its predecessor under the 1965 Rules, expressly imposes no precondition which needs to be satisfied before the discretion is enlivened. Order 8, r1(1) of the old Rules, was in the following terms:

"1 - (1) No original writ of summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may, before the expiration of the twelve months, apply to the Court or a judge for leave to renew the writ; and the Court or a judge, if satisfied that reasonable efforts (have) (sic) been made to serve such defendants, or for other good reason, may order that the original or concurrent writ of summons be renewed for six months from the date of such renewal, inclusive of such date, and so from time to time during the currency of the renewed writ."

A similar change to the wording of the relevant rule has been made in England and Victoria. Speaking of the amended Victorian rule in delivering his judgment in the Full Court, Young CJ said in Ramsay v Madgwicks [1989] VicRp 1; [1989] VR 1 at 6:

"That rule is expressed much more succinctly and simply than the old rule which it replaced. It does not in terms refer to 'good reason', but as with the new English Rules, so I conceive with our new rules, there should be implied as a matter of construction a condition that the power to extend a writ or other originating process should only be exercised for good reason, and I draw support for that proposition from the speech of Lord Brandon of Oakbrook in Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597, at p 622."

See also Finlay v Littler [1992] VicRp 59; [1992] 2 VR 181.

4 As to the relevant considerations in assessing the question of whether good reason has been demonstrated, Zeeman J, with the agreement of Wright and Crawford JJ, said in National Mutual Life Association of Australasia Ltd v Huddlestone and Taylor 72/1997:

"It follows that the real question is whether the respondents have established that the justice of the case requires that the writ be renewed. It is not possible to state exhaustively the categories of reasons which may result in good reason being established to order a renewal (see Victa Ltd v Johnson (1975) 10 SASR 496 at 504; Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1979) 180 CLR 337 at 346).

The matters which, it was accepted in argument, are relevant to the question of whether good reason has been established, and therefore relevant to the justice of the case, include the nature of the attempted service, the length of the delay in attempting service, the length of the delay in making the application for an extension of time, the reasons for the delays, the conduct of the parties and hardship or prejudice caused to a party by refusing or granting renewal.

In addition, I consider that the merits of a plaintiff's claim may also be relevant. It is not incumbent upon an applicant for renewal to establish a prima facie cause of action or a cause of action which has reasonable prospects of success. However, matters concerning the merits of a plaintiff's claim ought not to be put aside as having no possible relevance. By way of example, where an application relates to a writ which attempts to raise a cause of action which, on the face of the writ, is bound to fail, the absence of merit may provide a sufficient reason to refuse renewal. Conversely, the existence of a strong case against a defendant may provide a positive reason for granting renewal and outweigh other factors militating against a favourable exercise of the discretion."

5 Here the primary limitation period of three years prescribed by the Limitation Act has now expired, but in Van Leer Australia Pty Ltd v Palace Shipping KK (supra), Stephen J made it clear an application for renewal of a writ after the statutory period for the commencement of the action has expired, does not make the applicant's burden of proof greater. In particular the renewal application is not to be approached on the basis that granting it will deprive the defendant of a limitation defence. He said, at 350 - 351:

"In considering whether there did exist such 'other good reason', I do not, for the reasons already stated, regard the expiration of the limitation period ... as of itself casting upon the plaintiff that heavy onus which the English decisions would impose. However I do take account of the long delay in serving Palace Shipping. It bears at least three aspects: first, it involved a very considerable period, secondly, it was quite deliberate, there being no question of mishap or oversight; thirdly, no notice was given to the defendant in this case, although the giving of such notice may sometimes mitigate the prejudice which a defendant may otherwise suffer through delay in actual service of process.

These are all substantial considerations. To be weighed against them is the plaintiff's effective loss of its rights against Palace Shipping if the renewal of the writ in November 1979 is to be set aside. But this seriously prejudicial consequence will be present whenever renewal of a writ is in question after a limitation period has run its course; and in the present case the prejudice is self-inflicted in the sense that Palace Shipping did nothing to induce delay in service or to encourage a belief that the claim against it might be settled without recourse to litigation."

The Court under the Limitation Act, s5(3), has a discretion to extend the time for the bringing of the action for a further three years. As I said earlier, the plaintiff in the alternative, has applied for an extension of time for the bringing of a new action. If the justice of the case lies with the granting of an extension of time, that would constitute good reason for renewing the writ as there would be no utility in declining a renewal if a new writ can issue. In the circumstances of the present case, were it not for the possibility of the plaintiff obtaining an extension of time, I would have had no hesitation in concluding that the writ should not be renewed. This is because of my finding, for the reasons which follow, that the plaintiff, knowing of the three year limitation period, and the time within which the writ was to be served, deliberately withheld service. The words of Lord Goddard in Battersby v Anglo-American Oil Co Ltd [1945] KB 23 at 32 are apposite to the circumstances of this case. He said:

"It is the duty of a plaintiff who issues a writ to serve it promptly, and renewal is certainly not to be granted as of course. ... it should only be granted where the court is satisfied that good reasons appear to excuse the delay in service ... The best reason, of course, would be that the defendant has been avoiding service, or that his address is unknown, and there may well be others, but ordinarily it is not a good reason that the plaintiff desires to hold up the proceedings ... to await some future development. It is for the court and not for one of the litigants to decide whether there should be a stay, and it is not right that people should be left in ignorance that proceedings have been taken against them if they are here to be served."

6 The history of the proceedings is as follows. The plaintiff instructed the law firm Watling Roche to act for him in respect of the matter in 1997. In June 1998, his solicitors prepared statements of evidence from the plaintiff and two of his companions who witnessed the incident and arranged for those statements to be signed. At about the same time, the solicitors received from the defendant some documents requested pursuant to the Freedom of Information Act. However in the latter half of the year 2000, those solicitors ceased to act and the plaintiff instructed his new solicitors, Simon Parsons & Co, shortly thereafter. Simon Parsons & Co agreed to act on a "no win no fee" basis and caused a writ to be issued on the plaintiff's behalf on 18 October 2000 being just a few days before the expiry of the primary limitation period. Although the plaintiff said in an affidavit that he "had no knowledge of the law", I infer that he did know that his action had to be commenced within three years of the date of the accident. I draw this inference from the facts that he had within the three year period engaged two firms of solicitors; his current application and supporting affidavits were prepared by a solicitor and nowhere has the plaintiff specifically asserted that he had not been told of the three year time period. Knowing that he had issued his writ only about a week before time expired, the plaintiff was then told by Simon Parsons & Co that there was 12 months within which to serve the writ and that in the meantime the firm was continuing to make inquiries on his behalf. In particular, Simon Parsons & Co wrote to the plaintiff on 22 November 2000 saying:

We are writing to confirm a Writ was lodged in the Supreme Court in relation to your matter on the 18th October 2000. You now have another one year from that day to serve that Writ on the otherside.

We also confirm we have written another letter to Carlton Park Surf Life Saving Club chasing up a response from them. We will let you know once we receive one."

7 The Hobart office of Simon Parsons & Co was closed and the plaintiff's file was sent to the Victorian office of that firm in about August 2001. The plaintiff had not been happy with the service he had been receiving from Simon Parsons & Co and wanted to engage new solicitors. However, because he did not have the financial resources to pay for legal services, he needed to find a lawyer who would act on a "no win no fee" basis, if he was to be legally represented. He arranged for his file to be sent to the law firm Wilson Dowd in Hobart, and on 8 October 2001, that firm wrote to him in the following terms:

Further to the recent correspondence sent to you by Simon Parsons & Co lawyers, I am writing to confirm that your file has now been received in this office.

Upon a review of your file, however, I regret to inform you that this firm is not prepared to offer to conduct your claim on 'no win no pay ' basis.

I am assuming that you are unable to fund the proposed litigation in any event - that is, that you can [sic] pay legal fees if you were to lose the case.

You may therefore have to make enquiries of any law firms who might be prepared to look at your case. It is crucial that you attend to this matter as a matter of urgency as the writ filed against the Council and the State on your behalf will become 'stale' on 18 October, 2001 if it is not served on those defendants prior to that time.

I am happy to suggest the names of some other lawyers, although I note that some other firms have already declined to act for you in the past.

Please contact me if you need arrangements to be made for the writ to be served by or on your behalf."

* the writ had to be served prior to 18 October 2001;

* Wilson Dowd, although not willing to act in the matter, was willing to have the writ served on the plaintiff's behalf if the plaintiff so requested.

The plaintiff had to make a decision before 18 October 2001 as to whether or not to pursue his action. If he did not serve the writ before that date, his writ would become ineffective for service and any new writ would be out of time. There was no question of misunderstanding, inadvertence or oversight. The plaintiff elected to allow his writ to go stale rather than continuing with the services of Simon Parsons & Co, if those services were still available on a "no win no fee" basis, or acting in person. Several months after electing to allow his writ to become stale, the plaintiff saw a "no win no fee" advertisement published by his current solicitor, Mr Green, who, after some deliberation, agreed to act and in June 2002 filed the application.

9 There are many potential litigants who decline or are unable to enforce rights or pursue remedies because of a lack of financial resources. Although the plaintiff's reason for not serving the writ was understandable, the fact remains that there has been deliberate delay. Plaintiffs lacking funds cannot file writs and then withhold service expecting renewal upon the acquisition of sufficient resources to pursue their cases. That would be contrary to the policy behind the procedural rule that writs be served within 12 months and would travel beyond the purpose of the rule authorising renewal which is there not to facilitate delay or to provide plaintiffs with the power to commence and then unilaterally stay proceedings. The rule is there to provide relief in cases of inadvertence, in cases where defendants avoid service or are difficult to serve, and in cases where otherwise there is good reason to grant extra time to attend to service. On the basis of what was said in Battersby, a plaintiff who deliberately withholds service ordinarily should not be granted a renewal and as I have said, I would not order renewal unless I am persuaded that in any event the plaintiff should have an extension of time under limitation legislation.

10 In considering the discretion to extend time under the Limitation Act, the reason why the plaintiff finds himself needing an extension of time is, of course, relevant. The fact that a plaintiff has made a conscious and informed decision to allow time to expire is an important matter but not necessarily determinative. In Hill v Iluka Corporation Ltd & Anor [2002] TASSC 113, the Full Court said at par23:

"In any event, it is clear that although the issue of whether the defendant will be able to get a fair trial is a significant, if not decisive, factor, it is certainly not the only relevant factor in the exercise of the discretion. The Limitation Act, s5(3), requires that consideration be given to all the circumstances of the case. In most cases this means that regard must be paid to whether there is an arguable case, the length of the delay, the explanation for it and the degree of prejudice the delay has caused and/or will cause the defendant. All of these matters require weighing to determine whether it is just in the circumstances of the case, to extend the time within which proceedings may be commenced. See Knight v Smith [1975] Tas R 83; Klein v Domus [1963] HCA 54; (1963) 109 CLR 467; Parsons v Doukas (2001) 52 NSWLR 163; Marr v Green (1994) Aust Torts Reports 81-277."

11 There is no assertion by the defendant that delay will cause to it any prejudice in the fair trial of the action or any oppression. There is nothing to suggest that the circumstances in which the accident occurred; the state of the signage, if any, at the time, and the relevant features at the site of the accident can no longer be adequately investigated. If the chances of a fair trial had become unlikely through delay, I would have expected that the defendant would have presented evidence or made submissions to that effect. The defendant has not done so and it carries the evidentiary onus on this point. Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 547, 566 and 567. I find that allowing the action to proceed would not cause prejudice or oppression to the defendant. Against this, however, is the fact that the plaintiff, being in a position to pursue his action as of right, made a conscious and informed decision not to do so. This is a matter of importance as was explained in Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 by Barwick CJ at 435, where he said:

"A conscious decision by a litigant to take a particular course after appreciating the relevant evidence and considerations in the light of which a decision is to be taken may very well in some circumstances lead directly to the conclusion that it would not be just to allow him to resile and to have an extension of time in which to sue; or at any rate provide no reason for entertaining the application to extend the time."

Also of relevance and counting against the plaintiff are the policy considerations which lie behind limitation legislation including, as explained in Taylor (supra) by McHugh J at 551 - 553, the public interest in people being able to arrange their affairs on the basis that claims can no longer be made against them and the public interest in having disputes settled quickly.

12 However, if the plaintiff has a viable action, I need to take that into account as a factor favouring an exercise of the discretion for the plaintiff. The evidence as to the circumstances in which the accident occurred is as follows. Sunday 26 October 1997 was a warm day. The plaintiff (then aged 24 years), his girlfriend and a companion, had been delivering telephone books during the morning. They decided to go to the beach but before that had some lunch at which time the plaintiff consumed some whisky and about three stubbies of beer. Another female arrived and they took her car to Carlton Beach, arriving at about 3pm. The plaintiff cannot recall going to that beach before. The group swam for about an hour before deciding to walk along the beach towards the Carlton River, which cuts across the sand and enters the sea at the end of the beach. According to the statement of the plaintiff's girlfriend, as they were walking along, they "were fooling around doing cartwheels up the beach". As they approached the Carlton River, they could see some people fishing and some children playing on boogie boards in the river. The plaintiff ran ahead. There were no signs prohibiting or warning against diving or swimming in the river. As the plaintiff approached the sandy bank of the river, he was sometimes walking and sometimes running. The water was murky and he could not see the bottom of the river. The plaintiff said under cross-examination:

"I thought it was um reasonably deep, because there was kids in boogie boards swimming around and people actually fishing ... It looked deep, yeah."

He dived off the sandbank into the river, presumably hitting his head on the shallow bottom, with the resultant serious injury. His male companion waded into the river to carry the plaintiff, who was then obviously disabled, out of the water. At the point where he reached the plaintiff, the water was between knee and waist deep. The plaintiff's male companion described the dive in his statement to the solicitors in June 1998 as follows:

"When he dived into the river he did so from a running dive therefore when he hit the water he was a fair way in from the bank of the river."

The plaintiff says that had there been a sign warning that the water was shallow, he does not believe that he would have executed the dive. There was evidence indicating that erecting a sign would not have been onerous. Subsequent to the accident, but unrelated to it, a sign went up, saying:

13 The plaintiff's case although not spelt out in argument in concise form, appears to be that the Crown having management of the Carlton Beach Coastal Reserve being land to which the public had access as of right for recreation, owed a general duty of care to the plaintiff as a member of the public to take reasonable care to avoid injury to him; that the discharge of that duty included there be warning of foreseeable risks; that it was foreseeable that a person might dive into the river and suffer injury; that the duty was breached by the failure to erect a warning sign; and that the lack of a warning sign and the injury were linked in that the likelihood was that the plaintiff would not have undertaken the dive if he had been warned against it.

14 I have not been invited to, and do not concern myself on this application with whether the plaintiff has a strong case or a weak case. The question is whether the viability of the action has been demonstrated, at least in a preliminary way. As Zeeman J pointed out in relation to this question in Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996:

"The accepted relevance of the merits of a proposed cause of action on the hearing of applications of this nature should not be elevated into a proposition of law that an applicant must establish a prima facie case. On the other hand the failure to establish a prima facie case may suggest that the proposed action is speculative and therefore affords strong grounds for refusing an application ...".

15 The requirement of foreseeability can be dealt with quickly and I deal with it first. A risk is foreseeable if it is not far-fetched or fanciful. Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47. As Sir Owen Dixon CJ said during argument in Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 115:

"... foreseeability does not include any idea of likelihood at all. I cannot understand why any event which does happen is not foreseeable by a person of sufficient imagination and intelligence."

In the context of foreseeability of injury to persons using a coastal reserve, Kirby J noted in Romeo v Conservation Commission of the Northern Territory (1988) 192 CLR 431 at par120:

"It was obvious that visitors would arrive at the reserve and the cliffs of different ages, different visual capacities, different states of sobriety and exhibiting different levels of advertence to their surroundings."

It is plainly an inevitable conclusion, that it was foreseeable that a person might dive into the river using the sandy beach reserve as a run up and by so doing suffer injury.

16 If the defendant owed a general duty to take reasonable care to avoid injury to the plaintiff, the next question is whether it is arguable that its scope included a duty to warn against diving. There is no duty to warn against the obvious. As Kirby J said in Romeo at pars123 and 128:

"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.

It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate inquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the inquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness."

In Prast v Town of Cottesloe [2000] WASCA 274; (2000) 111 LGERA 253, Ipp J referred to a number of authorities, including what Mason P pointed out in Franklins Selfserve Pty Ltd v Bozinouska (unreported decision of the Court of Appeal, New South Wales Full Court 40515 of 1996, 14 October 1998), namely:

"In some circumstances the danger is so obvious that, when coupled with the likelihood that persons will exercise reasonable care for their own safety, their duty is satisfied by letting the blindingly obvious speak for itself."

After referring to this passage, Ipp J said, at par 43:

"And yet to suggest that signs should be placed on all beaches in Australia indicating that swimming in the sea could lead to serious injury or death would, I suggest, be absurd. The absurdity lies in the obviousness of the danger that attaches to the common, everyday, activity of swimming in the sea. There is no need to warn of the ordinary risks that are so involved, and it would be absurd to require that to be done. ... Of course, where there are dangerous currents or rips or surges or rocks ... or other dangers that are peculiar to a particular beach or part of a beach, special warnings may be called for ...".

See also Department of Natural Resources v Harper [2000] VSCA 36; (2000) 1 VR 133 at par47 and Waverley Council v Lodge [2001] NSWCA 439; (2001) 117 LGERA 447 at pars32 and 37.

17 If this matter went to trial it may be that the judge or jury would consider that the danger of diving into unfamiliar waters without first ascertaining depth was so obvious that a warning sign was not required. However, on the other hand, the plaintiff has presented sufficient evidence to demonstrate that it is at least arguable that the danger was not obvious to a person exercising reasonable care for his own safety. The evidence to which I have already referred is sufficient to give rise to a possibility of a finding that the danger of the water being shallow was not clearly apparent. The evidence being that the water was murky and the river was being used for activities, namely fishing and swimming. This might perhaps give the false impression that there was sufficient depth to safely undertake a shallow dive. The evidence is that there was no warning sign. There is evidence that a warning sign could reasonably have been erected as a sign (although dealing with a different matter) has since been put up in the area. It is therefore arguable that if the defendant had a general duty of care to the plaintiff it was breached.

18 There is also the plaintiff's evidence that a warning sign was likely to have deterred him and so it is arguable that if there was a breach of duty, it was causatively linked to the injury.

19 The question which so far I have left unresolved is whether it is arguable that the defendant owed a general duty of care to the plaintiff to take reasonable care to avoid injury to him. Does the State or a public authority owe a duty of care merely because it has the power of management of a public conservation area or public recreation area such as Carlton Beach, being a place frequented by the public where injury is foreseeable? The answer plainly is that it does not. There needs to be something more. A person who foresees a danger to others and is in a position to warn or protect against it is not under a common law duty to do so unless there is a sufficiently close connection between him and the person exposed to the danger. There must exist between the State or public authority and the plaintiff a relationship of neighbourhood or proximity. As Lord Atkin said in Donoghue v Stevenson [1932] AC 562 at 580:

"The rule that you are to love you neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

20 As was made apparent in Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423, although foreseeability is a concept which in many situations is the influential, if not the decisive, determinant of the existence of a relationship of proximity necessary for there to be a duty of care, it is not of critical importance in determining the issue of proximity in the case of a claim against a public authority having the power of management of land which in its natural state has been set aside for public recreation. The imperative of proximity of relationship and the features which gave rise to the existence of a duty of care in Nagle are set out at 427 and 430, as follows:

"According to the findings of the trial judge, the Board effectively ran the Island as a business, deriving revenue from visitors. In the course of running the Island in that way, the Board promoted the Basin for swimming and related recreational activities by means of publicity and directional signs. The Board encouraged members of the public to use the Basin as a venue for such activities by installing, maintaining and servicing change-rooms and toilets adjacent to the parking area. As well, it installed, maintained and serviced a paved path from the main settlement on the Island to a parking area above the Basin.

As stated earlier, the Board was the occupier of the Reserve and was under a statutory duty to manage and control it for the benefit of the public. Moreover, the Board promoted the Basin as a venue for swimming and encouraged the public to use it for that and other purposes by installing, maintaining and servicing various facilities on that part of the Reserve which was immediately adjacent to the Basin. In these circumstances, it is beyond question that the Board brought itself into a relationship of proximity with those visitors who lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to any foreseeable risks of injury to which they might be exposed. In this case, the basis for holding that the Board came under a duty of care may be simply stated: the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who swam in the Basin. As occupier under the statutory duty already mentioned, the Board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged.

In reaching this conclusion, we have not mentioned foreseeability otherwise than by reference to the standard or scope of the duty of care. That is because this is a case in which it is possible to ascertain the existence of a generalized duty of care - to take reasonable steps to avoid foreseeable risk of injury - owed to members of the public who resort to the Basin to swim, without looking to foreseeability, a concept which in many other situations is the influential, if not decisive, determinant of the existence of a relationship of proximity. Here, as it seems to us, foreseeability is of critical importance in determining not whether there was a duty of care but whether there was a breach of duty." (Emphasis added.)

21 Although the test of proximity in determining whether a duty of care is owed is not a formula, it remains relevant as expressing the nature of the inquiry and is an essential ingredient for an arguable case in negligence to exist. Sullivan v Moody (2001) 207 CLR 562 at par48. Here, the plaintiff has failed to put forward sufficient facts relevant to the essential of proximity. There is no evidence that the defendant "brought itself under a duty of care" by encouraging people to swim in the river. There is no suggestion that it provided paths leading to the river, directional signs, adjacent changerooms, an appearance of safety or other inducements. It is not a case where there was a construction such as a pool, a jetty or a platform which created the danger. There has been nothing put forward to add to the features of power of management of a public reserve and foreseeability (which is satisfied every single time injury occurs) so as to complete the ingredients necessary for a duty of care to exist. In this respect the plaintiff has failed to put forward sufficient facts to constitute a prima facie case. This is not a case where there has been insufficient time to gather together and present material, nor is there any reason to think that the lack of material is a mere oversight. The plaintiff has had the benefit of legal representation in the preparation and presentation of the application. It was not suggested, nor do I think could it have been suggested, that matters relevant to proximity are likely to exist but are within the special knowledge of the defendant and only capable of being uncovered using the pre-trial procedures of the Court. I infer that the plaintiff has nothing further which he can add on the question of proximity. Without more it does not appear to me that his claim is capable of succeeding.

22 I am not persuaded that the plaintiff will suffer any injustice as a consequence of the dismissal of his application. He has failed to demonstrate the viability of his action. The plaintiff had a writ which issued within time and, notwithstanding that he knew that the writ had to be served by 17 October 2001, and notwithstanding that he had the means to serve the writ and had been warned a week or so before it became stale, he elected not to have it served. On the other hand, and notwithstanding that the defendant would not be prejudiced in meeting the claim, I do think that it would be unjust to expose the defendant to a belated claim which I have no reason to think is viable and which the plaintiff elected not to pursue in timely fashion.