As will appear later in these reasons, the High Court has, in my opinion, somewhat modified this statement as well as the rule of the case and its ratio decidendi in accordance with the process described by McHugh J in Woolcock Street Investments Pty Limited v CDG Pty Limited (2004) 78 ALJR 627 .
70 As I have noted, their Honours had held that the discharge of the Authority's duty would naturally require that those who had encouraged swimming activities in the Basin should be warned of foreseeable risks of injury associated therewith. Having held that the risk of injury was foreseeable, their Honours turned to the question of breach. So far that issue had not been determined by the passage that I have cited above. Having commented upon the form which any relevant warning might take, it would appear that their Honours found (at 432) that the failure to warn of the danger of diving from the rock ledge into the Basin due to the presence of rocks was a breach of the Authority's general duty of care upon the basis that, firstly, there were appropriate warning signs that could have been erected, secondly, the Authority had the power to erect signs at the probably point from which the plaintiff had dived and, thirdly, there was no reason why the Authority could not erect signs on the platform warning of the danger which existed notwithstanding that the Basin into which the plaintiff dived was beyond the boundaries of the reserve.
71 Several observations can be made with respect to their Honours' reasoning. The first is that although reference was made to the finding of the trial judge that when the appellant dived into the water of the Basin, his visibility may have been affected by a sun glint or glitter pattern as a consequence of the reflection of sunlight on the water thus obscuring his vision to some extent (although the rock which his head struck would not have been totally obscured), no question of the obviousness of the risk of injury from diving into partially obscured water played any part in their Honours' consideration of breach of duty. Secondly, their Honours appeared to have approached the issue of breach upon the basis that if the risk of injury associated with diving into the Basin was foreseeable, then the only way that that duty could be discharged would be by the Authority warning of that risk. In other words, provided there was no impediment, legal or practical, to the erection of a warning sign, the Authority would be in breach of its duty if it failed to erect such a sign warning of the foreseeable risk of injury. Thirdly, it is noteworthy that although their Honours made reference to Shirt when dealing with the issue of foreseeability, no reference was made to the Shirt calculus or any attempt made to apply its elements to the facts of the case when their Honours consider the issue of breach of duty.
72 The second and third points of the foregoing observation should be considered immediately lest it be assumed that, after Nagle, Shirt was authority for the proposition that there is a breach of duty if the risk of injury is reasonably foreseeable and removal of that risk by the adoption of simple and cheap measures (such as a warning sign) is practicable but not undertaken. As Heydon JA, with whom Meagher JA and Foster AJA agreed, noted in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [83], such a reading of Shirt would be fallacious as the proposition that the suggested measures
"would have been a cheap and practical response to the foreseeable risk begs the question of whether it was necessary for the defendant to embark on that response…Mason J [in Shirt ] left open as the response of a reasonable person the course of doing nothing instead of adopting the simple and cheap measures."
73 A similar point was made by Hayne J in Brodie v Singleton Shire Council (2001) 206 CLR 512, 631 where his Honour observed ([318]):
"As I have said, however, the search for some unifying principle or principles which will explain why an analogy has been drawn with previous authority in some cases but not others has so far proved unsuccessful. All that emerges is that foresight of harm, and capacity to avoid it, has been said not to be enough. 'Something more' must be found. If, however, the expansion of duty of care continues on its current path, foresight of harm and capacity to avoid it will become the only criteria which underpin the imposition of a duty of care. In that event, duty of care would serve no purpose in identifying the cases in which liability is to be found. The only questions would be whether a defendant in fact acted without reasonable care, or failed to act when it would be reasonable to do so, and whether that act or omission was a cause of the plaintiff's loss or damage."
74 I return to my review of the authorities. Nagle was decided on 21 April 1993. In Public Trustee as Administrator of the Estate of the later Peter Saroukas v Sutherland Shire Council (1992) Aust Torts Report 81-149, decided a little over a year earlier, the defendant council had the care, control and management of a park beside a bay which was extensively used by the public. At the edge of the park were tidal baths that were separated from the bay by a walkway that had been constructed by the council around the baths. Around the outside of the walkway was a rail fence but it was possible to climb through or over it. The defendant erected numerous and prominent signs that warned of the danger of diving into the baths and of the variable depth of the water in them but had not erected any sign warning of the risk of diving from the walkway into the bay. In this respect the depth of the water in the bay also varied and the surface was such that it was very difficult, and frequently impossible, to visually assess its depth. Whilst walking along the walkway between the baths and the bay with no intention of swimming or diving, one of the plaintiff's shoes fell into the bay whereupon he climbed through the fence and dived into the water. The water was only three feet deep and he ended up a quadriplegic.
75 Gleeson CJ, with whom Priestley and Handley JJA agreed, held firstly, that the defendant owed the plaintiff a duty of care which extended to persons diving from the walkway into the bay and, secondly, that it was in breach of that duty in that part of the facilities it had provided for the public included the walkway which was intended for public use for recreational purposes. As the risk that a person might dive into the bay from the walkway and suffer injury as a consequence was foreseeable, the defendant failed to discharge its duty of care by failing to erect an appropriate pictorial sign warning of the danger of diving from the walkway into the bay.
76 For present purposes the critical part of the Chief Justice's judgment is as follows (at 61, 138 (citations omitted)):
"Whilst it is true to say that the Council did not intend that people should dive from the walkway into the Bay outside the baths, nevertheless the Council provided a recreational facility which made that possible, and the risk that a person might dive out into Gunnamatta Bay from the walkway and suffer injury as a consequence was foreseeable...the necessary relationship and proximity between the respondent and the deceased existed, and the learned trial judge was correct in concluding that the respondent was under a duty to warn those using the walkway of the dangers of diving into variable depth tidal waters.
It was submitted on behalf of the respondent that the circumstances of the deceased dived from one side of the walkway rather than the other meant that there was no duty upon the respondent to warn the deceased of the risk involved. As an absolute proposition this cannot be correct. Suppose, for example, that to the knowledge of the Council the bed of Gunnamatta Bay immediately outside the swimming pool was covered with large quantities of broken glass. It cannot be the case that there would be no duty upon the Council to warn users of the walkway of that danger. The very existence of the Council's walkway going out into the bay creates the possibility that people would or dive from it. Once it is accepted as a possibility that the Council's recreational facility be used in that way then it would be taking far too narrow an approach to limit the Council's obligation to an obligation to give a warning to people who intend to jump or dive in one direction rather than another."
77 The Chief Justice did not deal expressly with the question of breach. However, he did hold (at 61, 139) that as there was a possibility that somebody might decide to jump from the walkway into the bay rather than the baths, the attendant risk of such an activity was not something that the defendant was entitled to disregard. However, like the majority in Nagle, his Honour did not in terms apply the Shirt calculus except with respect to the issue of foreseeability; nor did any question of the obviousness of the risk of jumping or diving into variable depth tidal waters arise for consideration. Furthermore, the walkway from which the plaintiff dived was an artificial structure created by the defendant for recreational purposes and which provided the clear opportunity, if not the temptation, for persons to dive from it into the bay. As a creation of the defendant the walkway, in my opinion, falls into a different category to cases such as the present where no such artificially created situation is involved. This is a point picked up by Hayne J in Romeo at 489 ([157]) to which I later refer.
78 Inverell Municipal Council v Pennington (1993) 82 LGERA 268 was decided by this Court three months after Nagle. Like Saroukas it involved the creation by the defendant council of an artificial structure, namely, a municipal swimming pool. The plaintiff dived into the pool from a point where the water was insufficiently deep given his size and weight, as a consequence whereof he struck his head on the bottom and became a quadriplegic. The only depth notices were on each side at the deep end of the pool showing 11'6" and one at each side of the 6' mark. The trial judge held that the defendant was liable in negligence, a decision upheld by this Court.
79 It was found that the plaintiff was aware of the dangers of diving into water that was too shallow. He thought he was diving into water that was no more than 5' deep. He was aware that the depth of the pool varied from one end to the other. He therefore knew that he was diving into water that was less than his height and therefore, objectively considered, posed a risk of injury to him.
80 Mahoney JA found that the relevant default on the part of the defendant was that it did not bring the danger and the depth to the plaintiff's immediate attention so that the absence of signs warning of the danger of diving and the absence of depth indicators resulted in the plaintiff not being warned and made subjectively aware of the danger he was taking.
81 Having stated the Shirt calculus, his Honour noted (at 272) that it was
"believed by some that once a risk of injury was relevantly foreseeable and if that risk was not far-fetched or remote that it could properly be put aside, then there was a duty upon the defendant to remove or neutralise that risk. That could be done either by removing the factual circumstances which gave rise to the risk or, in some cases, by bringing the risk sufficiently to the plaintiff's attention that the risk of injury was effectively excluded."
82 His Honour then expressed the view that the judgment of Mason J in Shirt established that the law did not in every case require a defendant to go so far. He continued (at 272):
"It [the Shirt calculus] measures what the defendant is to do by the response of the reasonable person. That response is to be measured by, inter alia, the consideration to which his Honour has referred, namely, the magnitude of the risk, the probability of its occurrence, the seriousness of the injury, what is necessary to guard against it, and the resources available for the defendant to provide against it. The principle envisages, in my opinion, that in some cases a reasonable person would accept the continuance of a risk that was not far-fetched or remote and the law would not hold him responsible if he did."
83 His Honour noted the argument of the defendant that a plaintiff is required to exercise appropriate care for his own safety and that what a reasonable person would do is to be determined upon the basis that a person diving into a pool will at least satisfy himself that the water is sufficiently deep. Although not expressed in terms of obviousness of the risk of danger of diving into a pool of unknown depth, the defendant's argument had overtones of such a proposition. Mahoney JA's response thereto was as follows (at 273):
"I do not dissent from this view, as a general principle. In the end, the court must determine what is the response appropriate to the whole of the circumstances of the case. But a person who crosses the street must do so with his eyes open. A motorist on the street must be conscious that pedestrians may act without care or foolishly, but special cases apart, he is not required to take the care appropriate to the risk that the pedestrian has simply closed his eyes."
84 One might paraphrase and adopt his Honour's language to the present case by asserting that a public authority is not required to take the care appropriate to the risk of injury from diving into water of unknown depth where the diver has simply closed his or her eyes to the obvious.
85 Having observed that the burdens which the law of negligence poses are, in the view of some, inappropriately heavy, his Honour considered (somewhat reluctantly I think) that, in the light of the decision in Nagle which illustrated the standard of care required, the trial judge had not erred in holding that, in failing to bring to the attention of the plaintiff the dangers created by diving into a pool of the kind in question, the defendant council had not discharged the duty placed upon it because, having set up the pool facility, it had in the relevant sense created the danger which caused the plaintiff's injury.
86 Clarke JA considered that the appeal failed whilst the law remained as expressed in Nagle. His Honour then questioned whether that decision had effectively placed the council in the position of an insurer. He opined (at 275) that this resulted in a consideration of the reasonableness of conduct and the reaction of the reasonable person being replaced by a mechanical test, which in a real sense looked only to the means available to guard against a risk of injury, no matter how unlikely it is that that injury will occur. He then proceeded with a discourse upon the development of the law in this area. In the course of doing so, he referred to what Gibbs CJ said in Turner v South Australia (1982) 56 ALJR 839, 840:
"Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful by adopting the means which involves little difficulty or expense, the failure to adopt such means will in general be negligent"
87 It is to be noted that this passage from Turner was made in the context of the duty of care owed by an employer to an employee. On the other hand the Chief Justice, although not referring expressly to the Shirt calculus, did adopt that part of its language describing a foreseeable risk. But that is only the gateway to the exercise for which Shirt is authority: see [60] above.
88 According to Clarke JA, it was this approach that was adopted in Nagle notwithstanding the likelihood that someone would dive into rocks that were visible to him must have been very small indeed. He thus posed the question (at 279):
"Should we not accord much greater weight to the possibility, bearing in mind the enormous range of foreseeable risks involved in virtually every form of activity, that the reasonable person would have struck a balance and decided that a particular risk was remote and that no action was called for despite the fact that it may cost little to provide a measure of protection?"
89 Meagher JA agreed but, again, his Honour considered that the result was dictated by the decisions of the High Court in Shirt and Nagle. He said (at 283):
"It is indeed a surprising result, but it is one an intermediate appellate court cannot remedy. It is a result which is mandated on us by the two High Court decisions [ Shirt and Nagle ] to which I have referred. So long as a duty arises, whenever the occurrence of the risk is not fanciful, a duty will arise in every single case. It does not follow that the defendant will be liable in every single case, but it does follow that he will be unless it can be proved that to avoid the risk will be wholly unreasonable."
90 The misgivings of both Clarke and Meagher JJA in Pennington were, though not consciously, responded to by the High Court in Romeo, which although declining to overrule Nagle, modified its impact and apparent absoluteness.
91 In Romeo the defendant Commission managed a nature reserve, which contained a car park at the top of a cliff. The plaintiff, at night and whilst intoxicated, fell from the top of the cliff onto a beach below and sustained serious injuries. There was no barrier at the edge of the cliff and its presence was obvious. It was held by the whole court that the defendant was under a duty to persons entering the reserve to take reasonable care to avoid reasonably foreseeable risks of injury - people falling off the edge of the cliff was one of those risks. However, the majority held that the defendant was not in breach of that duty by failing to erect a fence or other barrier at the edge of the cliff. In the light of Nagle, all members of the court held that the Commission was under a duty of care whilst that decision stood. So far as the issue of breach of duty was concerned, Toohey and Gummow JJ, after referring to passages from the joint judgment in Nagle at 431, and in particular the passage I have cited in [69] above, observed (at 454 [50]):
"But this does not mean that the respondent was obliged to ensure, by whatever means, that those coming onto the Reserve would not suffer injury by ignoring an obvious danger. This is particularly so in the case of the cliff which did present an obvious danger"
92 Accordingly, their Honours considered that notwithstanding that there was a "risk" of someone falling over the edge of the cliff in the sense that such a risk was not far-fetched or fanciful but was real and therefore foreseeable, nonetheless that risk existed only in the case of someone ignoring the obvious. It followed that the Commission was not required to take steps in order to discharge its duty of care by guarding against what was obvious namely, the risk of falling over a cliff the presence of which was obvious. This finding is to be contrasted with that of this Court in Ah Tong v Wingecarribbee Council [2003] NSWCA 381 where the existence of a cliff created by a concealed, disused quarry was held not to be obvious: see per Ipp JA at [63] and [64].
93 Kirby J discussed the scope of the duty of care in these terms (at 478 [123]):
"The ordinary formulation of a common law is that bodies such as the Commission must take reasonable care to avoid foreseeable risks of injury to persons entering an area such as the reserve, including the cliffs, as of common right. However, that expression of the duty must be elaborated if it is to be of any practical guidance. The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertence of the entrants. 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…But where, as here, the statutory duties are stated in general and permissive terms, the scope of the duty of care imposed by the common law will be no more than that of reasonable care . 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 ." (emphasis added)
94 His Honour then sought to distinguish Nagle on the following basis (at 481 [131]):
"The important distinction between this case and Nagle is that there the danger of the submerged rocks was hidden from the ordinary users of the Basin. Here, the danger of the elevation of the cliffs was perfectly obvious to any reasonable person."
95 The distinction referred to by his Honour is of some poignancy given that the suggestion that the submerged rocks upon which Mr Nagle foundered were hidden did not seem to play a part in the majority decision that the Authority had breached its duty of care. It was referred to by the majority in Nagle (at 427-428) only in the context of a recitation of the "Background". Further reference was to the finding of the trial Judge that notwithstanding the reflection of the sun on the water, the rock upon which the plaintiff struck his head would not have been totally obscured and the glare could have been avoided by moving his head. It would seem that this finding of the trial judge fell short of one that the rock was a hidden danger, but even if it was, that fact was ignored in the majority's reasoning. Nevertheless, it is difficult to see how the results in Nagle and Romeo can be reconciled unless the distinction is between a hidden danger in the one case and an obvious danger in the other.
96 Hayne J referred to the relevance of whether the danger has been created by the action of the public authority or is one occurring naturally in the following passage (at 488-489):
"157. What is reasonable must be judged in the light of all the circumstances. Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring and the difficulty and cost of averting the danger will loom large in that consideration. But it is not only those factors that may bear upon the question. In the case of a public authority which manages public lands, it may or may not be able to control entry on the land in the same way that a private owner may; it may have responsibility for an area of wilderness far removed from the nearest town or village or an area of carefully manicured park in the middle of a capital city; it may positively encourage or at least know of, use of the land only by the fit and adventurous or by those of all ages and conditions. All of these matters may bear upon what the reasonable response of the authority may be to the fact that injury is reasonably foreseeable. Similarly, it may be necessary, in a particular case, to consider whether the danger was hidden or obvious, or to consider whether it could be avoided by the exercise of the degree of care ordinarily exercised by a member of the public, or to consider whether the danger is one created by the action of the authority or is naturally occurring, but all of these matters (and I am not be taken as giving some exhaustive list) are no more than particular factors which may go towards judging what reasonable care on the part of a particular defendant required. In the end, that question, what is reasonable, is a question of fact to be judged in all the circumstances of the case."
97 It is pertinent to note that whether the danger was hidden or obvious was, in effect, regarded by his Honour as only one of a number of considerations required by the Shirt calculus to be taken into account in determining if there had been a breach of a duty of care.
98 Although not a diving case, Romeo was applied by the Victorian Court of Appeal in Secretary to the Department of Natural Resources & Energy v Harper [2000] 1 VR 133. In that case, the plaintiff was injured whilst visiting a national park: a falling tree struck her in gusty winds. It was held by Tadgell and Batt JJA that there was no breach by the defendant of its duty of care by failing to erect an appropriate sign or signs warning of the danger of hazardous trees in the reserve in certain weather conditions as that danger was an obvious one (at any rate in high winds) and was endemic in the outdoor recreational activities undertaken in such reserves.
99 Batt JA said (at 148 [47]):
"There are two principal reasons why, in my view, the taking of reasonable care did not require the taking by the appellant of any such precaution to guard against an accident of the kind that occurred to the respondent. First, the danger to be guarded against, that of death of injury from falling trees or limbs, was an obvious one, at any rate in high winds. The appellant was entitled to expect adult residents of Victoria, such as the respondent, to know that trees and limbs of trees in forests, reserves, parks and other places occasionally fall, at any rate in high winds, and do so randomly."
100 After referring to "the common course of human experience", his Honour continued:
"To enter a forest or its immediate surrounds, like entering the surf, is to take a risk of injury, albeit a remote risk. The risk is 'endemic' or part and parcel of the recreation of camping, walking and indeed living outdoors in the Australian bush and in particular in forest reserves…the position might be different if the tree in question had been hazardous in the sense in which I have used that word, as it might also be at a beach where the surf was frequently subject to treacherous currents not obvious to a stranger to the beach. The question is one of fact and accordingly is not governed by other cases."
101 The above passages in Harper were relied upon by Ipp J, with whom Wallwark and Parker JJ agreed, in Prast v Town of Cottesloe (2000) 22 WAR 474. In that case, the appellant, who had been bodysurfing many times before, was dumped by a wave while bodysurfing at Cottesloe Beach, which was managed by the respondent. He was thrown onto his head on the ocean bed and as a result became a tetraplegic. The appellant claimed that the respondent was in breach of its duty of care by failing to erect signs warning of the risk of serious spinal injury by reason of the condition of the surf.
102 Ipp J applied Nagle in holding that the respondent owed a duty to take reasonable steps to avoid foreseeable risk of injury to the appellant but applied Romeo in holding that there was no breach of that duty by reason of the fact that the risks of being dumped by surf and thereby sustaining bodily injury, were endemic to and part and parcel of the recreation of bodysurfing and that those risks were obvious and should have been known to the appellant.
103 His Honour (at 481 [29]) noted that the issue of breach of duty raised questions of both fact and law. The factual question was the extent to which the risk of serious injury from bodysurfing was obvious. The legal question concerned the effect of the obviousness of the risk and the obligation to take reasonable steps to avoid foreseeable risk of injury. The trial judge had answered the factual question by holding that there was no hidden danger and that the danger of being dumped was obviously inherent in bodysurfing. He had distinguished the present case from the "diving" cases such as Nagle and Pennington on the basis that the plaintiffs in those cases were injured, in effect, by the materialisation of a risk of which they were not aware, whereas in the instant case the appellant's injury was brought about by an obvious risk inherent in bodysurfing.
104 Ipp J agreed that the trial judge was correct in distinguishing between the circumstances of the diving cases and those of the present case. At 482 [32] his Honour observed:
"In the diving cases there were hidden dangers that caused there to be serious risks in performing an act which would otherwise be relatively safe. The risks of striking one's head on submerged rock obscured by the glare of the sun, or on a misleadingly shallow bottom, are not an inherent part of diving. Those were hidden dangers that brought about the need to warn. They are to be contrasted with the risk facing all bodysurfers i.e., the risk of being hurled on to the seabed, out of control, by a wave that turns out to be a dumper. The risk of so being dumped is inherent in body-surfing itself, cannot be avoided and is well-known."
105 It is to be noted that his Honour regarded the submerged rock in Nagle as a hidden danger due to it being obscured by the glare of the sun. Of equal relevance to the present case is his Honour's suggestion that "a misleadingly shallow bottom" is also a hidden rather than an obvious danger. Given his Honour's previous reference (at 481 [30]) to Pennington and to City of Rockingham v Curley (to which I shall return), it might be said that he was confining that remark to misleadingly shallow swimming pools or other artificial structures created by the defendant rather than, as in the present cases, to water which was of deceptively shallow depth due to the natural movement of sand caused by the ebb and flow of the tide or littoral drift.
106 As to the relationship between the obviousness of the risk and the discharge of the duty of care, his Honour, after citing from Romeo and Harper, concluded (at 485 [44]) that:
"a local authority charged with maintaining safety at a popular metropolitan beach is not required, in the discharge of the duty of care it owes to those who come to swim on the beach, to warn about the risks of bodysurfing. Negligence at common law is still a fault-based system: see Perre v Apand Pty Limited (1999) 198 CLR 180 at 230 per McHugh J. As a matter of law, there is a point at which those who indulge in pleasurable but risky past-times must take personal responsibility for what they do. That point is reached when the risks are so well-known and obvious that it can reasonably be assumed that the individuals concerned will take reasonable care for their own safety: see Romeo v Conservation Commission (NT). "
107 The decision in Prast can be contrasted with that of the Full Court of the Supreme Court of Western Australia in City of Rockingham v Curley (2000) 112 LGERA 123 decided approximately six weeks before Prast. It involved a young man who dived into shallow water from a jetty and suffered serious injuries. Wallwark and Murray JJ held that the public authority in which the jetty was vested breached its duty of care by failing to take steps to prevent a foreseeable risk of injury by prohibiting diving and by erecting appropriate signs. The Commissioner who heard the action found that at the location from which the plaintiff dived, it could not have been obvious to a person exercising reasonable care that a dive could not be performed safely. He also found that it had not been obvious to certain witnesses that it was unsafe to jump or dive from the point on the jetty where the plaintiff had dived.
108 On appeal, it was submitted by the appellant that a dive by a person such as the plaintiff, from a height above the water surface of 8 feet into a depth of 4 foot of water was suicidal. It was further contended that it was inherently and obviously dangerous to dive from a jetty which was 2.5 metres above the water without first checking the depth of the water.
109 Wallwark J considered that it was important that the plaintiff had dived at the particular location many times before without a problem. This notwithstanding, the appellant had submitted that its duty of care did not extend to expressly warning users of the jetty not to dive into the water at the point at which the plaintiff did so, there being an inherent obligation or expectation that people would take reasonable care for their own safety. As recorded by his Honour (at 135 [80]) it was submitted
"(t)hat there was no obligation to warn of the blindingly obvious, just as there is no need to put signs on highways saying 'it is dangerous to cross this highway' "
110 Wallwark J rejected these submissions upon the basis that they were contrary to the findings of the Commissioner. It will be recalled that that finding was that it would not have been obvious to a person exercising reasonable care that a dive at the location from which the plaintiff dived could not be performed safely.
111 I would interpolate that in my respectful opinion, the Commissioner had asked himself the wrong question. It was not a question of whether it was not obvious to a person exercising reasonable care that a dive could not be performed safely but, on the contrary, whether it was obvious to such a person either that the dive could be performed safely or, perhaps more appropriately, that it could not be performed safely without first checking the depth of the water at the time of the dive. This is particularly so where the depth of the water is known to be variable due to natural phenomenon such as movements of the tides.
112 Murray J at 146 [47] noted that in Romeo the question of whether the scope of the duty of care included taking reasonable measures to guard against an obvious danger was considered by Toohey and Gummow JJ to be an aspect of breach of the duty. He held that in the present case the breach arose because of the finding of the Commissioner that at the point from where the plaintiff dived, it was no longer obvious to a person exercising reasonable care that a dive could not be performed safely.
113 Anderson J dissented. His Honour referred (at 153 [183]) to the finding of the Commissioner that it was not obvious that a dive could not be performed safely at the location from which the plaintiff dived suggesting that he intended to say that it was not obvious to the eye that the water was dangerously shallow beneath the dive point.
114 However, his Honour was of the view that there was no proper basis upon which the plaintiff could make any assumption as to the depth of the water or that it was sufficiently deep to enable him to dive safely. At 155 he expressed his conclusion in these terms:
"188. In my opinion, it is clear that the plaintiff knew what anyway is notorious - that it is dangerous to dive into shallow water. It is clear that he could see the bottom and did see the bottom. He must have appreciated, if he had given it any thought at all, that the water at this location on this day was dangerously shallow for a head-first dive from the deck of the jetty at the point from which he dived.
189. There was no hidden sandbar or submerged pylon or a reef hidden from view, or anything of the kind. There was no specific finding that by reason of some optical illusion the water may have appeared to have been deeper than it was."
115 As his Honour points out (at 155 [190]), the optical illusion when one looks into water is explained by the laws of physics by reference to the refraction of light. Because light bends when it enters a medium of different optical density such as water, objects appear closer to the surface than they are. Thus the optical illusion brings the bottom closer and makes it appear shallower than it is. However his Honour did not, it seems to me, consider whether the appearance or the perception of the depth of water being shallower than it in fact is (by reason of the optical illusion to which I have referred) rendered the danger of diving into water of unknown depth a hidden rather than an obvious danger.
116 His Honour then observed (at 156):
"196. In my opinion, the conclusion ought to have been that the danger of striking the bottom should a dive be made from the point at which the plaintiff made the dive was obvious to the plaintiff. He required no warning signs to alert him of it. There should have been a finding that no person exercising reasonable care for his or her safety would have executed the dive by which the plaintiff was injured."
117 After citing from the judgment of Kirby J in Romeo (at 478 [123]), his Honour concluded in the following terms (at 158 [206]):
"Swimming and diving in the sea and rivers are most enjoyable and an important recreational past-time in this State and the long history of the use of the structure for those purposes is devoid of any similar incident to that suffered by the plaintiff. There are many sections of this structure [the jetty] from which it is perfectly safe to dive if reasonable care is used. There are many, many jetties and landing stages and groynes along the Western Australian coastline and the banks of our rivers…Obviously all of these jetties and groynes start on land and reach out across shallow waters to deeper waters, where it may or may not be safe to dive. The depth of water is affected by the natural ebb and flow of tides. It is a matter of simple observation in the experience of living in the community that to a large number of these structures, the public has unrestricted access. I cannot subscribe to the view that there is a common law duty upon every municipality or public authority who has a jetty or groyne under its management or control to put up signs prohibiting diving because someone may ignore the obvious risk of diving head first into shallow water."
118 In my opinion, these observations of his Honour are as applicable to the coast of New South Wales as he considered them to be to the coast of Western Australia. I respectfully agree with them and would only add at the end of the last sentence the words "or water of unknown depth".
119 Before leaving the diving cases and dealing with other authorities in which the obviousness of the risk has been emphasised as highly relevant to the issue of breach, I return to the recent decision of the House of Lords in Tomlinson. It must, of course, be remembered that in England the law with respect to an occupier's duty of care has been codified. Nevertheless, the differences between the relevant statutory provisions and the common law do not, in the present context, justify ignoring the basis upon which their Lordships in that case considered that there was no relevant breach of the respondent's statutory duty of care.
120 Lord Hoffman dealt with the question of whether people should accept responsibility for the risks they choose to run, noting that there was obviously some degree of risk in activities such as swimming and diving. In this context his Lordship said (at 84):
"45. I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes that is their affair. Of course the landowner may for his owner reasons wish to prohibit such activities. …he is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.
46. My Lords, as will be clear from which I have just said, I think there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them…A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice."
121 His Lordship concluded (at 85 [48]) that the appeal
"gives your Lordships the opportunity to say clearly that local authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers."
122 His Lordship held (at 86 [50]) that even if swimming had not been prohibited and the council had owed a relevant duty under the statute, that duty would not have required it to take any steps to prevent Mr Tomlinson from diving or warning him against dangers which were "perfectly obvious".
123 Lord Hutton agreed with Lord Hoffman but added some comments of his own. His Lordship was of the view (at 89 [59]) that it was contrary to common sense, and therefore not sound law, to expect an occupier to provide protection against an obvious danger on his land arising from a natural feature such as a lake or a cliff or to impose a duty on him to do so. His Lordship then cited (at 89 [61]) a statement of Henry LJ in Whyte v Redland Aggregates Ltd (unreported) 27 November, 1997; Court of Appeal (Civil Division), a case where the plaintiff dived into a disused gravel pit and alleged that he had struck his head on an obstruction on the floor of the pit. The Court of Appeal dismissed his appeal against the rejection by the trial judge of his claim for damages. In the course of his judgment Henry LJ made the following observation (omitting citations) which, in my respectful opinion, is particularly apposite to the present cases:
"In my judgment, the occupier of land containing or bordered by the river, the seashore, the pond or the gravel pit, does not have to warn of uneven surfaces below the water. Such surfaces are by their nature quite likely to be uneven. Diving when you cannot see the bottom clearly enough to know that it is safe to dive is dangerous unless you have made sure, by reconnaissance or otherwise, that the diving is safe, i.e. that there is adequate depth at the place where you choose to dive. In those circumstances, the dangers of there being uneven surface in an area where you cannot plainly see the bottom are too plain to require a specific warning and, accordingly, there is no such duty to warn. There was no trap here on the judge's finding. There was just an uneven surface, as one would expect to find in a disused gravel pit."
124 A little later (at 90 [63]), his Lordship referred to what May LJ had observed in Darby v The National Trust [2001] PIQR 372 at 378:
"It cannot be the duty of the owner of every stretch of coastline to have notices warning of the dangers of swimming in the sea. If it were so, the coast would have to be littered with notices in places other than those where there are known to be special dangers which are not obvious."
125 It is important to observe that Lord Hutton (at 91 [65]) noted that there might be exceptional cases where a claimant might be able to establish that the risk arising from some natural feature on the land was such that the occupier might reasonably be expected to offer him some protection against it. He exemplified a very narrow and slippery path with a camber beside the edge of a cliff from which a number of persons had fallen.
126 Finally, Lord Scott (at 99 [93]) observed that a dive which involved a hands-arms-head-first movement from a standpoint above the water down into the water was
"dangerous if the depth of the water is unknown for the obvious reason that if the depth is inadequate the head may strike the bottom of the pool or the lake before the diver is able to check his downwards trajectory and curve out of the dive".